Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, June 30, 2007

Vet School Not a College Under Divorce Settlement

A Massachusetts man who entered into a stipulation requiring him to pay his former wife $500 bi-weekly in child support and one-half of all school expenses so long as their daughter remained in college is not obligated to continue the payments once his daughter enrolled in a school of veterinary medicine and seeking her doctorate. Suffolk County New York Judge Pines interpreted the word "college" to only refer to undergraduate education.

The decision, Robinson v. Gerney, Index No.  22090/05, (Suffolk Co. 2007)(Emily Pines, J.S.C.), will be published in the June 28, 2007 New York Law Journal. Mark Fass in the June 25, 2007 New York Law Journal wrote a story about this case entitled "Vet School Ruled Not a 'College' in Child Support Case" (registration required).

This case points to the importance of careful drafting of all legal documents.

Mitchell H. Rubinstein

June 30, 2007 in Interesting Cases | Permalink | Comments (0) | TrackBack (0)

Friday, June 29, 2007

House Labor Committee Approves Bill to Extend Collective Bargaining Rights to Public Safety Workers in all 50 States

A House Committee has recommended the enactment of the Public Safety Employer-Employee Cooperation Act of 2007 which would extend collective bargaining rights to public safety and first responder personnel. The Press Release provides in part:

Approximately twenty states do not fully protect the collective bargaining rights of public safety employees, and two states – Virginia and North Carolina – prohibit public safety employees from collectively bargaining.

The bill would provide basic labor protections for state and local public safety workers, including:

  • The right to join a union;
  • The right to have their union recognized by their employer; 
  • The right to bargain collectively over hours, wages and terms and conditions of employment; 
  • A mediation or arbitration process for resolving an impasse in negotiations; and
  • Enforcement of the bill’s provisions through the courts.

I do not believe that this Bill has any real chance of being enacted into law, but you never know!

Mitchell H. Rubinstein

June 29, 2007 in Labor Law | Permalink | Comments (0) | TrackBack (1)

Forum Selection Clauses In Contracts

Greg May over at The California Blog of Appeal has an interesting post concerning a recent California appellate decision (Miller v. Henson (3rd. Dist. Ct. Appeals, June 28, 2007) which held that parties cannot strip a court of subject matter jurisdiction by private contract. As Greg points out, this does not necessarily mean, however, that the forum selection clause was unenforceable. In fact, the opinion points out that forum selection clauses are generally enforceable.

I wrote about a similar issue with respect to whether parties can alter the standard of judicial review by contract in labor arbitration in my law review article entitled Altering Judicial Review of Labor Arbitration Awards, 2006 Mich. St. L. Rev. 235 (Summer). Additionally, as I have previously wrote, the U.S. Supreme Court recently granted cert. with respect to the issue whether parties can alter the arbitration standard of review by contract under the federal arbitration act.

Stay tuned. The extent to which parties may alter a court's jurisdiction is still developing. I suspect that after the Supreme Court issues its decision next term the law may be clearer.   

Mitchell H. Rubinstein

June 29, 2007 in Interesting Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, June 28, 2007

Parents Involved v. Seattle School Dist.; Supreme Court Majority (5 Justices) Adopt Colorblindness Constitutional Standard

Court_front_med_2 Parents Involved in Community Education v. Seattle School District No. 1, 551 U.S. ___(June 28, 2007), decided on the last day of the Supreme Court's October 2006 term is a 185 page decision which actually involves two cases. One case is from Seattle which never operated a segregated school system, but used a racial classification to decide "tiebreaker" applications to certain High Schools. The other case is from Kentucky which was under a consent decree until 2000 when the court found that the vestiges of prior segregation were eliminated. Like the Seattle school district, the Kentucky school district used a students race to rule on student transfer requests.

In Seattle, an organization (Parents Involved) and in Kentucky a parent of a student (Joshua) filed suit under the Equal Protection clause. In the Seattle case, the school district obtained summary judgment and that decision was affirmed in a lengthly decision by the 9th Circuit. In the Kentucky case, the school district prevailed below. Interestingly, the 6th Circuit decision in the Kentucky case was quite brief. The U.S. Supreme Court reversed both decisions.

Chief Justice Roberts, who wrote the judgment of the Court, stated that racial classifications are reviewed under strict scrutiny. Although remedying the effects of past intentional discrimination may be a compelling state interest, that standard did not apply here with respect to Seattle and the Kentucky case desegregation decree was dissolved. Very significantly, the Chief Justice Roberts distinguished Grutter v. Bollinger 539 U.S. 306 where student body diversity was held to be a compelling state interest in the context of higher education. This was because the diversity interest in Grutter did not focus on race alone, but also included other facts such as whether students overcame personal adversity or a family hardship.

Additionally, the means employed (racial classifications) only were of limited effect in achieving the schools objective. In Seattle, only a small number of students shifted. Similarly, in Jefferson County Kentucky, the use of racial classifications had only a minimal effect on school diversity. Classification and assigning school children on the basis of race "is an extreme approach" and requires more than an "amorphous end" to justify it. Both school districts also failed to demonstrate that they seriously considered methods other than explicit racial classifications to achieve their stated objective.

Additionally, the method used to determine racial diversity was illegitimate because there was no tie into the level of diversity necessary to achieve pedagogical benefits. Very significantly, Chief Justice Roberts' plurality rejected the idea that "racial balancing" was a compelling state interest and held that such "racial proportionality" was unconstitutional. As the Chief Justice stated:

This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that racial balance is not to be achieved for its own sake.

The Court's plurality decision is a giant step to requiring colorblindness with respect to all racial classifications. This is because to satisfy the strict scrutiny standard, the racial classification must be based upon past discrimination-a situation which we are moving further and further away from as society matures; or to meet diversity in higher education under a broad standard that does not just consider race. There must be some tie to educational value. Additionally, the plurality squarely rejects any notion of racial proportionality. "At the heart of the constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of racial, religious, sexual or national class."

Chief Justice Roberts even quotes with approval from the oral argument from Brown v. Board of Education for the proposition that:

We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.

At the end of Chief Justice Roberts 41 page plurality decision is also states: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

That statement together with others led Justice Breyer's 4 Justice dissent to state that the plurality was adopting a colorblindness standard. Additionally, Justice Thomas in his concurring opinion expressly adopted colorblindness and further stated that "[w]hat was wrong in 1954 cannot be right today." Moreover, he ended his opinion with Justice Harlan's famous Plessy v. Ferguson dissent. Most importantly, Justice Thomas expressly states Chief Justice Roberts' plurality decision adopted colorblindness.

Interestingly, I did not see in Chief Justice Roberts opinion an express discussion of colorblindness, though I agree that he is adopts this standard at least where there is no history of past discrimination. One must question why the Chief Justice did not expressly state that he was adopting a colorblind standard. I can only conclude that this is because the notion of colorblindness has deeply divided this country because with it most affirmative action programs will not survive constitutional scrutiny.

This is the first time that a majority of the Supreme Court has adopted colorblindness as constitutional doctrine. Therefore, this is a watershed constitutional law decision with respect to Equal Protection under the law.

Justice Kennedy's opinion was the swing vote. He did not adopt either Chief Justice Roberts' analysis nor Justice Breyer's analysis set forth in the 4 Justice dissent. Like all of the Justices, he would apply strict scrutiny. As part of this burden, the School Districts must establish how decisions based on race were made. The School Districts failed to meet this threshold mandate. Justice Kennedy pointed to factual discrepancies. For example, in the Kentucky case, there was no explanation as to why the guidelines at issue did not apply to kindergartens. There explanation as to why these racial classifications were necessary was also broad and they did not identify who made the decisions and how it was determined which of the two similarly situated children will be subjected to race based decision making. Seattle failed to explain why it simply characterized students as "white" and "non-white" when consideration is given to the fact that fewer than half of the students enrolled were white.

Justice Kennedy expressly rejected the notion of colorblindness and views that doctrine as merely an aspiration. "In the real world, it is regrettable to say, it cannot be a universal constitutional principle."

Justice Stevens wrote a relatively short dissent to express his views and he joined in the lengthly dissent by Justice Breyer. Stevens states that it is a cruel irony that the Chief Justice relies on Brown v. Board of Education. A rigid adherence to strict scrutiny, according to Stevens, "obscures Brown's clear message."

Justice Breyer wrote the dissent joined by three other Justices (Stevens, Souter and Ginsburg). He drew a distinction between school districts being required to adopt desegregation plans and where they voluntary chose to do so. The dissent also provides detailed factual and statistical analysis to support its conclusion that school districts need flexibility to prevent "the growing resegregation of public schools."

Breyer believes that the constitution permits the use of race-conscious criteria in limited ways to achieve "positive race-related goals, even when the Constitution does not compel it." He would accord school administrators deference in this type of decision making and pointed to numerous laws where Congress has approved of race-conscious statutes. Breyer does not state whether he believes that Chief Justice Roberts adopted a "colorblind" standard. Instead, he notes that he has found no cases that support Justice Thomas' colorblind approach.

Justice Breyer further states that context matters when reviewing raced-based governmental action. Remarkably, he states that "it would be surprising if the law required an identically strict legal test for evaluating the constitutionality of race-based criteria as to each of them," thus implying that a different test may apply when dealing with diversity. Though Breyer believes in a lesser form of strict scrutiny in such circumstances, he goes on and applies the existing strict scrutiny analysis to the facts and opines that the School Districts did not act in an unconstitutional manner.

Breyer does not see a difference in the term "diversity" from "racial balancing." Three interests justified the racial classification; the historical and remedial element; an educational element and a democratic element-that children need to "work and play together." The compelling interest here is the effort to eradicate the remnants, not of societal discrimination, but of primary and secondary school segregation. Breyer also cites to a number of decisions which have approved of race-conscious measures to combat segregated schools. According to Breyer' s dissent, diversity, is a compelling state interest in public schools even more so than in higher education.

This decision did not directly deal with affirmative action or employment discriminatation. However, it can be expected to directly effect affirmative action cases. Under this decision, it is doubtful that any voluntary affirmative action plan will survive where the employer has not been guilty of past discrimination. However, we will have to wait and see how the lower courts interpret this decision.         

This decision is one of the longest I have ever read and it reminds me of the Bakke decision of some 30 years ago. There is something in this decision for everyone to pull from. Frankly, the decision is simply too long. The decision is too long to read in one sitting and too long to correctly analyze in a lawyer's brief. That invites lawyers, professors and students to take short cuts. In the future, I can only hope that the Court becomes more aware of the fact that "less is often more." 

I have tried to keep this review relatively brief with that same hope in mind (less is more). I would be interested in hearing what others think of this decision. 

Mitchell H. Rubinstein    



June 28, 2007 in Discrimination Law, Education Law, Labor Law, Recent Developments, Schools | Permalink | Comments (2) | TrackBack (0)

DWI-Intoxication-refers to alcohol and not drugs

Nysctappeals In People v. Litto, ___N.Y.3d ___ (June 27,2007), New York's highest court issued a critically important criminal law decision concerning DWI. The Court of Appeals held that the phrase driving while intoxicated" in Vehicle and Traffic Law Sec. 1192(3) refers "to a disordered state of mind caused by alcohol, not by drugs."

The facts of this case were extreme. A 19 year old defendant sprayed "Dust Off" into his mouth while driving. This is an aerosol product commonly found in many cleaning products. Forty-five seconds he got into an accident killing one of his passengers and seriously injuring two others.

The Court undertook an extensive analysis of this statute and concluded that it was aimed at preventing the use of alcohol and that the legislature intended that alcohol to be treated differently than drugs. The chemical that was involved in the "Dust Off" was not on the list of controlled substances so defendant was not charged with a violation of another section of Vehicle and Traffic Law Sec. 1192 which prohibits driving while under the influence of alcohol or drugs.   

On the one hand, the statute uses the term "intoxication" and one could argue that term should encompass drugs. On the other hand, the legislative history seems to be clearly directed at drinking while driving. In the end, the result depends upon what the role of courts are? Do they interpret statutes in light of everyday life (so called activists judges) or do they strictly interpret the statute as originally written. The judges on the Court of Appeals took the later approach.

I found this case to involve a very complicated legal issue and I am a bit surprised that it did not generate at least one dissenting opinion. Personally, I believe that the constitution is a living document and it, as well as statutes that were passed pursuant to a legislature's constitutional authority, needs to be interpreted as such.

This defendant is not out of trouble. He remains indicted on far more serious counts of vehicular manslaughter as well as violations of several other penal law provisions. Perhaps, this had something to do with the decision of the court.

Mitchell H. Rubinstein   

June 28, 2007 in Recent Developments | Permalink | Comments (0) | TrackBack (0)

Breaking News Court decides Seattle School District Race Discrimination Caes in Favor of Plaintiffs

Court_front_med In Parents Involved In Community Schools v. Seattle School Dist., 551 U.S. ___(2007), the Court reversed the 9th Circuit decision and held that the two school districts involved did not meet their heavy burden of showing that the interest they seek to achieve justifies the extreme methods they chose-discriminating on the basis of raced by relying on racial classifications in making school assignments.

The Court's decision was divided a Chief Justice Roberts announced the judgement of the Court and he was joined by 4 other Justices in part and 3 other Justices with respect to another part. Justice Thomas filed a concurring opinion as did Justice Kennedy. Justice Stevens dissented. Justice Breyer also dissented and he was joined by 3 other Justices.

The Court's opinion is extremely lenghtly. I will have more on this after I have had more time to read it.

Mitchell H. Rubinstein


June 28, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 27, 2007

Church Employee Can Be Fired for Marriage Outside of Church

O'Connor v. Roman Catholic Church of the Diocese of Phoenix, ___F. Supp.2d ___, 2007 U.S. Dist. Lexis 38141 (D. Az. 2007)(registration required), is one of the few recent cases dealing with the "ministerial exception" of Title VII(Section 702 of Title VII, 42 U.S.C. Sec. 2000e-1) . Under this exception, Congress recognized that religous groups have a constitutionally protected interest in applying religious criteria to some employment decisions.

The plaintiff was required to be an active practicing Catholic in full communion with the Church. She was fired a few weeks after she married outside the Church. The court concluded that this case did involve a type of religious discrimination, but it was permitted under the ministerial exception. As the court stated:

The requirement of being in full communion with the Church which entails marrying in accordance with Catholic Church's teachings regarding the Sacrament of Marriage, is a matter of religous doctrine insulated from the adjudicatory or interpretive powers of the Court by the First Amendement of the Constitution.

The June 27, 2007 Findlaw article by LINDA COADY, ESQ., entitled " Diocese Employee Can Be Fired For Marriage Outside the Church" also discusses this case.

June 27, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Summer Associate Life

The June 24, 2007 New York Observer is running an article entitled "My Very Special Summer" which is about summer associate life at large New York City law firms. The article discusses the perks of being a summer associate; the lavish lunches, scavenger hunts, cocktails at the Central Park Zoo, cooking classes, wine tastings and of course, the $3000 per week these 2L students are making.

Though I am no fan of large NYC law firms, I think the article is a bit misleading in that it mainly focus on the perks summer associates get. The article only devotes a few lines to work by mentioning 12 hour days and the many lost weekends summer associates have to give up.

I actually never was a summer associate, but I have worked as a full time associate at two large NYC law firms and was one of the associate's who wined and dined with the summer associates. For most summer associates as well as law firms, the summer is very significant and very serious business because it offers a type of try out to see if that 2L will make to the associate ranks the next year when he or she graduates.

Any one reading this should ask themselves why do law firms do this each year? The answer is because they have too. The turnover rate at these firms is very high. Why is that you might ask? The dirty little secret of large NYC law firm life is that most associates are miserable. Additionally, there is an unwritten rule that many attorneys who are passed up for partner after 8 years or so of being an associate, should leave the firm. Most associates do not make partner and the reasons for that often do not have anything to do with performance. Further, guess what; many partners are miserable as well. Walk through the isle of any of these large NYC firms and you will find a group of divorced millionaires who never see their children and whose life is work.

In fairness, most large NYC law firms produce an excellent work product and there are, of course, some who like this type of work. In my 21 plus years of practice on both sides of the fence (working at two large law firms and going against several large law firms), I have only come across a few. 

Summer associates of the world-enjoy your summer. It might be the last bit of fun your going to have for awhile.

Mitchell H. Rubinstein       

June 27, 2007 in Oddly Enough, Law School | Permalink | Comments (0) | TrackBack (0)

How Binding Is a Federal Appellate Court's Prediction of State Law?

Howard Bashman in a June 25, 2007 article entitled "How Binding Is a Federal Appellate Court's Prediction of State Law?" addresses an important issue that remains unresolved almost 80 years after Erie Railroad Co. v. Tompkins (1938). We know that where there is no state court definitive legal answer, a federal court, sitting in diversity, will predict how the state court of last resort will rule. What remains unresolved is how much weight should that federal court decision be given by later federal courts.

The article also discusses a June 18, 2007 Third Circuit case, Worowski v. Ciasulli, ___F.3d___ (3d Cir. 2007) where this important issues was raised. As Mr. Bashman states:

[The Third Circuit]  renounced an Erie prediction of New Jersey law from 1988 in favor of an opposite prediction even though the Supreme Court of New Jersey has yet to directly confront the particular question of state law at issue.

Ordinarily, three-judge panels of the 3rd Circuit view themselves as powerless to overrule one another, unless the legal question at issue has been definitively resolved by a higher court: the U.S. Supreme Court on issues of federal law, or a state court of last resort on issues of state law. In the absence of a definitive ruling to the contrary from a higher court, only the 3rd Circuit sitting en banc can overrule a three-judge panel's decision. Nevertheless, in last week's 3rd Circuit ruling, a three-judge panel considered itself authorized to overrule the Erie prediction of an earlier three-judge panel from 1988 based on intervening intermediate appellate court rulings from the New Jersey judicial system.

Civil Procedure buffs take note. This is an important development to watch.

Mitchell H. Rubinstein

June 27, 2007 in Interesting Cases | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 26, 2007

Liability of Former Employer For Failure To Disclose That Employee Was Terminated For Allegations That He Acted In A Sexually Inappropriate Manner Towards Female Students

11th_circuit An important case is pending in the 11th Circuit Court of Appeals concerning the liability of a teacher's former employer for failing to disclose to another school district that the teacher was terminated because of allegations that he acted in a sexually inappropriate manner towards young female students.  I am specifically aware of one other reported court decision finding liablity in this particular factual circumstance.  I also believe that is some authority which holds that employers who give a good reference to problem employees could be liable if the employee presents a foreseeable and substantial risk of physical harm to third party employers.   

There are actually two related cases pending in the 11th Circuit. They are Stephens City School Dist. v. Dale, No. 06-14083 and White City School Dist. v. Dale, No. 06-11565 (11th Cir.). The opinion below is not reported and PACER did not provide a link to the unreported decision. A copy of one of the brief's is available by clicking Download PCRARFES.pdf Several of the briefs are available on PACER.

This is an important case for employment lawyers as well as lawyers who practice education law to watch.

Mitchell H. Rubinstein 

June 26, 2007 in Education Law, Employment Law | Permalink | Comments (0) | TrackBack (0)

The Law School Rankings Game-Must Read For Future Law Students

Amir Efrati in the June 26, 2007 Wall Street Journal wrote a critically important article which all prospective law students must read entitled "Law Schools Also Ranked By Blogs Now"  In this Article, the author stresses the importance of ranking systems other than the U.S. News and World Reports Law School Ranking system. Importantly, the article on line also provide links to blogs that provide other ranking information. The article also sites to Professor Brian Leiter's ranking system which a number of law school faculty view as more reliable.

The article points out the the U.S. News and World Reports system has been criticized by a number of law schools, but that it has never-the-less been considered the gold standard in rankings since 1990.

This article, as well as most ranking system articles, have left out a critically important element that students should consider carefully. That is what I call "school comfort". Simply put, students should pick a school that they feel comfortable with. Observe a class, sit in the lunch room, take a stroll along campus, read a newspaper in the library and, most importantly, talk to students and faculty. In the end, its not going to matter much whether you go to school number 70 or 80, but if your more comfortable in that school ranked number 80 you probably will get much more out of law school and perhaps become a better lawyer because of it. I put one caveat on this. To the extent students know what field of law they are interested in, they should carefully examine how many classes are offered in that discipline and what the placement stats are like in that discipline. If your interested in labor law, for example, it would make little sense to choose a school that only offered the basic course, over a school that offered several-unless of course that school is one of the top ten such as Harvard.

Professor Leiter who also maintains an excellent blog about law school, called Law School Reports Blog ,also states that he is also concerned with the mechanical use of law school rankings. He states on his blog that it is "scary to think that anyone would choose NYU over Chicago (or any school over any other) because of a two-place difference in U.S. News."

Update: The National Law Journal is reporting that law schools are unlikely to boycott U.S. News and World Reports (by not submitting information) as some colleges are planning to do.

Mitchell H. Rubinstein

June 26, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Monday, June 25, 2007

Only 9 States Are In Full Compliance With The IDEA

Ed_gl_header_2 On June 20, 2007, the U.S. Department of Education released evaluations of each state's effort to educate disabled children. Only 9 states were found to be in full compliance with respect to school age children between ages 3 and 21. Infant and toddler programs under Part C, did somewhat better as 14 states and the Commonwealth of the Northern Marianas Islands met all requirements.

The federal government spends approximately 10.5 billion dollars on education for disabled school age children. This is also the first ever such report. The reauthorized Individuals with Disabilities Education Act of 2004 requires each state to report annually to the public on the performance of its local educational agencies according to certain targets.

For additional information, an Associated Press Story and a Education Week story can be reviewed. The U.S. Department of Education Fact Sheet summarizing the results provides helpful information. Unofficial copies of the full report is available with respect to school age children as well as for infants and toddlers under Part C.

This demonstrates that 32 years after the passage of the what is now known as the IDEA, we still have a long way to go to implement the simple goal of the IDEA to provide a Free Appropriate Public Education to our children. There is no reason why all school districts cannot be in full compliance. Yes, in the short run it will cost money, but in the long run money will actually be saved because more of these disabled children will be able to participate freely and independently in our society. I cannot think of a much better use of our tax dollars. 

Mitchell H. Rubinstein          

June 25, 2007 in Education Law | Permalink | Comments (0) | TrackBack (0)

Special Education Horror Story; Exception to Administrative Filing Requirement Also Recognized

Unfortunately, though the IDEA was enacted some 32 years ago, there are still some special education horror stories to tell. In John G. and Gloria G. v. Northeastern Educational Intermediate Unit 19, ___F. Supp. 2d ___, 2007 WL 1450365 (M.D. Pa. 2007)(registration required), the court refused to dismiss and IDEA action, a 1983 action as well as several state tort causes of action brought against various school officials and a special education teacher.

The complaint alleges that an autistic support teacher used aversive techniques to redirect her autistic students including, but not limited to, squeezing ears, stepping on the insteps of feet, violently grabbing a student's neck, forcing a student to the floor, hitting a student's legs and head with a tissue box, pulling a student's hair and verbally abusing a student. Additionally, the teacher used restraints on her autistic students.

The plaintiff student was  about 6 years old when these alleged incidents took place. This behavior was reported to school officials by two teaching assistants who were assigned to the same class. When this was reported, the teacher was assigned to another school. Later the teaching assistants were also assigned to another school.

I actually noticed the case because it involved an important legal issue concerning the familar rule of administrative law that a party must must exhaust his or her administrative remedies before proceeding in court. Here, the court held that an exception was applicable based upon futility. Specifically, the court drew a distinction between a case challenging the contents of an IEP (which requires exhaustion) and this case which involved the implementation of an IEP. IDEA eligibility and services were not at issue in this case as it is in most IDEA litigation.   

Mitchell H. Rubinstein   

June 25, 2007 in Education Law | Permalink | Comments (0) | TrackBack (0)

Supreme Court Rejects First Amendment Defense of Student Who Displayed Banner Promoting Illegal Drug Use

Court_1215_2   In Morse v. Frederick, 551 U.S. ___(June 25,007), a divided Court held that a student who displayed a banner at a school event which stated "Bong Hits 4 Jesus" could be suspended for 8 days for violating school policy.

Chief Justice Roberts, writing the opinion of the Court, reaffirmed that under Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate", but that "the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings." The Court ultimately held that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use."

First Amendment rights, according to the majority, can be circumscribed in light of the special characteristics of the school environment. Additionally, student speech can be banned even if it does not cause a disruption. Citing to Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), the Court stated that school officials can take can prohibit speech if their actions are reasonably related to legitimate pedagogical concerns.

Justice Stevens wrote the decision for a three Justice dissent. The schools interest in protecting students from illegal drug use, according to Stevens, cannot justify disciplining a student in his attempt to make an ambiguous statement to a television audience. He characterized the banner as "nonsense". Therefore, if the message were not ambiguous, it is reasonable to assume that Stevens would have voted with the majority.

Justice Thomas concurring opinion is perhaps the most stunning. He would overrule Tinker because he believes that students do not have any First Amendment rights. He undertook a historically review of the public school system in this country to support his reasoning.

Mitchell H. Rubinstein 

June 25, 2007 in Education Law | Permalink | Comments (0) | TrackBack (0)

Sunday, June 24, 2007

2d Circuit Rejects First Amendment Challenge to Union Official Discharged; Employee Also Entitled to Judicial Review Even Though He Lost Arbitration

Circseal_3 On June 21, 2007, the Second Circuit issued a little noticed, but important First Amendment decision which demonstrates just how narrow public employee free speech protections are.

In Blackman v. Winslow, ___F. 3d ___(2d Cir. 2007), a government employee who was also union official was fired after he commented that two supervisors who were murdered "deserved what they got for a getting [a Transit Authority employee] fired." The court assumed arguendo that plaintiff's speech touched on a matter of public concern (required under Connick v. Meyers, 461 U.S. 138(1983)) and then turned to the Pickering balancing test to determine if the employee stated a claim.

Applying this balancing test, the court concluded that the government's interest in firing plaintiff was substantial because it revealed him to be a person of violent disposition who was potentially deeply disruptive of the workplace. Apparently, that governmental interest outweighed the plaintiffs. The only problem with this analysis is that the court did not specify what the plaintiffs interests were.   

Interestingly, the district court had analyzed the case the opposite way. The district court concluded that the case did not involve an issue of public concern and therefore, it did not have to undertake a balancing of interests. Therefore, it simply dismissed the case.

The other interesting aspect of this case is that the plaintiff's discharge was arbitrated. The plaintiff lost the arbitration and the arbitrator rejected the First Amendment defense because she concluded that the speech did not involve a matter of public concern. The plaintiff did not seek to vacate that arbitration decision. Rather, he brought a plenary First Amendment case in federal court.

The court applied a de novo standard and did not appear to give the arbitration decision any weight. Whether employees get a second bite at the apple to assert statutory rights after an arbitration is one of the most important issues in employment law today. However, where constitutional rights are involved, there does not appear to be any question that the employee gets that second bite.

Because of the narrow standard of judicial review applicable to labor arbitration decisions under Section 301 of the NLRA, plaintiff probably made a strategic decision to file a plenary First Amendment action rather than to attempt to vacate the arbitration.

Mitchell H. Rubinstein

June 24, 2007 in Employment Law, Labor Law | Permalink | Comments (0) | TrackBack (0)

Home-Workers are Employees For Unemployment Tax Purposes

Mvc013s2 In Fleece on Earth v. Department of Employment and Training, ___A.2d___(Vt. May 30, 2007), the Vermont Supreme Court held that knitters and sewers who worked at home for a small business and were paid by the piece were employees and not independent contractors. Therefore, the employer was obligated to pay unemployment insurance taxes for these workers.

Vermont has a statute defining who an employee is which is similar to the common law right to control test, but considered broader. Therefore, this case may be of limited use in other jurisdictions. However, the court did survey decisions from other states concerning the treatment of home workers.

I expect that the status of home workers will arise in many different areas of employment law as more and more workers choose to work at home.

Mitchell H. Rubinstein   

June 24, 2007 in Employment Law, Tax Law Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, June 23, 2007

US Dept. of Labor Free Overtime Calculator

The U.S. Dep't. of Labor maintains a free Overtime Calculator as well as an excellent summary of the Fair Labor Standards Act which is one of the oldest employment laws in the country. It incorporates provisions for employees in special circumstances (such as tipped employees) and has links to fact sheets which summarizes the law. It is available to both employers and employees.

The DOL has just about the best web site I have seen with regard to the laws it enforces. I have used its sections on FMLA extensively in my practice.

Mitchell H. Rubinstein   

June 23, 2007 in Legal Research | Permalink | Comments (0) | TrackBack (0)

Friday, June 22, 2007

Democrats Introduce Lilly Ledbetter Fair Pay Act

GeorgemillerHouse Democrats have kept there word and have acted quickly to introduce Legislation which would legislatively overrule the Supreme Court's decision in  Ledbetter v. Goodyear, 550 U.S. __(2007) which I previously discussed here. The Legislation is sponsored by Congressman George Miller (Dem. Calif.). Congressman Miller described this Legislation in a Press Release as follows:

The Lilly Ledbetter Fair Pay Act would allow pay discrimination claims to be filed within 180 days of the issuance of a discriminatory paycheck. Most workers are unaware of what their co-workers earn, and many employers even prohibit employees from discussing their pay with each other. That makes it nearly impossible for workers to uncover pay discrimination.

The legislation is named after Lilly Ledbetter, whose pay discrimination claim was denied by a 5-4 Supreme Court decision on May 29. The court said that she had waited too long to sue for pay discrimination, despite the fact that she filed a charge with the U.S. Equal Employment Opportunity Commission as soon as she received an anonymous note alerting her to pay discrimination. The court ruled that since she did not raise a claim with 180 days of the actual decision to discriminate, she could not receive back pay.

Mitchell H. Rubinstein

June 22, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

7th Circuit Maintains Free Wiki and RSS Feeder

7th_circuit The 7th Circuit is making the most out of technology and is way ahead of most courts. First, it maintains an excellent web site.  For example, the web site includes brief samples and brief checklists. Second, it maintains a Free Wiki with a search engine. Third, it maintains a RSS feeder so that you can instantly receive copies of cases as well as oral argument dates and other important information.

I hope that one day other federal and state courts will follow the 7th Circuit's lead.

Mitchell H. Rubinstein

June 22, 2007 in Legal Research | Permalink | Comments (0) | TrackBack (0)

Teaching vs. Scholarship

Inside Education June 19, 2007 edition is running an article entitled  If You Teach Them, They Will Be Happy. It reports on an Article written by  Kennon M. Sheldon, a psychology professor at the University of Missouri at Columbia, and Lawrence S. Krieger, a law professor at Florida State University. The Article “Understanding the Negative Effects of Legal Education on Law Students: A Longitudinal Test of Self-Determination Theory,”  can be summarized in this passage from the article:

A study published this month in the Personality and Social Psychology Bulletin compared recent classes at two law schools with almost identical average undergraduate grade-point averages and LSAT scores and found that students at the school that encouraged its professors to be good teachers rather than good scholars reported higher levels of well-being and competence, and scored higher on bar exams.

I hope law schools take note of this survey.

Mitchell H. Rubinstein

June 22, 2007 in Current Events | Permalink | Comments (0) | TrackBack (0)