High court: school’s fee–shifting struck

A private school requirement that parents pay legal costs for both sides in court disputes was an “unconscionable” contract provision, the Supreme Court of Virginia has agreed.

The court on Jan. 2 affirmed the ruling of a Fairfax County judge that the Flint Hill School in Oakton was overreaching in its demand that parents agree to pay the school’s fees and costs in any litigation arising from a student’s enrollment.

Alessia McIntosh wanted to assert a claim that her daughter was harmed at the school, but she asked the circuit court to first invalidate the fee-shifting language in the daughter’s enrollment contract. She said the provision was purposely intended to discourage any legal challenge.

The school argued the fee provision was not unconscionable because any fee award would be limited by reasonableness. A reasonable fee award could be zero, the school contended. The court said the issue was not whether the amount would be unconscionable but whether the obligation to pay was unconscionable. The justices affirmed the judgment of Circuit Judge David Bernhard that the fee provision was void and unenforceable.

“Placing the burden of attorneys’ fees for the School on the signatories, especially stated so broadly, creates an inequality so gross that it shocks the conscience. Especially considering, under the attorneys’ fees provision, the signatories (the parents of students) would have to pay the School’s attorneys’ fees even if the School was the one to initiate a proceeding eventually found to be without merit,” the court said in an unpublished order.

The courts had jurisdiction to consider the issue, even without a pending lawsuit on the underlying claim, because the fee provision would have the effect of foreclosing litigation on the contract itself, the court said.

The decision is Flint Hill School v. McIntosh (VLW No. 020-6-001). The school was represented by Tim Hyland of Reston. McIntosh was represented by Harris Butler of Richmond.

The Virginia Poverty Law Center and other consumer advocacy groups filed an amicus brief in July urging the court to invalidate such one-sided fee-shifting provisions. They discourage individuals from asserting their rights through litigation, the groups said.

“For the school that drafted the contract, the clause provides an undue advantage, inviting abuse,” wrote Jay Speer for the VPLC. “It strengthens the school’s hand in any dispute with a parent. And by chilling litigation, it insulates the school’s actions from court review,” the brief said.