Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, February 15, 2012

New Jersey administrative law judge upholds suspension of football players for off-campus brawl; they may not play in state championship

L.A. v. Board of Educ. of Twp. of Wayne, No. 14241-11 (N.J. O.A.L. Dec. 1, 2012), is an interesting administrative law judge decision. An ALJ denied the petition of a group of students for emergency relief in which they requested that a football palyers suspension from participating in extracurricular activities, including the state championship football game, be lifted.  The school board had issued the suspension based on the students’ participation in an off-campus altercation that resulted in the students facing criminal charges. The ALJ denied the students’ petition  and held that the law was settled in favor of the school board.

Mitchell H. Rubinstein

February 15, 2012 | Permalink | Comments (0)

Tuesday, February 14, 2012

Survey finds American workers spend an average of $3000 a year on coffee and lunch at work

The recent survey found that 50 percent of the American workforce spends approximately $1000 a year on coffee, or a weekly coffee habit of more than $20. Interestingly, 66 percent of workers buy their lunch instead of packing it, costing them an average of $37 per week. New York City, which is where I hail from is considerably more expensive. 

Source CCH Work Day

Mitchell H. Rubinstein

February 14, 2012 in Misc., Non-Legal | Permalink | Comments (1)

Monday, February 13, 2012

WD Mo Upholds A Dog Sniff At A School Because It Does Not Implicate 4th Amendment

Burlison v. Springfield Pub. Sch., ___F.Supp.2d___ (W.D. Mo. Jan. 25, 2012), is an interesting case. A lower court in Missouri has granted a school district’s and two school administrators’ motion for summary judgment in a suit brought by the parents of two high school students claiming that a drug sweep of the high school by local law enforcement at the behest of the school district constituted a unreasonable search and seizure. The court concluded that that the use of drug sniffing dogs does not implicate the Fourth Amendment. 

Mitchell H. Rubinstein

February 13, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Bored Court Clerk Watched Porn During Rape Trial

This is another one of those stories which you simply cannot make up. A Court Clerk watched porn during a court trial-a rape trial no less! This happened in London and the Clerk was charged with criminal law violations. 

Mitchell H. Rubinstein

February 13, 2012 in Misc., Legal, Misc., Non-Legal | Permalink | Comments (0)

Sunday, February 12, 2012

Zero drug tolerance policy must be consistent with terms of the collective bargaining agreement


Matter of Matter of Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, 2011 NY Slip Op 08703, Appellate Division, Third Department
The Civil Service Employees Association had filed a grievance challenging the dismissal of one of the employees in the collective bargaining unit it represented was terminated after failing a random test for drug and alcohol test. The issues that the parties jointly presented to the arbitrator were, "Did [the school district] violate Article IV of the Collective Bargaining Agreement [CBA] when it terminated [the employee]? If so, what shall the remedy be?"
The arbitrator determined that employee had tested positive for marijuana, but that the school district had violated the CBA by terminating her. As a remedy, the arbitrator directed that the employee be reinstate, without back pay, but required that she comply with follow-up drug and alcohol testing and an evaluation by a substance abuse professional.
Supreme Court granted the Shenendehowa Central School District’s Article 75 petition seeking vacate an arbitration award thereby “reinstating the employee’s termination.”

The Appellate Division disagreed, ruling that the award was not against public policy was rational, and in making the award the arbitrator did not exceed his powers, holding that “Supreme Court should have confirmed the arbitration award.”
The Appellate Division explained that “If a matter is submitted to arbitration, reviewing courts should not interpret substantive conditions of the agreement or delve into the merits of the dispute.” Citing Matter of Grasso, 72 AD2d 1463 [Leave to appeal denied, 15 NY3d 703], the court said that "Courts must give deference to an arbitrator's decision and cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted the law or facts, but a court may vacate an award" where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, the Appellate Division stated that "[W]here an agreement is 'reasonably susceptible of the construction given it by the arbitrator, a court may not vacate the award," citing Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979.
Underlying the school district’s decision to terminate the employee was its assertion that it had “a zero tolerance policy concerning positive drug tests, thereby mandating discharge.” However, said the court, no such written policy was produced in evidence. Rather, the school district’s written drug testing policy states that a violation "shall be grounds for disciplinary action including, but not limited to, fines, suspension and/or discharge."
Here, said the Appellate Division, the arbitrator reasoned that the school district did not have a written zero tolerance policy. When read in conjunction with the CBA, the district’s policy “permitted either suspension without pay or discharge after a positive drug test result.”
The arbitrator, the court found, determined that school district had violated the CBA by refusing to consider the disciplinary options provided for in petitioner's own policy and the CBA, instead imposing the penalty of discharge as if it were mandatory.
According to the decision, if the school district intended to implement a zero tolerance policy, it could and should have negotiated with CSEA to include such mandatory language in the CBA. Not having done so, petitioner must abide by the language actually negotiated for and agreed upon with CSEA.
Having determined that the school district had violated the CBA, the arbitrator — who was permitted by the parties' statement of the issues to determine a remedy — then found the appropriate penalty for respondent to be reinstatement without back pay, which equated to a suspension of approximately six months without pay, a rational result and with the powers granted to the arbitrator.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


February 12, 2012 in Arbitration Law, New York Law | Permalink | Comments (2)

Special Education IHO Falls Asleep During Hearing

Sleeping Special Education Judge Resigns under Fire:


 Sometimes you just cannot make these facts up. A Houston Special Education Impartial Hearing Officer feel asleep during the middle of a hearing. What is more amazing is that it was caught on tape. He has since resigned. Details here

Mitchell H. Rubinstein

February 12, 2012 in Education Law, Judges | Permalink | Comments (1)

Saturday, February 11, 2012

Worker Misclassification Costs Employer

Matter of Body Elec Corp v. Commissioner of Labor, ___A.D.3d___ (3d Dep't Nov. 23, 2011), is an interesting case. The employer misclassified an employee as an independent contractor. Apparently, the employer sought to evade the DOL's investigation and for that the court felt that the employer committed a fraud. Therefore, it upheld an acessment of a penalty for the underpayment of taxes.

Mitchell H. Rubinstein

February 11, 2012 in Employment Law | Permalink | Comments (0)

Friday, February 10, 2012

Lawyer Employment

School Law Jobs
Job Title Employer Job Location
Special Education Associate Fagen Friedman & Fulfrost LLP Los Angeles, California
Senior Staff Attorney National School Boards Association Alexandria, VA


February 10, 2012 in Lawyer Employment | Permalink | Comments (0)

College Student Suspended For Writing About Being Attracted To Professor

Oakland University (near Detroit) reportedly suspended a student for 3 semesters because he wrote in a class assignment that he found his instructors attractive. The course specifically permitted students to write creatively about any topic. In one entry titled "Hot for Teacher," the student tells a story about being worried because he is distracted in class by attractive professors. From the Press Release I saw, nothing vulgar was written. I do not know how many stories were written.

The student has retained a lawyer and is apparently bringing a First Amendment case to challenge his suspension. He is supported by an organization called Foundation For Individual Rights in Education, or "FIRE." You can read more about this bizzare story here.

UPDATE: February 13, 2012

It appears that some of the participants in this matter have chosen to comment. Their comments appear below.  

Mitchell H. Rubinstein

February 10, 2012 in College Professors, Colleges, Constitutional Law, Education Law | Permalink | Comments (29)

Thursday, February 9, 2012

3d Circuit Holds That Parents Are Not Responsible To Repay School District For Private Placement


J.E. v. Boyertown Area Sch. Dist., ____F.3d_____(3d Cir. Nov. 21, 2011), is an interesting case which discusses the responsbilies of Districts to pay for a private placement as well as the IDEA's stay put provision. I bring it to your attention, however, for another reason. It highlights a rare situation where the District seeks reimbursement from the parent for costs it paid. Ultimately, the 3rd Circuit declined to address the merits of its request that the parents to reimburse it for tuition and transportation costs it has paid because the District failed to request “reimbursement in the District Court, and it points to no statute or rule authorizing us to consider this question for the first time on appeal.”

Mitchell H. Rubinstein

February 9, 2012 in Special Education Law | Permalink | Comments (0)

Wednesday, February 8, 2012

Even Though Employee May Resign, She Can Still Be Disqualified From Unemployment Because She Committed Misconduct

Matter of Cheek v. Commissioner of Labor, ____A.D.3d____(3d Dep't. Nov. 17, 2011). As the court stated:

Claimant worked as a flight attendant for the employer for one year when, facing termination, she resigned from her employment after it was discovered that she had taken several miniature bottles of alcohol from airplanes without paying for them during layovers on international flights. Ultimately, the Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct. Claimant now appeals.

We affirm. An employee's knowing violation of an employer's established policies and procedures, which has a detrimental effect on the employer's interest, has been held to constitute disqualifying misconduct (see Matter of Washington [Commissioner of Labor], 84 AD3d 1603, 1604 [2011]; Matter of Sutton [Albany Med. Ctr.—Commissioner of Labor], 84 AD3d 1621, 1622 [2011]). Here, claimant admitted to taking the bottles without paying for them and further admitted that she knew that doing so violated the employer's policies. As such, we find that substantial evidence supports the Board's decision (see Matter of Weiner [Commissioner of Labor], 47 AD3d 1040 [2008]; Matter of Wise [Commissioner of Labor], 19 AD3d 795, 795-796 [2005]). 

Mitchell H. Rubinstein


February 8, 2012 in Employment Law | Permalink | Comments (0)

Tuesday, February 7, 2012

City Not Entitled To Recoup Costs In Small Claims Action

Adams v. City of New York, ___Misc. 3d____( Richmond Co. Dec. 9, 2011), is a colorful decision. NYC, for the first time, sought to recover its costs where in prevailed in Small Claims matters-yes Small Claims. In rejecting the City's application, the court explained:

The court must applaud the creativity of the City in seeking new sources of income in these times of diminishing revenue and budgetary shortfalls. However, the attempt to slip a fast ball by the batter who's waiting for the curve, will not be successful at this time. Because the court is only aware of the filings in Richmond County, it is unable to determine if this pitch will be only fouled back (limited to Staten Island) or hit out of the park (stopped city-wide).

Regrettably, it appears to many commentators that the above words sung by Huck Finn's "Pap" in "Big River" more accurately describes the current state of affairs between the people and the government-with all levels seeking to enhance revenue streams in unique ways. Hopefully, the public official looking for new income sources is not a Broadway afficionado because if he or she has seen productions of musicals such as "Urinetown" or "Anyone Can Whistle," the citizenry could be in for some interesting times.

The clerk is directed to reject these and any future applications by the City where it is a successful defendant to enter a bill of costs against a party in a small claims action.

Mitchell H. Rubinstein


February 7, 2012 in New York Law | Permalink | Comments (0)

Monday, February 6, 2012

RN Terminated For Misconduct Not Eligible For Unemployment


Matter of Meagher v. Commissioner of Labor, ___A.D.3d____(3d Dept. Nov. 10, 2011), illustrates a basic principle of employment law. A nurse discharged for misconduct is not eligible for unemployment. Here, the nurse obtained refills of a patient's prescription medications without a physician's authorization. It was irrelevant that the employer somehow tolerated this practice in the past. As the court explained:

The failure to comply with an employer's reasonable rules that has a detrimental effect on the employer's interest has been found to constitute disqualifying misconduct (see Matter of Sutton [Albany Med. Ctr.—Commissioner of Labor], 84 AD3d 1621, 1622 [2011]; Matter of Dzugas-Smith [Commissioner of Labor], 60 AD3d 1178, 1178 [2009]). Here, claimant admitted to getting a patient's prescriptions filled without the physician's knowledge or approval in clear violation of the employer's policy as well as his professional code of conduct. Although he asserted that he did this after he was repeatedly unable to reach the physician and he had followed this practice on prior occasions, this does not, under the circumstances presented, excuse claimant's behavior, which subjected the employer to potential [*2]adverse consequences (see Matter of Heintzleman [Commissioner of Labor], 288 AD2d 742, 743 [2001]; Matter of Smith [Primecare Med.—Commissioner of Labor], 269 AD2d 654 [2000], lv denied 95 NY2d 753 [2000]). Therefore, we find no reason to disturb the Board's decision.

Mitchell H. Rubinstein

February 6, 2012 in Employment Law | Permalink | Comments (0)

Sunday, February 5, 2012

Arizona Senate Rules Committee Would Prohibit Bargaining In Public Sector

    Sometimes I do not understand what this world is coming to. A Arizona Senate Rules Committee recently passed a number of anti-union Bills which have no chance of being enacted into law, including:
    SB 1485: Would prohibit public sector collective bargaining and would preempt any local laws providing for local collective bargaining.
    • SB 1487: Would outlaw payroll deduction for all public sector union dues.
    • SB 1484: Would require public employers to obtain annual written or electronic authorization for any third party payroll deductions.
    Mitchell H. Rubinstein


February 5, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Saturday, February 4, 2012

Indiana Is Now A Right To Work State

As reported earlier, the Indiana Senate passed right to work bill HB 1001 this week by a vote of 28 to 22. Governor Daniels signed the bill into law on 2/1. The text of the law can be found here.

Mitchell H. Rubinstein

February 4, 2012 in Unions | Permalink | Comments (0)

Friday, February 3, 2012

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Associate Fagen Friedman & Fulfrost LLP Los Angeles, California
Education Program Specialist 2 (Dispute Resolution Specialist) Oregon Department of Education Salem, Oregon
Senior Staff Attorney National School Boards Association Alexandria, VA


February 3, 2012 in Lawyer Employment | Permalink | Comments (1)

Wednesday, February 1, 2012

8th Circuit Holds No First A Violation With Respect To Student Discipline For Off Campus Speech


We are seeing more and more cases like D.J.M. v. Hannibal Pub. Sch. Dist., ___F.3d____(8th Cir. Aug. 1, 2011) and undoubtedly, will be seeing even more. The 8th held that a school district that suspended a student for off-campus instant message communications with a classmate did not violate the student’s free speech rights because the student’s speech constituted unprotected true threats. The panel also concluded that the school district was justified in disciplining the student under the substantial disruption standard established in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), based on Tinker’s language that school officials may discipline students for speech that occurs ”in class or out of it,” which “might reasonably [lead]school authorities to forecast substantial disruption of or material interference with school activities.”

Mitchell H. Rubinstein

February 1, 2012 in Education Law | Permalink | Comments (0)

Breaking News

Indiana is about to be the first State in my adult lifetime to become a Right to Work State. 

Details here.

Mitchell H. Rubinstein

February 1, 2012 in Unions | Permalink | Comments (2)