Boston Lawyer Blog

Published on: June 26, 2019

Conservative Christian Group’s Title IX Complaint Against Transgender Athletes Ignores the Meaning of “Sex” Under Title IX Law

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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.”

Published on: June 19, 2019

Cannabis and the Workplace: An Overview of Employees’ Rights

by David Russcol

We frequently get inquiries from employees who are unsure of their rights regarding cannabis. Their confusion is understandable, since marijuana is very much in a legal gray area. Although possession of any amount of marijuana is a federal crime, Congress and Justice Department priorities have sharply limited enforcement of federal law against most people who have marijuana only for personal use. Under Massachusetts state law, different statutes authorize medical and recreational sale and use of cannabis. State-licensed dispensaries sell cannabis in cities and towns across Massachusetts for medical purposes and increasingly for non-medical purposes as well. Depending on the situation, employees who use cannabis may or may not have legal protections. This general overview will focus on three areas: drug testing, the use of medical cannabis under state law, and recreational marijuana.

Massachusetts employers may require employees to take drug tests under some circumstances, but the employers must meet specific legal criteria. Under federal and state laws against disability discrimination (the Americans with Disabilities Act and Chapter 151B), an employer may be permitted to require an applicant to undergo a test for illegal drugs after offering the applicant a job, if the test is relevant to the employee’s ability to perform the job and is applied equally to all employees in the same job category. After an employee has been hired, any drug test must be job-related and consistent with business necessity. Because marijuana is illegal for federal purposes but legal under state law, it is unclear whether Massachusetts employers may test for marijuana even if they can test for other drugs; however, if there is a specific federal requirement to test for marijuana, such as for truck drivers, the federal law would govern.

Published on: June 12, 2019

SJC Holds that Violation of Child Car Seat Law Does Not Constitute Reckless Endangerment of a Child

by Naomi Shatz

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In a decision released today, the Supreme Judicial Court concluded that driving with improperly restrained children does not constitute reckless endangerment under state law.

Suzanne Hardy was charged with several crimes, including reckless endangerment, after her nephews were killed in a car crash. On the day of the accident, Ms. Hardy, who was taking care of her four-year-old son and her two nephews, ages four years and sixteen months, decided to drive the children from her house to her nephews’ home. By statute, children under eight years old in Massachusetts must ride in a car seat, unless they are at least 57 inches tall. The defendant put her own son in his booster seat, put the 16-month-old in a front-facing car seat (with the straps at an improper height), and buckled her 4-year-old nephew, who was 44 inches tall, into the car without any booster seat. She had a second booster seat with her but chose not to use it.

Published on: May 17, 2019

SJC Hears Oral Arguments over Request for Records of Show Cause Hearings

by Melissa Ramos

Massachusetts has a unique system for certain criminal complaints, where both a police officer or private individual can apply for a criminal complaint and a clerk magistrate will decide whether there is probable cause for a criminal complaint to be issued. This process is available for most misdemeanor crimes and some felony crimes where an individual has not been arrested. A hearing before a clerk magistrate—also known as a “show cause” hearing—serves an important function in the Massachusetts criminal justice system because it screens out certain potential complaints at an early stage without creating a criminal record for the accused. If the clerk magistrate does not find probable cause, the clerk magistrate will not issue a criminal complaint. If the clerk magistrate finds probable cause, he or she can either issue a criminal complaint or exercise discretion and decide not to issue a complaint.

Published on: April 30, 2019

Exclusionary Rule Safe in Massachusetts – For Now

by Ana Muñoz

Last week, the Supreme Judicial Court reaffirmed that in Massachusetts, evidence unlawfully obtained from a police search will be excluded in criminal trials even in cases in which the police had good reason to believe the search was legal. That ruling buttresses a longstanding difference between federal law and Massachusetts law. In federal court, prosecutors can insulate police errors by arguing the police had a good faith basis to use an illegal tactic, and therefore evidence should not be suppressed. Not so in Massachusetts – at least for now.

Published on: April 10, 2019

SJC Clarifies that GPS Monitoring is a Search Subject to Constitutional Protections

by Emma Quinn-Judge

Massachusetts courts often require individuals on probation, particularly sex offenders, to wear GPS monitors that track their every movement. Imposing this requirement, the state’s highest court said for the first time recently, is a search, meaning that a judge can only lawfully require such monitoring after making an individualized determination that balances “the Commonwealth’s need to impose monitoring against the privacy invasion occasioned by such monitoring.”

The two decisions issued by the Supreme Judicial Court (SJC), Commonwealth v. Feliz and Commonwealth v. Johnson, are the first to apply Grady v. North Carolina, a 2015 Supreme Court decision holding that GPS monitoring is in fact a search protected under the Fourth Amendment’s prohibition against “unreasonable” searches. While the SJC had previously treated GPS monitoring as something else, calling it, for instance, “punishment” for committing an offense, Feliz and Johnson clarify that under both federal and state constitutional law, GPS monitoring is in fact a search. Applying its own new standard, the SJC reached contrasting results, deciding that GPS monitoring was unreasonable in Feliz but reasonable in Johnson.

Published on: April 3, 2019

Massachusetts Legislature Considers New Campus Sexual Misconduct Laws (Part 2)

by David Russcol

In our last post, we assessed the provisions and potential impacts of two of the campus sexual misconduct bills that will be considered by the Massachusetts Legislature in an upcoming hearing on April 9. In this post we are focusing on several of the other bills that will be up for debate, including one that would require a school to label a student’s transcript as soon as he or she is accused of certain criminal acts and another that would mandate sexual harassment training for all Massachusetts college and university students, faculty, and staff.

Published on: April 2, 2019

Massachusetts Legislature Considers New Campus Sexual Misconduct Laws (Part 1)

by Naomi Shatz

There are six bills addressing campus sexual assault that will be discussed at a public hearing of the Massachusetts Joint Committee on Education next week. Two years ago, the Massachusetts legislature held hearings on a collection of bills that addressed different aspects of the issue of campus sexual assault. Although the Senate later passed a bill dictating how schools should handle sexual assault allegations, that bill never made it to the Governor.

The various bills have been edited and re-filed and will be heard at a public hearing on April 9. Both in testimony to the Joint Committee on Higher Education and on this blog we laid out concerns with the previous versions of these bills, having to do with lack of transparency, notice, and ensuring that complaining and responding students had access to the same resources.

Published on: March 20, 2019

Can the Commonwealth Compel You to Unlock Your Cell Phone? SJC Clarifies Certain Circumstances in Which it Can

by Zoraida Fernandez

Recently, the Supreme Judicial Court ruled on what the government must show in order to obtain an order compelling a defendant to enter his password into a locked phone. While holding that compelling such an act is testimonial in nature and does implicate a person’s right against self-incrimination under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights, the Court held that where the government can prove beyond a reasonable doubt that it already knew that the defendant knows the password, the information sought is a foregone conclusion and compelling the defendant to enter the password is constitutionally sound. Continue reading

Published on: March 1, 2019

In Commonwealth v. Sherman the SJC Draws A Line Separating Consensual Sex from Rape

by Naomi Shatz

How does a court determine when consensual sex becomes rape? That is the question the Supreme Judicial Court just tackled in Commonwealth v. Sherman. The facts of the case are not relevant to the legal question at issue; it is enough to know that the defendant argued that he had entirely consensual sexual intercourse with the victim, while the victim claimed that the entire encounter was not consensual. Under Massachusetts law, to prove rape the Commonwealth must prove three things: (1) that there was sexual intercourse between the defendant and the victim; (2) that the defendant accomplished that intercourse by force or threat of force; and (3) that at the time of penetration the intercourse was against the will of the victim (i.e. without the victim’s consent).

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