Boston Lawyer Blog

Back to School Basics: Teachers, Employees, and Title IX

Published on: September 7, 2022 | by Naomi Shatz

What Teachers and Other School Employees Need to Know About Title IX

While many people think of Title IX as a law that applies only to students, in fact the law does not mention students at all. The language of the statute is: “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.” Professors, teachers, and other employees of educational programs are protected by Title IX, and also have obligations under Title IX not to engage in actions that constitute sex-based discrimination or harassment.

Title IX Protects Employees from Discrimination and Harassment

As I have previously discussed, Title IX protects school employees from gender-based harassment or discrimination. The current federal regulations implementing Title IX make explicit that Title IX prohibits employment discrimination on the basis of sex, stating “A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner.” While there has been some disagreement among different federal courts about whether employees can bring Title IX claims if they also have claims under Title VII (the federal law prohibiting discrimination in employment more generally), the majority of appeals courts have found that employees can bring claims under both laws. The Department of Justice’s Title IX Legal Manual makes clear that that Department agrees with the circuits that have found that employees can pursue both Title IX and Title VII claims: “The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations.” Here in Massachusetts, both the First Circuit, in a case from 1988, and a judge in the District of Massachusetts in a case last year, have held that Title IX claims are not preempted by Title VII claims, and school employees can pursue both claims simultaneously. CONTINUE READING ›

Back to School Basics: Rights to Free Speech in Higher Education

Published on: September 2, 2022 | by David Russcol

Colleges and universities have traditionally valued free expression, experimentation, and open discourse as a core part of their missions. Students and faculty should be free to speak their minds and express themselves in order to provoke discussion and achieve greater understanding. But there are limits to the legal rights to free speech on campus. What those limits are depends on factors like whether a school is public or private, and what promises have been made in university handbooks or policies.

A public university (including state colleges and universities as well as community colleges) is subject to the limitations of the First Amendment. Under the First Amendment, speech or expression is generally protected by the Constitution unless it falls into one of a limited number of categories of unprotected speech, such as threatening speech toward another (“true threats”) and aggressive or insulting speech delivered face-to-face that is likely to provoke violence (“fighting words”). A public college usually cannot punish a student for First Amendment-protected speech unless the student or their speech is disruptive to the educational environment; this is a constitutional right that can be vindicated under Section 1983, part of the Civil Rights Act. There are also limits on the ability of a university to punish a student for off-campus speech. Faculty are also entitled to First Amendment protections, but given that they are often speaking as teachers in their roles as university employees, the school has a greater ability to control what they say in their capacities as faculty.

Racial Discrimination and Harassment in School

Published on: September 1, 2022 | by Naomi Shatz

pexels-cdc-3992949-scaled In the last year or so, I have gotten many calls from families whose children have been harassed and discriminated against in school because of their race. Repeatedly, I am hearing that students of color, often in predominately white schools, are being called the n-word by their classmates and targeted for bullying and harassment. I am hearing that these schools are disproportionately disciplining those students of color, often for vague and subjective offenses. Even more concerning, some of these families have told me that when they have reported their children’s harassment to school officials, those officials have recognized that they have a problem with white students harassing and bullying students of color but have claimed not to know how to address or prevent the harassment. Harassment and discrimination against students of color violates both federal and state laws, and schools have an obligation to take steps to address it.

Federal Anti-Discrimination Laws

Title VI is a federal law that prohibits discrimination on the basis of race, color, or national origin in any education program that receives federal funding. This includes all public K-12 schools, private K-12 schools that participate in federal programs like the National School Lunch Program, and almost all colleges and universities. Under Title VI, schools have an obligation to address racial harassment that interferes with students’ ability to access their education.

Back to School Basics: What To Do When the (Campus) Police Come Calling

Published on: August 31, 2022 | by David Duncan

Colleges and universities are starting their fall semesters, and orientation for incoming freshmen is well underway at many schools. One area that is not likely to be covered in orientation is students’ rights in encounters with police. While most students go through their entire college career without interacting with police, if you do, you should know what rights you have. This blog will discuss those rights in the context that is the most likely one where students might interact with police (sexual misconduct matters), but the rights you have apply to any interactions, on or off campus. You should know those rights. Just as important, you should know the limits of those rights. CONTINUE READING ›

Williams v. Kincaid Addresses ADA Protection for Gender Dysphoria

Published on: August 25, 2022 | by Zalkind Duncan & Bernstein LLP

By Julia Gaffney, law student intern

Last week the Fourth Circuit Court of Appeals held that individuals who experience gender dysphoria can be protected from discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Kesha Williams, a transgender woman with gender dysphoria, was incarcerated for six months in Fairfax County Adult Detention Center. Although she was originally assigned to be housed with female inmates, when the prison officials found that Ms. Williams is transgender they moved her to the male housing section. They also refused to provide Ms. Williams with her medical hormone treatment, which she had been taking for fifteen years to treat her gender dysphoria, intentionally misgendered her, and physically harassed her. When she was released, Ms. Williams filed a § 1983 action against the Sheriff of Fairfax County, a prison deputy, and a prison nurse alleging ADA violations, constitutional violations, and state law violations. The district court dismissed Williams’ claims under the ADA and Rehabilitation Act holding that gender dysphoria does not constitute a disability under those statutes. The district court dismissed her complaints for failure to state grounds for relief and for statute of limitations reasons.

Ten ZDB Lawyers Named to Best Lawyers in America

Published on: August 18, 2022 | by Zalkind Duncan & Bernstein LLP

Zalkind Duncan & Bernstein LLP is proud to announce that Attorneys Inga Bernstein, David Duncan, Emma Quinn-Judge, Monica Shah, Naomi Shatz, Rachel Stroup, David Russcol, Ana Munoz, Norman Zalkind, and Ruth O’Meara-Costello are listed in the 2023 edition of The Best Lawyers in America. They were recognized for their work in Criminal Defense: General Practice, Criminal Defense: White-Collar, Employment Law – Individuals, Education Law, Appellate Practice, and Litigation – Labor and Employment. Best Lawyers is the oldest and most respected peer-review publication in the legal profession and rates attorneys by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. Congratulations to all attorneys recognized for their hard work and incredible achievements!

Proposed legislation would increase opportunities for juvenile diversion

Published on: July 22, 2022 | by Jennifer M. Herrmann

The majority of adolescents in Massachusetts, at some point, engage in behaviors that could subject them to delinquency proceedings in Juvenile Court. Although most of those adolescents are unlikely to engage in that type of behavior more than once or twice, even those who are otherwise not at risk for reoffending are significantly more likely to reoffend once they are arrested, charged, and processed in juvenile court.

David Russcol Defeats Summary Judgment Motion in Federal Unpaid Wage and Sexual Harassment Case

Published on: July 21, 2022 | by Zalkind Duncan & Bernstein LLP

Earlier this week, a federal judge largely denied the defendants’ Motion for Summary Judgment in a case alleging that a nonprofit operating group homes on Cape Cod coerced our client into working long hours for no cash wages for nearly two years, and allowed her to be sexually harassed by her supervisor. David Russcol convinced the court that issues such as whether our client is exempt from the state minimum wage law and whether she was subjected to unlawful retaliation rest on factual determinations that must be made by a jury.

ZDB is Hiring!

Published on: July 18, 2022 | by Zalkind Duncan & Bernstein LLP

ZALKIND DUNCAN & BERNSTEIN LLP is hiring an associate to join our premier Boston criminal defense and civil litigation boutique. This progressive 13-lawyer law firm has a dynamic federal and state court practice, at both the trial and appellate levels. Our criminal defense practice includes crimes of violence, fraud and drug offenses, white collar crimes, and other felonies and misdemeanors. Our civil practice consists primarily of plaintiff-side employment matters (mostly discrimination cases), and representing students, faculty, and other employees accused of misconduct or facing discrimination at colleges and universities (including in Title IX proceedings). We also have a general civil litigation and complex motions practice.

We are looking for an associate with 1-2 years of experience and excellent research, analytical, and writing skills. Judicial clerkship a plus. Competitive benefits. Associates must be available for court, depositions, and other in-person proceedings in the Greater Boston area. Associates currently work in the office at least two days per week and may otherwise work remotely where that is compatible with the needs of a case. More information about our firm can be found on our website: http://www.zalkindlaw.com.

Interested applicants should email their resume, law school transcript, writing sample (preferably 5-10 pages long, showing writing that has not been substantially edited or revised by anyone other than the author), to resume@zalkindlaw.com with “Application for associate position” in the subject line. Start date flexible. Applicants should include their available start dates in their cover letters. Applications will be reviewed on a rolling basis until the position is filled.

Concepcion v. United States Affirms District Court’s Broad Discretion in Deciding Criminal Sentences

Published on: June 30, 2022 | by David Duncan

In Concepcion v. United States, the U.S. Supreme Court continued its support for sentencing discretion for district court judges. In this case, the issue was how much discretion a sentencing judge has when resentencing a defendant pursuant to the First Step Act, a substantial criminal justice reform act that Congress passed in 2018. Among its provisions is one allowing for resentencing of persons convicted before 2010 for distribution of crack cocaine who had been ineligible for resentencing when Congress in 2010 revised downward the penalties for crack cocaine (in the so-called Fair Sentencing Act). The quantities that triggered mandatory minimum sentences were reduced substantially, and the guidelines were amended to reflect those reductions.

Mr. Concepcion had been given a 19-year sentence in 2009 for selling 13.8 grams of crack. Because he was a “career offender,” meaning that he had a number of prior convictions for “crimes of violence” or drug distribution, his guideline sentencing range was not affected by the quantity reductions, and so he was not eligible for resentencing when the crack sentencing changes took effect in 2010. CONTINUE READING ›