Unlike public schools, private schools in general and church schools specifically, can adopt student handbook clauses that limit the right of students to remain enrolled or re-enroll if their parents or guardians decide to engage in litigation with the school or church. The reason private schools and church schools can include such a provision is that they are not state actors and no constitutional rights of the student or parent are implicated. The rights of the private schools and students are contractual at best and the handbook can be part of the contract terms.
In Phillips v Archdiocese of Newark, Slip Op. Unpublished (NJ App., 2020), the parents wanted alleged bullying addressed, demanded one child be named 8th grade class valedictorian, and refused to allow a daughter to play on the boys’ basketball team when insufficient girls volunteered to play preventing team formation. When their demands were not met, they sued the church and school. Initially, the children were expelled because of violation of the school handbook litigation preclusion clause but the church and school allowed the students to return. The trial judge entered an order requiring the school to allow the female student to play on the boys’ basketball team for the remainder of the school year when insufficient players emerged to form a female squad. A month after the students were allowed back and the judge ordered the student to be allowed to be a player, the parents sought to name eighty members of the school and church as defendants. The church and school refused to re-enroll the students for the next school year. It should be noted the church school was a K – 8th grade school. The trial court refused to order re-enrollment and awarded discovery sanctions against the parents of $16,516 for refusing to answer questions at depositions.
School handbook litigation preclusion clauses are enforceable in many states. Some courts may attempt to preserve the status quo during the pendency of a case by holding them in abeyance temporarily. Most will recognize that the litigation has sufficiently disrupted the status quo that preservation is not likely. Like any regulatory handbook measure, history seems to teach that hesitancy in enforcement merely prolongs the dispute. Thus, such a clause should be enforced, if it is to be used at all, without delay, second chances or second guessing.