Boston Lawyer Blog

First Circuit Hears Oral Argument in “There are Only Two Genders” T-Shirt Case

Published on: February 28, 2024 | by Naomi Shatz

Two weeks ago the First Circuit heard oral argument in a case that touches on some of the most hot-button issues in education law: student speech rights and discrimination against LGBTQ students. In L.M. v. Town of Middleborough, the Court must decide whether the Middleborough public schools could tell a student he was not allowed to wear a t-shirt that says: “There are only two genders.”

The case started in March 2023, when seventh grader L.M. wore a shirt to school that said “there are only two genders.” L.M. made this political statement against a backdrop – according to the school—of repeated concerns at the school about bullying of LGBTQ students and several students at the school contemplating or attempting to die by suicide, including students who attributed those actions to anti-LGBTQ experiences at the school. After receiving complaints from students and staff, the principal told L.M. he had to take the shirt off if he wanted to go back to class. L.M. declined, and his parents picked him up and took him home for the rest of the day. L.M. was not disciplined for wearing the shirt and wore other shirts with various political messages with no incident. In May 2023 L.M. wore the shirt to school again—this time with a piece of tape that read “censored” covering the words “only two.” L.M. was sent to the principal during his first class and removed the shirt rather than be excluded from school for the rest of the day.

The District Court Case

Title IX, Criminal Law and Civil Remedies: How to Approach Concurrent Proceedings

Published on: December 8, 2023 | by Naomi Shatz

We have repeatedly discussed on this blog how schools handle sexual misconduct allegations through internal grievance procedures. However, students involved in these processes must remember that the conduct that gives rise to Title IX allegations may also give rise to civil and criminal legal proceedings. Students involved in school misconduct cases need to understand how these different proceedings may intersect and impact one another before deciding how to approach their cases.

University Title IX and sexual misconduct policies prohibit sexual harassment, which includes sexual assault, dating violence, and stalking. All these behaviors are also criminal—though the definitions used in the criminal law and in school policies may differ. For example, in Massachusetts criminal law, indecent assault and battery is defined as an intentional, unjustified touching of a person’s private areas (a term that has been defined through case law to include various body parts). In many college and university policies sexual assault means sexual acts without consent, which is often defined as “affirmative, voluntary, knowing, and continuous agreement to engage in a specific form of sexual activity” (to quote the Wellesley College policy). All criminal sexual activity is generally also prohibited by school sexual misconduct policies, but there are categories of sexual misconduct that are prohibited by schools but may not be criminal.

Rape, Defamation, and Title IX: Connecticut Supreme Court Holds Yale’s Lack of Procedural Protections Allows Defamation Claims Against Complainant to Go Forward

Published on: June 24, 2023 | by Naomi Shatz

When can a person accused of sexual misconduct sue the accuser for defamation? Since the #MeToo movement began, more and more people accused of sexual assault have turned to defamation lawsuits as a weapon to combat those allegations. In 2022 Johnny Depp won his defamation claim against his ex, Amber Heard, who had written an op-ed describing herself as a survivor of domestic violence, without naming Depp. (Depp was also found liable for defaming Heard when his lawyer called Heard’s claims a “hoax”). In 2020 a judge found singer Kesha had defamed her former music producer by telling a friend he had raped her; New York’s highest court recently overturned that decision, and the parties settled. A crowdsourced Google spreadsheet of allegations of sexual misconduct against men in media resulted in a lawsuit against the woman who started the spreadsheet, and a six-figure settlement for the plaintiff. Defamation claims in sexual assault cases have gone the other way too; A jury recently found that Donald Trump defamed E. Jean Carroll by calling her sexual assault allegations against him a hoax. In these high-profile instances, defamation suits have become a vehicle to set up a jury to decide whether allegations of sexual misconduct are true. CONTINUE READING ›

Kluge v. Brownsburg Community School Corporation Caps off Week of Legal Developments on Transgender Rights

Published on: April 10, 2023 | by Naomi Shatz

Last week saw a wave of legal developments—legislative, jurisprudential, and administrative—on issues related to trans rights. While state legislatures passed laws restricting medical care for transgender minors, and barring trans women and girls from participating in school sports, federal appellate courts upheld the rights of transgender students and the Biden administration weighed in on the trans athlete issue. On April 6 the Supreme Court refused to lift a ban imposed by the Fourth Circuit on the enforcement of a West Virginia law that would prevent transgender students from competing on sports teams that corresponded to their gender while litigation about the constitutionality of the law is pending. West Virginia was attempting to enforce that law against a 12-year-old girl who wanted to run track at her middle school. That same day the U.S. Department of Education released a proposed rule that would address transgender students’ athletic participation. That rule, however, far from protecting trans students’ right to be treated equally to other members of their gender, would only prohibit a school from imposing a blanket ban on students’ participation in sports that corresponded to their genders. Schools would retain the authority to restrict trans athletes’ participation in sports if they could show that the restriction is “substantially related to the achievement of an important educational objective and (ii) minimize[s] harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

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.

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 ›

Back to School Basics: The Proposed #TitleIX Regulations and Pregnant Students’ Rights

Published on: September 8, 2022 | by Naomi Shatz

Proposed Title IX Regulations Would Expand Protection for Pregnant Students

Title IX is a federal civil rights statute that prohibits discrimination on the basis of sex in any education program that receives federal funding. This prohibition extends to discrimination based on pregnancy and related conditions, including termination of a pregnancy. As I have previously noted, there have been relatively few cases litigated by students alleging they have been discriminated against because of pregnancy, leaving the scope of Title IX’s protection of pregnant students somewhat undefined.

The current regulations implementing Title IX state: “A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom . . .” The regulations further require schools to treat pregnancy, childbirth, termination of pregnancy, and recovery therefrom as a temporary disability, and to provide students protected leave for as long as is deemed medically necessary to address those conditions. CONTINUE READING ›

Back to School Basics: Teachers, Employees, and Title IX

Published on: September 7, 2022 | by Naomi Shatz

What Teachers and Other School Employees Need to Know About Title IX

While many people think of Title IX as a law that applies only to students, in fact the law does not mention students at all. The language of the statute is: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Professors, teachers, and other employees of educational programs are protected by Title IX, and also have obligations under Title IX not to engage in actions that constitute sex-based discrimination or harassment.

Title IX Protects Employees from Discrimination and Harassment

As I have previously discussed, Title IX protects school employees from gender-based harassment or discrimination. The current federal regulations implementing Title IX make explicit that Title IX prohibits employment discrimination on the basis of sex, stating “A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner.” While there has been some disagreement among different federal courts about whether employees can bring Title IX claims if they also have claims under Title VII (the federal law prohibiting discrimination in employment more generally), the majority of appeals courts have found that employees can bring claims under both laws. The Department of Justice’s Title IX Legal Manual makes clear that that Department agrees with the circuits that have found that employees can pursue both Title IX and Title VII claims: “The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations.” Here in Massachusetts, both the First Circuit, in a case from 1988, and a judge in the District of Massachusetts in a case last year, have held that Title IX claims are not preempted by Title VII claims, and school employees can pursue both claims simultaneously. CONTINUE READING ›

Racial Discrimination and Harassment in School

Published on: September 1, 2022 | by Naomi Shatz

pexels-cdc-3992949-scaled In the last year or so, I have gotten many calls from families whose children have been harassed and discriminated against in school because of their race. Repeatedly, I am hearing that students of color, often in predominately white schools, are being called the n-word by their classmates and targeted for bullying and harassment. I am hearing that these schools are disproportionately disciplining those students of color, often for vague and subjective offenses. Even more concerning, some of these families have told me that when they have reported their children’s harassment to school officials, those officials have recognized that they have a problem with white students harassing and bullying students of color but have claimed not to know how to address or prevent the harassment. Harassment and discrimination against students of color violates both federal and state laws, and schools have an obligation to take steps to address it.

Federal Anti-Discrimination Laws

Title VI is a federal law that prohibits discrimination on the basis of race, color, or national origin in any education program that receives federal funding. This includes all public K-12 schools, private K-12 schools that participate in federal programs like the National School Lunch Program, and almost all colleges and universities. Under Title VI, schools have an obligation to address racial harassment that interferes with students’ ability to access their education.