The convergence of widespread social media use, and recent national social movements and events—including the MeToo movement, Black Lives Matter movement, and the COVID-19 pandemic—has led to a growing number of public school teachers and other government employees being disciplined for statements they make on their private social media. Here in Massachusetts, a teacher was fired after posting a diatribe against people living in poverty and the conversation about privilege. In Ohio, a teacher was fired after making a social media post criticizing police brutality against students. There has been significant attention paid to public university professors across the country, with institutions taking differing views of whether they can terminate professors for their online speech. In Texas, Collin College fired three professors for making political comments on social media and criticizing their institutions’ handlings of the COVID-19 pandemic. In Indiana, the University of Indiana said it could not fire a professor who wrote posts denigrating women and LGBTQ people. We have been hearing from more public school teachers around Massachusetts who are being investigated and sometimes disciplined for their private social media posts about political and social issues. CONTINUE READING ›
As explained in Jacob Gersen and Jeannie Suk’s forthcoming article, The Sex Bureaucracy, the U.S. Department of Education’s Office for Civil Rights (“OCR”) guidance documents about Title IX have shaped college and university sexual harassment and sexual assault policies by threatening the withdrawal of federal funding if the schools do not adopt OCR’s recommendations. OCR has defined sexual harassment as “unwelcome conduct of a sexual nature,” but made clear that under Title IX schools only have an obligation to address such harassment when it rises to the level of creating a hostile environment, which it defines as harassment that “is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” This definition of sexual harassment provides the floor below which school’s policies may not fall, but nothing in Title IX or OCR guidance prevents schools from adopting even more expansive definitions of sexual harassment or standards under which they will investigate allegations of such harassment.
Recently, OCR has emphasized that it expects colleges and universities to investigate claims of sexual harassment well before they reach the threshold at which Title IX requires the school to address the harassment, i.e. before the harassment creates a hostile environment. CONTINUE READING ›
The Supreme Judicial Court’s October 10, 2014 decision in Glovsky v. Roche Bros. Supermarkets, Inc., is now the high-water mark in Massachusetts for the right to access private property, over the objection of the property owner, in order to fulfill a constitutional right. The decision addresses the right of a candidate for public office to solicit signatures for ballot access outside the entrance to a supermarket, but could have important implications for the exercise of free speech in Massachusetts. It also could have implications for certain criminal defendants; our firm has represented a defendant arrested for trespass when distributing literature or protesting on private property.
When a Roche Bros. employee told Steven Glovsky, a candidate for Governor’s Counsel, that the supermarket’s policy did not allow signature solicitation on its private property, preventing him from seeking signatures to get on the ballot, he proceeded to file suit. The SJC in Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83 (1983) (Batchelder I) previously upheld a candidate’s right under the Massachusetts Declaration of Rights Article 9 to seek signatures in the common areas of a shopping mall, comparing the mall to traditional public fora like downtown areas. In Glovsky, the SJC went a step further, clarifying that whether or not a location is functionally equivalent to a traditional public forum, signature solicitation must be allowed if the interests of the candidate outweigh the interests of the property owner. The SJC found that Glovsky had a “substantial interest” in soliciting signatures on the sidewalk of the supermarket, which was the only one in town, and that allowing such solicitation would not unduly burden Roche Bros.’ property interests by, for example, disrupting its business. (Glovsky’s suit was still unsuccessful, however, because the SJC found that the supermarket had not violated the Massachusetts Civil Rights Act.)