An Administrator's Guide to California Private School Law

Chapter 13 - Student Applications And Enrollment Contracts

 A provision requiring the arbitrator to issue a written decision with findings and conclusions;  A provision which provides that if any aspect of the arbitration agreement is found by an arbitrator or court to be void or otherwise unenforceable, in whole or in part, the remainder of the agreement will remain in full force and effect.

Schools should make sure to review the rules of any arbitration provider identified in the arbitration agreement to ensure that the provisions of the school’s arbitration agreement are consistent with the rules of the arbitration provider. For example, the rules of some arbitration providers will require the school to pay all of the fees and costs unique to arbitration, even where that may not be legally required. Additionally, California law prohibits any person from requiring pre-dispute arbitration in contracts for goods or services for claims under the Ralph Civil Rights Act or the Bane Civil Rights Act. 2047 The California Legislature considers “contracts for goods or services” to include enrollment contracts between private schools, students, and families. 2048 The Ralph Civil Rights Act prohibits violence or threat of violence against a person based on a protected class. 2049 The Tom Bane Civil Rights act prohibits interference by threats, intimidation, or coercion with a person’s constitutional or statutory rights. 2050 It is unclear if California’s prohibition of arbitration of these claims is valid under the Federal Arbitration Act, which pre-empts any state law that that bans arbitration of specific types of disputes. 2051 D.C. v. Harvard-Westlake School 2052 A student and his parents sued his school under the state's hate crimes laws. The trial court ordered that all of the claims be arbitrated in accordance with the school's enrollment contract, which contained not only an arbitration provision but also a provision entitling the “prevailing party” to attorney fees. The arbitrator found in favor of the school on all claims and awarded it over $521,000 in arbitral expenses and attorney fees. On appeal, the court held that the family could not be required to pay any type of arbitral expense that would not be imposed if the dispute was adjudicated in court, regardless of their ability to pay arbitral expenses. The court explained that requiring plaintiffs to pay such expenses would burden un-waivable rights under the hate crimes statutes because arbitration was imposed as a condition of enrolling in the school. While this holding concerns a case brought under the hate crimes statute, other language in the case suggests it would pertain to “the enforcement of rights under any statute enacted ‘for a public reason.” 2053 Thus, any provision requiring families to pay costs unique to arbitration for those statutes could be found to be unenforceable. The enforceability of arbitration clauses and the permissibility of their terms are currently in flux as a result of court cases regarding the protections that must be afforded to consumers in consumer arbitrations. If a court finds that the arbitration of an enrollment agreement involves a “consumer,” the school may be required to pay the vast majority of the costs of the arbitration (which can be quite expensive) to families. In addition, if a court finds that the arbitration of an

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 492