Boston Lawyer Blog

Boston Public Schools’ Secret Residency Enforcement Regime Violates Students’ Due Process Rights

Published on: September 23, 2019 | by Naomi Shatz

If the volume of calls to our office is any indication, the Boston Public School (BPS) system is stepping up enforcement of its residency policies. It is not surprising that with national attention on the “Varsity Blues” scandal (involving prosecutions of celebrities who fraudulently secured their children’s acceptance to college), and increasing criticism of the lack of diversity at Boston’s elite exam schools, BPS would be looking to crack down on students falsely claiming to live in Boston in order to attend Boston schools. But parents and students have a right to understand and contests BPS’s findings in these investigations: Fifteen years ago a Massachusetts court made clear to BPS that before it could declare a student a non-resident and remove him or her from the BPS system, it had to provide the student’s family basic due process protections. Unfortunately it appears that BPS continues to ignore this court decision and families’ rights in pursuing residency enforcement actions.

What are the BPS residency requirements?

Massachusetts General Laws chapter 76, § 5 states “Every person shall have a right to attend the public schools of the town where he actually resides.” The law seems clear enough, but of course the devil is in the details: what does it mean to reside in Boston? This is a question our courts have answered: in most cases, the minor student “resides” where the parent(s) who has (or have) physical custody resides. The BPS Superintendent’s Office has issued a policy further explaining what it views this statute to require, and how BPS will determine residency. Following Massachusetts court cases that have defined residency, the policy defines “residence” as “the place that is the center of [the student’s and/or parent’s] domestic, social, and civic life.” The focus of “residency” is therefore not only whether the student has a physical address in Boston, though of course that is relevant, but on where the center of the student’s life is. This focus indicates that where questions about residency arise, BPS must conduct a holistic evaluation that takes into account non-traditional family and education arrangements.

Title IX and Sexual Assault on College Campuses: Back to School Edition

Published on: September 3, 2019 | by Naomi Shatz

Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent students—both those who have experienced sexual assault or misconduct and those accused of sexual misconduct—in campus proceedings at colleges and universities around the country. Here is some information that all students should know before heading back to campus.

What is Title IX, and What Does It Mean for my School?

Title IX is the federal law that prohibits discrimination on the basis of sex in education. In addition to ensuring that there are equal athletic and educational opportunities for all students, it also requires schools to address and take steps to prevent sex-based discrimination on campus, including sexual harassment and sexual assault. If a school knows of sex-based discrimination on campus and does not adequately respond to it, a court may find the school has violated Title IX.

In practice, what that means for your school is that it is obligated to address complaints of sexual harassment, dating violence, and sexual assault if it learns of them. Almost every school has set up a Title IX office solely to address these kinds of complaints. The job of this office is to resolve those complaints – which often but not always entails a disciplinary process against the accused student.

Can Plaintiffs in Federal Gender Discrimination and Sexual Harassment Cases Sue under Pseudonyms?

Published on: August 27, 2019 | by Naomi Shatz

In April, six women filed a proposed class-action gender discrimination, sexual harassment, and pregnancy discrimination lawsuit in federal court in D.C. against international law firm Jones Day, with four of the women proceeding under the pseudonyms “Jane Doe 1-4.” The court initially allowed this, stating “Plaintiffs’ significant interest in maintaining their anonymity at this stage of the litigation is sufficient to overcome any general presumption in favor of open proceedings.” Jones Day vigorously contested this move, arguing that by allowing the women to proceed under pseudonym, the court was giving credence to the women’s argument that Jones Day would retaliate against them if their identities were public, that it prevents the public from assessing the claims, and that because the plaintiffs courted publicity, proceeding under pseudonym was inappropriate. Jones Day also argued that it could not investigate the women’s claims without knowing their identities. In similar gender, pregnancy, and family responsibility discrimination cases filed against Jones Day in 2018 and just this month, the plaintiffs chose to proceed under their own names. Over the course of the litigation, all but one of the anonymous plaintiffs chose to reveal their identities. On August 7, 2019, the judge presiding over the case issued a sealed order requiring the last remaining anonymous plaintiff to reveal her identity. In lieu of revealing her identity, Jane Doe 4 left the lawsuit.

In Haidak v. University of Massachusetts the First Circuit Fails to Grapple with the Messy Factual Realities of Campus Title IX Cases

Published on: August 15, 2019 | by Naomi Shatz

Last week the U.S. Court of Appeals for the First Circuit released its second decision in the last few years addressing campus sexual misconduct disciplinary proceedings. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found for the University, concluding, as my colleague recently discussed, that the procedures it applied in Mr. Haidak’s case were sufficient to pass constitutional muster.

In writing about these campus disciplinary proceedings, the court glossed over the factual realities of these cases and made some concerning statements that—if schools were to adopt them as policy—would undermine students’ rights.

Conservative Christian Group’s Title IX Complaint Against Transgender Athletes Ignores the Meaning of “Sex” Under Title IX Law

Published on: June 26, 2019 | by Naomi Shatz

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Last week, the Alliance Defending Freedom (ADF), a Christian organization purporting to focus on religious liberty issues, filed a complaint with the Department of Education’s Office for Civil Rights (OCR) on behalf of three female high school athletes in Connecticut. The complaint alleges that the three Complainants—cisgender elite track athletes—are being discriminated against because the Connecticut Interscholastic Athletic Conference (CIAC) permits transgender female athletes to compete in girls’ sports. The ADF has a history of instituting suits on behalf of cisgender students, arguing that recognizing transgender students’ gender identities harms their cisgender peers.

Although courts around this country have made clear that being transgender does not make someone any less a girl in the eyes of the law, the ADF Complaint consistently and incorrectly refers to transgender female athletes as “boys” and argues that allowing these “boys” to compete against girls violates girls’ rights to equal athletic opportunities. The Complaint sets forth statistics about male and female athletes to show that in almost every sport male athletes would beat female athletes if they competed head to head. It then argues: “the CIAC permits males with all the hormonal and physiological advantages that come with male puberty and male levels of testosterone to enter and win in girls’ athletic competitions of all sorts, without any exceptions.”

SJC Holds that Violation of Child Car Seat Law Does Not Constitute Reckless Endangerment of a Child

Published on: June 12, 2019 | by Naomi Shatz

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In a decision released today, the Supreme Judicial Court concluded that driving with improperly restrained children does not constitute reckless endangerment under state law.

Suzanne Hardy was charged with several crimes, including reckless endangerment, after her nephews were killed in a car crash. On the day of the accident, Ms. Hardy, who was taking care of her four-year-old son and her two nephews, ages four years and sixteen months, decided to drive the children from her house to her nephews’ home. By statute, children under eight years old in Massachusetts must ride in a car seat, unless they are at least 57 inches tall. The defendant put her own son in his booster seat, put the 16-month-old in a front-facing car seat (with the straps at an improper height), and buckled her 4-year-old nephew, who was 44 inches tall, into the car without any booster seat. She had a second booster seat with her but chose not to use it.

Massachusetts Legislature Considers New Campus Sexual Misconduct Laws (Part 1)

Published on: April 2, 2019 | by Naomi Shatz

There are six bills addressing campus sexual assault that will be discussed at a public hearing of the Massachusetts Joint Committee on Education next week. Two years ago, the Massachusetts legislature held hearings on a collection of bills that addressed different aspects of the issue of campus sexual assault. Although the Senate later passed a bill dictating how schools should handle sexual assault allegations, that bill never made it to the Governor.

The various bills have been edited and re-filed and will be heard at a public hearing on April 9. Both in testimony to the Joint Committee on Higher Education and on this blog we laid out concerns with the previous versions of these bills, having to do with lack of transparency, notice, and ensuring that complaining and responding students had access to the same resources.

In Commonwealth v. Sherman the SJC Draws A Line Separating Consensual Sex from Rape

Published on: March 1, 2019 | by Naomi Shatz

How does a court determine when consensual sex becomes rape? That is the question the Supreme Judicial Court just tackled in Commonwealth v. Sherman. The facts of the case are not relevant to the legal question at issue; it is enough to know that the defendant argued that he had entirely consensual sexual intercourse with the victim, while the victim claimed that the entire encounter was not consensual. Under Massachusetts law, to prove rape the Commonwealth must prove three things: (1) that there was sexual intercourse between the defendant and the victim; (2) that the defendant accomplished that intercourse by force or threat of force; and (3) that at the time of penetration the intercourse was against the will of the victim (i.e. without the victim’s consent).

In Yee v. State Police, SJC Holds that Denial of Lateral Transfer Can Be Employment Discrimination

Published on: February 5, 2019 | by Naomi Shatz

Last week the Supreme Judicial Court (SJC) issued its decision in Yee v. Massachusetts State Police, an employment discrimination case raising the question of whether denying a police officer a lateral transfer to different troop could be a discriminatory under our state anti-discrimination law. (As a note of disclosure: I wrote an amicus brief on behalf of the Massachusetts Employment Lawyers’ Association and other groups in support of the plaintiff, Lt. Yee.) The SJC reaffirmed that chapter 151B—Massachusetts’ law addressing discrimination in employment—is to be read broadly to protect employees. The Court held that when an employer makes a decision that causes a material disadvantage to an employee in objective aspects of their job, even if the employee doesn’t lose money as a result of the decision, that decision is illegal employment discrimination if it is based on the employee’s membership in a protected class.

Does the Man Suing over #MeToo List About Men in Media Have a Shot?

Published on: October 19, 2018 | by Naomi Shatz

In the fall of 2017, writer Moira Donegan created the “Shitty Media Men” list—an “anonymous, crowd-sourced” spreadsheet that collected rumors and allegations of sexual misconduct by men in media and publishing. The spreadsheet was up on the internet for only 12 hours before Donegan pulled it, but it went viral and became much more public than Donegan intended. Donegan said she had not foreseen this outcome; her goal had been to “create an alternate avenue to report this kind of behavior and warn others without fear of retaliation.” That fear of reprisal has become reality: last week, one of the men named on the list, writer Stephen Elliott, sued Donegan and 30 other anonymous women for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

What do these legal claims mean, and does Elliott have a case?