Boston Lawyer Blog

Massachusetts Needs a Working Educational Discrimination Law

Published on: May 26, 2017 | by Naomi Shatz

Massachusetts is often lauded as one of the most progressive states in the country, and our state civil rights laws routinely provide broader protections than their federal counterparts. So it may come as a surprise that Massachusetts does not have a functional state counterpart to federal laws prohibiting discrimination in education like Title IX and Title VI.

Massachusetts has a law titled “Fair Educational Practices,” Mass. G. L. c. 151C. That chapter contains provisions prohibiting educational institutions from doing the following:

Discriminating against a U.S. citizen on the basis of race, religion, creed, color or national origin in the admission process;
Retaliating against employees, students, or applicants for assisting in any proceeding under the law;
Asking for the race, religion, color, or national origin of an applicant;
Discriminating against someone seeking admission to a vocational school or post-bachelor’s degree program, or discriminating against such a student in the provision of benefits, privileges, or services based on the student’s race, religion, creed, color, age, sex or national origin;
Excluding students from admission because they are blind, deaf, or require a guide dog;
Requesting information about, or to discriminate on the basis of a failure to provide information about, certain criminal records;
Sexually harassing students.

Owen Labrie’s Attempt to Get a New Trial Illustrates Serious Problems with Criminal Laws Related to Computer Sex Crimes

Published on: February 23, 2017 | by Naomi Shatz

About a year and a half ago we mentioned the Owen Labrie case in New Hampshire, where an 18-year-old senior at the St. Paul School was charged with a variety of crimes, including forcible sexual assault, of a 15-year-old at the school. To briefly review the case: Labrie was alleged to have been participating in a longstanding tradition, “senior salute,” where male seniors competed to see who could get sexual favors from the most underclassmen. The victim in the case alleged that Labrie had invited her out as part of the senior salute, then raped her in an attic in the school.In August 2015 a jury acquitted Labrie of the felony forcible sexual assault charge, but found him guilty of three misdemeanor counts of statutory rape, and the felony of using a computer to lure a minor for sex. The latter conviction requires Labrie to register for life as a sex offender.

Throughout the trial, there was criticism from some in the legal community about both the charges brought, and the way the case was being handled by Labrie’s lawyers. As news reports noted, Labrie fired at least three lawyers before settling on famous Boston criminal defense lawyer J.W. Carney and Worcester lawyer Samir Zaganjori, and rejected a number of plea deals that would have prevented him from having to register as a sex offender for the rest of his life. One article reported that a law-enforcement official involved in the case said that if Labrie had acknowledged wrongdoing and expressed regret he would have likely been sent into a sex-offender program without being convicted of any of the crimes with which he was charged. Former federal judge and Harvard Law School professor Nancy Gertner told a reporter, “This was a fundamentally ‘untriable’ case,” and indicated surprise that the defense had taken the case to trial. CONTINUE READING ›

Will a Trump Administration Change Anything About College Sexual Assault?

Published on: December 27, 2016 | by Naomi Shatz

Earlier this month, my colleague blogged about concerns that a weaker federal Department of Education (DOE) in the Trump Administration would mean less protection against discrimination and harassment for minority students. Under Obama the DOE took strong, sometimes controversial, positions in the name of anti-discrimination, for example, issuing numerous guidance documents instructing schools on how to address sexual harassment and sexual assault, and interpreting Title IX to protect transgender students. In the views of its critics, DOE often went too far in issuing these rules, both because it circumvented the normal rule-making procedures for administrative agencies, and because in many instances its guidance letters seemed to directly conflict with the free speech and due process rights of students.

It seems safe to assume that sexual harassment prevention is not high on Trump’s priority list. During the presidential campaign videos surfaced of him discussing sexually assaulting women and more than a dozen women came forward to accuse him of having done just that, and his sons — who played key roles in his campaign — have both indicated that women who do not like being sexually harassed either should not work, or should find a different job. Given that fact, and his stated antipathy to the DOE, it seems quite likely that his administration will do an about-face on both the scope of the DOE’s work, and its positions on key title IX issues. But will the administration’s positions change anything on campus?

Doe v. Brown University: In Narrow Decision, Federal Court Finds Brown Failed to Follow its Policy on Sexual Misconduct Adjudications

Published on: October 11, 2016 | by Naomi Shatz

I previously wrote about a Massachusetts federal district court decision that was groundbreaking because it tackled the question of whether a private university’s sexual misconduct investigation and disciplinary procedure was fundamentally fair, and concluded that it was not. Last week another local federal court weighed in on the college sexual misconduct issue and found in favor of the accused student, but went in a distinctly different legal direction.

John Doe v. Brown University is one of the few cases on this issue to proceed all the way to trial. The case arose out of a November 2014 sexual encounter between John Doe and Ann Roe. Roe complained about the incident in November 2015, and the case was heard by Brown in 2016. Notably, in fall 2015 Brown adopted a new Title IX policy that contained Brown’s first definition of consent, and a new process for handling sexual misconduct cases. While Brown informed its investigator and panel that the case against Doe would proceed under the 2014-2015 policy that was in effect at the time of the incident, Brown also provided the panel with the 2015-2016 policy and specifically told the panel that that policy codified the community’s understanding of consent, so they could look to it if it assisted them. CONTINUE READING ›

Doe v. Brandeis: In a Unique Decision, Federal Judge Found Lack of “Basic Fairness” in College Sexual Misconduct Proceedings

Published on: October 7, 2016 | by Naomi Shatz

Six months ago a judge in the federal district court in Massachusetts issued what many people who litigate cases surrounding college sexual assault adjudications consider the most comprehensive decision on the topic. In Doe v. Brandeis University, Judge Dennis Saylor denied Brandeis University’s motion to dismiss the complaint by its former student as to claims that Brandeis breached its contractual duties towards him, handled his case with negligence, and used a fundamentally unfair process to evaluate the accusation against him.

The case arose out of a January 2014 sexual assault complaint against John Doe by his former boyfriend. Under Brandeis’ policy, the complaint was investigated by a Special Examiner who also decided whether John Doe was responsible for sexual assault. (This “single investigator” model, promoted by the White House, has gained significant traction with schools nationwide in the last three years, despite significant concerns about its fairness).

Despite noting that “the Handbook is no model of clarity,” the judge nonetheless found for Brandeis on most of the contract claims based on Doe’s allegations that Brandeis failed to follow its Handbook. The judge similarly rejected most of Doe’s tort claims, with the exception of a claim for negligent supervision based on Brandeis assigning an administrator with no familiarity with the process as the final decision maker in the case. The judge was skeptical that Doe could prevail on the claim, but allowed it to survive the motion to dismiss. CONTINUE READING ›

States sue Federal Government over Prohibitions on Discrimination Based on Gender Identity

Published on: May 26, 2016 | by Naomi Shatz

Yesterday, 11 states sued the U.S. Government in a Texas federal court over recent guidance documents its agencies issued defining “sex” in various civil rights laws to include “gender identity.” The suit is the latest in a widening legal battle over transgender rights — specifically the right of transgender people to use restrooms that accord with their gender identities.

The lawsuit challenges two recent documents from federal agencies. On May 3, 2016, the EEOC released a fact sheet on bathroom access for transgender employees, which states that discrimination based on transgender status is sex discrimination under Title VII. On May 9, 2016 the U.S. Department of Justice (DOJ) sued North Carolina over a recently-passed law that required public employees and public school students to use bathrooms that correlate with the sex listed on their birth certificates, and an executive order that required cabinet agencies to use the same definition of “sex” in segregating their bathrooms. On May 13, 2016 the DOJ and U.S. Department of Education (DOE) issued a “Dear Colleague Letter” stating that “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The lawsuit argues that these interpretations of Title VII and Title IX constitute a radical change in the law, and that the executive branch, through these two departments, cannot change the law in this way.

Are Universities’ Views of Sexual Harassment on a Collision Course with the First Amendment?

Published on: April 8, 2016 | by Naomi Shatz

As explained in Jacob Gersen and Jeannie Suk’s forthcoming article, The Sex Bureaucracy, the U.S. Department of Education’s Office for Civil Rights (“OCR”) guidance documents about Title IX have shaped college and university sexual harassment and sexual assault policies by threatening the withdrawal of federal funding if the schools do not adopt OCR’s recommendations. OCR has defined sexual harassment as “unwelcome conduct of a sexual nature,” but made clear that under Title IX schools only have an obligation to address such harassment when it rises to the level of creating a hostile environment, which it defines as harassment that “is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” This definition of sexual harassment provides the floor below which school’s policies may not fall, but nothing in Title IX or OCR guidance prevents schools from adopting even more expansive definitions of sexual harassment or standards under which they will investigate allegations of such harassment.

Recently, OCR has emphasized that it expects colleges and universities to investigate claims of sexual harassment well before they reach the threshold at which Title IX requires the school to address the harassment, i.e. before the harassment creates a hostile environment. CONTINUE READING ›

So you’ve been accused of academic misconduct. Here’s what you need to know.

Published on: March 14, 2016 | by Naomi Shatz

If you or your child is accused of engaging in academic misconduct, you’ll get a crash course in how the college or university bureaucracy works to process these cases and sanction students. Before that happens, you should be aware of a few key points.

#1: Academic misconduct is a big category

In a previous post I explained how colleges define plagiarism, probably the most common form of academic misconduct. Colleges will sanction students for plagiarism if the student intentionally or accidentally copies, quotes without proper attribution, or incorporates language or ideas from some other person into their work. Colleges also deem it plagiarism if students work together on an assignment but do not list their co-collaborators on the work they turn in.

Research misconduct is another form of academic misconduct we frequently address. Research misconduct arises mostly in the hard sciences, and according to federal regulations is defined as “fabrication, falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting research results.”

Pop Quiz: Do you know what constitutes plagiarism at your college?

Published on: February 3, 2016 | by Naomi Shatz

As far as we know, every college and university in the country has a student handbook or honor code that provides rules for how students must perform their work and the standards they are expected to meet. And as far as we know, at every college and university students are routinely disciplined for violating those rules in a number of ways – from the most minor of infractions to severe academic misconduct. Colleges and universities place a significant amount of responsibility on their students to independently learn the school’s policies, the forms of citation they should use in each discipline, and the rules applicable to each class they take. Before turning in work at college, there are a few things to know about academic misconduct policies.

First and foremost, students and their parents need to understand how their school defines academic misconduct, and particularly, plagiarism. The vast majority of students we represent in academic discipline proceedings are accused of plagiarism, and many of our clients who did not intend to violate any rules or copy anyone else’s work nonetheless find themselves disciplined for violating school policies. In our experience most schools define plagiarism incredibly broadly. For example, Harvard College’s policy states: “Whenever ideas or facts are derived from a student’s reading and research or from a student’s own writings, the sources must be indicated . . . The responsibility for learning the proper forms of citation lies with the individual student . . . Students who, for whatever reason, submit work either not their own or without clear attribution to its sources will be subject to disciplinary action, up to and including requirement to withdraw from the College.” Dartmouth College’s policy is similar: “Plagiarism is defined as the submission or presentation of work, in any form, that is not a student’s own, without acknowledgment of the source.” A few schools, however, define plagiarism more narrowly, as U. Mass. Amherst does: “knowingly representing the words or ideas of another as one’s own work without citation.”

Will the NLRB Decision Allowing Secret Recording in the Workplace Affect Massachusetts Workers?

Published on: January 11, 2016 | by Naomi Shatz

This is the second in our series of posts about the NLRB’s recent decision regarding employees recording in the workplace. For Part 1 of this series, click here.

As we previously discussed, the NLRB just decided that employers cannot make a blanket ban on employees making recordings or taking photographs in the workplace. As the NLRB explained in its decision, Section 7 of the NLRA grants employees the right to join together to advance their interests, and at least some employee recordings are protected under that provision. Our previous post on this case discussed the likely consequences of the decision for companies in states where such recordings are otherwise legal. But what about states like Massachusetts, or Illinois, where this case originated, that require all parties to a conversation to consent to it being recorded? Can employees in those states rely on the NLRB decision to assert that they have a right to record workplace conversations, even though those same conversations could not be recorded outside the workplace?

Massachusetts law (M.G.L. c. 272, § 99) requires that all parties to a conversation consent before that conversation is audio recorded. The law has its limits. It does not prohibit video recordings that record audio, and it does not prohibit the covert taking of photographs (so long as those photographs are not of naked people in places where they have a reasonable expectation of privacy). In other words, the NRLB’s decision means that employers cannot prohibit the taking of recordings and photographs that are part of the employees’ exercise of their Section 7 rights under the NLRA; and Massachusetts law doesn’t create an additional barrier for employees who want to take non-sound video recordings or photographs in their work place.