Boston Lawyer Blog

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

Published on: April 2, 2019 | 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.

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

Published on: March 1, 2019 | 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).

In Yee v. State Police, SJC Holds that Denial of Lateral Transfer Can Be Employment Discrimination

Published on: February 5, 2019 | by Naomi Shatz

Last week the Supreme Judicial Court (SJC) issued its decision in Yee v. Massachusetts State Police, an employment discrimination case raising the question of whether denying a police officer a lateral transfer to different troop could be a discriminatory under our state anti-discrimination law. (As a note of disclosure: I wrote an amicus brief on behalf of the Massachusetts Employment Lawyers’ Association and other groups in support of the plaintiff, Lt. Yee.) The SJC reaffirmed that chapter 151B—Massachusetts’ law addressing discrimination in employment—is to be read broadly to protect employees. The Court held that when an employer makes a decision that causes a material disadvantage to an employee in objective aspects of their job, even if the employee doesn’t lose money as a result of the decision, that decision is illegal employment discrimination if it is based on the employee’s membership in a protected class.

Does the Man Suing over #MeToo List About Men in Media Have a Shot?

Published on: October 19, 2018 | by Naomi Shatz

In the fall of 2017, writer Moira Donegan created the “Shitty Media Men” list—an “anonymous, crowd-sourced” spreadsheet that collected rumors and allegations of sexual misconduct by men in media and publishing. The spreadsheet was up on the internet for only 12 hours before Donegan pulled it, but it went viral and became much more public than Donegan intended. Donegan said she had not foreseen this outcome; her goal had been to “create an alternate avenue to report this kind of behavior and warn others without fear of retaliation.” That fear of reprisal has become reality: last week, one of the men named on the list, writer Stephen Elliott, sued Donegan and 30 other anonymous women for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

What do these legal claims mean, and does Elliott have a case?

Beyond Sports and Sex Part 5: Title IX and Pregnant and Parenting Students

Published on: May 31, 2018 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have not gotten as much attention in the media or political arena as have Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from non-sexual sex-based harassment. Part 3 looked at Title IX and dress codes. Part 4 covered when Title IX applies to religious schools.

Teen pregnancy has long been a subject of public health concern, political debates, and more recently, popular reality TV programming, but the legal issues surrounding it have not garnered much attention. Title IX prohibits sex-based discrimination in schools. In 1975, three years before pregnancy discrimination in employment would be prohibited by the Pregnancy Discrimination Act, the Department of Health, Education, and Welfare (now the Departments of Education and Health and Human Services) issued regulations implementing Title IX that included a prohibition on discrimination against students based on marital or parental status. One provision specifically states: “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.”

New Criminal Justice Reform Act Broadens Opportunities for Courts to Resolve Cases Before Arraignment

Published on: April 18, 2018 | by Naomi Shatz

On Friday, Governor Baker signed a sweeping criminal justice reform bill into law, and because it contained an emergency preamble it went into effect upon signing. The law makes significant changes to defendants’ ability to get a pre-arraignment diversion — a way to resolve a case without any criminal record.

Under the old law (Mass. G.L.c. 276A), a defendant could obtain a pre-arraignment diversion if she met all of the following criteria, set forth in section 2 of the law:

The case was one where a prison sentence was possible and the district court had final jurisdiction;
Was between ages 18-22 or was a military veteran;
Had not previously been convicted of any crime;
Did not have outstanding warrants or criminal cases in any court;
Received a recommendation from a program that she would benefit from the program.

Beyond Sports and Sex Part 4: When Does Title IX Apply to Religious Schools?

Published on: March 7, 2018 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have not gotten as much attention in the media or political arena as have Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from non-sexual sex-based harassment. Part 3 looked at Title IX and dress codes.

Title IX is a federal law that prohibits schools that accept federal funding from discriminating on the basis of sex. As I’ve discussed in previous pieces, this includes discrimination in providing athletic opportunities, failing to properly address sexual harassment and sexual assault, gender-based harassment and bullying, and dress codes. It is generally understood that Title IX applies in all public schools, from kindergarten through graduate programs, and also applies to most private colleges because of their participation in federal financial aid programs. But courts have held that Title IX may also apply to private (including parochial) elementary and high schools. Conversely, there are private colleges and universities that have taken steps to ensure that Title IX does not apply to them. It is important for any students or parents dealing with discrimination issues at school to understand whether Title IX may protect them. CONTINUE READING ›

Massachusetts Courts Grapple with Universities’ Duties of Care Toward Their Students

Published on: January 16, 2018 | by Naomi Shatz

In news that might seem unsurprising to both lawyers and non-lawyers alike, on December 28 a judge in the Superior Court held that Endicott College was not liable for a student who got extremely drunk at a dorm party, and then assaulted three fellow students, leaving two with broken facial bones. After serving part of his four-year sentence for the assault and being paroled, the student brought suit against the college alleging that the college’s negligence caused his actions. The student argued that the college was liable in negligence for his actions under three theories: (1) social host liability (which applies to those who negligently serve alcohol to someone who later injures someone as a result of being intoxicated); (2) that the college had a “special relationship” with the student that imposed a duty of care to protect the student; and (3) that the school was negligent in supervising the student and preventing him from harming himself. The judge, assessing whether the college owed some duty of care to the student, determined that “No Massachusetts case . . . has ever determined that a special relationship exists between a college or university or its officials and its students that would impose a duty to protect students from the voluntary use of drugs or alcohol.”

Massachusetts Moves Toward New Law on College Sexual Assault

Published on: November 8, 2017 | by Naomi Shatz

On November 2, 2017, the Massachusetts Senate unanimously passed a bill that would dictate how colleges and universities in the Commonwealth must handle sexual assault allegations. As a mecca for higher education, with over 100 colleges and universities, Massachusetts could have been a leader in tackling campus sexual assault in a way that both protects the educational rights of victims of assault, and provides fair procedures to both victims and the accused. The bill that just passed, unfortunately, fails to achieve this goal.

The Senate’s final version of the bill more or less tracks the Obama-era guidance on sexual misconduct; guidance that was revoked by the U.S. Department of Education in September. Despite various individuals and groups (myself included) testifying to the Massachusetts legislature in April about the need for procedural protections for both the complainant and accused in these cases, the Senate bill focuses exclusively on the needs of complaining students, without providing procedural protections to both students that would enhance transparency and ensure that each student can adequately advocate for him/herself.

Beyond Sports and Sex Part 3: Title IX and Dress Codes

Published on: October 31, 2017 | by Naomi Shatz

In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from harassment based on sex stereotyping.

Title IX prohibits educational programs that receive federal funding from discriminating on the basis of sex. Because discrimination by definition means treating one person differently from another, there are only a few limited areas in which schools can draw explicitly gender-based distinctions and not run afoul of Title IX.

One area where schools have historically had explicitly gendered policies is in their dress codes. When Title IX was initially enacted, the implementing regulations prohibited sex distinctions in “rules of appearance.” This regulation seemed to squarely prohibit the implementation of gender-specific dress and grooming codes. However, the Reagan administration revoked those regulations in 1982, fewer than ten years after they had been issued, indicating that differentiating on the basis of sex in “rules of appearance” might very well be permissible under Title IX.