Although historically courts have not allowed agreements that forfeit the right to trial by jury, a right guaranteed in the U.S. Constitution, today out-of-court arbitration is common because it is less expensive. But no one ever intended that arbitration should be mandated – especially in cases such as D.C. v. Harvard-Westlake School.

In this case, D.C., a then 15-year-old student at the exclusive private school (HW) waived the right to a jury trial because his parents had signed an enrollment agreement dictating that any legal matters be submitted to binding arbitration.

The case resembles an episode of “Gossip Girl” or “O.C.”: In short, teens attending Harvard-Westlake, an exclusive private school, taunted D.C., via his Web site, with homophobic remarks and death threats of the “ice-pick through the head” variety. When D.C. and his family complained to school officials, the officials failed to punish the offenders; so, in accordance with police advice, D.C. and his family relocated in secrecy – only to have the school newspaper publicize their new abode. Although D.C. and his family again sought to prosecute the offending teens, officials refused to file charges, prompting D.C.’s family to try for a settlement in civil court. But the school and the offenders refused to settle, instead engaging in prolonged litigation that would have cost D.C.’s family $500,000 had the California Court of Appeal not reversed the costs last week.

Aside from the horrifying cyberbullying that D.C. endured and the ensuing lack of assistance his family received from protection authorities, what is of concern here is the fact that the school forced the family to attempt settlement outside of civil court. Because D.C.’s family had been required to sign a written enrollment agreement stipulating that all legal matters be submitted to binding arbitration, D.C. did not have access to his basic civil right to have his case heard by a jury.

And, not only did the arbitrator rule in favor of HW, she ordered the family to pay $500,000 in fees and costs associated with the arbitration. This was despite the fact that under California law schools have a duty to take reasonable measures to ensure a safe environment for students. HW was under a duty to remove those students who created a hostile learning environment and it did not do so.

Law enforcement had also failed D.C.’s family, concluding that the death threats were not real because the offenders had no real intention to carry them out. This is a remarkable finding, considering that the language used in these threats (one of which was an incitement to “rip out” D.C.’s heart and “feed it” to him) has, by case law, been more than enough to justify charges for making terrorist threats. Further, the Los Angeles District Attorney didn’t see fit to file hate crime charges, although California Penal Code sec. 422.55 is clear that posting homophobic remarks coupled with death threats constitutes a hate crime.

It’s obvious why both the arbitrator and the criminal justice system acted as they did: The parents of the offending students (and the HW community) are some of the wealthiest and most powerful people in the country. Although, last week, the California Court of Appeal wisely ended the chain of kowtowing to the powers that be by rejecting the order for fees, the court refused to find the enrollment contract unlawful as applied to D.C.

There’s a chance the matter may go to the California Supreme Court. But, regardless, the Legislature must prohibit private schools from requiring parents (and their child-enrollees) to arbitrate civil actions based on hate crimes and bullying. Civil matters involving bullying (hate crimes) belong in front of a jury because juries have greater empathy for victims of hate crimes than do neutral arbitrators. Schools that seek to hide wrongdoing love the private and confidential nature of the arbitration setting. Yet, that’s why we have public trials – so that the public can see what’s really going on.