Boston Lawyer Blog

What is FERPA and What Are my Rights?

Published on: March 22, 2023 | by Naomi Shatz

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We often get calls from people wondering whether their school or their child’s school has violated their privacy rights with respect to education records, and if so, what can be done about it. While federal law provides significant privacy rights for students those rights are not absolute, and there are limited mechanisms to enforce violations.

What is FERPA

The Family Educational Rights and Privacy Act (FERPA) is a federal law that was passed in 1974 to protect the privacy of student education records. The law applies to educational agencies and institutions that receive funds from the U.S. Department of Education. FERPA gives parents or students 18 and older (“eligible students”) the right to inspect and review students’ education records. It also gives parents and eligible students the right to request amendment of the student’s records, and the right to a hearing if the school denies the request to amend.

ZDB is Hiring!

Published on: March 9, 2023 | by Zalkind Duncan & Bernstein LLP

ZALKIND DUNCAN & BERNSTEIN LLP is hiring an associate to join our premier Boston criminal defense and civil litigation boutique. This progressive 13-lawyer firm has a dynamic federal and state court practice, at both the trial and appellate levels. Our criminal defense practice includes crimes of violence, fraud and drug offenses, white collar crimes, and other felonies and misdemeanors. Our civil practice consists primarily of plaintiff-side employment matters (mostly discrimination cases), and representing students, faculty, and other employees accused of misconduct or facing discrimination at colleges and universities (including in Title IX proceedings). We also have a general civil litigation and complex motions practice.

We are looking for an attorney with 1-2 years of experience and excellent research, analytical, and writing skills. Judicial clerkship a plus. Competitive benefits. Associates must be available for court, depositions, and other in-person proceedings in the Greater Boston area. Associates currently work in the office at least two days per week and may otherwise work remotely where that is compatible with the needs of a case. More information about our firm can be found on our website: http://www.zalkindlaw.com.

Interested applicants should email a cover letter, resume, law school transcript, writing sample (preferably 5-10 pages long, showing writing that has not been substantially edited or revised by anyone other than the author), to resume@zalkindlaw.com with “Application for associate position” in the subject line. Please name the files including your materials as follows: “firstname lastname – Cover Letter,” “firstname lastname – Resume,” “firstname lastname – Transcript,” and “firstname lastname -Writing Sample.”

Whole Foods Employees Fired for Supporting Black Lives Matter Suffer New Defeat, But Law Evolves on Associational Discrimination

Published on: February 17, 2023 | by Tom Miller

In the summer of 2020, the United States was experiencing both the early phase of the COVID-19 pandemic and nation-wide outrage over the police killing of George Floyd. Employees at Whole Foods grocery stores around the country—some Black, some not—began wearing face masks promoting the Black Lives Matter movement. Whole Foods management responded by reprimanding these employees for violating a dress code policy against clothing with messages or logos, even though the policy had never been consistently enforced in the past. Employees who insisted on wearing the masks were sent home. Eventually, some employees were fired.

One employee who was fired was Savannah Kinzer, who worked at the River Street Whole Foods store in Cambridge. In July 2020, Kinzer and others from around the country sued Whole Foods in a Massachusetts federal court, alleging racial discrimination and illegal retaliation under Title VII of the Civil Rights Act. On January 23, 2023, Kinzer suffered a defeat when District Court Judge Allison Burroughs, an Obama appointee, granted a motion by Whole Foods for summary judgement. Despite the disappointing outcome, the litigation so far has also prompted positive developments with respect to associational discrimination claims in the First Circuit.

Phases of the Case

Clemency in Massachusetts and its Potential for Revitalization

Published on: January 27, 2023 | by Lucie Gulino

Massachusetts has a fraught history with clemency and has strongly disfavored this post-conviction remedy for decades. Last year, however, there was a slight uptick in the number of clemency grants: Governor Charles Baker approved 3 commutations for Thomas Koonce, William Allen, and Ramadan Shabazz and 10 pardons.

Article 73 of the Amendments to the Constitution of the Commonwealth vests clemency power in the governor. There are two forms of clemency: commutation and pardon. A commutation is a reduction in sentence, which means the convicted individual faces a shorter period of incarceration than originally mandated. A pardon forgives the underlying offense, which means the individual’s conviction is erased. Although clemency power technically vests in the governor, there are multiple entities involved in the decision-making process. CONTINUE READING ›

In Commonwealth v. Karen K., the Supreme Judicial Court Approves the Patfrisk of a Black Teenager, But Offers Hints for Future Challenges

Published on: January 10, 2023 | by Tom Miller

The use of “patfrisk” or “stop-and-frisk” techniques by police is a serious—and, in some communities, alarmingly frequent—intrusion on personal liberty and dignity. In Commonwealth v. Karen K., the Massachusetts Supreme Judicial Court (SJC) considered the case of a sixteen-year-old African-American girl stopped and patfrisked by Boston police, who discovered a loaded firearm in the waistband of her pants. The case provided an opportunity for the Commonwealth’s highest court to revisit some of the same highly charged questions of constitutional law at play in their controversial and fractured 2021 decision in Commonwealth v. Sweeting-Bailey, which we previously discussed on this blog.

In Doe v. Stonehill College the First Circuit Demonstrates a Willingness to Second Guess how Schools Conduct Disciplinary Processes

Published on: December 16, 2022 | by Naomi Shatz

For the second time this year, the First Circuit has reversed a district court’s ruling dismissing a student’s breach of contract claim against his school, reaffirming that courts are willing to second guess school’s interpretations and applications of their own policies.

Background of the Case

In Doe v. Stonehill College the plaintiff alleged that Stonehill had violated his contract with the school, and discriminated against him in violation of Title IX, when it found him responsible for sexual misconduct in 2018 and expelled him. According to his complaint, he and student Jane Roe had had three previous consensual sexual encounters before the incident that gave rise to her Title IX complaint against him. On the night in question, he claimed that the two engaged in sexual conduct that was the same as on other nights, and to which she consented in the same way (through physical manifestations of consent) that she had on previous occasions.

New SAFER Act Seeks to Fix Decades of SCOTUS Narrowing of Students’ Civil Rights

Published on: December 13, 2022 | by Naomi Shatz

Federal legislators have introduced a bill to correct absurdities in anti-discrimination law that ensure institutions are rarely held liable for egregious acts of discrimination on their campuses. As things currently stand, a school district cannot be held liable for an on-campus rape of a student even if the student had previously been harassed by the assailant and told her teacher about the harassment, but the teacher failed to report it to the right administrator at the school. Even where students can bring legal claims against their schools for the school’s failure to properly address sexual harassment, they may well walk away from such a lawsuit empty handed because plaintiffs cannot recover punitive damages and may not be able to recover emotional distress damages in civil rights lawsuits in the education context. Imagine this: a college knows that it employs a professor who has assaulted countless students over many years. The professor sexually assaults another student on campus. Despite suffering extreme mental health consequences from the assault, the student manages to stay in school and graduate on time. If the student sues the school, a court could decide that even though the school has violated the student’s rights under Title IX, the student is not entitled to any damages for the harm the school has caused. CONTINUE READING ›

Speak Out Act: New Federal Law Prohibits Prior Agreements Silencing Sexual Harassment Victims

Published on: December 9, 2022 | by Jennifer M. Herrmann

This week, President Biden signed the Speak Out Act into law, the most recent victory for advocates against workplace sexual assault and sexual harassment. The Speak Out Act makes prior non-disclosure and non-disparagement clauses in agreements (or “NDAs”) unenforceable when the parties later become engaged in a dispute regarding sexual assault or sexual harassment.

The first substantive section of the Speak Out Act lays out a series of findings regarding sexual assault and sexual harassment that paint a clear picture of the need for the law. As stated by the Act, “eighty-one percent of women and forty-three percent of men have experienced some form of sexual assault or harassment throughout their lifetime,” and “one in three women has faced sexual harassment in the workplace during her career.” Despite these staggering statistics, “an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint.” CONTINUE READING ›

The Massachusetts CROWN Act: Minding the Gap Between Proposed and Enacted Legislation

Published on: November 14, 2022 | by Lucie Gulino

This is a follow up to a previous two-part series: you can read Part 1 here and Part 2 here.

On October 24, 2022, An Act Prohibiting Discrimination Based on Natural Hair and Protective Hairstyles, also known as the Massachusetts CROWN Act, went into effect, but is significantly changed from the proposed legislation we have previously discussed on this blog. The CROWN Act expands the statutory definition of “race” that applies to all laws addressing racial discrimination to include “traits historically associated with race, including but not limited to, hair texture, hair type, hair length and protective hairstyles.” In addition, the Act defines “protective hairstyle” to include “braids, locks, twists, Bantu knots, hair coverings and other formations.” The CROWN Act also prohibits schools (except for sectarian schools) from adopting any policy or code that “impairs or prohibits” hairstyles historically associated with race. CONTINUE READING ›

Know Your Rights: Restrictions on Non-Solicitation Clauses

Published on: November 7, 2022 | by Ana Muñoz

We have previously written about how Massachusetts law limits non-competition clauses. Non-competition clauses restrict where an employee can work after she leaves a job; an employee agrees in a contract not to work for a competitor for a period of time after she separates from an employer. Under M.G.L. c. 149 § 24L, non-compete agreements signed as a condition of employment must meet certain requirements, including advance notice of the clause, compensation in exchange for accepting the limitation, and the opportunity to consult with counsel. The law also requires that non-competes have a limited duration and scope. Clauses signed after October 2018 must comply with the statute to be enforceable.

But there are other kinds of restrictions that are like non-competes that are not subject to the statute’s requirements. Principal among those are non-solicitation agreements. Non-solicitation clauses restrict who an employee can contact after they leave a job. Non-solicitation clauses can prohibit people from recruiting employees at the prior employer. Clauses can prohibit reaching out to, or doing business with, any customers of the prior employer. Sometimes they are written so broadly that a clause tries to prohibit an employee from even speaking with a former customer or co-worker. Thus, employers sometimes try to use non-solicitation agreements to accomplish what they no longer can through a non-compete clause: The clauses are broad and unlimited; they can be so restrictive about what communications an employee may have, that, in practice, the employee cannot conduct business. Imagine, for example, a seasoned salesperson with a large existent network of customers. As a practical matter, a non-solicitation agreement might bar her from talking to most potential customers in her industry should she leave a job, preventing her from performing any new job she should get that involves sales.

Courts, however, have held overly broad non-solicitation agreements unenforceable. Thus, even absent the protection of a statute, the law still places restrictions on a company to limit a former employee’s communications with former colleagues and customers. A judge in the Massachusetts Superior Court recently noted that non-solicitation agreements “limit competition in a market to sell goods or services to potential customers.” As the Appeals Court has held, a non-solicitation agreement can only be enforced under Massachusetts law to the extent “necessary to protect the employer’s legitimate business interests” and “and only to the extent that it is reasonable in time and space, necessary to protect legitimate interests, and not an obstruction of the public interest.” That means, for example, that a non-solicitation clause that does not have any relationship to protecting an employer’s confidential information, intellectual property, or trade secrets is likely unenforceable. A non-solicitation agreement that is not limited in time or geography is also likely unenforceable.