Boston Lawyer Blog

First Circuit Holds that School Districts, Not Parents, Decide School Policy and Rejects “Parental Rights” Argument to Out Transgender and Non-Binary Students

Published on: February 20, 2025 | by Naomi Shatz

Since 2012, Massachusetts laws have prohibited discrimination based on gender identity, including in education. The Massachusetts Department of Education has had longstanding guidance in place instructing schools to use students’ preferred names and pronouns while at school. This week, in Foote v. Ludlow School Committee, the First Circuit Court of Appeals decided whether a school policy that followed this state law and DOE guidance violates parents’ constitutional right to direct the upbringing of their child. The school won. CONTINUE READING ›

Massachusetts Law Prohibits Schools from Complying with Anti-Trans Athlete Executive Order

Published on: February 8, 2025 | by Naomi Shatz

Youth sports are a huge part of the American education system, something many parents, schools, and communities place a high value on maintaining. Studies demonstrate the many mental, social, emotional, and physical benefits children derive from participating in organized athletics. In fact, during Trump’s previous presidency the President’s Council on Sports, Fitness, and Nutrition Science Board published a pamphlet noting that “Research shows that participating in youth sports can lead to immediate and long-term benefits for youth, their families, and communities.” By executive order and federal agency guidance, President Trump is now trying to deny those benefits to trans girls and women who want to participate in sports with the rest of their peers. The Massachusetts Declaration of Rights, Title IX, and Massachusetts anti-discrimination statutes prohibit schools, colleges, universities, and athletic organizations from following the new executive order. CONTINUE READING ›

What is the Current Status of Title IX and its Enforcement?

Published on: February 4, 2025 | by Naomi Shatz and Niamh Gibbons

In the last month, actions by the courts, the President, and Congress have significantly impacted and may further change how Title IX is enforced across the country.

Title IX: Background and Enforcement

Title IX is a federal law prohibiting sex discrimination in education. It is one of the shortest laws on the books, with the operative provision stating: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Laws like this can be enforced in two ways: through the courts and through administrative agencies. Individuals have a right to bring lawsuits under Title IX in court, where it is the job of the court to interpret what the law means. In addition, federal agencies has enforcement powers to investigate and address violations of federal law. For Title IX, that agency enforcement power rests with the U.S. Department of Education and the U.S. Department of Justice. People whose right to be free from discrimination in education have been violated can file complaints with those agencies, which can then investigate the educational institutions and impose corrective action, including the withholding of federal funds. The U.S. Department of Education issues regulations interpreting the laws it enforces and explaining how it will apply those laws when it engages in enforcement action. In 2020 the first Trump administration issued regulations overhauling Title IX enforcement; in 2024 the Biden administration issued a new set of regulations that was immediately challenged in federal courts in various red states. CONTINUE READING ›

Massachusetts Earned Sick Time Law: What it Does and Who it Covers

Published on: December 11, 2024 | by Naomi Shatz

In 2014 voters in the Commonwealth approved a ballot measure that created the Massachusetts Earned Sick Time Law (G.L.c. 149 § 148C) (MESTL), which guarantees most Massachusetts workers up to 40 hours of earned sick time per year. Last month the coverage of the law expanded to cover physical and mental health needs arising from pregnancy, surrogacy, assisted reproductive technology, or adoption loss.

Who does the law apply to?

The law applies to almost all employees whose primary place of work is Massachusetts. The regulations under the law define “primary” place of work as a place the employee works more than any other place; for an employee who works in multiple states it is the state in which she spends the most of her time. For example, if an employee works remotely for a company, and spends 40% of her time working from Massachusetts, 30% working from Florida, and 30% working from California, Massachusetts would be the primary place of work. CONTINUE READING ›

First Circuit Upholds Dress Code Prohibiting “There are Only Two Genders” Shirt

Published on: June 10, 2024 | by Naomi Shatz

Yesterday, the First Circuit issued its decision in L.M. v. Middleborough et al., a case we discussed previously on this blog. The case concerned whether a public middle school could prohibit a student from wearing a t-shirt that said “There are only two genders.” The district court had held that the school could, relying on the seminal case of Tinker v. DeMoines Independent Community School District. CONTINUE READING ›

First Circuit Hears Oral Argument in “There are Only Two Genders” T-Shirt Case

Published on: February 28, 2024 | by Naomi Shatz

Two weeks ago the First Circuit heard oral argument in a case that touches on some of the most hot-button issues in education law: student speech rights and discrimination against LGBTQ students. In L.M. v. Town of Middleborough, the Court must decide whether the Middleborough public schools could tell a student he was not allowed to wear a t-shirt that says: “There are only two genders.”

The case started in March 2023, when seventh grader L.M. wore a shirt to school that said “there are only two genders.” L.M. made this political statement against a backdrop – according to the school—of repeated concerns at the school about bullying of LGBTQ students and several students at the school contemplating or attempting to die by suicide, including students who attributed those actions to anti-LGBTQ experiences at the school. After receiving complaints from students and staff, the principal told L.M. he had to take the shirt off if he wanted to go back to class. L.M. declined, and his parents picked him up and took him home for the rest of the day. L.M. was not disciplined for wearing the shirt and wore other shirts with various political messages with no incident. In May 2023 L.M. wore the shirt to school again—this time with a piece of tape that read “censored” covering the words “only two.” L.M. was sent to the principal during his first class and removed the shirt rather than be excluded from school for the rest of the day.

The District Court Case

Title IX, Criminal Law and Civil Remedies: How to Approach Concurrent Proceedings

Published on: December 8, 2023 | by Naomi Shatz

We have repeatedly discussed on this blog how schools handle sexual misconduct allegations through internal grievance procedures. However, students involved in these processes must remember that the conduct that gives rise to Title IX allegations may also give rise to civil and criminal legal proceedings. Students involved in school misconduct cases need to understand how these different proceedings may intersect and impact one another before deciding how to approach their cases.

University Title IX and sexual misconduct policies prohibit sexual harassment, which includes sexual assault, dating violence, and stalking. All these behaviors are also criminal—though the definitions used in the criminal law and in school policies may differ. For example, in Massachusetts criminal law, indecent assault and battery is defined as an intentional, unjustified touching of a person’s private areas (a term that has been defined through case law to include various body parts). In many college and university policies sexual assault means sexual acts without consent, which is often defined as “affirmative, voluntary, knowing, and continuous agreement to engage in a specific form of sexual activity” (to quote the Wellesley College policy). All criminal sexual activity is generally also prohibited by school sexual misconduct policies, but there are categories of sexual misconduct that are prohibited by schools but may not be criminal.

Rape, Defamation, and Title IX: Connecticut Supreme Court Holds Yale’s Lack of Procedural Protections Allows Defamation Claims Against Complainant to Go Forward

Published on: June 24, 2023 | by Naomi Shatz

When can a person accused of sexual misconduct sue the accuser for defamation? Since the #MeToo movement began, more and more people accused of sexual assault have turned to defamation lawsuits as a weapon to combat those allegations. In 2022 Johnny Depp won his defamation claim against his ex, Amber Heard, who had written an op-ed describing herself as a survivor of domestic violence, without naming Depp. (Depp was also found liable for defaming Heard when his lawyer called Heard’s claims a “hoax”). In 2020 a judge found singer Kesha had defamed her former music producer by telling a friend he had raped her; New York’s highest court recently overturned that decision, and the parties settled. A crowdsourced Google spreadsheet of allegations of sexual misconduct against men in media resulted in a lawsuit against the woman who started the spreadsheet, and a six-figure settlement for the plaintiff. Defamation claims in sexual assault cases have gone the other way too; A jury recently found that Donald Trump defamed E. Jean Carroll by calling her sexual assault allegations against him a hoax. In these high-profile instances, defamation suits have become a vehicle to set up a jury to decide whether allegations of sexual misconduct are true. CONTINUE READING ›

Kluge v. Brownsburg Community School Corporation Caps off Week of Legal Developments on Transgender Rights

Published on: April 10, 2023 | by Naomi Shatz

Last week saw a wave of legal developments—legislative, jurisprudential, and administrative—on issues related to trans rights. While state legislatures passed laws restricting medical care for transgender minors, and barring trans women and girls from participating in school sports, federal appellate courts upheld the rights of transgender students and the Biden administration weighed in on the trans athlete issue. On April 6 the Supreme Court refused to lift a ban imposed by the Fourth Circuit on the enforcement of a West Virginia law that would prevent transgender students from competing on sports teams that corresponded to their gender while litigation about the constitutionality of the law is pending. West Virginia was attempting to enforce that law against a 12-year-old girl who wanted to run track at her middle school. That same day the U.S. Department of Education released a proposed rule that would address transgender students’ athletic participation. That rule, however, far from protecting trans students’ right to be treated equally to other members of their gender, would only prohibit a school from imposing a blanket ban on students’ participation in sports that corresponded to their genders. Schools would retain the authority to restrict trans athletes’ participation in sports if they could show that the restriction is “substantially related to the achievement of an important educational objective and (ii) minimize[s] harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

What is FERPA and What Are my Rights?

Published on: March 22, 2023 | by Naomi Shatz

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We often get calls from people wondering whether their school or their child’s school has violated their privacy rights with respect to education records, and if so, what can be done about it. While federal law provides significant privacy rights for students those rights are not absolute, and there are limited mechanisms to enforce violations.

What is FERPA

The Family Educational Rights and Privacy Act (FERPA) is a federal law that was passed in 1974 to protect the privacy of student education records. The law applies to educational agencies and institutions that receive funds from the U.S. Department of Education. FERPA gives parents or students 18 and older (“eligible students”) the right to inspect and review students’ education records. It also gives parents and eligible students the right to request amendment of the student’s records, and the right to a hearing if the school denies the request to amend.