An Administrator's Guide to California Private School Law

Chapter 13 - Student Applications And Enrollment Contracts

for a school than a court. While there are still some significant advantages to resolving disputes in arbitration, there are also disadvantages that must be weighed in deciding whether to require arbitration of all disputes, or even certain types of disputes, arising from the enrollment contract. Arbitration is generally a faster way to resolve disputes as compared to litigation. An arbitration award is generally not appealable, there can be limits placed on the scope of discovery and arbitrators are often perceived as issuing lower damages awards than juries. Additionally, there can (and should be) defined limitations on an arbitrator’s power to fashion a remedy (i.e., the arbitrator cannot order the school to re-enroll a student). Finally, an arbitration agreement can provide that the arbitration occur privately and confidentially and can limit any negative publicity for the school, which may be beneficial in sensitive cases. If a school wants to require arbitration of disputes, the school should, in consultation with its legal counsel, ensure that arbitration clauses in enrollment contracts contain the following elements:

 The arbitration agreement must be in its own section; 2040  A clear and conspicuous heading in boldfaced font; 2041

 A broad statement that any and all disputes that arise under the enrollment agreement between the school and the student and/or family must be settled in binding arbitration;  Ensure that the arbitration agreement applies when either party initiates arbitration or files a suit in court;  A statement that the agents of the school are covered, including heads of school, administrators, teachers, the board of trustees, board members, etc.  A statement that parties “knowingly and intentionally” waive their right to trial by jury and court; 2042  A statement that specifies which rules of arbitration will be used (e.g. AAA. JAMS, etc.) and either attaches a copy of the applicable arbitration rules, or at least includes a current Internet link to access the rules online; 2043  A statement that states the agreement is governed by the Federal Arbitration Act, but specifies which choice of substantive law will apply (e.g. California law or federal law);  A confidentiality provision prohibiting the disclosure of the existence, content, or results of any arbitration; 2044  A provision that the parties mutually select an arbitrator. 2045  A provision that defines the scope of the arbitrator’s authority and states the arbitrator has the right to control discovery;  A requirement that the arbitrator issue a written decision with findings and conclusions;  A provision awarding costs/attorneys’ fees to the prevailing party, unless otherwise required by law; 2046

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 491