Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, October 31, 2011

5th Circuit holds that elementary school student has valid cause of action for violation of substantive due process rights based on school’s “special relationship” with her and deliberate indifference to known threats to her safety


Doe v. Covington County Sch. Dist., ____F.3d____ (5th Cir. Aug. 5, 2011), is an interesting case. The 5th Circuit held 2-1 that the legal guardian of a elementary school student, who was sexually abuse on multiple occasions by a third party who was allowed to remove the student from school grounds during school hours, stated a valid cause of action against the school district for violation of the student’s substantive due process rights based on the student’s special relationship with the school and the school’s deliberate indifference to known threats to her safety.

Mitchell H. Rubinstein

October 31, 2011 in Education Law | Permalink | Comments (0)

Sunday, October 30, 2011

Student Chats With Teachers Is Legal Again In Missouri

Missouri reportedly recently repealed a law which prohibited student teacher chats on electronic media such as Facebook. A lower court judge had declared the the law likely violated the First Amendment and issued a TRO. See the very next posting below.

Mitchell H. Rubinstein

October 30, 2011 in Education Law | Permalink | Comments (0)

Missouri court issues preliminary injunction barring state from enforcing new teacher social networking law

Missouri State Teachers Ass’n v. State of Missouri, No. 11AC-C00553 (Cir. Ct. Mo. Aug. 24, 2010) is a very interesting state court decision out of Missouri. A Cole County Circuit Court has issued a preliminary injunction prohibiting the State of Missouri from enforcing that portion of § 162.069.4 RSMo., which states: “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” Finding that the breadth of the law’s coverage is “staggering”  and that social networking is utilized extensively by educators, the court concluded that the law would have a chilling effect on speech.  It also concluded, given the fundamental right implicated, that the “chilling effect” would be sufficiently immediate and irreparable to support the injunction.

This would have been an important decision to watch. Frankly, I am surprised it has not attracted more media attention. However, the matter has been resolved by the legislature. (See above post). 

Mitchell H. Rubinstein


October 30, 2011 in Education Law, First Amendment | Permalink | Comments (0)

Saturday, October 29, 2011

7th Explains That When Courts Interpret CBA's Basic Contractual Principles Apply


UAW v. ZF Boge, ___F.3d___2011 WL 3634162,(7th Cir. Aug. 19, 2011), is an interesting case. Ocassionally courts interpret CBA under 301 of the NLRA. When they do, basic contractual principles apply. As the court explained:

We begin with basic principles. The proper interpretation of a contract is ordinarily “a matter of law, and where there is no contractual ambiguity, there is no resort to extrinsic evidence, hence no factual dispute to preclude summary judgment.” Diehl v. Twin Disc, Inc., 102 F.3d 301, 305 (7th Cir.1996) (citation omitted). In interpreting collective bargaining agreements in suits under section 301 of the Labor Management Relations Act, we employ federal law. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456–57 (1957). We approach our interpretive task in the collective bargaining agreement context “in the same way we approach other contracts.” Int'l Bhd. of Elec. Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 405 (7th Cir.2002). “The starting point in our inquiry is naturally the language of the [a]greement” itself, id., and we proceed to consider the agreement's structure, seeWestinghouse Elec. Corp. v. NLRB, 809 F.2d 419, 422 (7th Cir.1987) (noting that questions of contract interpretation are “settled by examining the language, structure, history, and functions of the contract”). Further, “a document should be read as a whole with all its parts given effect, and related documents must be read together.” Bland v. Fiatallis N. Am., Inc., 401 F.3d 779, 783 (7th Cir.2005) (stating federal principles of contract interpretation).

October 29, 2011 in Labor Law | Permalink | Comments (0)

Friday, October 28, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Legislative Counsel Americans United for Separation of Church and State Washington, D.C.
Associate Scheuer, Yost & Patterson Santa Fe, New Mexico
Senior Staff Attorney National School Boards Association Alexandria, VA


October 28, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, October 27, 2011

Ex Associate Sues Law Firm

Lawyers are employees like everyone else and we too can have employment law problems. An August 18, 2011 New York Law Journal summarizes one such suit filed by an associate against his former law firm. The complaint which spans 49 pages and 249 paragraphs is available here. A copy of the article can be found here

New York is a very restrictive employment at will state and it will be interesting to see what the court does with this complaint.

Mitchell H. Rubinstein

October 27, 2011 in Lawyers | Permalink | Comments (0)

Wednesday, October 26, 2011

Undocumented Workers Not Entitled To Backpay


The NLRB recently held that it lacks the authority to award back pay to undocumented workers even in a case where the employer, rather than employees, violated federal immigration law.

Mezonos Maven Bakery Inc. and Puerto Rican Legal Defense Fund No. 29-CA-25476, 2011 WL 3488558 (N.L.R.B. Aug. 9, 2011).

Mitchell H. Rubinstein


October 26, 2011 in NLRB | Permalink | Comments (1)

Tuesday, October 25, 2011



An employee fired for alleged “misconduct” because she complained to the company president about a pay cut is entitled to unemployment benefits, a Missouri appeals court has determined.


Mooneyham v. Barnz B. Inc. et al., No. SD 30903, 2011 WL 2713555 (Mo. Ct. App. July 12, 2011).

Mitchell H. Rubinstein

October 25, 2011 in Employment Law | Permalink | Comments (0)

Monday, October 24, 2011

Employer's Statement That Employee Was A "Lying, Thieving Snake" Not Defamatory

Huse v. Auburn Associates Inc. et al., No. C064136, 2011 WL 3425607 (Cal. Ct. App., 3d Dist. Aug. 5, 2011) is an interesting case. An employer's statement that a former employee was a “lying, thieving snake” and its disclosure of the man's criminal history were not sufficient to support defamation and invasion-of-privacy claims, according to a California court. Basically, these statements were protected as opinion. 

Mitchell H. Rubinstein

October 24, 2011 in Employment Law | Permalink | Comments (0)

Sunday, October 23, 2011

9th Circuit Holds Teacher Has Qualified Immunity In 1983 Case


C.F. v.Capistrano Unified Sch. Dist., No. 09-56689 (9th Cir. Aug. 19, 2011), is an interesting case. The Ninth Circuit held that a high school history teacher is entitled to qualified immunity from a suit brought by a student claiming the teacher’s classroom remarks violated the student’s rights under the First Amendment’s Establishment Clause. Unlike the district court, the panel disposed of the question of qualified immunity without deciding whether the teacher’s challenged remarks passed constitutional muster. Noting the absence of any prior case law holding that a teacher had violated the constitution in comparable circumstances, the panel concluded that it was “readily apparent that the law was not clearly established at the time of the events in question.”

Mitchell H. Rubinstein


October 23, 2011 | Permalink | Comments (0)

Saturday, October 22, 2011

ACLU files Notice of Claim Against Colorado school district on behalf of breastfeeding teacher

Reportedly, the American Civil Liberties Union (ACLU) has filed a “notice of claim” on behalf of a teacher allegedly terminated for pumping breast milk on the job. The ACLU claims the school failed to renew a female teacher's teaching contract because of her pumping schedule. Under a state law passed in 2008, Colorado employers are required to make reasonable accommodations to allow mothers to pump milk at work.

Source: Seattle Post Intelligencer, 8/16/11, By AP

October 22, 2011 in Employment Law | Permalink | Comments (1)

Friday, October 21, 2011

Education Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorney Harbottle Law Group Orange County, California
Legislative Counsel Americans United for Separation of Church and State Washington, D.C.
Assistant General Counsel Tacoma Public Schools Tacoma, Washington


October 21, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, October 20, 2011

Third Circuit holds Delaware school board’s policy of opening meetings with a prayer violates Establishment Clause


Doe v. Indian River Sch. Dist., ___F.3d____ (3d Cir. Aug. 5, 2011), is an interesting case. The Third Circuit held that a Delaware school board’s policy of opening meetings with a prayer violates the First Amendment’s Establishment Clause. The panel concluded that the constitutional exception established in Marsh v. Chambers, 463 U.S. 783 (1983), for legislative bodies does not apply to school boards. Instead, it determined that ”the traditional Establishment Clause principles governing prayer in public schools” relying on Lee v. Weisman, 505 U.S. 577 (1992).

Mitchell H. Rubinstein


October 20, 2011 in Constitutional Law, Education Law | Permalink | Comments (0)

Book Review: Ricks and Tenenbaum, Current Issues In Constitutional Litigation

Professors Sarah Ricks (Rutgers Camden) and Evelyn Tenenbaum (Albany) just published a master text book for an advanced class on constitutional law. This is not your grandmothers casebook. Like several of the recent publications I have seen from Carolina Academic Press, the focus is on practice-not law school theory. Unlike so many texts which just focus on Supreme Court cases, this case book includes cases from the lower court courts as well as excerpts from briefs. The book includes simulations which involve realistic situations. The book actually helps students to learn to practice law and not just to read cases. 

Of even greater delight is the accompanying teachers manual which is quite comprehensive. It includes sample syllabi, sample essay and sample multiple choice exams-with sample answers! The manual itself spans 444 pages. 

The text is 724 pages long and focuses on 1983 litigation. Specifically, issues involving the 4th, 8th and 14th Amendments as well as 1st Amendment religions claims. The book is also reasonably priced at $85.00 and is available here

If I ever have the opportunity to teach a class on 1983 litigation, this will be my text book. As I practice in this area, this book will become part of my personal library. I am sure that other lawyers will find this book useful as well. 

Mitchell H. Rubinstein

October 20, 2011 in Book Reviews | Permalink | Comments (0)

Tuesday, October 18, 2011

New York Considering A Loan Repayment System Where Portion Of Student Loan Is Forgiven In Exchange For Representing Poor

Under Plan, Lawyers Who Counsel Poor Would Get Loan Help is an interesting Oct. 18, 2011 New York Law Journal article. Under the proposal, New York would somehow reimburse or foregive student loans in exhange for legal services for the poor. Sounds good doesn't it?? But it is a bad idea, a very bad idea for the following reasons.

First, as the article points out there is a problem with supervision. Are you now going to create an agency to supervise lawyers? Do you really think that newly minted JD's are competent to independently practice law? 

Second, there is an employment problem. If they are not on their own and are supervised, who are there employers? Are they protected by the nations employment law? Are they public sector or private sector workers? 

Law review commentary on this grande idea would be most welcome.

Mitchell H. Rubinstein


October 18, 2011 in Law Review Ideas, Lawyer Employment | Permalink | Comments (0)

Adjunct Professor Found To Be Employee

This should not be a surprise to labor scholars, lawyers as well as to readers to this blog. In Schramm v. CommissionerNo. 8938-09 (T.C. Aug. 30, 2011), a professor who taught an Internet-based course for a university attempted to claim deductions on Schedule C as an independent contractor. The Tax Court rejected his argument and applied the common law right to control test which examined the following factors:

  1. the degree of control exercised by the principal;
  2. which party invested in the work facilities used by the worker;
  3. the opportunity of the individual for profit or loss;
  4. whether the principal can discharge the individual;
  5. whether the work is part of the principal’s regular business;
  6. the permanency of the relationship;
  7. the relationship the parties believed they were creating; and
  8. the provision of employee benefits.

Mitchell H. Rubinstein

October 18, 2011 in Adjunct Information in General, Employment Law, Tax Law Cases | Permalink | Comments (0)

Monday, October 17, 2011

Discharge For Dishonesty Makes Employee Ineligible For Unemployment

Matter of Zaydman v. Commissioner of Labor, ___A.D.3d___ (Sep't. 15, 2011), demonstrates an important principle. An individual who is discharged for misconduct is not eligible for unemployment, in this case dishonesty. But who decides if the individual engaged in misconduct? In New York, if the individual is not otherwise entitled to a hearing, then the Unemployment Insurance Appeal Board decides the issue of credibility.

Mitchell H. Rubinstein

October 17, 2011 in Employment Law | Permalink | Comments (0)

Sunday, October 16, 2011

Discrimination Against The Unemployed

We all know the saying, “you need a job to find another job.” To the extent this adage is given credence it makes it more difficult to find a job. On March 11, 2011, New Jersey N.J.S.A. 34:8B-1, designed to eliminate this barrier in today’s job market.  

Query, whether this statute would extend to employment decisions amongest applicants based upon employment status. An unemployed individual has to be considered under this statute, but when it comes down to two individuals can the employer base its decision on the fact that one applicant is working?

Law review commentary on this important statute would be most welcome. Of course, this statute is only applicable in New Jersey.

Mitchell H. Rubinstein


October 16, 2011 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Florida Employee Fired For Refusing To Take Off Pin of American Flag

On Oct. 16, 2011, the Daily News reported on a Florida employee who refused to remove an American Flag pin. The employee works at at hotel which regularly flys the flag, but the pin was apparently in violation of their dress code. So, did the employer act unlawfully?

The answer is that it depends. Assuming the employee is not covered by a union or individual contract it depends upon Florida employment law. Since he worked in the private sector, First Amendment rights do not attach. 

If Florida is an at will state, the employee is out of luck because an employer can fire an employee for any reason as long as it is not an illegal reason. If Flordia recognizes exceptions, I doubt that this rises to the level of a public policy violation or a violation of an implied good faith requirement, particularly because the employer has a dress code. 

Mitchell H. Rubinstein

October 16, 2011 in Employment Law | Permalink | Comments (0)

Saturday, October 15, 2011

U.S. Department of Labor Becoming More Aggressive

The U.S. Department of Labor is now sharing information with several states and more aggressively enforcing the FLSA. An interesting September 19, 2011 article from the Boston Herald summarizes the new enforcement activity, here.

Mitchell H. Rubinstein 

October 15, 2011 in Federal Law, Litigation | Permalink | Comments (0)