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Since the election, there has been a spike in racist harassment and hate crimes across the county directed at minorities and immigrants.  As reflected in data collected by the Southern Poverty Law Center (SPLC), nearly 900 hate incidents were reported in the ten days following November 8.  The incidents have ranged from graffiti of swastikas and nooses, rampant use of racial slurs, verbal denigration of minorities and immigrants, and physical harassment, including assaults or attempted assaults.  These incidents have been most prevalent at K-12 schools and college campuses and reflect a disturbing deterioration of the educational environment in our schools.  These are only the reported incidents to SPLC, a small non-profit located in Alabama; it is most certainly only a fraction of all incidents since the election.  While there are sometimes competing concerns between the free speech rights of students and the protection of minority students, the incidents that have been reported thus far include racist threats of violence that goes beyond free speech rights.  There is a real concern that the failure to adequately respond and remedy this behavior during students’ formative years in middle and high school will normalize it and cause further spillover onto college campuses.

Minority and immigrant students who are at colleges and universities across the country may be understandably anxious about whether they will have protection against such harassment under the new presidential administration.  If campaign rhetoric is to be believed, the Trump Administration intends to gut the Department of Education (DOE).  In addition to its responsibilities administering federal funding and enforcing federal education laws, the DOE is the agency charged with enforcing civil rights laws that apply to K-12 schools and colleges, which includes Title VI, the law that protects students at federally-funded schools from discrimination on the basis of race or national origin.

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We have previously covered on the blog the implications of Massachusetts initiatives regarding marijuana and the interaction between Federal and state drug laws. In 2008, voters decriminalized the possession of an ounce of marijuana under state law. In 2013, voters set up a system for the medical use of marijuana in Massachusetts. Possession, distribution, or use of marijuana in any form remains illegal under Federal law, and the Federal Drug Enforcement Administration recently reaffirmed the placement of marijuana on Schedule I, meaning that it has “no currently accepted medical use,” a “high potential for abuse,” and a “lack of accepted safety for [its] use.” However, in 2014 Congress enacted into law an Obama administration policy permitting states to implement medical marijuana laws, giving a subtle positive signal at least for medicinal use of marijuana.

This week, Massachusetts voters again gave the green light to marijuana reform in the form of Question 4. Question 4 is long and complex, but we can summarize some of its most important provisions. Under Question 4, starting on December 15, 2016, it will no longer be illegal under Massachusetts state law for anyone 21 years old or older to possess an ounce or less of marijuana, or up to 5 grams of marijuana concentrate. Within one’s own home, an adult over 21 is permitted to possess up to 10 ounces of marijuana, grow up to 6 marijuana plants (up to a total of 12 plants at a time for two or more people), and possess any marijuana grown on the premises. Individuals committing these acts are protected against any criminal or civil penalties under state law; by contrast under current state law possession of marijuana without appropriate medical documentation is at least a civil infraction with a $100 fine, and cultivation or possession of more than an ounce is criminal.

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In June, Supreme Court Justice Sonia Sotomayor attracted attention for her dissent in Utah v. Strieff.  In that case – which held that a court need not suppress the fruits of a suspicionless stop if the individual has a pre-existing warrant for their arrest – Sotomayor wrote that the Court’s opinion would encourage more baseless stops and thus “risk treating members of our communities as second-class citizens.”  Setting aside legalese, Sotomayor cited the authors W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates, and discussed the humiliation that people of color experience due to their disproportionate targeting by the criminal justice system.  She ended her opinion with the following passage:

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. Continue reading →

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Massachusetts now has two types of restraining orders—abuse prevention orders under M.G.L. c. 209A, which are intended specifically to address and prevent domestic violence and are only available between family or household members (including people who have been in a substantial dating relationship), and harassment prevention orders under M.G.L. c. 258E, which can be issued absent any such connection where the standards for such orders are met. The basic procedure for either order is the same—a court can issue the order ex parte, without the knowledge or participation of the defendant against whom the order is sought. The defendant is then served with the order, and has the right to appear at a contested hearing, no more than 10 days later, regarding whether the order should be extended. The entry of any such order—even if it is not extended at the 10-day hearing—creates a permanent record maintained by the Commission of Probation. The courts have refused to expunge such records except where an order was issued due to “fraud on the court.” In a new decision, M.C.D. vs. D.E.D., the Massachusetts Appeals Court has now held that even where a court determines that a party committed perjury in order to obtain an order, the standard for expungement is not met. Continue reading →

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I previously wrote about a Massachusetts federal district court decision that was groundbreaking because it tackled the question of whether a private university’s sexual misconduct investigation and disciplinary procedure was fundamentally fair, and concluded that it was not. Last week another local federal court weighed in on the college sexual misconduct issue and found in favor of the accused student, but went in a distinctly different legal direction.

John Doe v. Brown University is one of the few cases on this issue to proceed all the way to trial. The case arose out of a November 2014 sexual encounter between John Doe and Ann Roe. Roe complained about the incident in November 2015, and the case was heard by Brown in 2016. Notably, in fall 2015 Brown adopted a new Title IX policy that contained Brown’s first definition of consent, and a new process for handling sexual misconduct cases. While Brown informed its investigator and panel that the case against Doe would proceed under the 2014-2015 policy that was in effect at the time of the incident, Brown also provided the panel with the 2015-2016 policy and specifically told the panel that that policy codified the community’s understanding of consent, so they could look to it if it assisted them. Continue reading →

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Six months ago a judge in the federal district court in Massachusetts issued what many people who litigate cases surrounding college sexual assault adjudications consider the most comprehensive decision on the topic. In Doe v. Brandeis University, Judge Dennis Saylor denied Brandeis University’s motion to dismiss the complaint by its former student as to claims that Brandeis breached its contractual duties towards him, handled his case with negligence, and used a fundamentally unfair process to evaluate the accusation against him.

The case arose out of a January 2014 sexual assault complaint against John Doe by his former boyfriend. Under Brandeis’ policy, the complaint was investigated by a Special Examiner who also decided whether John Doe was responsible for sexual assault. (This “single investigator” model, promoted by the White House, has gained significant traction with schools nationwide in the last three years, despite significant concerns about its fairness).

Despite noting that “the Handbook is no model of clarity,” the judge nonetheless found for Brandeis on most of the contract claims based on Doe’s allegations that Brandeis failed to follow its Handbook. The judge similarly rejected most of Doe’s tort claims, with the exception of a claim for negligent supervision based on Brandeis assigning an administrator with no familiarity with the process as the final decision maker in the case. The judge was skeptical that Doe could prevail on the claim, but allowed it to survive the motion to dismiss. Continue reading →

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Students wrongfully disciplined for alleged sexual misconduct on campus have had a difficult time convincing federal courts to entertain lawsuits based on Title IX, the federal law prohibiting gender discrimination in education. Although the Department of Education has used (some would say exceeded) its administrative authority under Title IX to compel schools to adopt detailed policies for addressing and adjudicating complaints of sexual misconduct, courts were hesitant to recognize claims of unfairness in these campus tribunals based on Title IX itself. An example of this approach, which I have covered before, was a federal district court’s dismissal of a lawsuit against Columbia University for failure to identify a “smoking gun” demonstrating that the flaws in Columbia’s investigation of an alleged sexual assault were specifically due to gender bias. Although a few courts more recently found that plaintiffs had made out a sufficiently plausible case to proceed, they did not challenge the basic idea that someone bringing this type of case needs to have at least some evidence of gender bias at the outset.

But the Second Circuit Court of Appeals recently reversed the Columbia case, holding that the district court had required too much of the plaintiff without the benefit of discovery in the course of litigation. Briefly, the male plaintiff in the Columbia suit, identified as John Doe, had sex with a female fellow student in the bathroom of her suite; she later alleged that the interaction was not consensual. Doe claimed that he was not informed of his rights, that Columbia’s investigator never followed up on his witnesses or evidence, and that he was precluded from offering evidence in his favor. He was suspended for 3 semesters, which even the complainant stated was too harsh. Continue reading →

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Since the United States Supreme Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335 (1963), the right to assistance of counsel in criminal proceedings has been fundamental in protecting due process rights of criminal defendants.  However, the Supreme Court has repeatedly rejected arguments that the right to counsel should extend to pre-charge proceedings such as questioning by police.  The Court has consistently limited the Sixth Amendment right to counsel to proceedings occurring after a formal charge has been brought, as it did in Moran v. Burbine, 475 U.S. 412 (1986), where it upheld a defendant’s conviction although police concealed from him that an attorney was attempting to reach him before he was questioned and confessed.

In Comm. v. Brazelton, 404 Mass. 783 (1989), the Supreme Judicial Court held that there was no right to counsel under Art. 12 of the Massachusetts Declaration of Rights when deciding whether to submit to a breathalyzer test, and adhered for Art. 12 purposes to the federal Sixth Amendment limits:  the right to counsel under the state constitution, as under the federal constitution, comes into being only when formal criminal proceedings commence against a person in court.  In Comm. v. Neary-French, (No. SJC-12057, August 16, 2016), the SJC revisited the issue.  The defendant in Neary-French argued that an amendment to the Massachusetts OUI statute subsequent to Brazelton, which makes it a per se crime to operate a motor vehicle with a blood alcohol content exceeding .08, made the decision whether to submit to a breathalyzer test a critical stage in a criminal prosecution.  If that were the case, Art. 12 would require the assistance of counsel in making the decision.  The Court rejected the argument and reaffirmed that Art. 12, like the Sixth Amendment, assures the assistance of counsel only after formal charges are brought. Continue reading →

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On August 1, 2016, Massachusetts passed an historic revision to its Equal Pay Act. The new law, called An Act to Establish Pay Equity (“the Act”), strengthened the existing legislation in a number of key ways, as we discussed in detail in a previous blog posting. Specifically, the law: broadens the definition of “comparable work,” making it harder for employers to distinguish between work on the basis of job titles alone; prohibits employers from reducing seniority for employees who took protected parental, family, or medical leave; extends the statute of limitations from one year to three years (which means employees who received unequal pay can recover up to three years’ worth of the salary differential, plus liquidated damages for that same amount); prohibits employers from asking about a prospective employee’s salary history prior to making an offer of employment and negotiating a salary; and does not allow employers to prohibit employees from talking about their salaries with coworkers. As with the previous version of the law, it is still illegal to retaliate against someone for asserting their rights under this Act. The amended statute also explicitly provides legal protections for employers who can show their good faith efforts to comply with the law.

The new law may require some sizeable shifts in the way that courts, employers, and employees look at the concept of “equal pay for equal work.” Change doesn’t happen overnight, and the new law is going to require employers to make several changes to their budgets, hiring practices, and office culture. These changes are going to take time. Because the new law does not go into effect until July 1, 2018, employers have nearly two years to get familiar with the law, implement changes, and make sure they aren’t caught flatfooted when July 2018 rolls around, and employees can start recovering 3 years’ worth of salary discrepancies, plus liquidated damages, and attorney fees for lingering salary inequality.

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Dr. Roger Ian Hardy, a Massachusetts fertility specialist, was a recent beneficiary of the Massachusetts definition of rape, as “sexual intercourse with another compelled by force and against the victim’s will or compelled by threat of bodily injury.” Dr. Hardy has been accused of molesting multiple female patients during gynecological exams and procedures, under the guise of providing medical treatment. As horrifying as the allegations are, the Middlesex County District Attorney has stated that no charges will be brought, due to what the Boston Globe calls an “apparent gap” in the law. At least as to the crime of rape, that conclusion is probably legally correct—but legislators should be careful, if they seek to close that gap, not to create deeper problems by sweeping all sex that results from any form of deception into criminal conduct.

Massachusetts courts have held that obtaining sex through fraud is not rape at least since 1959, when the Supreme Judicial Court decided Commonwealth v. Goldenberg. Goldenberg, another doctor, had sex with a patient who came to him for an abortion, claiming that the sex was part of the procedure. The Court held that he hadn’t raped her, because he hadn’t used force–she consented to the act, although under false premises. If Goldenberg were the only case to that effect, I suspect the District Attorney here would prosecute Dr. Hardy and argue that its holding is outdated, and that in view of the law’s ongoing evolution in this area the Supreme Judicial Court should overrule it. But in 2007, in Suliveres v. Commonwealth, the SJC upheld Goldenberg (in a case in which a man pretended to be his twin brother in order to have sex with  the brother’s girlfriend) and said that the legislature had ample time to act to change the law if it disagreed with the result in that case; because it hasn’t acted, the law stays the same. These cases certainly foreclose a successful prosecution for rape in Dr. Hardy’s case. (That said, I find it surprising that the District Attorney has not charged him with indecent assault and battery, which has different elements, does not require force, and arguably could apply.)

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