Last Spring, the North Carolina Court of Appeals had a rare occasion to consider an unfair and deceptive trade practice claim asserted in the context of private-school education. Turpin v. Charlotte Latin Schools, Inc. is sui generis—a must-read for anyone interested in either education law or section 75-1.1 claims.   

The case, in nuce, affirms a trial court’s dismissal of a lawsuit at the Rule 12(b)(6) stage brought by parents whose children were disenrolled from the school over ideological differences. In reaching that result, the case examines the school’s enrollment contract and discusses the importance of private-school independence and autonomy. Turpin also adds to the scant body of caselaw on the applicability vel non of unfair and deceptive trade practice claims in the educational setting. (Our readers may recall our discussion of this subject in a two-part series on the West Virginia Attorney General’s case against schools run by a Roman Catholic diocese, here and here.)

Turpin drew a dissenting opinion, as discussed below.  And, on that basis, it is on appeal to the North Carolina Supreme Court. While we likely have not heard the last word on the matter, the summary below will bring you up to speed ad interim.

Becoming Persona Non Grata at the Alma Mater

For several years, Doug and Nicole Turpin sent their children to Charlotte Latin, a private school in Charlotte, North Carolina. The Turpins alleged that, up until the 2020-2021 school year, Charlotte Latin provided a “traditional, apolitical education.” According to the Turpins, that changed after the 2020 murder of George Floyd. The Turpins took issue with the school’s response to the murder and alleged that Charlotte Latin thereafter began “moving toward a curriculum, culture, and focus associated with a political agenda.” (Note that because the decision was at the Rule 12(b)(6) stage, the Court of Appeals accepted as true and summarized the facts as alleged by the Turpins.) 

The Turpins were not alone. Together with other like-minded parents, they formed a group called “Refocus Latin” and sought to discuss their concerns with Charlotte Latin’s leadership. After obtaining assurance that the school would not retaliate against them or their children for expressing their opinions, parents in Refocus Latin presented a PowerPoint presentation to the school’s board of trustees. The board of trustees and school administrators listened to the presentation, thanked the Refocus Latin parents for sharing their views, but told them that they would no longer engage in dialogue with Refocus Latin.

The Turpins and other Refocus Latin parents were disappointed by the school’s response. Although the board meeting ended the dialogue between the school and Refocus Latin, the Turpins alleged that the Head of School made disparaging remarks about the PowerPoint presentation to faculty and administrators, calling it “an attack on our community with the intention of ripping its fabric apart” and accusing Refocus Latin of meeting with the board in “bad faith.” The Head of School advised faculty and staff not to engage with parents about the curriculum and culture of the school but to refer them to him.

In the wake of the Refocus Latin presentation, the Turpins became concerned about one of their childrens’  teachers.  Before expressing their concerns, the Turpins again sought and obtained assurance that the school would not retaliate against their children if they made their concerns known. The Turpins complained about the teacher’s masking policy and accused her of making comments that amounted to “indoctrination on progressive ideology.”

A few days after the Turpins raised this concern, they met with the Head of School in person. At the meeting, according to the Turpins, the Head of School explained that Refocus Latin (and by association the Turpins) were disparaging the school’s diversity, equity, and inclusion initiatives in enrollment and hiring. Citing these irreconcilable ideological differences, the Head of School told the Turpins that their children were being disenrolled at Charlotte Latin and that they would need to leave that same day. 

The Quid Pro Quo: Charlotte Latin’s Enrollment Agreement

When the Turpins enrolled their children for the 2021-2022 school year, they signed an enrollment agreement that included a term called the “Parent-School Partnership.” It provided that a

positive, collaborative working relationship between the School and a student’s parent/guardians is essential to the fulfillment of the School’s mission. Therefore, the School reserves the right to discontinue enrollment if it concludes that the actions of a parent/guardian make such a relationship impossible or seriously interfere with the School’s mission.

The Parent-School Partnership provided that “[t]he School will uphold and enforce rules and policies detailed in the Family Handbook in a fair, appropriate[,] and equitable manner.”

The enrollment agreement was formed under North Carolina law. As a result, the law imposed an implied covenant of good faith and fair dealing on the parties.

Alea Iacta Est: The Turpins File Suit

The Turpins brought a lawsuit against Charlotte Latin and its leadership. They asserted claims for breach of contract (based on the Enrollment Agreement and based on the implied covenant of good faith and fair dealing), intentional and negligent misrepresentation, unfair and deceptive trade practices, negligent infliction of emotional distress, defamation, and negligent retention or supervision. 

These claims were legion, but short-lived.  The trial court granted the defendants’ motion to dismiss all claims except one: the claim for breach of the implied covenant of good faith and fair dealing. Ready to take their claims to a higher court, the Turpins voluntarily dismissed the lone remaining claim and appealed.

The three-judge panel of the Court of Appeals affirmed, issuing three separate opinions: the majority decision, a concurring opinion, and a dissenting opinion.

Vox Majoritas: The Majority Decision

The majority decision devoted most of its analysis to the Turpins’ breach-of-contract claim. On that front, the court held that the express language of the Parent-School Partnership permitted Charlotte Latin to disenroll the Turpins’ children if either (1) the Turpins had made a positive, collaborative working relationship impossible or (2) the Turpins had seriously interfered with the school’s mission. The right to make this determination, the court held, was “left to the discretion of [Charlotte] Latin alone—not to plaintiffs, not to th[e] Court—but to [Charlotte] Latin.” 

Charlotte Latin and other private schools writing as amici curiae argued that this discretion was essential to provide them with an independence and autonomy on which private education depends. The court agreed, writing:

Private schools provide alternatives to public education for parents who, for one reason or another, desire for their children to be educated outside of the public school system. Private schools’ independence allows them to define their values, missions, and cultures as they deem necessary. It allows private sectarian schools to engage in daily prayer and to teach classes on biblical issues. It also allows private military schools to prepare our youth for careers of service to our Nation’s Armed Forces. This autonomy—to define their values, missions, and cultures—extends to private schools of all ideologies, religions, and perspectives, even those associated with “political agendas.” Again, this is a benefit of private schools—indeed, the predominate purpose of private schools—not a detriment.

The court also discussed the chilling effect that the Turpins’ suit could create on private-school campuses. 

Ultimately, though, the court held that “[a]fter stripping away all of the heated arguments surrounding the school’s curriculum, the dispositive issue in this case is straightforward; this is a simple matter of contract interpretation.”  According to the court, the contract expressly gave Charlotte Latin the discretion to disenroll the Turpins’ children if it concluded that a “positive, collaborative working relationship” was impossible or that the Turpins were “seriously interfere[ing] with the school’s mission.” The Turpins’ remedy, the court explained, was not to file a lawsuit, but rather to “vote with their feet” and enroll their children in a “different private school [that] more accurately reflects their worldview.”

Having dispatched the contract claim, the court turned to the Turpins’ misrepresentation-based claims. These, generally speaking, were predicated on the assurances that the school would not retaliate against the Turpins’ children for voicing their opinions. The court affirmed dismissal of these, reasoning that the disenrollment of the Turpins’ children was not undertaken in retaliation against the Turpins’ children for anything they had done. Rather, the disenrollment was a consequence of Charlotte Latin’s conclusion that its relationship with the Turpins had become untenable and its exercise of discretion under the Parent-School Partnership to terminate that relationship.

The court’s analysis of the Turpins’ negligent misrepresentation claim included another, important ground: Citing Simms v. Prudential Life Insurance and Rountree v. Chowan County, the court reasoned that the duty of care implicated in a negligent misrepresentation claim was limited to a duty that arose in the limited context of “professional relationships” or “a commercial transaction.” The court concluded that the relationship between the Turpins and Charlotte Latin was “non-professional [and] non-commercial.” This holding is curious.  After all, the question of whether teaching is considered a profession has long been debated (here, here, and here, for example). And enrollment in a private school—in exchange for significant tuition payments—could be characterized as a commercial transaction.

In analyzing the Turpins’ section 75-1.1 claim, the majority initially followed a common pattern we have discussed previously. It held that, to the extent the claim was based on the same conduct that formed the basis of the misrepresentation-based claims, it failed for the same reasons those claims failed. 

The court, however, also needed to grapple with the Turpins’ direct unfairness section 75-1.1 claim. This aspect of the claim was based on the allegation that Charlotte Latin encouraged Refocus Latin to “bring any future concerns to school administrators,” but then expelled the Turpins’ children when they did just that. The court disagreed, noting that the Turpins’ complaints were not “future concerns,” but rather “the same concerns” that Refocus Latin had expressed already: concerns about “a very left wing progressive viewpoint . . . improper for a teacher to be espousing to children,” “an indoctrination on progressive ideology,” and generally inconsistent with the ”traditional, classical education” that the Turpins “signed up for.” Because the Turpins were repeatedly raising the same concerns, the court reasoned, there was nothing unfair about the disenrollment.

Post Hoc, Ergo Propter Hoc: Judge Arrowood’s Concurring Decision

Judge Arrowood concurred with the majority’s argument, but wrote separately to respond directly to one of the Turpins’ arguments. The Turpins argued that the Enrollment Agreement (as interpreted by the court) was one-sided, contrary to public policy, and unconscionable because it gave Charlotte Latin essentially unfettered discretion to disenroll students. Judge Arrowood rejected this argument.

In his concurrence, Judge Arrowood warned of a slippery slope that might result from allowing the Turpin’s claims to proceed:

I believe such recognition would embolden parents who disagree with their children’s private schools on divisive social issues to file lawsuits that would otherwise be deemed meritless and disposed of via our basic contract principles. For example, parents opposed to the faith-based curriculum of a private Christian school could enroll their child with the intent to challenge the school’s religious practices. Assuming the school took steps to defend its faith-based mission by discontinuing their enrollment, as in the present case, the parents could file a complaint that applied plaintiffs’ legal theories as the footing for the suit. Consequently, such litigation would undercut fundamental contract freedoms relied upon by our State’s approximately ninety (90) private schools—both secular and religious.

Judge Arrowood also pointed out an important feature of Charlotte Latin’s Enrollment Agreement and an important piece of procedural history that may have been difference-makers in the case.  Judge Arrowood explained that Charlotte Latin’s discretion to disenroll the Turpins’ children was not unfettered.  Indeed, the contract itself provided that it would “uphold and enforce rules and policies . . . in a fair, appropriate and equitable manner.”   This limitation, Judge Arrowood explained, related to the covenant of good faith (that is, bona fides) and fair dealing implied in every contract governed by North Carolina law. But the Turpins had voluntarily dismissed their claim under that covenant—likely to ripen the dismissal of their other claims for appeal, if not a bit obtorto collo.  In pointing this out, Judge Arrowood’s concurrence may have sub silentio offered another pathway for future litigants like the Turpins.

Dissentire: The Case for Reversal

At least with respect to the Turpins’ breach of contract claim, Judge Flood disagreed. In her dissent, she relied heavily on the legal standard applicable on a pleadings-stage motion.

Judge Flood explained:

[U]nder the scope of our Rule 12(b)(6) review, it is our duty to determine only whether Plaintiffs’ allegations, on the face of their Complaint, are sufficient to state a claim for breach of contract. [citation omitted] Treating the allegations in Plaintiffs’ Complaint as true, and viewing the facts in the light most favorable to Plaintiffs, Plaintiffs made such allegations that they sufficiently stated a claim for breach of contract.

According to Judge Flood, the majority opinion erred when it assessed the merits of the dispute and determined that Charlotte Latin’s decision to disenroll the Turpins’ children was justified. This, she wrote, was “premature as it necessarily involves findings of fact.”

Judge Flood would have reversed the trial court’s dismissal of the breach of contract claim. Her dissenting opinion did not discuss the Turpins’ other claims.

Summa: Some Takeaways and Next Steps

Because the Court of Appeals’ Turpin decision included a dissent, the Turpins appealed as of right to the North Carolina Supreme Court.* It remains to be seen whether that court will take a narrower approach focused on the standard of review (like Judge Flood’s dissent) or further expound the policy implications of private-school enrollment agreements (as did the majority and the concurrence).

We also eagerly await the North Carolina Supreme Court’s handling of the Turpins’ section 75-1.1 claim. While the misrepresentation-based aspects of that claim are likely to rise or fall with the separate fraud and negligent misrepresentation claims, the general unfairness aspect of the claim could provide the high court grist for the mill. 

And, although apparently no party has raised the argument, it is possible that education may be entirely exempted from the statute’s reach either because it is not “in or affecting commerce” or because it falls under the learned profession exemption. We discussed the decisions (McLean v. Duke University, Barchiesi v. Charlotte School of Law, and Elmendorf v. Duke University)  and academic literature that have considered these questions our prior post. 

In any event, the current Turpin decision and the decision anticipated from the North Carolina Supreme Court will provide rare datapoints on the application of section 75-1.1 claims in the context of education. Ita vero.

 

* As the Turpins noted in a footnote in their Notice of Appeal, the General Assembly removed this basis for appeal as of right to the North Carolina Supreme Court in 2023. The Turpins argued that, because this case was filed with the Court of Appeals prior to the effective date of this change, this appeal as of right was still available to them. They also made a petition for discretionary review.