(NAME-MCE) Private Schools, Student Harassment, and Arbitration

[Anselmo Villanueva]

http://blogs.edweek.org/edweek/school_law/2009/09/private_schools_student_harass.html

Posted by Mark Walsh  September 17, 2009
Private Schools, Student Harassment, and Arbitration

A ruling last month by a state appeals court in California raises some
interesting questions about how schools handle student harassment, as well
as the use of arbitration for disputes at private schools.

According to court papers, a student at a prominent independent private
school in Los Angeles, the Harvard-Westlake School, was perceived as gay and
received death threats and harassing comments involving sexual orientation
on his personal Web site. The student, identified only as D.C., was a
budding singer and actor and maintained the Web site to promote his career.
His lawsuit says he is not gay.

Some visitors wrote death threats and anti-gay slurs on the Web site's
guestbook.

The police got involved, and D.C. was encouraged to transfer to another
school. According to the ruling by a three-judge panel of the California
Court of Appeal, the Harvard-Westlake school did not suspend or expel any of
the students it identified as making some of the harassing comments on
D.C.'s Web site. The school newspaper published an article identifying
D.C.'s new school.

The family sued the school, alleging negligence for failing to maintain a
safe school environment, intentional infliction of emotional distress, and a
conspiracy claim that alleged the school sought to protect the harassers.

The school denied the allegations and filed a petition to enforce the
arbitration clause in its enrollment contract, which requires "any legal or
actionable controversy" arising out of the contract be submitted to binding
arbitration.

An arbitrator ruled for Harvard-Westlake on the merits of the complaint
brought by D.C. and his parents. The arbitrator then granted the school's
request that the parents should pay the school's attorneys' and arbitration
fees, in the amount of $521,000.

A state trial court judge affirmed the fee award, so the family appealed. In
its Aug. 14 ruling in D.C. v. Harvard-Westlake
School<http://www.courtinfo.ca.gov/opinions/documents/B204634.PDF>,
the Los Angeles-based state appellate panel ruled 2-1 that the school could
not recover the arbitration-related fees.

The court said it was bound by an earlier appellate ruling that went against
the family's basic claims under state law. But it held that a losing
plaintiff bringing a complaint under California's hate-crimes statutes could
not be forced to pay the defendant's attorneys' and arbitration fees.

"The possibility of an award of attorney fees against the plaintiff in a
hate crimes case would discourage such litigation," the appellate court
said.

Such hate-crimes claims did not merit case-by-case analysis as to whether a
prevailing defendant, such as the school, could recover its fees under
arbitration, the court said.

"This case involves death threats motivated by a statutorily protected
personal characteristic; it is not a vehicle-leasing transaction or a
business arrangement gone awry," the court said.

While this ruling is a matter of California law, it does make me wonder how
many private schools across the country have mandatory arbitration clauses
in their enrollment contracts.