In an increasingly polarized political environment in the United States, litigation about diversity, equity and inclusion (“DEI”), including in the K-12 sector, has ballooned. In the private school context, American plaintiffs have fashioned these claims as breach of contract cases. For instance, in 2022, after Jerome Eisenberg’s daughter was dismissed from the Brentwood School in Los Angeles, where tuition is US$50,000 a year, he sued the school for breach of contract, civil rights violation and emotional distress. He alleged allegedly pulled a “bait and switch” on parents when it redirected its purpose “with an eye towards anti-racism” to DEI efforts after the murder of George Floyd. The case has been referred to private arbitration.
In another example, in 2019, Adam and Michelle Parker sued The Spence School in Manhattan after their daughter was disciplined for debating – on her private Instagram page – Halloween costumes with three friends. After listing several possible trios, including “proton, neutron, electron,” “subjunctive, infinitive, imperative,” “Adam, eve, and god,” and “moses, Jesus and mohammed,”, D.P. suggested “Slaves, indigenous peoples, white settlers, “ as well as “Hitler, Mussolini, Stalin”. The school reprimanded D.P. for the post, told her that the post was racist and racially offensive and that as a white person, she needed to be more careful and to be sensitive to black students’ history of oppression and required the student to partake in a half day of in home reflection and to attend grade-wide assemblies to apologize for what she had done. In their lawsuit, the parents alleged the school defamed their child by expelling her for the social media post which some claimed was racist and which the parents said was anti-racist. While the suit was dismissed in 2020, in 2022, a New York appeals court revived a breach of contract claim, which focuses on whether unequal or arbitrary discipline can succeed.
While Canada is not immune to criticism of DEI initiatives like the teaching of critical race theory within Canadian schools, to date, no parents in Canada have sued Canadian private schools for breach of contract based on the way schools have implemented or attempted to integrate DEI into their school curricula. We will continue to monitor for developments in this area.
For more information, please contact your Harris lawyer.