Friday, March 26, 2010
Keefe v. New York Law School, ____A.D. 3d___(1st Dep't. March 25, 2010), is an interesting case. A law student who transferred into New York Law School challenged a grade he got in Legal Writing II. He claimed that he was unfairly disadvantaged because he did not take Legal Writing I at the law school. Remarkably, he argued that the law school should change his grade to pass/fail.He brought a breach of an implied contract action and claimed that the law school acted in an arbitrary and capricious manner towards him. In rejecting his argument the court stated:
"The rights and obligations of the parties, as contained in the university's bulletins, bec[o]me a part of the parties' contract" (Prusack v State of New York, 117 AD2d 729, 730 ). However, only specific promises set forth in a school's bulletins, circulars and handbooks, which are material to the student's relationship with the school, can establish the existence of an implied contract (see Lloyd v Alpha Phi Alpha Fraternity, 1999 WL 47153, *9-10, 1999 US Dist LEXIS 906, *25-28 [ND NY 1999]; see also Abraham v New York Univ. Coll. of Dentistry, 190 AD2d 567 ). Absent the existence of a contract, a claim alleging breach of the implied covenant of good faith and fair dealing is legally unavailing (see Schorr v Guardian Life Ins. Co. of Am., 44 AD3d 319 ). Furthermore, "although . . . the determinations of educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute" (Matter of Susan M. v New York Law School, 76 NY2d 241, 246  [internal citations omitted]).
The court properly dismissed the complaint as there is no indication that defendant ever promised that it would utilize a pass/fail grading system. In fact, the remedy plaintiff seeks is contradicted by the documentary evidence, as defendant communicated through its student handbook that it utilizes a letter grading system under which all students are evaluated. Accordingly, plaintiff's breach of implied contract claim fails, as does his claim for breach of the implied covenant of good faith and fair dealing.
Plaintiff contends that he was unfairly disadvantaged and that his grade was arbitrary and [*2]capricious, as all assignments given in Legal Writing II were based on the law and the facts from assignments given in Legal Writing I. This argument is belied by the record, which includes an email from defendant's Office of Academic Affairs informing plaintiff that his Legal Writing section had been changed, and that he should contact the Administrative Assistant of Legal Writing, who would provide him with the materials needed to bring him "up to speed" for the spring term. There is no evidence that plaintiff availed himself of this opportunity.
The plaintiffs argument did not make much sense. Every law school class builds on first year classes. Plaintiff was a transfer student and classes cannot be expected to be exactly the same. I also fail to understand what contract, implied or otherwise, that NYLS breached.
I will say one thing. The plaintiff got some good litigation experience. How many law students have briefed and argued cases in the Appellate Division??
Mitchell H. Rubinstein
Student Suspended For Facebook Page Can Sue is an interesting Feb. 15, 2010 NY Times article. It is about a growing number of student discipline cases based upon actions or conduct of the student that occurred outside the classroom. What did the student in question do? She wrote the following comment on her facebook page: "Ms. Sarah Phelps is the worst teacher I’ve ever had” and the student invited past and current students of Ms. Phelps to post their own comments.
There is a significant amount of authority in the 2d Circuit which would support the students right to make such a comment so long as it does not cause a disruption. This case is pending in the 11th Circuit. Seems like a no-brainer to me.
Mitchell H. Rubinstein
Commissioner of Education asked to void collective bargaining agreement between school district and an employee organization
Theresa Budich, a taxpayer and member of the Board of Education of the Monroe-Woodbury Central School District objected to certain actions taken the board and asked the Commissioner to remove a fellow board member, Michael DiGeronimo from his position as a member of the board.
The Commissioner dismissed Budich’s appeal and her application to remove DiGeronimo.
Budich alleged that DiGeronimo willfully violated his role as president and board member by ratifying an agreement with Monroe-Woodbury Teachers Association that “was not in the best interest of the district’s taxpayers or students.” She sought DiGeronimo’s removal from the board because of he failed to recuse himself from district negotiations with the MWTA due to an alleged conflict of interest, i.e., his wife’s membership in the MWTA. In addition, Budich asked the Commissioner to overturn the board’s ratification” of the collective bargaining agreement and to declare it null and void.
The Commissioner said that Budich’s application to remove DiGeronimo as president and member of the board must be denied. A president or member of the board may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or board president has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education. In this context, willful means the challenged actions must have been intentional and with a wrongful purpose.
Budich, said the Commissioner, failed to establish that DiGeronimo’s actions constituted a conflict of interest and/or a willful violation or neglect of duty under law. Citing General Municipal Law §801, the Commissioner noted that §801 “prohibits a board member from having an interest in any contract with the municipality of which he is an officer or employee, when such officer or employee, individually or as a member of a board, has the power or duty to negotiate, authorize or approve the contract.” However, the Commissioner pointed out that General Municipal Law §802 sets forth exceptions to such prohibitions that were relevant in this appeal.
The Commissioner ruled that: “The contract central to this dispute is a collective bargaining agreement between the district and the MWTA, a teachers’ union, of which DiGeronimo’s spouse is a member and from which she receives benefits. General Municipal Law §802(f) exempts from prohibited conflicts of interest a “contract with a membership corporation or other voluntary non-profit corporation or association”. The association in this case is a non-profit teachers’ union, in which membership is completely voluntary. It thus falls within the exception of General Municipal §802(1)(f).”
Further, the Commissioner’s decision notes that “General Municipal Law §800(3) “explicitly excludes a spouse’s employment contract from coverage under the conflict of interest provision and therefore, does not bar a board member from negotiating or voting on the contract of a spouse.”
As to Budich’s request that the Commissioner nullify the collective bargaining agreement, an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.
Although Budich contended that the Agreement was not in the best financial interests of the taxpayers or students, the Commissioner decided that she failed to prove that the board’s actions were improper.
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein
Wednesday, March 24, 2010
We'd previously reported on the case of Matt Walker, an adjunct undergrad professor at the University of Akron and Vice President of The New Faculty Majority- an adjunct rights group, who resigned over that school's requirement that new employees submit to DNA testing as a condition of employment. The administration eventually rescinded the policy in response to public pressure
The latest fall-out from Matt Walker's protest is that he's lost his teaching job for next year as Inside Higher Ed reports:
While a department hired him to teach a class starting next week as an adjunct, Akron decided that the form of his protest last year -- quitting in the middle of the semester -- bars him from further employment. So the university revoked the offer of the adjunct slot. The university says that since he left his courses once, he can't be relied upon.
Leaders of the New Faculty Majority, a new national group for those off the tenure track, think that there is more at play than just punishment for his protest last year -- an action that they defend as appropriate. They note that, once the policy was rescinded, Williams was rehired to teach a course and did so successfully. The decision to bar him from future teaching followed a series of letters he sent to trustees and other university leaders asking for meetings to discuss the way adjuncts are treated. And that's why they think his hiring to teach another course was revoked.
You can read more of IHE's coverage here.
Adjuncts are in a tough spot - their annual contracts are renewed almost entirely, if not entirely, based on their semester-end student evals. Many believe this is bad practice that sharply undermines classroom rigor by putting pressure on professors to pander to students.
In a tongue-in-cheek article in the Chronicle of Higher Ed entitled "Stupid Tricks for Boosting Student Evaluations," readers are asked to identify ways they have tried to influence student evals or techniques they've heard others use. Needless to say, donut shops near campus do a robust business during student eval season.
Here are some of the "tricks" reported by CHE readers:
- An instructor up for tenure projected a picture of his wife and child on a large screen while the evaluations were being written.
- Let's see: 1) announcing that the final exam will be given before exam week, giving students (and, not incidentally, faculty) exam week off, 2) announcing a curve favorable to grade inflation, 3) carrying the evaluations around for the final two weeks of classes, awaiting a favorable attendance pattern to administer the forms, 4) shifting the final exam to a take-home format, 5) agreeing to drop the lowest exam or quiz grade.
- Taking the entire class out for lunch and distributing the evaluations with dessert. Granted, only works with studio-sized classes, but disgustingly successful nonetheless.
- And of course - donuts, donuts and more donuts: "A colleague who taught a large-lecture format (250 students) introductory logic course always had donuts delivered to the lecture hall the day of class evaluations. (Apparently it worked, to judge by his evaluations.)"
You can read other reader comments here or leave your own below.
Rahim Kanani, a Research Associate of Justice and Human Rights at Harvard University writes to inform us of an interesting article he wrote for the March 24, 2010 Huffington Post, here. He argues that the International Criminal Court (ICC) should not formalize their investigation of war crimes and crimes against humanity in Afghanistan, now that the Taliban's military chief Mullah Abdul Ghani Baradar has been arrested in Pakistan.
Kanani seems to believe that Baradar and perhaps others should be brought to Justice in Afghanistan proper as opposed to the ICC. I do not fully understand his reasoning. As best as I can tell he fears that the ICC has limited resources and is subject to political pressure.
I do not know enough about this interesting issue to comment. I bring it to the attention of my readers as I suspect many will find the issue important.
Mitchell H. Rubinstein
According to the Washington Post, a recently released study from the Civil Rights Project at UCLA found seven out of 10 black charter school students are on campuses with extremely few white students. The study of enrollment trends shows the independent public schools are less racially diverse than their traditional counterparts. “As the country continues moving steadily toward greater segregation and inequality of education for students of color in schools with lower achievement and graduation rates," the study concludes, "the rapid growth of charter schools has been expanding a sector that is even more segregated than the public schools." Gary Orfield, a UCLA education professor who oversaw the study, said that racially segregated schools tend to face more problems than integrated schools in teacher retention, graduation rates and other areas.
Nationally, according to 2007-08 federal data that the study cited, black students account for 32% of charter school enrollment. That is roughly twice their share of enrollment in regular public schools. The study also found that 70% of black charter students are in schools in which at least 90% of the student population is nonwhite, and 43% percent of black charter students are in schools with virtually all-minority enrollment. For black students in regular public schools, the comparable shares were 36% (in the high-minority enrollment schools) and 15% (in virtually all-minority schools). The study recommended that federal and state governments push for racial diversification of charter schools.
Source: Washington Post, 2/4/10, BY Nick Anderson
Mitchell H. Rubinstein
Alabama teachers’ union supports proposed teacher ethics code and a bill requiring the immediate termination of teachers convicted of felonies
The Dothan Eagle reports that the Alabama Education Association (AEA) is throwing its support behind a proposed teacher ethics code and a bill that would call for the immediate termination of teachers who are convicted felons, even though it opposed an earlier resolution that would have adopted a code of ethics. According to the AEA’s Alabama School Journal, the AEA is supporting Alabama House Bill 37, which would call for the immediate firing of any teacher convicted of a Class A felony. The AEA says the bill removes any ambiguities concerning the termination status of teachers who are convicted of serious felonies. ABE member Betty Peters says she has yet to read the code of ethics being supported by the AEA, but fears that it won’t be as tough on unethical conduct by educators as the guidelines set forth by the state board of education. “From what I understand, it’s watered down, that’s the impression I got,” she said.
Source: Dothan Eagle, 2/8/10, By Jim Cook
Mitchell H. Rubinstein
Tuesday, March 23, 2010
A new book due out this June by Nicholas Carr called "The Shallows: What the Internet is Doing to Our Brains" argues that the internet is causing our brains to rewire themselves in a way that fosters superficial thinking and inhibits deeper thinking.
From the publisher:
The best-selling author of The Big Switch returns with an explosive look at technology’s effect on the mind. “Is Google making us stupid?” When Nicholas Carr posed that question in a celebrated Atlantic Monthly cover story, he tapped into a well of anxiety about how the Internet is changing us. He also crystallized one of the most important debates of our time: As we enjoy the Net’s bounties, are we sacrificing our ability to read and think deeply? Now Carr expands his argument into the most compelling exploration of the Internet’s intellectual and cultural consequences yet published. Weaving insights from philosophy, neuroscience, and history into a rich narrative, The Shallows explains how the Net is rerouting our neural pathways, replacing the subtle mind of the book reader with the distracted mind of the screen watcher. A gripping story of human transformation played out against a backdrop of technological upheaval, The Shallows will forever alter the way we think about media and our minds.
You can read an additional review courtesy of Amazon here.
District was justified in disciplining student for off-campus online speech because it reasonably forecast speech would cause substantial disruption in school
J.S. v. Blue Mountain Sch. Dist., ____F.3d____ (3d Cir. Feb. 4, 2010), is another important First Amendment case involving student discipline. In a 2-1 split, the Third Circuit ruled that a Pennsylvania school district did not violate a student’s free speech rights when it disciplined her for creating, off campus, a parody online profile of her principal. Middle school student J.S. created a fake MySpace profile of James McGonigle, principal of Blue Mountain Middle School (BMMS). The profile did not identify Mr. McGonigle by name, but it identified him as principal and included a photograph of him from the school district’s website. The personal profile section depicted him as a pedophile and sex addict, and used profanity. Although the profile was created at J.S.’s home, word of its existence spread the next day at school and sparked a general “buzz” throughout the school.
The Third affirmed the lower court’s decision that the school district had not violated the student’s free speech rights when it disciplined her for her off campus online speech. The panel also rejected the parents’ claim that BMSD’s actions violated their Fourteenth Amendment substantive due process right to parent as they see fit, J.S.’s claim that Pennsylvania bars local school districts from regulating off campus speech and her claim that the BMSD’s student disciplinary and computer use policies are unconstitutionally vague and overbroad under the First Amendment.Mitchell H. Rubinstein
Lawmakers Want To Limit Txt Msgs and E-mail is an interesting March 20, 2010 article from the Washington Post. In my day, teachers use to police school rules forbidding hats and baseball caps in school. Now, teachers have to prevent students from using cell phones, email and texting in class.According to this article, students are not the only ones who cannot use their phone to talk or text. According to this article, several state and local legislative bodies are considering similar rules. I wonder if they will also ban legislatures from wearing hats!
Mitchell H. Rubinstein
Online Defamation and Anonymous Defendants is an interesting Feb. 5, 2010 New York Law Journal article. (registration required). It is about the difficulty in suing anonymous defendants, particularly if the alleged defamation occurred online. The article states in part:
To date, it appears that no New York appellate court has established a standard for evaluating applications for disclosure of the identity of anonymous Internet speakers. However, several lower courts have applied varying approaches concerning pre-action discovery of Internet users, which, in some cases, has resulted in the "unmasking" of anonymous speakers.
For example, in In re Application of Ottinger, 08-03892 (N.Y. Sup. Ct. Westchester Cty., July 1, 2008), the court considered an application to ascertain the names of anonymous individuals who allegedly posted defamatory statements on a newspaper blog. Looking to persuasive authority from other jurisdictions, the court applied the Dendrite standards and found that the plaintiff adequately outlined the alleged defamatory statements, set forth a prima facie cause of action against the defendants, and was entitled to disclosure of the anonymous Internet posters.
In a further proceeding, however, the court dismissed the plaintiff's action under the New York anti-Strategic Lawsuit Against Public Participation (SLAPP) statute as an insubstantial suit involving public petition and participation, but declined to award the defendant attorney's fees or damages. See Ottinger v. Tiekert, 2009 N.Y. Slip Op 52043 (N.Y. Sup. Ct., Westchester Cty Aug. 27, 2009).
In another newsworthy dispute, a model petitioned the court to uncover the anonymous author of the "Skanks of NYC" blog, which included photo with captions that contained allegedly defamatory statements to describe the plaintiff's appearance and conduct. See In re Application of Cohen, 2009 N.Y. Slip Op 29369 (N.Y. Sup. Ct., N.Y. Cty., Aug. 17, 2009).
The trial court declined to use a specific standard to determine if the plaintiff was entitled to pre-action discovery, stating that other New York courts have successfully applied NYCPLR §3102(c), which requires that a petitioner demonstrate a meritorious cause of action and that the information requested be material and necessary to the actionable wrong.3
The court ruled that the plaintiff was entitled to pre-action disclosure of the blogger's identity because in the context of the blog at issue, the statements conveyed facts that were capable of being proven true or false, and the use of words like "skank" and "ho," among others, carried a negative implication of sexual promiscuity, and as such were reasonably susceptible of a defamatory connotation.
Mitchell H. Rubinstein
Monday, March 22, 2010
There's nothing earth-shattering about the findings of this recent, national survey by the American Federation of Teachers: Adjuncts teach for the love of it despite poor working conditions. The survey showed that among the 500 respondents, only 28% had health insurance. Most also said their job security didn't meet expectations. Although the survey involved undergraduate adjuncts, no doubt the same can be said of law school adjuncts.
You can read the rest of the AFT's survey here.
Hat tip to Inside Higher Ed.
NLRB Vacancies Create High Court Vacancy is an excellent March 22, 2010 article about the pending Supreme Court case dealing with the legality of two Member NLRB decisions which we have extensively covered. The case previews the issues and discusses how important this decision is. The article is certainly worth a read.
Mitchell H. Rubinstein
District violated student’s free speech rights when it disciplined him for non-disruptive off-campus online speech
Layshock v. Hermitage Sch. Dist., ____F.3d___ (3d Cir. Feb. 4, 2010), is an important case involving the First Amendment rights of students.In a unanimous decision, the Third Circuit ruled that a Pennsylvania school district violated the free speech rights of a high school student who was disciplined for creating an off-campus parody MySpace profile of the school’s principal. The court ruled, however, that the school district’s discipline of the student did not violate his parents’ Fourteenth Amendment substantive due process right to determine how to raise their child.
The district court concluded that the weight of student speech case law favored the view "that school officials' authority over off-campus expression is much more limited than expression on school grounds." The court also concluded that the relevant court precedents analyzed student speech, whether on or off campus, in accordance with the principles set forth in the Supreme Court’s ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969). The district court decided that the school district had failed to establish a sufficient nexus under Tinker and that the Supreme Court’s ruling in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), allowing school regulation of lewd and profane expression, did not apply to off-campus speech. It rejected the parents’ substantive due process claim on the ground the parents had failed to demonstrate how District’s disciplinary actions interfered with the parents’ ability to discipline their son.
The Third Circuit affirmed. It rejected the District's argument that the speech subject to discipline actually began when Justin entered school property, i.e. the school web site, and misappropriated a photo of the principal, calling it “unpersuasive at best.” It rejected the District's attempt to equate the act of copying and pasting from a website to the physical breaking into the principal’s office or a teacher’s desk. It found that the relationship between Justin’s conduct and the school was so attenuated that it could not allow the School District “to stretch its authority so far that it reaches Justin while he is sitting in his grandmother’s home after school.” It continued: “It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child’s home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities.”
The panel also rejected the school district’s contention that the profile constituted on-campus speech because it “was aimed at the School District community and the Principal and was accessed on campus by Justin [and] [i]t was reasonably foreseeable that the profile would come to the attention of the School District and the Principal.”
Mitchell H. Rubinstein