Today, the U.S. Department of Education announced that it was rescinding its 2011 Dear Colleague Letter on Sexual Violence and its 2014 Questions and Answers on Sexual Violence, and issued a Questions and Answers on Campus Sexual Misconduct while noting that it intends to engage in formal rule-making on the topic. Attorney Naomi Shatz spoke to Inside Higher Ed about the interim regulations. The article can be found here.
Last week, Education Secretary Betsy Devos announced she would be revisiting Title IX guidance for colleges and universities. Attorneys O’Meara-Costello and Shatz spoke to Massachusetts Lawyers Weekly about their experience representing complainants and accused students under current campus Title IX procedures, and reflect on what changes these proposed revisions may bring. Read the article here.
Zalkind Duncan & Bernstein LLP is proud to announce that Attorneys Norman Zalkind, David Duncan, Inga Bernstein, and Emma Quinn-Judge are listed in the 2018 edition of The Best Lawyers in America. Additionally, Inga S. Bernstein has been selected as Best Lawyers’ 2018 Boston Employment Law – Individuals “Lawyer of the Year.” Only a single lawyer in each practice area in each community is being honored as the “Lawyer of the Year.” Best Lawyers is the oldest and most respected peer-review publication in the legal profession and rates attorneys by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. In addition to this year’s recognition, Ms. Bernstein has been listed in Best Lawyers in America every year since 2007 for both criminal defense and employment law. Congratulations to all!
In Barbuto v. Advantage Sales & Marketing, the SJC today affirmed that Massachusetts employees who use medical marijuana under state law to treat medical conditions are entitled to employment protections under state law governing disability discrimination. Zalkind Law’s David Russcol, along with Chetan Tiwari, submitted an amicus brief on behalf of the Massachusetts Employment Lawyers Association and a coalition of advocacy groups for individual rights, people with disabilities, and other affected groups. Matthew Fogelman and Adam Fine represented the plaintiff and made a strong case at oral argument. Based on the arguments presented, the SJC took a step no other state high court has taken, finding employment protections for medical marijuana users when those protections are not spelled out in the medical marijuana law itself. As a result of Barbuto, employees cannot be penalized or fired for their off-site use of medical marijuana unless an employer meets the high burden of showing that an accommodation would be an undue burden on the employer. A zero-tolerance policy for a positive drug test no longer gives an employer in Massachusetts an unqualified excuse for adverse actions.
On July 13, 2017, Zalkind Law’s Naomi Shatz was invited as an expert on campus sexual assault and Title IX proceedings to participate in a summit on sexual assault held by the Secretary of Education. Secretary DeVos met with students who had experienced sexual assault on campus as well as students who had been accused of committing sexual assault on campus, and then met with university presidents, attorneys for universities, and experts on Title IX to hear their thoughts on how the Education Department should address sexual assault on campus.
Media coverage of Naomi’s participation in the meeting and her thoughts on the state of Title IX enforcement at colleges and universities can be found here:
David Russcol and Inga Bernstein recently secured a reversal of an abuse prevention order by the Massachusetts Appeals Court. Under Chapter 209A, the plaintiff seeking a restraining order bears the burden of showing that he or she suffered reasonable fear of imminent serious bodily injury as a result of the defendant’s words and actions. Attorneys Russcol and Bernstein successfully argued that the plaintiff did not meet this burden, even accepting all of the plaintiff’s evidence as true. As a result, the Appeals Court ordered the abuse prevention order vacated and removed from our client’s record.
In an article published last week in the Boston Bar Journal, Ruth O’Meara Costello and David Rangaviz write about recent decisions in the Supreme Judicial Court (“SJC”) regarding search-and-seizure law that address digital searches and the seizure of electronic data, as well as race relations in the context of police encounters. In the article, available here, Ruth and David discuss how, with these decisions, the SJC is both raising the bar for evidence required to justify digital search-and-seizures and also recognizing how racial bias plays a role in criminal practice and procedure
On May 1, 2017, Monica Shah presented a session on criminal law and students’ rights at the South Asian Bar Association of Greater Boston’s award-winning “Know Your Rights!” program at the Waltham Public Library. Through this program, SABA GB empowers South Asian community leaders in Massachusetts on topics ranging from criminal law to employment law, bankruptcy, consumer protection, immigration, and elder care. This is the first year that the program included discussion of the rights of students in secondary and higher education, including issues such as academic misconduct and Title IX.
Norman Zalkind and Naomi Shatz spoke to Massachusetts Lawyers Weekly about recent cases alleging violations of students’ rights in Title IX processes at colleges and universities. They highlighted the firm’s more than 40 years of representing students in disputes with their universities, and discussed the firm’s particular expertise in representing students involved in sexual misconduct proceedings. Read the article here.
Zalkind Law’s David Russcol filed an amicus brief in the Supreme Judicial Court on behalf of a coalition of employment and civil rights organizations, supporting the right of disabled individuals who use medical marijuana under Massachusetts law to receive accommodations for off-site marijuana use and avoid discrimination by employers. In the case of Barbuto v. Advantage Sales & Marketing, which was argued in the SJC yesterday, an employee suffering from Crohn’s Disease was fired for failing a drug test, even though she told her employer that she used marijuana for medical purposes. David’s brief for the Massachusetts Employment Lawyers Association, the American Civil Liberties Union of Massachusetts, GLBTQ Legal Advocates & Defenders, Mental Health Legal Advisors Committee, Union of Minority Neighborhoods, Jewish Alliance for Law and Social Action, and Health Law Advocates argued that marijuana should be treated like any other medication, and employers should have an obligation to work with employees to find a reasonable accommodation as long as the employees are able to perform their essential job responsibilities. To do otherwise would allow employers to intrude on the doctor-patient relationship and would force employees like Ms. Barbuto to choose between continued employment and effective medical treatment. Read the brief here http://ma-appellatecourts.org/?brief=SJC-12226_08_Amicus_MELA_Brief.pdf