News + Insights from the Legal Team at Zalkind Duncan & Bernstein

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Coffee-Meet-Up-scaledAugust is upon us and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. One year ago the U.S. Department of Education (DOE) issued new regulations related to sexual misconduct on campus (for a summary see our blog posts here); and here in Massachusetts a new law went into effect this month, changing how schools are required to handle sexual misconduct cases. It is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure that may arise from sexual behavior. CONTINUE READING ›

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beer-pong-768x512-1Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent students—both those who have experienced sexual assault or misconduct and those accused of sexual misconduct—in campus proceedings at colleges and universities around the country. Here is some information that all students should know before heading back to campus. CONTINUE READING ›

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pexels-any-lane-5727783-scaledAs part of the criminal justice reform bill in 2018, the Massachusetts legislature passed a statute creating a limited parent-child privilege so that minor children who may be in legal trouble can seek advice from their parents without having to worry that their parents could be witnesses against them in a criminal case. Similar protections exist for spouses, who cannot be compelled to testify against one another. Although the statute does not protect adult children who speak with their parents, it fills an important gap for juveniles, particularly since they have a right to speak with an “interested adult” before being interrogated by police. CONTINUE READING ›

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david-von-diemar-jM6Y2nhsAtk-unsplash-scaledA recent Supreme Court case has reaffirmed the rights of individuals against unreasonable government searches and seizures after the First Circuit attempted to expand an exception to the Fourth Amendment. Last year, in Caniglia v. Strom, the First Circuit Court of Appeals (which includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) identified a new exception to the Fourth Amendment protection against unreasonable searches and seizures in the home. In the case, police searched a house and seized the owner’s firearms without a warrant and claimed they were allowed to do so because their intent was  to protect against “[t]hreats to individual and community safety.” The First Circuit agreed, finding that the search fell under the “community caretaking exception” to the Fourth Amendment’s warrant requirement. In May, the Supreme Court unanimously rejected the First Circuit’s attempt to expand the “community caretaking exception” in a victory for civil liberties and the rights of individuals against unreasonable government intrusions. 

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pexels-tracy-le-blanc-607812-scaledThe convergence of widespread social media use, and recent national social movements and events—including the MeToo movement, Black Lives Matter movement, and the COVID-19 pandemic—has led to a growing number of public school teachers and other government employees being disciplined for statements they make on their private social media. Here in Massachusetts,  a teacher was fired after posting a diatribe against people living in poverty and the conversation about privilege. In Ohio, a teacher was fired after making a social media post criticizing police brutality against students. There has been significant attention paid to public university professors across the country, with institutions taking differing views of whether they can terminate professors for their online speech. In Texas, Collin College fired three professors  for making political comments on social media and criticizing their institutions’ handlings of the COVID-19 pandemic. In Indiana, the University of Indiana said it could not fire a professor who wrote posts denigrating women and LGBTQ people. We have been hearing from more public school teachers around Massachusetts who are being investigated and sometimes disciplined for their private social media posts about political and social issues. CONTINUE READING ›

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Text messages have replaced the old-fashioned phone call: Since 2014, Americans under 50 reported preferring text messages to talking on the phone. American adults under 45 send and receive an average of 85 texts per day. Many people, then, treat texts like talking. But even though the government might need a warrant to intercept your phone call, as of this week, in Massachusetts, the government can read and use your texts that they obtain from someone else’s phone.   

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This is Part 2 in a series. You can read Part 1 here. 

I previously detailed how existing anti-discrimination law is insufficient to protect employees and students who wear their hair in natural or protective styles from discrimination. A national campaign called the CROWN Act, has built an impressive coalition of organizations in support of legislation to remedy this problem. In the last two years, eleven states and a handful of cities and counties have passed this type of legislation. Massachusetts Representative Ayanna Pressley introduced a federal CROWN Act in Congress in December of 2019.  CONTINUE READING ›

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This is Part 1 in a series. You can read Part 2 here.

Last week Jon Oliver took a deep dive into Black hair, and the barriers people with natural and protective hairstyles face in the workplace, in schools, and elsewhere. His segment highlighted stories of a woman who was not hired because she wore her hair in locs, twins here in Massachusetts who received detention and were banned from prom because they wore their hair in braids, and an Ivy-league alumnus who sent a vitriolic, racist letter to his college because a football player for the college wore his hair in locs. Over the weekend news broke that a high school softball player in Durham was forced to cut her beads out of her hair in the middle of a game if she wanted to continue playing. While there has been a growing movement in the last two years for states, cities, and towns to pass versions of the Creating a Respectful and Open World for Natural Hair (CROWN) Act, thus far Massachusetts has not passed any legislation on this issue. Because our current laws do not adequately protect against such discrimination, a legislative fix is necessary.   CONTINUE READING ›

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kai-pilger-dwBZLRPhHjc-unsplash-scaledBy Catherine Willett, Law Student Intern

About 20% of workers in the United States are contractors: individuals hired to work on a specific project or for a specific period of time. This number is bound to grow as employment through the gig economy reaches into more sectors and the use of subcontractor agencies proliferates. Indeed, participation in the gig economy has expanded enormously during the COVID-19 pandemic. But the pandemic has also exposed the vulnerability of gig workers and the precarity of relying on gig work as a sole source of income. Many statutory workplace protections do not apply to independent contractors. The lack of healthcare benefits, paid time off, and minimum wage protections for gig workers has been the subject of considerable recent media attention. And while Congress expanded unemployment benefits to these workers during the pandemic, they generally do not qualify for unemployment benefits because neither they nor whoever they are performing services for pay into unemployment insurance. CONTINUE READING ›

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yale-university-1604159_1920Freedom of speech on campus—the freedom to express opinions, including when they are unpopular—has long been a key principle of American academic institutions. Thomas Jefferson wrote to prospective members of the faculty of the University of Thomas Jefferson that the institution would be “based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” Yet this principle is sometimes more honored in the breach than in the observance. The University of Thomas Jefferson shortly thereafter rescinded a professor’s appointment because he was a Unitarian. (This article is a very interesting account of the early history of academic freedom in America.)

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