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Getting It Write: Does Your Student Handbook Create A Contract?

April 2013 by Sara Goldsmith Schwartz

[April 29, 2013]  In a stark reminder for schools across the country, a federal court in Massachusetts recently allowed a lawsuit to go to trial on the question of whether an independent school breached its contract with a student by failing to follow the school’s student handbook. The Judge opined as follows: “the policies, regulations and procedures contained in the student handbook are contractual in nature and binding on the school and its students.”

At the Firm, we are seeing a significant increase in cases around the country brought under similar theories.  For instance, one of our school clients was recently sued (as well as the Head of School, Associate Head of School, Head of the Upper School, Board Chair and athletic coach), on a theory that the bullying plan was contractual as it was included in the student handbook, which the family alleged created a contract.

As school winds down for the year, now is the time to ensure that your student handbook is accomplishing the goals that you have established.  We urge you to contemplate these questions:

  • Do you want your students to be required to follow the student handbook?
  • Do you want your school to be required to follow the student handbook?
  • Do your students and/or parents sign an acknowledgment form for the student handbook?  If so, does the acknowledgment form create a contract or not?
  • Does your enrollment agreement reference the student handbook? If so, does it incorporate the student handbook into the enrollment agreement or simply reference it?

These questions should be considered within the context of relevant case law pertaining to student handbooks and student handbook disclaimers in each state.

We encourage each school to carefully contemplate the answers to these questions and to strive to ensure that all relevant school documents are coordinated in order to accomplish the school’s goals.

Please do not hesitate to contact us to discuss the interplay between your student handbook and the applicable state law that governs your student handbook.

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Bring Your Own Device Programs

September 2012 by Arabela Thomas

[September 27, 2012] For years, faculty members and school administrators have largely discouraged students from using their own personal electronic devices in the classroom. However, increasingly students and faculty members at independent schools are bringing their own electronic devices to campus and using them in the classroom. This month’s Net Assets Magazine highlights some of the legal issues that schools should consider when adopting Bring Your Own Device programs. Comments by Suzanne W. King, partner with Schwartz Hannum PC, and Michelle Kim-Lee, associate with the Firm, are featured in the Net Assets article available here.  Sara Goldsmith Schwartz, the President and Managing Partner of the Firm, will also be presenting on this topic at the Fall Business Conference of the Association of Independent Schools in New England.

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If you need any assistance with Bring Your Own Device policies or programs, please do not hesitate to contact any of the members of the Firm’s Education Practice Group.

Note: This article was originally published in the September-October issue of Net Assets magazine, published by NBOA.

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Truth In Lending Act Obligations May Apply To Independent Schools

August 2012 by Sara Goldsmith Schwartz and Soyoung Yoon

[August 22, 2012] Many independent schools are covered by the Truth in Lending Act (“TILA”).  Because we have seen an uptick in TILA compliance issues, we have prepared a white paper to outline TILA issues for independent schools.  In sum, we recommend that all independent schools review their tuition payment plans (and other transactions in which schools extend credit to families or employees) to determine whether the transactions are covered by TILA, and if so, comply with the disclosure requirements under TILA.

Read More

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Will Hannum Comments On Penn State’s Organizational Flaws

August 2012 by Sara Goldsmith Schwartz

[August 8, 2012] “The overall organization of Penn State was flawed—a kind of perfect storm of poor organizational structures, where lots of problems could fall through the cracks, and a few powerful leaders could steer the organization in the wrong direction without any checks or balances,” stated William Hannum in a recent SHRM article by Pamela Babcock entitled Penn State’s Organizational Flaws Make for Perfect Storm.

The article, focusing on the officials implicated in the Penn State scandal who never spoke with Human Resources before dealing with Jerry Sandusky’s crimes, discusses the workplace culture at the institution and offers recommendations for improving leadership and accountability with respect to HR leadership in all organizations.

To view the article in its entirety, please click here.

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U.S. Department Of Education And Yale University Reach Resolution In Title IX Matter

July 2012 by Sara Goldsmith Schwartz and Arabela Thomas

[July 23, 2012] Yale University and the U.S. Department of Education’s Office for Civil Rights (“OCR”) recently entered into a voluntary resolution agreement resolving claims that Yale had allegedly violated Title IX of the Education Amendments of 1972 (“Title IX”) by failing to properly respond to incidents of sexual misconduct.  Title IX, which this year marks its 40th anniversary, prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance.  The claims against Yale in part stemmed from a 2010 incident during which members of a fraternity at Yale chanted:  “No means yes!”  As part of the voluntary resolution agreement, Yale agreed to take a variety of actions, including:

  • Forming a committee on sexual misconduct, which will promptly and equitably respond to complaints of sexual misconduct under Title IX.
  • Conducting training regarding topics related to prevention and response to sexual misconduct for members of the Yale community, including training for freshmen and sophomore students.
  • Establishing the Sexual Harassment and Assault Response and Education Center that will provide referrals for students seeking services as a result of sexual misconduct.

Title IX does not simply apply to colleges and universities receiving federal financial assistance, but may also cover other institutions, including private pre-schools, elementary and secondary schools.  For example, the United States District Court for the Western District of Pennsylvania held that a religious high school was subject to Title IX because:  (1)  it participated in the E-rate program and (2) another school in the diocese (to which it belonged) participated in the National School Lunch Program.  Russo v. Diocese of Greensburg, No. 09-1169, 2010 WL 3656579 (W.D. Pa. Sept. 15, 2010).

We recommend that all educational institutions ascertain whether they fall under the mandates of Title IX.  Moreover, educational institutions that are subject to Title IX should work with legal counsel to ensure compliance with Title IX and the associated regulations.  For example, institutions subject to Title IX are required to designate an employee to coordinate compliance with Title IX, disseminate a non-discrimination policy consistent with Title IX regulations, and adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sexual misconduct complaints.

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Please do not hesitate to contact us with any questions about Title IX and how it may affect your institution.

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Preparing For And Responding To Allegations Of Sexual Abuse At Educational Institutions

July 2012 by William E. Hannum III

[July 19, 2012] In light of the recent sexual abuse scandals at educational institutions around the country, Schwartz Hannum PC has published an e-alert to assist educational institutions with preparing for and responding to allegations of sexual abuse.  The E-alert can be accessed by clicking here or by going to the E-Alert page under Resources on the Firm’s website.

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School Employees As Targets Of Bullying

July 2012 by Sara Goldsmith Schwartz and Soyoung Yoon

[July 19, 2012] You may have seen the recent news coverage of the bus monitor who was bullied by students. This incident is a sobering reminder that employees can become victims of bullying by students. As reported by news outlets around the country, the incident involved a 68-year-old school bus monitor and four seventh grade students from upstate New York. The students made inappropriate verbal remarks and touched the school bus monitor during a bus ride. The bullying incident was recorded on a cellular phone and posted on YouTube. The video received tremendous public attention and the four students involved in the incident were suspended from school – for one year.

While student-on-student bullying is frequently discussed, student-on-employee bullying has become an increasingly common problem. Clearly, schools are vulnerable to legal claims resulting from such bullying incidents.

In order to foster a culture in which bullying is not tolerated and bullying incidents are quickly and effectively resolved, we recommend that independent schools take the following measures:

  • Conduct a review of the school’s policies and procedures for preventing and responding to allegations of bullying;
  • Ensure that the school’s policies and practices are in compliance with applicable state and federal laws, as well as recommended best practices;
  • Ensure that the school’s policies and procedures adequately address bullying by and against students, employees, volunteers and all other individuals associated with the school;
  • Evaluate the school’s protocols on the related topics of hazing, intimidation and retaliation; and
  • Educate employees, parents, volunteers and students regarding the school’s policies and procedures pertaining to bullying.

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Please do not hesitate to contact us if you have any questions regarding bullying prevention and response policies, procedures, and training programs. The Firm conducts bullying prevention training programs tailored to the needs of independent schools, colleges and universities.

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Allegations Of Widespread Abuse At An Elite Private School

June 2012 by Sara Goldsmith Schwartz and Arabela Thomas

[June 19, 2012]  The New York Times Magazine recently reported allegations of sexual abuse at the prestigious Horace Mann School in New York City − starting in the 1970s and continuing through the 1990s.  The article describes a school community in which new students were warned by their classmates about teachers who were “perverts” and in which a number of adults in power sexually molested generations of students.

The article is a stark reminder of the importance of fostering a school culture in which child abuse is not tolerated and in which both adults and children are encouraged to report inappropriate conduct.

Even though the alleged abuse at the Horace Mann School is reported to have occurred more than two decades ago, the Bronx District Attorney’s Office is in the process of collecting reports of the alleged abuse.  It has established a special hotline for reports of such abuse and has also requested that Horace Mann School provide it with “a copy of its current procedural guidelines regarding sexual abuse.”

We recommend that all independent schools promptly review and update their policies and procedures for preventing and responding to allegations of sexual abuse.  Such policies and procedures should be drafted in a straightforward fashion and be consistent with all applicable mandatory reporting laws.

Finally, we also recommend that independent schools conduct a comprehensive assessment of their traditions, rituals and practices to ensure that they have appropriate procedures in place to reduce the likelihood of abuse.  Please contact either of us for a checklist of on-campus and off-campus activities to audit as part of this process.

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Sara Goldsmith Schwartz is a member of the Class of 1983 at Horace Mann, attending the school in the late 1970’s and early 1980’s.

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Is Your Fundraising Raffle Legal?

March 2012 by Sara Goldsmith Schwartz

For many independent schools and other non-profit organizations and charitable causes, raffles are a common and fun way to raise funds.  However, in most states, raffles are considered a form of gambling or gaming and, as such, are subject to state regulation.

Each non-profit organization should determine whether a raffle is permitted in its state and, if so, whether state-specific legal requirements apply.  Failure to do so could trigger an investigation by the state Attorney General (or other legal authorities) and expose the organization to a burdensome audit.  Read more

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Is Your Fundraising Raffle Legal?

March 2012 by Sara Goldsmith Schwartz

For many independent schools and other non-profit organizations and charitable causes, raffles are a common and fun way to raise funds.  However, in most states, raffles are considered a form of gambling or gaming and, as such, are subject to state regulation.

Each non-profit organization should determine whether a raffle is permitted in its state and, if so, whether state-specific legal requirements apply.  Failure to do so could trigger an investigation by the state Attorney General (or other legal authorities) and expose the organization to a burdensome audit.  Read more.

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Ski Trip Chaperone Eligible For Workers’ Compensation Benefits

January 2010 by Sara Goldsmith Schwartz

The Massachusetts Supreme Judicial Court recently ruled that a teacher who was injured while chaperoning a class ski trip was entitled to workers’ compensation benefits for her related medical expenses.  The Court found that, as a chaperone, the teacher was not engaged in a “recreational” activity, which is an excluded activity under the Massachusetts workers’ compensation statute, M.G.L. c. 152.  Read more.