Private Education

Private Education

The Private Education Group specializes in working with the full range of California nonprofit educational institutions.  We represent approximately 200 private and independent schools, both religious and secular, throughout the state.  We also work with a variety of colleges and universities as well as their auxiliary organizations.  In addition, the Private Education Group represents a number of stand-alone preschools.  Our expertise begins with incorporation and extends to virtually every aspect of student, parent, employee, and board-level issue.  Whether preparing bylaws or contracts, revising handbooks or policies, overseeing an investigation, or acting as a vigorous advocate in litigation, the Private Education Group is ready to assist you.

We are uniquely committed to this area of the law. The Private Education Group is active in an array of national and state educational organizations.  Our attorneys consistently attend and present at annual and regional conferences for the National Association of College and University Attorneys (NACUA), the College and University Professional Association for Human Resources (CUPA-HR), the National Association of Independent Schools (NAIS), the National Business Officers Association (NBOA), the California Association of Independent Schools (CAIS), the California Association of Private School Organizations (CAPSO), and the Independent Schools Business Officers Association of California (Cal-ISBOA).  Our involvement with these organizations allows us to remain on the cutting edge of both national and local trends and to share our knowledge with others. 

The firm has always been committed to providing our clients with preventative services.  We publish a monthly newsletter, Private Education Matters, which summarizes cases from across the country, an annual Legislative Roundup, which reviews new statutes, and An Administrator’s Guide to California Private Education Law, which provides clear guidance for private school administrators.  The firm conducts over 800 trainings a year, many of which are provided to our three private education consortia.  These consortia allow educational institutions to pool their resources and obtain access to timely, cost effective, quality legal advice and training.

We are the California law firm for California schools.

Areas in which we work

Student Issues

LCW attorneys are well versed in a wide range of student issues.  We regularly provide advice regarding the admissions process, including questions to avoid asking and how to accommodate disabled applicants. We have experience advising clients when dealing with difficult student disciplinary matters, from initial factfinding through internal investigations and decisions to suspend or expel a student.

The firm is familiar with California requirements regarding student records.  The law sets out how student records must be maintained and for how long. We can answer questions about student records and what kind of records must be kept in the student’s files, along with issues related to producing records in response to both parent requests and subpoenas.

We can also help navigate complicated situations involving possible mandated reporting, as well as concerns about student privacy and recent changes in the law with respect to transgender students.  As technology evolves, it is also important to have advisors who understand the changing landscape regarding social media tools and how they impact student and school life. We can help craft and revise policies to ensure private educational educations will have a meaningful guidance and the flexibility to address difficult situations when they arise. We also create and update enrollment agreements that meet the individual needs of our clients.

Disability Issues

The Americans with Disabilities Act requires that schools make reasonable accommodations for both employees and students with disabilities. California law also imposes obligations on schools in terms of reasonably accommodating employees and interacting with disabled students. LCW attorneys can assist schools in how to approach this difficult issue every step of the way.  From initial contact with a disabled student or employee applicant, we will help create a roadmap for the appropriate steps to take and how to document the process for your records.  Our attorneys are experienced in guiding schools through interactive process meetings to discuss possible accommodations, as well as analyzing whether requested accommodations are reasonable for the school.

LCW can guide employers through the complicated ways that disabilities often overlap with questions about leaves, such as Pregnancy Disability Leave, FMLA leave, or Worker’s Compensation matters. We know that this is a complex area of the law for many schools, and LCW attorneys can provide advice and counsel in crafting creative, workable solutions for both student and employee matters.

Family Relationships

Our Private Education Group is well versed and very experienced in advising administrators on the full range of complicated, emotional, and challenging family issues that affect private educational institutions. Whether it is divorce, custody battles, estranged parents, substance abuse, physical or psychological abuse, illness, job loss, and financial problems or other family struggles, our private education lawyers regularly address these issues.

Governance

The attorneys in our Private Education Group serve as trusted advisors to boards of California non-profit public benefit and religious corporations.  This includes advising on issues pertaining to a board’s structure, such as the selection of directors/trustees and officers, the formation and functions of committees, and how boards may work with individuals who serve in non-voting capacities, such as faculty representatives, while complying with the Corporations Code.  Our attorneys specialize in providing counsel on the unique challenges that boards of educational corporations face, including the role of the board versus a school’s administration, how to manage the dual roles that many directors/trustees hold, such as that of a parent of a student enrolled in the school who also serves as a trustee, and how to communicate with the broader community served by a school. 

We believe that a preventative approach is the most effective way to mitigate risk.  Our attorneys counsel and provide best practices to boards regarding the fiduciary duties of directors/trustees, avoiding liability including personal liability, and avoiding self-dealing transactions and other conflicts of interest.  We also provide trainings on a wide array of governance issues to various national and state educational organizations, as well as to our private education consortia, and provide customized training for individual boards to assist them with the particular challenges they are facing, such as in the case of board member misconduct or best practices for new trustees. 

A core part of our governance work is assisting boards with their governing documents.  Attorneys in our Private Education Group routinely work with boards to prepare or update their governing documents, including articles of incorporation, bylaws and board member handbooks, as well as various board policies.

Business, Construction & Facilities

LCW attorneys represent and advise private education clients on a broad spectrum of issues relating to business, construction, and facilities.  We handle both transactions and litigation, no matter how complex and are a trusted advisor to its private education clients on a variety of issues they are likely to encounter in its day to day operations.  Business services include matters pertaining to vendor contracts and purchasing, artificial turf, consultant services, software and licensing agreements, political activity, and exchange student programs.

LCW also advises private educational institutions on all phases of construction, from pre-development through completion, as well as construction defect issues.  We draft and review all construction-related documents, including requests for proposals, general conditions, construction agreement documents, payment and performance surety bonds, architect and engineering agreements, and construction management agreements.  We represent private educational institutions in all aspects of litigation against contractors, sureties, architects and other design professionals, the California Labor Commissioner, and insurance companies.

LCW assists clients to acquire, sell, dedicate, lease, license, or enter into other arrangements for use of real property. We also represent clients in disputes involving real estate transactions. LCW assists private educational institutions with a breadth of facilities issues, including faculty housing agreements, ADA accessibility, easements and boundary disputes, and emergency disaster plans.  For more detailed information on our this type of work, visit our Business, Construction & Facilities page.

Trainings

The Private Education Group is an industry leader in providing training to California private educational institutions on the full range of employment, student, educational and operational issues. All our trainings are conducted by experienced private education attorneys who regularly work top administrators at schools, colleges and universities and Governing Boards. Our trainers consistently attend and present at annual and regional conferences for the National Association of College and University Attorneys (NACUA), the College and University Professional Association for Human Resources (CUPA-HR), the National Association of Independent Schools (NAIS), the National Business Officers Association (NBOA), the California Association of Independent Schools (CAIS), the California Association of Private School Organizations (CAPSO), and the Independent Schools Business Officers Association of California (Cal-ISBOA). 

Our trainings provide important information, tools, and best practices to help California private education administrators successfully navigate the web of California laws that impact their daily operations. Our trainings are also a critical risk management tool to reduce potential liability. By expanding awareness of legal issues and potential risks and increasing legal compliance and sound management practices, private schools, colleges and universities, decrease potential operational risks and legal liability. Our trainers also train on a variety of board level and governance issues.

We offer 60 different trainings in the topics private school, college and university administrators regularly deal with, including: employment law, education law, preventing harassment and discrimination, wage and hour, supervision and performance management, drafting employment and student/parent handbooks, drafting enrollment and employment agreements, risk management, parent and student issues, student and employee disabilities and injuries, leaves, investigations, student and employee privacy laws, and off-campus activities and trips. We also offer customized training targeted to a school’s specific needs and issues.

Depending on a school’s preference, our trainings can be provided on your campus, an off-campus location, in our five statewide offices, by webinar or video conference.

Employment Law

The Private Education Group is adroit at handling the full gamut of employment-related matters.  Before an applicant is hired, we ensure that job descriptions will not run afoul of federal or state anti-discrimination laws such as Title VII, the Americans with Disabilities Act (ADA), and the Fair Employment and Housing Act (FEHA).  We guide private educational institutions through the background-check labyrinth of the federal Fair Credit Reporting Act (FCRA), the California Investigative Consumer Reporting Agencies Act (ICRAA), and applicable fingerprinting requirements under the California Education and Penal Codes.  Before an offer of employment is extended, we individually tailor hiring letters, contracts, and agreements that meet our clients’ needs.

We specialize in working with private educational institutions when employees take leave.  Navigating overlapping leave laws such as the Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the multitude of state and local paid sick leave laws, is not for the faint of heart.  Engaging employees in the interactive process and exploring reasonable accommodations takes careful thought and consideration.  Our attorneys have both the breadth of knowledge to work through these issues and the focus to address the specific needs of each private educational institution.

The Private Education Group also creates and revises policies in the age of social media ubiquity to reflect the needs and culture of each private educational institution.  We provide training so that workplace standards are familiar to employees and can be fairly relied upon and enforced.  When there is a claim of a violation of policy or the law, we’re there to help.  We regularly work with private educational institutions to ensure an appropriate response, including investigations.  Whether the need is to respond to claims of sexual harassment, which can include meeting the stringent requirements of Title IX, the Clery Act, or state law, or simply to ensure that best practices are met, we excel at managing these situations.  Our attorneys work with our clients to balance the competing interests of privacy and transparent communications, to provide a fair process, and to reach an outcome that is consistent with our clients’ values in a way that will protect them from liability.

If there is a need to terminate or layoff employees, our attorneys can assist with this process as well.  We often review documentation, such as performance evaluations, before employment decisions are made.  At times it may be appropriate to offer employees a severance agreement as part of a separation, which we commonly prepare as well.  If an employee challenges the decision to separate him or her, we are ready to defend our clients before administrative agencies such as the federal Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) or in court.

Wage & Hour

The Private Education Group has a vast wealth of knowledge in the wage and hour laws applicable to private educational institutions in California.  This expertise extends to laws such as the federal Fair Labor Standards Act (FLSA), the California Labor Code, the California Industrial Welfare Commission (IWC) wage orders, and also local, municipal laws imposing wage and hour requirements. The group’s expertise encompasses determining whether teachers and other employees meet the criteria for being treated as exempt from wage and hour laws, whether private educational institutions:

  • comply with California requirements concerning providing daily meal and rest breaks;
  • properly calculating hours worked so as to accurately pay overtime;
  • make overtime payments at the correct regular rate for particular employees; and
  • follow the details of law concerning the timing of pay and the methods of payment.

In addition, LCW attorneys have many times confronted the issue of whether workers are properly classified as independent contractors or instead should be considered employees, whether private educational institutions can legitimately engage unpaid volunteers including those paid only with stipends, and whether private educational institutions can use interns and arrange for certain members of their community to contribute work without compensation.  

Our attorneys have extensive experience representing clients in wage and hour investigations brought by government agencies, such as the federal Department of Labor (DOL), the California Department of Labor Standards Enforcement (DLSE), and the California Employment Development Department (EDD).  We have proven expertise in resolving compensation claims made by employees, through mediation or settlement negotiations.  Also, as to the defense of actual lawsuits, our attorneys have extensive experience defending private educational institutions both in state and federal court in actions in which either individual employees or government agencies make wage and hour-based claims.  Our firm has regularly brought wage and hour cases to trial and obtained outright client victories. 

Finally, we help private educational institutions structure compensation arrangements so that teachers and other employees can meet the standards for exempt status, and we help them revise their established payroll systems to avoid errors and reduce the likelihood of violations of law.  We can promptly and effectively conduct a wage and hour audit of an institution, which can determine among other things whether it has properly characterized employees as exempt, whether it is properly paying employees, whether it has been properly recording hours worked, and whether it complies with federal, state, and local wage and hour standards in other respects.

Litigation

When litigation arises, the best defense combines zealous advocacy with a creative and cost-effective strategy.  In this regard, Liebert Cassidy Whitmore’s knowledge and experience managing the day-to-day, distinctive issues that affect our preschool, K-12 and higher education clients, and deep bench of private education attorneys, sets us apart.  Our unique understanding of private educational institutions' needs enables us to hit the ground running when they reach out to us for help resolving disputes.

We represent our clients in both state and federal court, as well as before administrative agencies such as the Equal Employment Opportunity Commission (EEOC), the Department of Fair Employment and Housing (DFEH), and the Division of Labor Standards Enforcement (DLSE). 

We have also been very successful in enforcing the arbitration provisions that many private educational institutions now include in their employment contracts and enrollment agreements, and compelling plaintiffs to pursue their claims in private arbitration. 

We litigate all types of issues involving employees, parents, and students, including claims for wage and hour violations, wrongful termination, discrimination and harassment, defamation and breach of contract.  We have a proven track record of obtaining successful results in  both jury and bench trials, although we strive  to dispose of litigation matters as early and efficiently as possible via our creative motions practice.

It sometimes makes sense to resolve a dispute through mutual agreement before it escalates in order to  avoid the time, resources, and distraction involved in defending a protracted litigation.  We employ a wide array of tools to help private educational institutions achieve this goal, including mediation and other uniquely designed courses of action.

Investigations

The attorneys in our Investigations Practice Team regularly conduct investigations on behalf of private schools, colleges, and universities involving the full range of workplace and student-related issues, including allegations of discrimination, harassment, student/faculty misconduct and policy violations, including Title IX. Our Investigations Practice Team is comprised of attorneys with experience and skill in interviews, rapport with witnesses, credibility assessments, factual analyses, evidence gathering, and report writing: skills that are necessary to conduct accurate, effective and defensible investigations. Several of our investigators are also experienced litigators who know the significance of an investigation report in preparing for civil litigation. We count among our ranks investigators with extensive training in working with trauma victims and minors. When required to testify at deposition, hearing or trial, our neutral and unbiased approach to investigations ensures that our investigators can be credible witnesses. When our clients conduct investigations internally, we work closely with administrators  to support them in the process.  We help ensure that the investigation is fair, complete, and effective.

Religious Educational Institutions

LCW attorneys have a thriving practice representing private religious educational institutions in California, and in confronting the unique legal issues presented to them.  An educational institution's religious status can affect how employment and other laws apply to it, including laws concerning faculty and student discipline, wage and hour requirements, privacy standards, labor relations, and admissions and academic decision making.  We routinely advise religious educational institutions on how these laws apply to them in particular, and how they can carry out their religious mission and at the same time comply with and even benefit from applicable laws.  We represent a broad range of religious educational institutions, both ones that are independent and those that are part of larger religious organizations. 

We advise on such matters as the First Amendment Ministerial Exception, which can exempt an educational institution from employment laws as to particular types of employees, and the Ecclesiastical Abstention defense, which can provide a defense to religious institutions in a litigation matter that touches on religious issues.  We advise on compliance with California laws regarding claims of discrimination as they relate to students, and on compliance with free speech laws as they apply to religious institutions.  We also help religious educational institutions with their policies and practices concerning social media, and issues relating to how religious institutions formulate handbooks, policies, contracts, evaluation forms, bylaws, articles, websites, advertising materials, and other materials important to their operation and mission. 

We view representing religious institutions as a core part of the Private Education Group. For any institution, we take great care to learn at the outset the institution’s values, purposes, and goals, ranging from practical to philosophical and spiritual, so that this understanding can inform our work on the educational institution's behalf.  We view representing religious institutions as consistent with, and complementary to, the firm’s representation of other institutions, including public agencies and educators, whose goal is to serve the public interest.

Pre-Schools

LCW attorneys are experienced in advising and assisting preschools with all aspects of operation.  Our attorneys can help clients create preschools, whether it be an existing school that wants to add a preschool component, or a brand new preschool.  We can assist new schools in preparing and filing articles of incorporation and bylaws and obtaining non-profit status, as well as advising preschools on how to obtain the appropriate license needed to operate a preschool, and maintain that license throughout the years.

LCW attorneys have extensive experience in advising preschools on the specific issues related to hiring preschool teachers and personnel.  LCW also helps preschools ensure they are complying with all legal requirements, such as appropriate teacher to child ratios and mandated reporting.  LCW Buildings and Facilities attorneys can advise preschools in all aspects of constructing or renovating buildings, including ensuring the indoor and outdoor areas comply with the preschool guidelines and requirements, and in negotiating a wide variety of vendor and consultant contracts to ensure the preschool is adequately protected.

LCW attorneys also regularly assist preschools with addressing, responding to, and appealing when necessary, citations and violations issued by the Department Social Services’ Community Care Licensing Division.  Our goal is to ensure preschools comply with all applicable notice and other requirements when facing a citation, while addressing and disputing citations or violations which are unfairly assessed.

Labor Relations

LCW attorneys are experts in the area of labor relations and assist private schools, colleges, and universities with the full range of labor relations support and advice. Our attorneys serve as chief negotiators representing the private educational institutions and their board in negotiating collective bargaining agreements. This includes preparation of proposals, representation at the bargaining table and representation on any issue arising under a collective bargaining agreement. Our experienced team assists private educational institutions with responding to grievances under the collective bargaining agreement as well as representation in all proceedings under the National Labor Relations Act. We also provide training so that private educational institutions can administer their labor relations programs in ways that reduce and avoid litigation and proceedings before the NLRB.

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