An Administrator's Guide to California Private School Law

Chapter 15 – Student Discipline

for him to sexually assault her. The lawsuit alleged causes of action for negligent misrepresentation, fraud and negligence per se. The Supreme Court ruled that Randi W. had stated a cause of action for negligent misrepresentation and fraud, but not negligence per se. The Court held that in preparing a letter of recommendation, if the representations made would present a substantial, foreseeable risk of physical injury to a prospective employer or third persons, the writer owes a duty to prospective employers and third persons not to misrepresent the facts in describing the qualifications and character of a former employee. However, in the absence of such risk of physical injury, the writer of a recommendation letter has no duty of care towards third persons for misrepresentations made concerning former employees. Finally, the Court ruled that the letters recommending Gadams for any position without reservation or qualification constituted affirmative representations which were false and misleading in light of the Muroc District’s alleged knowledge of charges of Gadams’ repeated sexual improprieties.

While this case concerns the ability of employers to provide letters of recommendation for former employees who engaged in misconduct during their employment, the principles of this case provide guidance in the student recommendation context. The Court’s decision limits the potential liability to letters of recommendation where there is a substantial, foreseeable risk of physical injury to the prospective employer or third persons. However, making a determination as to whether such a risk is present must be considered on a case-by-case basis. We recommend that if your school has any question as to whether such a risk is present, a letter of recommendation for the student should not be provided.

LCW Practice Advisor

Regarding academic-related discipline, schools should consider adopting clear policies that identify when disciplinary actions are noted on transcripts.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 525