Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, January 31, 2010

Parents’ suit charges Ohio school district’s failure to prevent “sexting” of student’s nude photo led to her suicide

The Cincinnati Enquirer reported that parents of a high school student who committed suicide, have filed suit, charging that school officials’ failure to prevent her classmates from sharing nude pictures of her via their cell phones led to her desperate act. The suit contends the school district and several students violated Jessica’s constitutional rights.  The lawsuit accuses school officials, a school resource officer, several students and the city of Montgomery of sexual discrimination and depriving Logan of her civil rights, including the right to due process. The suit says the behavior of the accused "shocks the conscience."

I would be surprised if this suit survives summary judgment.

Source: Cincinnati Enquirer, 12/3/09, By Dan Horn

January 31, 2010 in Education Law | Permalink | Comments (0)

The U.S. News and World Report's Ranking System Effect On Law Schools

Research Documents Effect of U.S. News Ranking on Law Schools is an interesting December 9, 2009 New York Law Journal article (registration required). It documents something we all know. The U.S. News and World Reports Law School ranking system effects law schools. As the article states:

The rankings have become a routine consideration in law school decision-making, according to the report, and pressure to move up in the rankings influences the way law schools distribute their resources.

The study's conclusion that law schools have several ways of gaming the system likely will not surprise the many critics who have charged that the rankings are easily manipulated and are harmful to the educational mission of law schools. Most of the interviewed administrators said the rankings hurt law schools, but some believed they add transparency and accountability to legal education. The magazine bases its rankings on reputation, selectivity, placement success and faculty resources.

The researchers considered ways in which that pressure has changed the role of law school deans, admissions officers, career services personnel and faculty.

Administrators consistently reported they have allocated more money toward merit-based scholarships in order to attract students with high LSAT scores, a factor that accounts for half of a school's selectivity score. That leaves less money for need-based scholarships, which in turn can hurt student body diversity because applicants from lower income groups tend to have lower scorer LSAT scores, the researchers found.

Mitchell H. Rubinstein

January 31, 2010 in Law Schools, Rankings | Permalink | Comments (0)

U.S. Supreme Court accepts case of California law school’s denial of official recognition to student religious group

The New York Times reported  that the U.S. Supreme Court has granted review to a Christian student group that is challenging denial recognition by a public law school in California because the groups excludes homosexuals and nonbelievers from full membership.  Hastings College of the Law, which is part of the University of California, allows some 60 recognized student groups to use meeting space, bulletin boards and the like so long as they agree to a policy that forbids discrimination on various grounds, including religion and sexual orientation. The school withdrew recognition from CLS after it refused to comply with the policy. The United States Court of Appeals for the Ninth Circuit, ruled in favor of the law school. Hastings imposes an open membership rule on all student groups, which states “all groups must accept all comers as voting members even if those individuals disagree with the mission of the group,” In a brief unsigned decision, a three-judge panel of the court said ,“The conditions on recognition are therefore viewpoint neutral and reasonable.”

Three years earlier, the Seventh Circuit, ruled to the contrary in a case involving a different chapter of the same group at an Illinois law school. It would be very difficult for C.L.S. to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct.”  “C.L.S.’s beliefs about sexual morality are among its defining values; forcing it to accept as members those who engage in or approve of homosexual conduct would cause the group as it currently identifies itself to cease to exist.”

Source: New York Times, 12/7/09, By Adam Liptak

Ninth Circuit’s opinion in Christian Legal Society v. Martinez

Mitchell H. Rubinstein

January 31, 2010 in Education Law | Permalink | Comments (0)

Employee must show a causal relationship between injury and employment to be eligible for workers’ compensation benefits

Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890

North Syracuse CSD school bus attendant Diane Norton sustained a compensable injury and awarded her workers' compensation benefits. North Syracuse, a self-insurer for workers’ compensation, controverted [objected to] the claim.*

The Workers' Compensation Board sustained a Workers’ Compensation Law Judge’s ruling finding that Norton a causal relationship between the nature of Norton’s employment and her disability. The District appealed the Board’s determination.

The Appellate Division, noting that "It is axiomatic that a claimant [seeking workers’ compensation benefits] bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence," said that "a medical opinion on the issue of causation must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis."

In this case the Appellate Division concluded that Norton had not met her burden of demonstrating a causal relationship between her employment and her disability.

A medical expert, Brett Greenky, a board-certified orthopedic surgeon, testified how a fracture such as the one Norton sustained can occur and stated that her report of injury was "[p]otentially consistent" with the fracture that she sustained. Dr Greenky, however, also testified, "I don't have an opinion about when it happened and how it happened."

As Dr. Greenky's medical testimony “falls short of the required degree of medical proof,” the Appellate Division ruled that the Board's determination lacked a rational basis and was not supported by substantial evidence. The court reversed the Board’s ruling and remanded the matter to it “for further proceedings not inconsistent with this Court's decision.”

* Section 25.2 of the Workers’ Compensation Law, in pertinent part, provides: “In case the employer decides to controvert the right to compensation, it shall, either on or before the eighteenth day after disability or within ten days after it has knowledge of the alleged accident, whichever period is the greater, file a notice with the chair, on a form prescribed by the chair, that compensation is not being paid, giving the name of the claimant, name of the employer, date of the alleged accident and the reason why compensation is not being paid.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

January 31, 2010 in Employment Law | Permalink | Comments (0)

Saturday, January 30, 2010

ALPA Agrees To Largest Ever Duty of Fair Representation Settlement

United Airline Pilots Union to Pay $44 M To Settle Suit By Some Members is an interesting Chicago Crains article dated Jan. 21, 2010.  The article states that this settlement is the largest DFR settlement in history. As the article states:

The pilots union at United Airlines has agreed to pay $44 million to about 2,000 senior pilots who claimed they were shortchanged by a lump-sum financial deal the union cut to get the Chicago-based carrier out of Bankruptcy Court four years ago.

The settlement puts to rest a class-action lawsuit brought by several former leaders of the union, which potentially could have cost the Air Line Pilots Assn. nearly $200 million had it gone to trial.

Legal experts believe it to be the largest settlement ever in a case based on the “duty of fair representation,” an area of labor law where courts usually give union leaders a lot of leeway to define what’s fair.

“That’s a substantial settlement,” said Martin Malin, a Chicago Kent College of Law professor who has written a reference book for lawyers on the duty of fair representation. “It sounds like the union had a lot to be worried about.”

There is a recent court decision where the court denied ALPA summary judgment. My guess is that this court decision is what lead the parties to settle. Mansfield v. ALPA, 2009 WL 2386281 (N.D. Ill. Jan. 29, 2009), Download Denial.Motion.Summary.Judgment.7-29-09

Mitchell H. Rubinstein

January 30, 2010 in Duty of Fair Representation | Permalink | Comments (0)

Clerk who lacked "Midwestern girl look" could pursue sex stereotyping claim


Lewis v Heartland Inns of America, LLC, ____F.3d____(8th Cir. January 21, 2010), is an interesting case.

The 8th held that the lower court improperly granted summary judgment in favor of an employer on a hotel desk clerk's Title VII sex-stereotyping claim that she was discharged because she dressed like Ellen DeGeneres, lacked a "Midwestern girl look" and was not pretty enough. The plaintiff alleged that the  employer discharged her not because of her qualifications or job performance, but because her appearance did not comport with the employer's preferred feminine stereotype. An adverse employment decision based on "gender non-conforming behavior and appearance" is impermissible under Price-Waterhouse. Further, such criticism of an employee before terminating her may be found by a reasonable factfinder to be evidence of wrongful sex stereotyping. The district court also erred in requiring the employee to offer evidence that similarly situated men were treated differently. Supreme Court precedent does not compel a female employee alleging sex discrimination to prove men were not subjected to the same challenged discriminatory conduct or show that the discrimination affected anyone other than herself, noted the majority. Here, the employer did not follow its own disciplinary procedure in discharging the employee and only later alleged the discharge was for poor job performance.

Mitchell H. Rubinstein

January 30, 2010 in Employment Discrimination | Permalink | Comments (0)

Twenty-day statute of limitations for filing an appeal with the Unemployment Insurance Board strictly construed

Matter of Pascarella v New York State Thruway Auth., 59 AD3d 835

An agency Administrative Law Judge [ALJ] reversed an initial determination that denied former New York State Thruway employee James J. Pascarella’s application for unemployment insurance benefits. The ALJ’s decision approving Pascarella’s claim for benefits included a statement that a party had 20 days to file an appeal challenging the determination.*

The Thruway Authority filed an appeal, but it was dismissed on the grounds that it was untimely.

In the course of a hearing to determine if the Thruway’s appeal was timely, the Thruway’s representatives admitted the Thruway received the ALJ's decision shortly after it was mailed but testified that the Thruway’s delay in seeking to appeal was due to its mistaken belief that it, as the employer, had 30 days, within which to do so.

The Unemployment Insurance Appeal Board dismissed the Thruway’s appeal as untimely.
The Appellate Division affirmed the Board’s determination pointing out that Labor Law §621(1) requires that an appeal to the Board from an ALJ's ruling must be made within 20 days of the date the decision is mailed or personally delivered to the party wishing to appeal.

The court explained that statutory time limits are strictly construed and neither the fact that the party appealing failed to read or understand that part of the ALJ's decision indicating the time period for filing a timely appeal nor its mistaken belief that it had more time to appeal is not a reasonable excuse for failing to comply with the statutory time period provided to do so.

* Another example of a “short statutes of limitations,” an appeal challenging an Education Law §3020-a disciplinary determination pursuant to CPLR Article 75 must be filed within ten days of the receipt of the decision by the party challenging the decision [see Education Law §3020-a.5].

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

January 30, 2010 in Employment Law | Permalink | Comments (0)

E-Mail Etiquette For Lawyers

One of my colleagues at St. John's Law School, Judge Jerry Lebovits wrote a very interesting December 2009 article for the NYS Bar Journal entitled E-Mail Netiquette for Lawyers.(No link available). It provides some common sense advice concerning the use of email. His general advice is "Think.Pause. Think again, Then send." He warns attorneys not to hide behind the electronic curtain, to end confrontations, to be concise and to limit back and forth lengthly conversations. Check the article out.

Mitchell H. Rubinstein

January 30, 2010 in Articles, Lawyers | Permalink | Comments (0)

School Law Jobs

School Law Jobs
Job Title Employer Job Location
General Counsel Oxnard School District Oxnard, California
School Attorney Harbottle Law Group Orange County, California
General Education / Labor & Employment Attorney Lozano Smith Los Angeles, California
Special Education Attorney Lozano Smith Northern/Central California
Associate Attorney Schwartz & Shaw Raleigh, North Carolina

January 30, 2010 in Lawyer Employment | Permalink | Comments (0)

Thursday, January 28, 2010


We all need them at some point. Sometimes we really need them and it can make the difference in a case. What are they? Adjournments or continuances. There has not been much written about this important litigation topic and their are relatively few reported decisions concerning same. "To Be Continued" is an excellent December 2009 NYS Bar Journal article written by David Paul Horowitz.

Courts, of course, have broad discretion is deciding whether to grant an adjournment. This article reviews some of the leading New York cases on this important fact of litigation life. The article discusses some cases concerning adjournments because of witness availability, extensions to gather documents and attorney scheduling conflicts.

Mitchell H. Rubinstein

January 28, 2010 in Articles, Litigation | Permalink | Comments (0)

Bus Driver Unable To Establish Discrimination Claim on the Basis of Obesity

An obese woman who was passed over for a bus driver position was not the victim of perceived disability discrimination under California's Fair Employment and Housing Act because her obesity was not caused by an underlying physiological condition, a California court has ruled. The 2nd District Court of Appeal rejected the plaintiff's claim that an amendment to the FEHA, Cal. Gov't Code § 12900, allowed such a cause of action without a medical reason for the disabling physical condition.

Hines v. Los Angeles County Metropolitan Transportation Authority, No. B208389, 2009 WL 3682603 (Cal. Ct. App., 2d Dist., Div. 5 Nov. 6, 2009).

Mitchell H. Rubinstein

January 28, 2010 in Employment Discrimination | Permalink | Comments (0)

Supremes hears arguments in dispute over CBA formation, interference

The Supreme Court heard oral arguments last week in Granite Rock v Int'l B'hood of Teamsters (Dkt No 08-1214): Does a federal court have jurisdiction to determine the existence of a bargaining agreement where there is a dispute as to whether a contract was actually formed? Alternatively, should the issue of contract formation go to an arbitrator, pursuant to the putative contract's arbitration clause? Also at issue is whether the Labor Management Relations Act provides a cause of action for tortious interference with contract against an international union that is not a signatory to the bargaining agreement, but effectively displaces the signatory local union and causes a strike. In the decision below, the Ninth Circuit reversed a district court order denying a union's motion to compel arbitration on the question of whether a contract was formed. The appeals court also affirmed dismissal of the employer's LMRA claim against the international union.

Mitchell H. Rubinstein

January 28, 2010 | Permalink | Comments (0)

Court Upholds Dismissal of Dental Student From Dental School

In Flores v. NYU, __Misc. 3d___(N.Y. Co. Nov. 30, 2009), the court upheld the dismissal of a student from dental school for cheating. As the court explained:

Here, the court finds that NYUCD’s decision must be upheld because the
College substantially complied with its own Code, and its determination was
rationally based after consideration of all the evidence before it. While Petitioner
disputes that he explicitly admitted to cheating on a quiz, Petitioner himself states
in the petition that he “admitted to briefly glancing at another student’s quiz 011 a
single occasion.” Whilc Petitioner maintains that this was inadvcrtent - and was in
fact the product of his ADHD - Petitioner’s facially plausible explanation does not
render NYUCD’s contrary finding (ie., that Petitioner looked at the student’s quiz
to obtain answers) unreasonable or arbitrary. Accordingly, the court cannot disturb
NYUCD’s findings of fact and assessments of witness credibility (see Ehert v.
Yeshiva Univ., 28 A.D.3d 3 15, 3 16 [lst Dcpt. 20061). Finally, where Petitioner was
found to have cheated on a quiz, the court cannot conclude that the penalty of
expulsion was so disproportionate to the offense as to shock thc conscience.

This case demonstrates how courts pay extreme deference to decisions of university administrators.

Mitchell H. Rubinstein

January 28, 2010 in Education Law | Permalink | Comments (0)

Wednesday, January 27, 2010

The ABA responds to the claim there are too many law schools

As many readers may know, the LA Times recently featured an editorial by Mark Greenbaum that blasted the ABA for abdicating its responsibility to lawyers, the public and prospective law students by not doing more to stem the tide of debt-burdened law grads seeking jobs where non exist.

ABA president Carolyn Lamm has now responded to the editorial as well as granting Above the Law an interview. In essence, Ms. Lamm says that the LA Times editorial got some of the key numbers wrong resulting in a misleading picture of the supply and demand for lawyers.  Further, she explains that anti-trust laws prevent the ABA from refusing to approve new law schools if they meet the licensing requirements:

Greenbaum’s proposal to erect barriers to entry in the profession and/or to new law schools would violate the antitrust laws of the United States, something the ABA cannot and will not attempt to do. To violate our nation’s laws as we strive to teach new lawyers ethical and responsible practice would offend public trust and disserve future clients. Before so causally dismissing antitrust “concerns,” Greenbaum should consider the basic precepts of antitrust law that ban concerted action to bar entry to a public profession. He proposes to protect income of lawyers already in practice by clamping the pipeline for bright, committed, energetic and talented new lawyers preparing to serve the public. Rather, the ABA is working to ensure that our profession is open to all from our communities who wish to serve the public. Our profession and those involved in our justice system must reflect our communities. It is a difficult time for all given the economic crisis.

You can read the rest of President's Lamm's response to the LA Times editorial as well as her comments to ATL here.


January 27, 2010 | Permalink | Comments (0)

Arizona law would permit professors to carry guns

An Arizona legislator has introduced a bill that would allow faculty at public universities to carry guns on campus if they have a concealed weapons permit.  According to

Senate Bill 1011, sponsored by Republican Sen. Jack Harper of Surprise, comes on the heels of passage last year of a bill that allows guns to be stored inside locked car trunks on public college campuses.  The latest bill is already generating debate among faculty, who are trying to figure out whether the legislation has legs. Faculty groups at Arizona have not yet taken positions.
“It's on our radar, and we're watching it with great attention and scrutiny,” said Rojann Alpers, an ASU professor and chair of the university's academic council.
Although the UA Faculty Senate has not voted, chair Wanda Howell said the senate wouldn't support the latest bill given the faculty's opposition to the previous law change that allows people to keep guns locked inside their cars on campus.
Since the 2007 shootings at Virginia Tech that left 33 people dead, a handful of states have sought to put legislation in place that relaxes college firearm laws. Most states still prohibit guns on campus
You can read the rest here.

Hat tip to the Chronicle of Higher Ed.


January 27, 2010 | Permalink | Comments (0)

Union Membership In New York Continues To Remain Strong

Union membership in New York is about double than National average. A recent article which summarizes BLS data states:

Union membership in New York remains strong despite the downturn in the economy.

The US Bureau of Labor Statistics is out with its annual survey of union membership. New York once again has the highest percentage of union members. Just over one-fourth (25.2%) of those working in New York belong to a union. That's more than double the national rate (12.3%).

The total number of people employed in the state dropped by ten-percent from 2008 to 2009. But over the same period, the number of union workers declined only half as much.

Mitchell H. Rubinstein

January 27, 2010 in Unions | Permalink | Comments (0)


Kaye v. Board of Trustees of the San Diego County Public Law Library et al., No. D053644, 2009 WL 3738795 (Cal. Ct. App., 4th Dist., Div. 1 Nov. 10, 2009) A California appeals court has refused to overturn summary judgment in favor of a public law library that fired its reference librarian after he circulated a scathing e-mail critical of management.

    A California Appellate Court rejected plaintiff's argument that his e-mail was protected speech and that his termination violated the California Constitution's free-speech clause.

“When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” the appeals court explained, citing Garcetti v. Ceballos, 547 U.S. 410 (2006).

The dispute arose in 2006 when a representative from the Administrative Office of the Courts contacted the San Diego County Public Law Library to arrange a speaker for a program about helping self-represented litigants with appeals.went directly to Kaye, as he had taught the library's appellate course for self-represented litints.

Mitchell H. Rubinstein

January 27, 2010 in Employment Law | Permalink | Comments (0)

How to handle students who tell you they need to get an "A"

Apropos to the post below about students "demanding" to know why they didn't get the "A" they think they deserved is this essay from Inside Higher Ed, explaining how to handle students who subtly pressure the teacher at the start of the semester for an "A."

Unless you discourage it, someone will come to you early on and announce that s/he "needs" to get an A in your class. Variants include: "I have a 4.0 GPA"; "I want to know exactly what I need to do to get at least an A in your class"; "I’ve always gotten an A in (your discipline here) classes"; and "I’m applying to law/med school so I need to make sure this course won’t hurt my GPA."

The best way to address such a statement is try to avoid needing to do so in the first place. Some professors like to use ice-breakers in the first class to build solidarity. If that works for you, who am I to criticize? I’m not comfortable with the touchy-feely stuff, so I prefer to get down to business. However you start, though, make sure you make several things clear when you pass out the syllabus.

First, advise students that your grading criteria are laid out in specific detail on the syllabus. Second, remind them that a B is an honors level grade and they must do honors level work to get a grade that’s at least that high. Third, tell the class that you will evaluate everyone’s work according to the same standards. Fourth, remind students that you can only evaluate products, not effort, perception, or personality.

Even then at least one student is likely to repeat the dreaded "I need to get an A" phrase. In such a case, the best route to go is to smile and tell the student, "I hope that your need will match what you earn, but you should know that this conversation will have no bearing on how I evaluate you. In fact, it would be a very good idea if this topic is never again mentioned." Don’t be surprised if said student drops your course. Don’t worry about that; in fact, count your blessings.

The author offers additional advice on students who tell you:

  1. I need this course to stay in school and I’m willing to work hard.
  2. Is this course going to be fun?
  3. If I miss a few classes, will it hurt me?
  4. If I screw up, can I do an extra credit project?

In addition to answering those questions, the author also provides a bibliography of readings on these topics.  You can find all of it here.


January 27, 2010 | Permalink | Comments (0)

How to handle the student who gets a "B" but thinks she deserves an "A"

This post is for all our adjunct prof readers (and full-timers too).  Each of us has developed our own strategies for dealing with students who email or come see us after the semester ends demanding to know why they didn't get an "A."  One professor offers this advice via the Chronicle of Higher Ed:

I've always told the students they could discuss their grades with me once we are three weeks into the new semester, which is basically my version of hoping they'll forget. Usually they do.

[I made an exception for this student] because he was, in fact, a good writer and because he seemed genuinely perplexed by the fact that even though he did all the work, he didn't get the best grade possible. 

With very few changes, here's the note I sent:

Since I have a policy of not explaining or discussing grades until the second week after the new semester begins, consider this quick email a rare case of rule-breaking on my part: I'm making an exception because I think you have promise as a writer. 

First things first: Yes, you did misinterpret the following:  

If every assignment was completed on time and in its entirety with well thought out responses then the result would be an A in the class.

That's not a deal I make in any class or with any student. You should also understand that getting a B is, in fact, doing very well. You should give yourself credit. It is an excellent grade. The fact that you did well is an indication of precisely the promise I mentioned earlier.

Secondly,  of course you made the deadlines -- which is what I expect from everyone -- and you handed in the assignments -- which is also what I expect. That level of work secures students a "C" because that's what we call "meeting the minimum requirements" and in no case would that snag anybody an automatic A.

You can read the rest of this teacher's response to the student here.


January 27, 2010 | Permalink | Comments (0)

Tuesday, January 26, 2010

Supervisor’s comments concerning an employee’s job performance protected by a qualified privilege absent a showing of malice

Bayer v City of New York, 60 AD3d 713

Hank Bayer, who was employed as a plumber by the New York City Department of Education, sued the City, the Department of Education and his supervisor, Nunzio Piro, alleging, that Piro defamed him and repeatedly accused him of misconduct and insubordination. He asked to be awarded damages for “intentional infliction of emotional distress and defamation.” Supreme Court dismissed Bayer’s complaint.

The Appellate Division affirmed the lower court’s granting the defendants’ motion for summary judgment, holding that the City, the Department and Piro had “established their prima facie entitlement to [summary] judgment as a matter of law.”

The court said the alleged defamatory statement made by Piro was protected by a qualified privilege since Piro made it to other persons who had an interest in his assessment of Bayer’s work behavior.

To overcome Piro’s qualified privilege Bayer was required to show that the statement was solely motivated by malice. The Appellate Division said that Bayer failed to do so.

In any event, said the court, Bayer “failed to raise a triable issue of fact as to whether Piro's conduct was so extreme, outrageous, and beyond the bounds of human decency as to constitute the tort of intentional infliction of emotional distress, citing Schell v Nassau County Dept. of Health, 237 AD2d 423.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

January 26, 2010 in Employment Law | Permalink | Comments (0)