Boston Lawyer Blog

Freedom of Speech and Campus Discipline: The First Circuit Highlights Limits on What Speech Public Schools Can Punish

Published on: March 5, 2021 | by Ruth O'Meara-Costello

We are going through an era of extraordinary political division. On college campuses as in broader society, both students and faculty are voicing widely differing views and beliefs. Colleges also have increasingly robust disciplinary rules applying to conduct including harassment, bullying, and discrimination that may be applied to conduct that takes the form of speech. At public institutions, the First Amendment protects students from discipline based upon their speech—but not in all circumstances. (Private institutions are another matter that I will address in a separate post.) This post reviews the basic law about free speech on campus and discusses a 2020 First Circuit decision that encapsulates the complexity of determining when speech is sufficiently disruptive of the school’s mission or of the rights of other members of the school community to warrant discipline.

Divided Appeals Court Panel Highlights Gap in Personnel Record Law

Published on: January 27, 2021 | by David Russcol

In Massachusetts, as in many other states, the Legislature has adopted a personnel record law that specifies documents and information that every employer must maintain in an employee’s personnel record, such as documents relating to an employee’s qualifications and possible promotions, transfer, or discipline. For instance, many employers must include an employee’s job description and rate of pay, job application and resume, performance reviews, warnings, and termination notices. Employees have the right to review or receive a copy of their personnel records on request, and employers must notify employees if negative information is put into their personnel records. In order to promote accuracy of personnel records, the law allows employers and employees to agree to remove or correct information in these files, and if an employee disagrees with information contained in their personnel record, they have the explicit right to submit a written response, which the employer must include whenever they transmit the disputed information to a third party (such as a potential future employer).

In DeWeese-Boyd v. Gordon College SJC Grapples with Whether Religious Schools can Discriminate Against their Employees

Published on: January 20, 2021 | by Caroline Davis

Two weeks ago, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Deweese-Boyd v. Gordon College, a case which tests the limits of the “ministerial exception” and the legal protection it provides for religious employers. CONTINUE READING ›

ZDB is Hiring!

Published on: January 13, 2021 | by Zalkind Duncan & Bernstein LLP

ZALKIND DUNCAN & BERNSTEIN LLP, a premier Boston criminal defense and civil litigation boutique, seeks an associate to start in fall 2021 or sooner. This progressive 13-lawyer law 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 (primarily 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 associate with 1-2 years of experience and excellent research, analytical, and writing skills. Judicial clerkship a plus. Competitive benefits. More information about our firm can be found on our website: http://www.zalkindlaw.com.

Interested applicants should send their 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), and a cover letter to Zalkind Duncan & Bernstein LLP, 2 Oliver St #200, Boston, MA 02109, attn: Associate Hiring, or e-mail these items to resume@zalkindlaw.com with “application for associate position” in the subject line. Applicants who are available to begin employment before fall 2021 should include such information in their cover letters. Applications will be reviewed on a rolling basis and should be submitted no later than February 19, 2021.

Massachusetts Legislature Passes Campus Sexual Violence Bill

Published on: January 7, 2021 | by Naomi Shatz

In a late-night session on the last night of the 191^st General Court (our legislative session), the Massachusetts Legislature passed S. 2979, “An Act Relative to Sexual Violence on College Campuses.” This bill was the latest version of a bill that has been introduced, and had previously failed to pass, in every session since 2014.

We have previously written about prior versions of this bill (our blog posts can be found here, here, and here). My colleagues and I have also submitted testimony to the Legislature in both 2017 and 2019 about campus sexual assault and the need for transparent, fair processes for students. While the bill addresses a number of topics, including climate surveys, sexual misconduct training for students and employees, coordination with local law enforcement, and the information schools must post on their websites, I will focus here on what the law will require schools to do when they receive a complaint of sexual misconduct. If Governor Baker signs the bill, its changes will take effect on August 1, 2021.

SJC Strikes Down State Anti-Panhandling Law as Unconstitutional

Published on: December 22, 2020 | by Zalkind Duncan & Bernstein LLP

In a landmark decision published last week, Massachusetts Coalition for the Homeless v. Fall River, the Massachusetts Supreme Judicial Court (SJC) struck down G.L.c. 85, § 17A (often referred to as the anti-panhandling law) as an unconstitutional restriction on protected speech. This decision was hailed as a victory by community organizers and people who are houseless, who have long criticized the law for effectively criminalizing houselessness and poverty.

Section 17A imposed criminal penalties for any person who “signals a moving vehicle on any public way or causes the stopping of a vehicle thereon, or accosts any occupant of a vehicle … for the purpose of soliciting any alms, contribution or subscription or of selling any merchandise.” (emphasis added). However, the law permitted the same conduct for other purposes, like selling admissions tickets and newspapers. The law also explicitly exempted from regulation this same conduct when performed on behalf of a non-profit organization with a police permit. The law imposed a $50 fine for violators.

Plaintiffs John Correira and Joseph Treeful are both houseless and members of the Massachusetts Coalition for the Homeless, an organization that advocates for housing justice and provides direct services and assistance to people experiencing houselessness. Like many people who are houseless, Mr. Correira and Mr. Treeful sometimes stand on public streets and ask motorists and passersby for donations in order to survive. Between 2018 and 2019, the Fall River Police Department charged the two men with more than forty violations of Section 17A. Both Mr. Correira and Mr. Treeful have previously been incarcerated as a result of these charges.

ZDB is Hiring!

Published on: December 14, 2020 | by Zalkind Duncan & Bernstein LLP

Boston Criminal Defense & Civil Litigation Firm Paralegal/Legal Assistant Position

We are a fourteen-lawyer firm located in the North End/Waterfront of Boston, with an interesting, varied, fast-paced practice in criminal defense and civil litigation (including employment, students’ rights, and other academic cases). We seek a motivated Paralegal/Legal Assistant with a strong educational background, excellent interpersonal skills, proficiency with office software (including Word, Excel and Outlook) and solid typing skills (70+ wpm). Interest in social media is a plus and previous office experience is desirable. This is an entry-level position that requires a minimum two-year commitment. We are looking for a candidate to start summer 2021. Please email resume and cover letter to the attention of Elena Jacob at resume@zalkindlaw.com. The position will be open until filled.

What Are Your Job Protections as a Parent or Caregiver During COVID-19?

Published on: December 4, 2020 | by Zalkind Duncan & Bernstein LLP

By Lilly Gill, Law Student Intern

The COVID-19 pandemic has drastically changed the relationships between employment, education, and family life as parents are juggling having their children home in remote education or otherwise having limited childcare, and other caregivers have needed to take care of elderly parents or disabled or sick relatives. In recent months, substantial evidence (examples abound, but a few are here, here, here, here, and here) has demonstrated that women are disproportionately taking on caregiving responsibilities during the pandemic. As a result, there are serious concerns that women are being pushed out of the workforce at higher rates than their male counterparts. While female workers may be particularly vulnerable to COVID-related job consequences, our practice has also received numerous inquiries from men who have sought time off, reduced schedules, or other accommodations to help take care of their children or elderly family. As the end of the year is approaching, the COVID-related protections passed by Congress earlier this year are expiring and therefore this may be the last chance for some employees to seek leave for child-care related needs. Moreover, employers may be making decisions regarding layoffs, performance reviews, promotions, and pay raises or bonuses, and may penalize employees with caregiving responsibilities based on gender-stereotypes that caregivers are unable to prioritize their work responsibilities. If employees face adverse career consequences due to their caregiving role, they may have multiple legal paths they can take to challenge those decisions.

Appeals Court Protects the Rights of Individuals in Interrogations Against Coercive Police Conduct

Published on: November 3, 2020 | by Zalkind Duncan & Bernstein LLP

Recently, in Commonwealth v. Davis, the Massachusetts Appeals Court determined that Massachusetts State Police officers coerced an individual to waive his Miranda rights when they arrested him after he attempted to exercise his constitutional right to counsel during an interrogation. CONTINUE READING ›

Supreme Judicial Court Permits State Licensing Boards to Consider Sealed Criminal Records During Disciplinary Proceedings

Published on: September 25, 2020 | by Zalkind Duncan & Bernstein LLP

By: Amanda Gordon, Legal Intern

In Massachusetts, in limited circumstances a person’s criminal records can be available to a licensing board or prospective employer. However, there remains a societal responsibility to ensure that criminal charges do not unfairly stigmatize or disadvantage defendants who have served their sentence or were never convicted at all. The Supreme Judicial Court acknowledged this tension in Boston Globe v. DJCIS, and again in its recent decision, Doe v. Board of Registration in Medicine. In this most recent case, the Court carved out a unique loophole, allowing the Medical Board to use sealed criminal records of doctors for the purposes of disciplinary deliberation. Typically, sealed criminal records can only be accessed by a small number of entities: courts, law enforcement agencies, and a few others. Prior to the Court’s decision, the Board of Registration in Medicine did not ordinarily have access to these records.

Criminal records can be sealed in one of three ways: The first two (G. L. c. 276, §§ 100A and 100B) provide for automatic sealing of certain criminal records, upon request, after a required period has passed without any additional criminal convictions—currently three years for misdemeanors and seven years for most felonies. The third method (§ 100C) of sealing permits a former defendant, whose criminal case resulted in a nolle prosequi (abandonment of the case) or a dismissal, to seal their criminal record at any time upon a judge’s discretionary determination that “substantial justice would best be served” by such sealing, based on the standards set by the Supreme Judicial Court.