News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Articles Posted in Civil Rights/Civil Liberties

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-and-Religious-Schools

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 ›

Sessions Department of Justice Marijuana

Perhaps motivated by California’s legalization of recreational marijuana, which just became effective at the beginning of the year, Attorney General and longtime cannabis opponent Jeff Sessions recently issued a brief statement changing the Department of Justice’s approach to marijuana, even as support for marijuana legalization is hitting all-time highs. Over the course of the Obama Administration, Deputy Attorneys General David Ogden and James Cole had issued increasingly detailed and refined guidance, instructing U.S. Attorneys to take a largely hands-off approach to marijuana to the extent it was legal under state laws; federal authorities would focus on enforcing certain red lines such as sales to minors, use of weapons or violence, and interstate trafficking. With the clarity of these guidance memos, participants and investors in marijuana markets – first medicinal and, more recently in a few places, recreational – developed a comfort level that, as long as they carefully observed state requirements, the risk of federal prosecution was remote (even though there continued to be tension between state laws and the federal Controlled Substances Act). Now Attorney General Sessions has rescinded all of that guidance, sparking a blaze of consternation among industry observers. CONTINUE READING ›

Yesterday, Boston Police Commissioner William B. Evans sent a message of warning to Boston-area college students ahead of a planned “Free Speech” rally and numerous counter-protests. He told college students “please act in a way that would make your school, your family, and your city proud and please respect our neighborhoods. Student behavior off campus will be regarded the same as if it were on campus.”

College students are subject to the laws of Massachusetts just like any other person in the state. If college students engage in illegal behavior at Saturday’s rallies, they can be arrested and prosecuted. But college students are also subject to the student conduct rules of their respective universities. Under Massachusetts law, those handbooks form the basis of a contractual relationship between the student and the college. Both students and colleges must abide by the rules set forth in the handbook; schools cannot punish students for behavior that is not prohibited by their policies. While Commissioner Evans can encourage students to act responsibly, he cannot dictate that schools expand those rules to cover off-campus actions if they do not already do so. CONTINUE READING ›

Massachusetts is often lauded as one of the most progressive states in the country, and our state civil rights laws routinely provide broader protections than their federal counterparts. So it may come as a surprise that Massachusetts does not have a functional state counterpart to federal laws prohibiting discrimination in education like Title IX and Title VI.

Massachusetts has a law titled “Fair Educational Practices,” Mass. G. L. c. 151C.  That chapter contains provisions prohibiting educational institutions from doing the following:

  1. Discriminating against a U.S. citizen on the basis of race, religion, creed, color or national origin in the admission process;
  2. Retaliating against employees, students, or applicants for assisting in any proceeding under the law;
  3. Asking for the race, religion, color, or national origin of an applicant;
  4. Discriminating against someone seeking admission to a vocational school or post-bachelor’s degree program, or discriminating against such a student in the provision of benefits, privileges, or services based on the student’s  race, religion, creed, color, age, sex or national origin;
  5. Excluding students from admission because they are blind, deaf, or require a guide dog;
  6. Requesting information about, or to discriminate on the basis of a failure to provide information about, certain criminal records;
  7. Sexually harassing students.


As I previously wrote , in December 2016 Rule 41 of the Federal Rules of Civil Procedure was changed to give law enforcement more expansive authority to conduct searches of computers. How the new procedural rule will interact with core constitutional values and established legal principles, as well as what the practical consequences of the rule are, remain open questions.

(1) Fourth Amendment

The proposed changes may well fall afoul of the Fourth Amendment. As I have discussed in a previous blog post, the Fourth Amendment protects people against unreasonable searches and seizures. It does this by requiring the government to obtain a warrant before conducting most searches, by requiring those warrants to be supported by probable cause, and by requiring the warrants to be particular about the location to be searched and the items to be seized. CONTINUE READING ›

At a time of increasingly public protests, the Supreme Judicial Court recently reaffirmed its commitment to protecting speech here in Massachusetts.  Under Masschusetts’s Anti-Strategic Litigation Against Public Participation law (“Anti-SLAPP”), defendants can move to dismiss a lawsuit filed against them if that lawsuit targets their attempt to influence a government body or seek help from one.   It had always been clear that when a person attempts to influence the government on their own behalf – in other words, to vindicate their own interests – the statute protected that activity.  But in Cardno ChemRisk v. Cherri Foytlin et al., the Court made clear that the statute extends to citizens’ right to advocate not just for themselves, but also for others.

Massachusetts is one of twenty-eight states with Anti-SLAPP protection.  These statutes buttress a basic constitutional right:  The First Amendment of the United States Constitution protects the right “to petition the Government for a redress of grievances.”  That means that every person has a right to influence government bodies – by, for example, protesting in the town square or testifying at a hearing – without fear of reprisal.  But citizens’ protests can often frustrate powerful, non-governmental interests.  And when they do, those powerful interests may use courts to try to stop or stifle the speech.  Anti-SLAPP statutes protect citizens from those suits. CONTINUE READING ›

Since the election, there has been a spike in racist harassment and hate crimes across the county directed at minorities and immigrants.  As reflected in data collected by the Southern Poverty Law Center (SPLC), nearly 900 hate incidents were reported in the ten days following November 8.  The incidents have ranged from graffiti of swastikas and nooses, rampant use of racial slurs, verbal denigration of minorities and immigrants, and physical harassment, including assaults or attempted assaults.  These incidents have been most prevalent at K-12 schools and college campuses and reflect a disturbing deterioration of the educational environment in our schools.  These are only the reported incidents to SPLC, a small non-profit located in Alabama; it is most certainly only a fraction of all incidents since the election.  While there are sometimes competing concerns between the free speech rights of students and the protection of minority students, the incidents that have been reported thus far include racist threats of violence that goes beyond free speech rights.  There is a real concern that the failure to adequately respond and remedy this behavior during students’ formative years in middle and high school will normalize it and cause further spillover onto college campuses.

Minority and immigrant students who are at colleges and universities across the country may be understandably anxious about whether they will have protection against such harassment under the new presidential administration.  If campaign rhetoric is to be believed, the Trump Administration intends to gut the Department of Education (DOE).  In addition to its responsibilities administering federal funding and enforcing federal education laws, the DOE is the agency charged with enforcing civil rights laws that apply to K-12 schools and colleges, which includes Title VI, the law that protects students at federally-funded schools from discrimination on the basis of race or national origin.


In June, Supreme Court Justice Sonia Sotomayor attracted attention for her dissent in Utah v. Strieff.  In that case – which held that a court need not suppress the fruits of a suspicionless stop if the individual has a pre-existing warrant for their arrest – Sotomayor wrote that the Court’s opinion would encourage more baseless stops and thus “risk treating members of our communities as second-class citizens.”  Setting aside legalese, Sotomayor cited the authors W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates, and discussed the humiliation that people of color experience due to their disproportionate targeting by the criminal justice system.  She ended her opinion with the following passage:

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. CONTINUE READING ›

Yesterday, 11 states sued the U.S. Government in a Texas federal court over recent guidance documents its agencies issued defining “sex” in various civil rights laws to include “gender identity.”  The suit is the latest in a widening legal battle over transgender rights — specifically the right of transgender people to use restrooms that accord with their gender identities.

The lawsuit challenges two recent documents from federal agencies.  On May 3, 2016, the EEOC released a fact sheet on bathroom access for transgender employees, which states that discrimination based on transgender status is sex discrimination under Title VII. On May 9, 2016 the U.S. Department of Justice (DOJ) sued North Carolina over a recently-passed law that required public employees and public school students to use bathrooms that correlate with the sex listed on their birth certificates, and an executive order that required cabinet agencies to use the same definition of “sex” in segregating their bathrooms. On May 13, 2016 the DOJ and U.S. Department of Education (DOE) issued a “Dear Colleague Letter” stating that “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.” The lawsuit argues that these interpretations of Title VII and Title IX constitute a radical change in the law, and that the executive branch, through these two departments, cannot change the law in this way.


In a new case, Commonwealth v. Celester, the Massachusetts Supreme Judicial Court emphasizes how important it is for defendants to be informed of and advised regarding their right to remain silent, holding that it was ineffective for an attorney not to advise his client to invoke his Fifth Amendment right when questioned by police.  The decision is legally significant in the scope that it gives to the right to effective advice of counsel, but it also illustrates what good criminal defense lawyers already know about the importance of the Fifth Amendment—a lesson that Bill Cosby would have benefited from when giving a deposition in 2005.

In most criminal cases, most defense lawyers advise their clients not to give statements to the police.  This is common, often essential, advice that we give to the innocent as well as to the guilty; someone who will have to defend him or herself at trial is almost always better off not unnecessarily sharing information with prosecutors in advance.  In criminal trials, the choices to invoke the Fifth Amendment and not answer questions from the police, or to remain silent at trial, cannot be held against a defendant, and so there is often little downside in taking the Fifth, particularly in interrogation by police.


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