The grand jury is a centuries-old institution, dating back at least to the Magna Carta in England, and enshrined in both state and federal constitutions in this country. In order to charge someone with a felony, a prosecutor must present sufficient evidence to a group of ordinary citizens to establish probable cause that the defendant committed the crime. The grand jury is both an investigative body – the grand jury has the power to issue subpoenas, typically at the prosecutor’s suggestion – and a check on the authority of the prosecutor. The felony prosecution cannot proceed if the grand jurors vote a “no bill” and refuse to indict.
Whether 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.
What is Title IX, and What Does It Mean for my School?
Title IX is the federal law that prohibits discrimination on the basis of sex in education. In addition to ensuring that there are equal athletic and educational opportunities for all students, it also requires schools to address and take steps to prevent sex-based discrimination on campus, including sexual harassment and sexual assault. If a school knows of sex-based discrimination on campus and does not adequately respond to it, a court may find the school has violated Title IX.
In practice, what that means for your school is that it is obligated to address complaints of sexual harassment, dating violence, and sexual assault if it learns of them. Almost every school has set up a Title IX office solely to address these kinds of complaints. The job of this office is to resolve those complaints – which often but not always entails a disciplinary process against the accused student.
In April, six women filed a proposed class-action gender discrimination, sexual harassment, and pregnancy discrimination lawsuit in federal court in D.C. against international law firm Jones Day, with four of the women proceeding under the pseudonyms “Jane Doe 1-4.” The court initially allowed this, stating “Plaintiffs’ significant interest in maintaining their anonymity at this stage of the litigation is sufficient to overcome any general presumption in favor of open proceedings.” Jones Day vigorously contested this move, arguing that by allowing the women to proceed under pseudonym, the court was giving credence to the women’s argument that Jones Day would retaliate against them if their identities were public, that it prevents the public from assessing the claims, and that because the plaintiffs courted publicity, proceeding under pseudonym was inappropriate. Jones Day also argued that it could not investigate the women’s claims without knowing their identities. In similar gender, pregnancy, and family responsibility discrimination cases filed against Jones Day in 2018 and just this month, the plaintiffs chose to proceed under their own names. Over the course of the litigation, all but one of the anonymous plaintiffs chose to reveal their identities. On August 7, 2019, the judge presiding over the case issued a sealed order requiring the last remaining anonymous plaintiff to reveal her identity. In lieu of revealing her identity, Jane Doe 4 left the lawsuit.
On August 21, 2019, the U.S. Court of Appeals for the First Circuit released a decision that reaffirms that a hostile work environment claim can span many years, so long as some of the acts that are part of the broader pattern of harassment occurred within the statute of limitations period. In Nieves Borges v. El Conquistador Partnership, the First Circuit reversed a grant of summary judgment for a defendant, holding that the district court erred in excluding past evidence of sexual harassment in evaluating the plaintiff’s. The Court emphasized that “so long as one instance of harassment falls within the statutory limitations period,” “the entire period of the hostile environment may be considered by a court for the purposes of determining liability.” In other words, past conduct is part of the broader pattern of harassment at issue and is therefore relevant to assessing the nature of an employer’s bad behavior.
The plaintiff in Nieves Borges took a long time to report the harassment he faced. This is, of course, not unusual in employment discrimination cases in which a worker who experience sexual or other types of harassment fears losing his or her job. The plaintiff had worked at his company as a food service manager for twenty-two years when he was terminated in July of 2015. During that time, a high level manager (the Director of Human Resources) had harassed the plaintiff for more than a decade: According to the plaintiff that harassment included unwanted touching and frequent episodes in which the manager would look the plaintiff up and down while pressuring him to go out for drinks. In 2007, the alleged harasser went so far as to proposition the plaintiff over lunch. After that time, the alleged harasser bothered the plaintiff intermittently, even asking him to socialize several times in 2014, but never propositioned him again. But the plaintiff did not report his supervisor’s behavior until 2014, years after the pattern began and well after the most severe incident. At summary judgment, the district court refused to consider the older incidents, because none of the acts that occurred after 2014 rose to the level of sexual harassment. The district court also held that to prove his claim that he was subjected to a hostile environment the plaintiff had to demonstrate that the conduct he faced was both severe and pervasive.
Last week the U.S. Court of Appeals for the First Circuit released its second decision in the last few years addressing campus sexual misconduct disciplinary proceedings. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found for the University, concluding, as my colleague recently discussed, that the procedures it applied in Mr. Haidak’s case were sufficient to pass constitutional muster.
In writing about these campus disciplinary proceedings, the court glossed over the factual realities of these cases and made some concerning statements that—if schools were to adopt them as policy—would undermine students’ rights.
As part of the substantial criminal justice reforms enacted last year, the Massachusetts legislature gave a break to certain “first offender” juvenile delinquents. It did so by narrowing the definition of “delinquent child” found in G.L. c. 119 § 52, which effectively divests jurisdiction from the Juvenile Court for such “first offenders” because the Court has no jurisdiction except of “delinquent children.” In relevant part, the statute now defines “delinquent child” to be “a child between 12 and 18 years of age who commits any offense against a law of the commonwealth; provided, however, that such offense shall not include . . . a first offense of a misdemeanor for which the punishment is a fine, imprisonment in a jail or house of correction for not more than 6 months or both such fine and imprisonment.” Previously, a “delinquent child” was defined as “a child between seven and 18 who violates any city ordinance or town by-law or who commits any offence against a law of the commonwealth.”
On August 6, 2019, the U.S. Court of Appeals for the First Circuit released a decision that strengthens the due process requirements applicable to discipline at state universities, but does not go as far as other courts such as the Sixth Circuit, which has forcefully affirmed a due process right to cross-examination on issues of credibility. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found the University of Massachusetts-Amherst (UMass) procedures adequate as they were applied in the specific case before it, but adopted a requirement for some form of real-time cross-examination sufficient to address the key facts and issues in a student’s case. The court also emphasized the need for a state college to provide a student with due process for even an interim suspension – and only in the case of a real emergency can that process occur after the suspension.
On July 29, 2019, Judge Robert A. Brennan lifted the “presumption of unreliability” which had kept breathalyzer tests in drunk driving cases out of evidence since August 2017. This decision is the latest in a series of decisions Judge Brennan has made in Commonwealth v. Ananias, a case that raised the question of whether breathalyzer tests are reliable enough to serve as evidence in OUI prosecutions. In February 2017, Judge Brennan recognized the “presumptive unreliability” of thousands of breath tests administered by police officers using the Alcotest 9510 device. Specifically, Brennan found that the methodology the Massachusetts State Police Office of Alcohol Testing (OAT) used for annually certifying the devices from June 2011 to Sept. 14, 2014, did not produce “scientifically reliable” blood alcohol-content results. In 2018, prosecutors agreed not to introduce the results of breathalyzer tests administered as far back as September 2011. On January 9, 2019, Judge Brennan issued a sanctions order that established seven requirements for the state to meet before the Draeger Alcotest 9510 could be considered reliably calibrated.
When police conduct traffic stops, a wide array of legal principles come into play in seemingly simple interactions, including Fourth Amendment search and seizure law, the Fifth Amendment right to remain silent and refuse to incriminate yourself, laws governing civil traffic infractions, and the criminal law. (While what you should do if stopped obviously varies depending on the situation, the ACLU provides some useful general principles for how to conduct yourself if the police pull you over.) Among all of the various complex legalities of a traffic stop, however, one requirement in Massachusetts is fairly simple, though little-known: under the Massachusetts “no fix” statute, for nearly all motor vehicle offenses, police must give the violator a citation at the time and place of the violation. If they fail to do so without justification, the violator has a defense “in any court proceeding for violation,” meaning that even criminal charges against the violator must be dismissed.
Last week, the Alliance Defending Freedom (ADF), a Christian organization purporting to focus on religious liberty issues, filed a complaint with the Department of Education’s Office for Civil Rights (OCR) on behalf of three female high school athletes in Connecticut. The complaint alleges that the three Complainants—cisgender elite track athletes—are being discriminated against because the Connecticut Interscholastic Athletic Conference (CIAC) permits transgender female athletes to compete in girls’ sports. The ADF has a history of instituting suits on behalf of cisgender students, arguing that recognizing transgender students’ gender identities harms their cisgender peers.
Although courts around this country have made clear that being transgender does not make someone any less a girl in the eyes of the law, the ADF Complaint consistently and incorrectly refers to transgender female athletes as “boys” and argues that allowing these “boys” to compete against girls violates girls’ rights to equal athletic opportunities. The Complaint sets forth statistics about male and female athletes to show that in almost every sport male athletes would beat female athletes if they competed head to head. It then argues: “the CIAC permits males with all the hormonal and physiological advantages that come with male puberty and male levels of testosterone to enter and win in girls’ athletic competitions of all sorts, without any exceptions.”