Possibly, but the binding arbitration provision/agreement itself might not be enforceable. This will require a more detailed analysis with more facts.
An arbitration provision can be waived. Also, a plaintiff can chose to litigation, and force the school to file a motion to compel arbitration. The court would then have to determine whether a written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, or whether grounds as exist for the revocation of any contract. (Cal Code Civ. Proc., § 1281.)
Generally speaking, the court must grant a motion to compel arbitration unless it finds either: no written agreement to arbitrate exists; the right to compel arbitration has been waived; grounds exist for revocation of the agreement; or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., §1281.2.)
Code of Civil Procedure §1281.4 provides, “if a court of competent jurisdiction . . . has ordered arbitration of a controversy… the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had.”
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
I would highly suggest getting the advice of an experienced class action lawyer before proceeding. Hopefully you can get some qualified counsel before you are forced to make this decision. Good luck.
From the facts you have presented, it appears that the recent requirement to submit to arbitration is unconscionable. It materially changes the existing contract between the parties. You have no true ability to negotiate this term or reject it and continue. It is a contract of adhesion to this extent. I would suggest the students have a meeting with an educational atorney to discuss your options and a strategy to move forward.