Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, November 30, 2011

Federal district court rules school district’s prohibition on students wearing t-shirts denigrating Islam does not violate students’ constitutional rights

Sapp v. School Bd. of Alachua Cnty., ___F. Supp.2d___ (N.D. Fla. Sept. 30, 2011), is an interesting case. A federal district court granted a school district’s motion for summary judgment in a suit brought by students who were prohibited from wearing t-shirts in school and at school-related events captioned “Islam is of the Devil.” The court concluded that neither the school district’s prior dress code nor the current one under which the t-shirts would be subject to a ban violated the students’ constitutionally-protected free speech rights.

Mitchell H. Rubinstein

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

Tuesday, November 29, 2011

2d Circuit Approves $210 hourly rate in Employment Discrimination Case


Bergerson v New York State Office of Mental Health, ___F.3d____( 2d Cir. July 21, 2011).  

Mitchell H. Rubinstein

November 29, 2011 in Employment Discrimination | Permalink | Comments (0)

Monday, November 28, 2011

Counseling memoranda may constitute disciplinary action when coupled with more than "job-related feedback"


Matter of Harper v New York State Off. of Mental Health, 12 Misc 3d 1197(A)

An employee received a “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.. The counseling memorandum, in part, issued by the New York State Office of Mental Health stated:
“This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future."
A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to Harper did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA].
While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA. Accordingly, Harper was entitled to administrative due process in the form of a notice of discipline and a hearing.
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


November 28, 2011 in Labor Law | Permalink | Comments (0)

Sunday, November 27, 2011

Breaking News-Copy of Occupy Wall Street Decision

You have to have been living under a bus if you have not heard about the Occupy Wall Street Movement. I actually walk past it every day on my way to work. As you know by now, the court denied the protesters application for a TRO to prevent the police from cleaning out the park. I thought it would be interesting to post a copy of the actual court decison. Walker v. City of New York, ____Misc. 3d____(N.Y. Co. Nov. 15, 2011).  

The court's reasoning was as follows:

The Court is mindful of movants' First Amendment rights of freedom of speech and peaceable assembly. However, "[e]ven protected speech is not equally permissible in all places and at all times." (Snyder v Phelps, 131 S Ct 1207, 1218 [2011], quoting Cornelius v NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 799 [1985].) Here, movants have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment.

To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.

The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely. Neither have the applicants shown a right to a temporary restraining order that would restrict the City's enforcement of law so as to promote public health and safety.

Therefore, petitioner's application for a temporary restraining order is denied.

Mitchell H. Rubinstein



November 27, 2011 in Misc., Legal | Permalink | Comments (0)

Saturday, November 26, 2011

Legal Education Reform

On Nov. 25, 2011, the NY Times wrote an important editional about Legal Education. They explain that legal education is in crisis because of the focus on the case book method. However, legal education is in crisis because the professors who teach cannot practice law. I am serious. Most of the students do not realize that you can count on one hand the number of professors who have 5 years of practice or more. Many are not even admitted to the bar where they teach. Why? Because law schools focus on legal theory, and hiring people with fancy degrees. Practice is a hinderance. 

As many of you know, I also write law review articles. Professors have criticized some of what I have written because it is practice orientated. Isn't that what students are paying us to do?? Nothing is going to change until law schools hire professors with practical experience. Until then the old saying is very true. "Those who can't do teach"

Mitchell H. Rubinstein

November 26, 2011 in Law Schools | Permalink | Comments (2)

Friday, November 25, 2011

Education Law Jobs

School Law Jobs
Job Title Employer Job Location
General Counsel San Francisco Unified School District San Francisco, California
Associate Attorney Semple, Farrington & Everall, P.C. Denver, Colorado
Legislative Counsel Americans United for Separation of Church and State Washington, D.C.
Associate Scheuer, Yost & Patterson Santa Fe, New Mexico
General Counsel Victory Education Partners New York, New York
Senior Staff Attorney National School Boards Association Alexandria, VA


November 25, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, November 24, 2011

A New Form Of Politics At The Labor Board-Resignation

The NLRB is scheduled to vote on new election rules on Nov. 30, 2011. Surprise, surprise the Board is divided along political lines. But now, as a result of the New Process Steel case, there is a new political element. Under New Process Steel, the Board cannot act with just two Members. So, Member Hayes is threatening to resign which would reduce the Board to two Members. I do not recall a Board member ever resigning for political reasons. This would be a new low. 

Query whether Member Hayes even has to resign. He can simply refuse to show up. 

An excellent NY Times article discussing this issue is available here.

Mitchell H. Rubinstein


November 24, 2011 in NLRB | Permalink | Comments (0)

Wednesday, November 23, 2011

10 Most Educated People On The Planet

Online Degrees, a commercial site, complied a list of the 10 Most Educated People On The Planet. Who is number one? Mr. Michael Nicholson. His background is described as follows:

Michael Nicholson has been racking up college degrees since 1963 and doesn’t have any plans to slow down soon. The 67-year-old has taken full advantage the tuition discounts he and his wife get by working at Western Michigan University. Over his lifetime, Nicholson has amassed 27 different degrees, including two associate’s degrees, 19 master’s degrees, three specialist degrees, and one PhD. Nicholson doesn’t pursue degrees for work, he just loves to learn and likes being able to take advantage of courses that help him learn about a wide range of subjects. His wife has also taken up the college hobby, earning seven degrees of her own. Nicholson is currently working on two more master’s degrees and plans to keep going as long as he can.

Talk about being a career student!

Mitchell H. Rubinstein

Hat Tip: Jasmine Hall

November 23, 2011 in Oddly Enough, Non-Legal | Permalink | Comments (1)

Tuesday, November 22, 2011

Mandatory Retirement U.S. Army Style

This is a wonderful Fox News story about a U.S. Solider who will have to retire in a few months because he is about to turn 60. He should be exhibit one against any form of mandatory retirement in the miltary or otherwise. Mandatory retirement in employment is often unlawful under the ADEA, but their are many exceptions. But, my point is that there should be no exception. People should be able to work or serve until they can't period.

Mitchell H. Rubinstein  

November 22, 2011 in Oddly Enough, Legal | Permalink | Comments (0)

Major League Baseball-Employer Lawyers and Player's Union Lawyers

MLB as well as the Players Union pays their lawyers very well. The Am Law Daily ran a story about this on Nov. 19, 2011. The article only points out what the Union pays their lawyers. If you ask me, the Union lawyers have done a great job over the years and given the salaries that are paid in MLB, the amounts paid to their union lawyers are worth it. No, I am not one of them...

Mitchell H. Rubinstein



November 22, 2011 in Unions | Permalink | Comments (0)

Monday, November 21, 2011

7th Circuit reinstates school custodian’s retaliation claim, but upholds lower court’s dismissal of gender discrimination claim


Bennuzi v. Board of Educ. of the City of Chicago, ____F.3d_____(7th Cir. Jul. 21, 2011), is an interesting case. The 7th Circuit held that a female custodian employed by Chicago Public Schools (CPS) failed to state a valid claim for gender discrimination under Title VII, but did state a valid claim for retaliation under Title VII. The panel concluded that the custodian’s discrimination claim faltered because she failed to make ”requisite showing of gender-based discriminatory animus.” The facts revealed personal dislike between the custodian and the principal, but did not support the inference that the principal’s animus was based on the custodian’s gender.

On the other hand, the panel found that there were issues of material fact regarding the adverse actions the principal took after the custodian filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) and the instant suit. 

Mitchell H. Rubinstein


November 21, 2011 in Employment Discrimination | Permalink | Comments (0)

Sunday, November 20, 2011

The Incompetent Form Of Legal Education Today

What They Don’t Teach Law Students: Lawyering, a Nov. 19, 2011 NY Times article, is a must read. It highlights just how incompetent most legal education is today. It highlights the fact that law schools teach little practical skills and factual scholarship is often only read by other faculty.

As I noted in a comment to the article, the fundamental reason for this is that law schools are only, and I mean only, in hiring faculty with stellar academic backgrounds. Nevermind that they may never have practiced law or represented a client. What is more imporant is that they got a law review article published in Yale.

Readers who are not familar with this might be stunned to know that law professors are "legal scholars"-not highly skilled lawyers. Many may not even be a a member of the bar. As the article points out, law schools frown on lawyers with experience.

Additionally, in most schools the most important and practical classes (legal writing and legal research) are taught by non-tenure track professors who are also the lowest paid.

Don't believe me. Check out the background of any FT non-clinical faculty member highered at any ABA approved law school in the last 10 years. If you can get a hold of their CV, you will see that some even list summer associate experience on it because their legal experience is so light.

This is indeed a said state of affairs. 

Mitchell H. Rubinstein


November 20, 2011 in Appointment Information, Adjunct, Appointment Information, Full Time, Film, Law Schools | Permalink | Comments (1)

Saturday, November 19, 2011

Attorneys file infested with rodents and insect can be destroyed

On September 8, 2011, the South Carolina Supreme Court issued a rather remarkable order. It ordered that filthy attorney client files could be destroyed. As the Court stated:

On several occasions, an attorney appointed to protect the interests of another lawyer's clients pursuant to Rule 31, RLDE, Rule 413, SCACR, has notified the Court that the lawyer's client files are not maintained in a sanitary and safe condition. In some cases, the attorney to protect has advised the Court that the lawyer's client files are moldy and/or infested with rodents and insects. As a consequence, the attorney to protect clients' interests is hesitant to inventory the lawyer's client files, to remove original documents from the client files, and to relinquish control of the files to the lawyer's clients upon client request. Where an attorney to protect clients' interests petitions the Court for authorization to destroy the lawyer's client files and provides the Court with photographs or other sufficient documentation establishing that contact with the lawyer's client files poses a health hazard, the Court will determine the procedure which shall be followed in the matter and may, if appropriate,                           order the destruction of some or all of the lawyer's client files without first inventorying and removing original documents. The Court may assess the costs and attorney's fees incurred in filing the petition and complying with the Court's order against the lawyer as provided by Rule 31(f), RLDE. Nothing herein shall relieve a lawyer from safekeeping client files in an appropriate manner.  

Mitchell H. Rubinstein

Hat Tip: Legal Profession Blog


November 19, 2011 in Lawyers | Permalink | Comments (0)

Friday, November 18, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
General Counsel San Francisco Unified School District San Francisco, California
Legislative Counsel Americans United for Separation of Church and State Washington, D.C.
Associate Scheuer, Yost & Patterson Santa Fe, New Mexico
General Counsel Victory Education Partners New York, New York
Senior Staff Attorney National School Boards Association Alexandria, VA


November 18, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, November 17, 2011

Google Scholar Citations

Google Scholar Citations is out and it is free to join. Simply put, this service searches the web in seconds and lists all of your articles as well as other articles on the web that cite to it. It works sort of like Shepards. Law professors as well as college professors should join this service. My profile can  be found by clicking here. Best of all, its free.

Mitchell H. Rubinstein

November 17, 2011 in Legal Research | Permalink | Comments (1)

Sloppy Lawyering Leads To Possible Federal Disbarment

Sometimes you cannot make these decisions up.  Stanard v. Nygren, No. 09-1487, slip op. (7th Cir. Sept. 19, 2011), is one such case. In a nutshell,  because the attorney wrote an "incomprehensible" complaint and a poor appellate brief he has been ordered to show cause as to why his license to practice before the 7th Circuit should not be revoked. Here are some excerpts pulled by Legal Skills Prof Blog who get a big hat tip:

Slip op. at 2:

      "We affirm. The district court was well within its discretion to reject the second amended complaint and dismiss the case with prejudice. Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. Maksym's persistent failure to comply with basic directions from the court and his open defiance of court orders amply justified the judge's decision to dismiss with prejudice. Moreover, like his pleadings in the district court, Maksym's appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court. Accordingly, we order Maksym to show cause why he should not be suspended from the bar of this court or otherwise disciplined under Rule 46 of the Federal Rules of Appellate Procedure. Finally, we direct the clerk to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission."

 Slip op. at 13:

      "Applying these principles here, the district court was well within its discretion in refusing to accept Stanard's proposed second amended complaint. We agree that it crossed the line from just 'unnecessarily long' to 'unintelligible.' Though the complaint was far longer than it needed to be, prolixity was not its chief deficiency. Rather, its rampant grammatical, syntactical, and typographical errors contributed to an overall sense of unintelligibility. This was compounded by a vague, confusing, and conclusory articulation of the factual and legal basis for the claims and a general 'kitchen sink' approach to pleading the case. This was Maksym's third attempt to draft a comprehensible pleading, yet his effort to comply with the court's earlier directions was half-hearted at best; the proffered second amended complaint was rife with errors. We include a sampling to provide an understanding of its shortcomings: [omitting list on pp. 13-16, including footnote 7, which reproduces a 345-word sentence and runs about 1.5 pages in the slip opinion]"

 Slip op. at 20-21:

      "One final note: Compounding the problems he exhibited in the district court, Maksym failed to file a reasonably coherent brief on appeal. All the deficiencies that plagued the various versions of the complaint also infected his briefs here. Maksym never directly addressed the issues before this court, relying instead on cases of marginal or no relevance. In the table of authorities in his opening brief, he cites 81 cases, but almost all of them are completely irrelevant to the issues presented here. In his reply brief, after the defendants had crystallized the issues, Maksym again failed to meaningfully-or even comprehensibly-articulate an argument. His appellate briefing was characterized by a reliance on irrelevant, conclusory...


Mitchell H. Rubinstein


November 17, 2011 in Lawyers | Permalink | Comments (0)

Wednesday, November 16, 2011

Breaking News International Labor Organization Rules That Taylor Law Ban On Strike Is Improper

The TWU filed a complaint, here, alleging the ban on public employee strikes and the penalties issued against the TWU in 2006 NYC Transit Strike were improper. On Nov. 1, 2011, the ILO issued a lengthly decision, here, agreeing with the TWU, reasoning in part:

As regards the overall prohibition of strike action in the public service under the Taylor Law, the Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests [see Digest, op. cit., para. 521]. While the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), the Committee recalls that the transportation sector, including metropolitan transport, does not constitute an essential service in the strict sense of the term [see Digest, op. cit., paras 576 and 587]. GB.312/INS/9 190 GB312-INS_9_[2011-11-0195-1]-Web only-En.docx 

The TWU web site contains additional information about this important decision. 

So what does this mean?? I am afraid very little. The decision itself notes that the U.S. has not ratified a treaty and presumably this means that the U.S. is not bound by the decision which simply recommends that the U.S. take steps to rectify the situation and make the union and its President, who was jailed for striking, whole. 

The decision could mean something in the political arena. However, since this decision does not appear to break new ground and public employee strikes have been unlawful in many states for many years, the prospect for any real change would appear to be quite small.

Remarkably, little press has been generated about this important issue. Hopefully, that will change. 

Mitchell H. Rubinstein


November 16, 2011 in Public Sector Labor Law | Permalink | Comments (1)

So You Need A Job. NASA Is Advertising For Astronauts

No, I am not joking. NASA is advertising for Astronauts, here. Ever wonder what an Astronaut makes? Well its $64,724.00 to $141,715.00 / Per Year. The job description states that frequent travel may be required. That is an understatement if I ever heard one. There are between 9 and 12 positions.

An ABC News story about this is available here.

Mitchell H. Rubinstein 

November 16, 2011 in Misc., Non-Legal | Permalink | Comments (1)

Tuesday, November 15, 2011

South Dakota Supreme Court upholds constitutionality of state’s school funding scheme

A unanimous South Dakota Supreme Court reportedly upheld the constitutionality of the state's funding system, reasoning that said  it isn’t convinced that the money appropriated for schools is inadequate or that more money would produce higher test scores and graduation rates. ”Some (school) districts are clearly struggling and, by their own estimation, offer less than a quality education,” the court said. “We are unable to conclude that the education funding system (as it existed at the time of trial) fails to correlate to actual costs or with adequate student achievement to the point of declaring the system unconstitutional.”

The article reports that a group of students and their parents sued the state in 2006, charging that South Dakota’s K-12 funding system fails to provide students with an education that prepares them for life. Backed by about two-thirds of the state’s school districts, they sought a judge’s declaration that the system was unconstitutional.

 Argus Leader, 9/2/11, By Josh Verges

November 15, 2011 in Education Law | Permalink | Comments (0)

Monday, November 14, 2011

2d Cir Upholds Ban Of School District's Use Of Schools For Religious Purposes


Bronx Household of Faith v. Board of Educ. of  the City of New York, No. 07-5291 (2d Cir. Jun. 2, 2010), is a major decision. The Second Circuit held that the New York City Board of Education’s (NYCBOE) policy prohibiting the use of school facilities for “religious worship services” does not violate the First Amendment’s Free Speech Clause. Having determined that NYCBOE had created a limited public forum, the majority concluded the policy satisfied the standard that restrictions imposed by the forum be viewpoint neutral and reasonable in light of the purpose served by the forum.

Mitchell H. Rubinstein

November 14, 2011 in Constitutional Law, Education Law, Law Review Ideas | Permalink | Comments (1)