|
May 3rd, 2012
Junior Seau, a NFL linebacker, was found dead yesterday, in what police said appeared to be a suicide. Seau died to a gunshot wound to the chest, a death similar to the one suffered by NFL player Dave Duerson on February 17, 2011. Duerson suffered from symptoms of chronic traumatic encephalophthy (“CTE”) a trauma induced disease that is linked to concussions and is becoming increasingly common in professional and college level football players. Although authorities have not confirmed whether Seau suffered from CTE, his method of death suggests that this may have been the case.
Seau’s death highlights the controversy currently surrounding the health risks posed by both college and professional football. In the past year, the NFL has been the subject of several lawsuits by ex- football players claiming that the League did not do enough to minimize the risk of concussions involved in the sport. Similarly, the NCAA and the Ivy League have both created guidelines that all must be followed in managing the risk of concussions in college football players.
Click here for a full article on this issue.
Tags: Concussion, Concussion Guidelines, CTE, Ivy League, NCAA, NFL
Posted in Industry News | No Comments »
April 23rd, 2012
A federal judge recently dismissed a case filed by the Idaho State University faculty association (“Association”) alleging violation of their First Amendment rights. The Association filed the suit in February contesting the constitutionality of a University policy that blocked faculty members from sending emails to all other faculty members. The University implemented the policy in November of 2011 following a dispute over the timing of a faculty vote on a proposed faculty constitution.
The Association sought injunctive relief against the University based on allegations that the school had illegally censored the faculty’s right to effectively communicate with each other. The federal district judge, however, disagreed. The judge ruled that the University had not violated the professors’ First Amendment right to free speech because the professors had been engaged in public speech about their jobs in their capacity as public employees. Accordingly, the court found that the speech at issue was not within the scope of protection provided by the First Amendment.
Tags: First Amendment, Free Speech, Idaho State University
Posted in Industry News | No Comments »
April 18th, 2012
Last week, the Boston Police Department brought criminal complaints against 14 suspects in connection with a hazing incident that occurred at Boston University last week. The incident occurred early in the morning of April 9th, when police discovered five BU students in the basement of a fraternity house unaffiliated with the school after responding to a noise complaint. The students were bound, covered in food and had welts all over their backs. Colin Riley, a BU spokesman, told the Boston Globe that although the fraternity is not affiliated with the school and Boston police responded first to the complaint, BU students involved will face the university’s judicial board.
The incident at BU is one in a series of hazing incidents that have drawn attention over the few years. In November of 2011, a drum major in Florida A &M’s Marching 100 was beaten to death during a hazing on a band bus. Similarly, in February of 2011 a Cornell student died from an alcohol overdose during a hazing incident at a fraternity.
In light of these incidents at schools across the country colleges and universities should attempt to monitor the fraternities and sororities associated with their campuses by creating and enforcing strict hazing policies.
Click here for a full article on this issue.
Tags: Greek Life, Hazing, Hazing death, Liability for Hazing
Posted in Industry News | No Comments »
March 30th, 2012
The Northern Federal District Court of New York recently denied Cornell University’s request for judgment on the pleadings in a case that could eventually lead the University to construct a fence around a local bridge that has often been the site of student suicide. Ginsburg v. City of Ithaca was filed by the father of eighteen year old freshman Bradley Ginsburg, who committed suicide by jumping off of the Thurston Avenue Bridge which connects the freshman residences with the main academic area of the campus in February of last year. Ginsburg was the fourth of six Cornell students to commit suicide during the 2009-2010 school year and the first of three to do so by jumping off a bridge. The suit alleged that Cornell was negligent by failing to implement adequate suicide prevention measures on the Thurston Avenue Bridge.
Cornell argued that it did not have a duty to prevent Ginsburg’s suicide, which was unforeseeable and that the Thurston Avenue Bridge had been reconstructed during the 2006-2007 school year and was not in a dangerous or defective condition. The Federal District Court rejected both arguments. The court held that although Cornell did not own the bridge, it did exercise control over the operation of the bridge and held it out as its own to the extent that the University could owe a duty to students using the bridge. The court also found that Ginsburg’s suicide by jumping off the bridge was far from unforeseeable as 29 people had jumped from area bridges since 1990. Finally, the court found a determination of the defective condition of the Thurston Avenue Bridge premature as any safety measures implemented on the Bridge were clearly insufficient to prevent suicide.
Ginsburg’s father originally filed the suit against Cornell in November of 2011, shortly after the University and the City of Ithaca agreed to attempt to install nets below Ithaca’s bridges including the Thurston Avenue Bridge. The nets will serve as a form of “means restriction” intended to hinder the ability of students to jump. Cornell embraced the idea of installing a means restriction on Ithaca’s bridges after suicide prevention experts convinced the University that installing barriers would be an effective means of preventing suicide. At a forum on the subject held by Cornell University last year, suicide-prevention expert Eric Caine ‘69, chair of the department of psychiatry at the University of Rochester Medical Center stated that “it is very clear, over and over again, that when you put up a barrier on a bridge, suicides there are almost completely stopped.”
Subject to approval from the Ithaca Planning Board, the nets are scheduled to be installed during the summer of 2012.
Tags: Bridge Suicide Barriers, Cornell Suicide Bridge, Means Restriction, Student Suicide
Posted in Industry News | No Comments »
March 23rd, 2012
The Massachusetts Supreme Judicial Court (“SJC”) held on March 21, 2012, that Tufts University’s decision to exclude an attendee of a publicly advertised lecture did not violate the attendee’s First Amendment rights. In Roman v. Trustees of Tufts College, a veterinarian who specialized in alternative treatments such as holistic medicine sought out a veterinary ophthalmologist at Tufts to remove the eye of her pet horse after the horse’s eye became painful and infected. When the veterinarian brought her horse in for treatment the Tuffs staff questioned the quality of the veterinarian’s care for her horse. As a result, the veterinarian refused to pay Tufts for the services rendered to her horse. Several months later, the veterinarian attempted to attend a publicly advertised lecture on the “Dangers of Feeding Your Pet a Raw Food Diet,” on the Tufts campus. A Tufts police officer told her she could not enter the building and threatened to arrest her if she continued her attempt to attend the lecture. The veterinarian then filed suit alleging that the school breached her First Amendment rights and violated the Massachusetts Civil Rights Act. The trial court granted Tufts’ motion for summary judgment and the veterinarian appealed.
The Massachusetts SJC affirmed the trial court’s grant of summary judgment on the grounds that even if the veterinarian had a free speech right to attend the lecture, that right was not interfered with because the veterinarian was excluded from the lecture on a reasonable basis. An individual’s First Amendment rights only apply against actions by the government except under limited circumstances. However, it is also well established that State Constitutions may protect individual liberties with rights that are “more expansive than those conferred by the Federal Constitution.”
Although the Massachusetts SJC has previously cited with approval cases from other jurisdictions finding that State constitutions protected the exercise of free speech rights on private university property against private actors, the Court has never decided whether the Massachusetts Civil Rights Act extends to speech on private property. Nevertheless, the Court determined that it was unnecessary to resolve this question in Roman. Instead, the Court found that even if the veterinarian’s had a right under the Massachusetts Civil Rights Act to attend the Tufts’ lecture, that right was not interfered with because she was excluded from the lecture on a viewpoint neutral basis; namely that she had not paid in full the amounts she owed to Tufts. Furthermore, the restriction on the veterinarian’s rights could not be considered unreasonable because information concerning the subject matter of the lecture was freely available through other sources such as the Internet. Accordingly, the trial court did not err in granting Tufts motion for summary judgment.
Tags: First Amendment, Massachusetts Civil Rights Act, Roman v. Trustees of Tufts’ College, Viewpoint Neutral
Posted in Industry News | No Comments »
March 15th, 2012
A jury awarded $4 million dollars to each of two families whose daughters were killed in the April 2007 shooting at Virginia Polytechnical Institute for the negligent way the school handled the shooting. As previously discussed on this blogspace, Virginia Tech has faced state and federal investigations in the past five years for its handling of the shooting.
At 7:15 a.m. on April 16, 2007, the gunman shot and killed two students in a dorm on the Virginia Tech campus. The school waited until 9:26 a.m. to release a notification, and even then did not say that the gunman was still at large or that he had committed murder. At the time the notification was released, the gunman was already in Norris Hall, an academic building on campus and had chained the doors shut. The gunman shot 47 more people after the school’s notification, which resulted in the deaths of 33 students and staff members. By 9:50 a.m. the school sent out more severe warnings by e-mail, phone and loudspeaker.
The plaintiffs originally named 19 defendants in their case and sought $10 million for each family in damages. The trial court denied the university’s motion to dismiss but removed all of the individuals leaving only the State. The plaintiffs in the lawsuit argued that had Virginia Tech should have warned the campus more promptly about the 7:15 a.m. shooting, their daughters would have taken precautions and altered their schedules. The state argued on behalf of Virginia Tech that the school did its best in the situation presented, and that it could not possibly have foreseen the tragedy that occurred.
It is still unclear whether the State will appeal the decision. However it is likely that the hefty jury award will be reduced for each family to the $100,000 cap required under state law.
Click here for a full article on this issue.
Tags: Crime Reporting, Failure to Notify of Campus Violence, Virginia Tech Jury Award, Virginia Tech Shooting
Posted in Industry News | No Comments »
February 24th, 2012
Based on prior case law and the language of New Hampshire’s consumer protection statute, many have long believed that, in New Hampshire, insurance companies and public utilities were not subject to claims for multiple damages under our state’s version of the Consumer Protection Act. This differs from other states, in particular Massachusetts, where entities that do not fit the typical consumer medical, like an insurer for example, could be hit with claims for treble damages for alleged unfair and deceptive insurance practices. That said, the Supreme Court case law over the past 20 or so years has managed to issue a series of inconsistent rulings that have muddled the issue.
The New Hampshire Supreme Court recently made a significant ruling in Rainville v. Lakes Region Water Company, which clarified the issue. In brief, the court ruled that the New Hampshire consumer protection act does not apply to alleged fraudulent conduct by regulated utility companies. This dramatically affects the potential liability to insurance companies and public utilities in New Hampshire as it allows them to avoid potential liability for penalties, multiple damages and attorneys’ fees in a case where they might otherwise have faced significant damages from a large number of plaintiffs. Between the analysis of the facts in this case and another recent decision, the Court goes through a fairly detailed analysis of what is and is not exempt from the Act.
Tags: Fraudulent Conduct, Insurance Companies, Multiple Damages, New Hampshire Consumer Protection Act, New Hampshire Supreme Court, Regulated Utility Companies
Posted in Industry News | No Comments »
February 21st, 2012
The Supreme Court granted certiorari Tuesday in Fisher v. Texas, a case involving affirmative action policies in public higher education admissions. Fisher will give the Court the opportunity to revisit and potentially overrule its 2003 decision of Grutter v. Bollinger, in which the Court held that racial diversity in higher education qualifies as a compelling government interest sufficient to permit public universities to take race into consideration when making admissions decisions.
Abigail Fisher, a white student, filed Fisher v. Texas in 2008 after being denied admission to the University of Texas alleging that she was denied admission on the basis of her race. Fisher’s suit challenged the University’s policy of automatically granting admission to the top 10 percent of Texas high school students and then allocating the remaining spots through use of a system in which race plays a non-quantitative, but significant role. Fisher claimed that the University could not have it both ways by having a race-neutral policy and then supplementing it with a race-conscious one. The Fifth Circuit decided in favor of the University, holding that “as long as Grutter v. Bollinger remains good law, UT’s current admissions policy remains constitutional.” The Supreme Court will hear arguments in Fisher in its next term, which starts in October.
Tags: Affirmative Action in Higher Education, Affirmative Action Policy, Fisher v. Texas, Grutter v. Bollinger
Posted in Industry News | No Comments »
February 16th, 2012
The U.S. Equal Employment Opportunity Commission (“EEOC”), just recently issued a series of Questions and Answers which clarified an earlier EEOC informal discussion letter about ADA requirements for employers who require applicants to have high school diplomas to qualify for certain jobs.
That November 17, 2011 letter opined that an employer who made high school graduate a job requirement may well violate the Americans with Disabilities Act (“ADA”), unless the employer could demonstrate that the requirement was 1) job related and 2) consistent with business necessity. The earlier EEOC letter also said that to the extent a learning disability prevented the job applicant from meeting the high school graduation requirement, the employer might also have to have to make an individualized determination whether a particular applicant could perform the essential functions of the job, with or without an accommodation, before the employer could deny the applicant a job on the basis of the failure to complete high school.
Now, the EEOC has clarified that its earlier letter did not make it illegal, per se, for businesses to require a high school diploma for a job. Rather, according to the EEOC’s recent Q & A discussion, an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualification for the job in some other way. The new Q & A from the EEOC also made clear that its earlier opinion letter did not create protection in the ADA for people who do not graduate from high school, unless a disability as defined by the ADA was the reason that it was impossible for the job applicant to obtain a high school diploma. The Q & A’s issued by the EEOC also stated that an employer is not required to hire a person who is unable to graduate from high school because of a disability. The new EEOC Q & A’s do provide that as with any job criteria which may tend to screen out persons with disabilities, an employer who requires a high school education may have to evaluate whether there exists an ADA reasonable accommodation to allow a learning disabled person to perform the essential functions of the job. According to the EEOC:
Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, if an applicant tells an employer she cannot meet the requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions. The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement.
The complete text of the EEOC’s Q & A can be found here.
Tags: ADA, ADA EEOC, ADA Job Description Requirements, ADA Learning Disability, Americans with Disabilities Act, EEOC, EEOC Questions, Equal Employment Opportunity Commission, Reasonable Accommodations
Posted in Industry News | No Comments »
February 14th, 2012
A former unpaid intern for the fashion magazine Harper’s Bazaar recently filed suit in the Federal District Court in Manhattan against Hearst Corporation, the magazine’s parent company, for violation of state and federal wage and hour laws. The plaintiff, Xuedan Wang, argues that Hearst Corporation allowed her to work for free full time without providing her with a bona fide educational experience. Ms. Wang interned at Harper’s Bazaar following her graduation from Ohio State University in 2010, where she coordinated pickups and deliveries of fashion samples, assigned other unpaid interns to help carry out the pickups and deliveries and helped maintain records on fashion samples and process reimbursement requests for corporate expense reports. Ms. Wang claims that she worked at the magazine for anywhere between 40 and 55 hours per week without pay.
Ms. Wang’s lawsuit hinges on Department of Labor guidelines that state that an unpaid internship is only lawful in the context of an educational training program. The guidelines articulate six criteria that must be satisfied for an internship to be excluded from the wage and hour requirements of the Fair Labor Standards Act (FLSA). These criteria include that the experience is for the benefit of the intern, that the training received is similar to training which would be given in an educational environment, that the intern does not displace regular employees and that the employer derives no immediate advantage from the activities of the intern. Overall, the internship experience must be exclusively tailored to provide an educational experience for the intern with no immediate benefit to the employer. In fact, the guidelines note that on occasion, the employer’s “operations may actually be impeded” by the presence of the intern.
Ms. Wang’s lawsuit claims that her experience at Harper’s Bazaar did not satisfy the criteria for the exclusion from the FLSA and as a result she was denied not only wages but also Social Security contributions and the right to receive unemployment insurance and workers compensation. A representative for the Hearst Corporation told the ABA Journal that the company has done nothing wrong. The representative stated that “the internship programs at each of our magazines are designed to enhance the educational experience of students who are receiving academic credit for their participation, and are otherwise fully in compliance with applicable laws.”
Ms. Wang has asked for leave from the Federal District Court in Manhattan to make the suit a class action.
Tags: Class Action, Department of Labor Internship Guidelines, Fair Labor Standards Act, Legality of Unpaid Internships, Unpaid Internship Laws, Unpaid Internships
Posted in Industry News | No Comments »
February 7th, 2012
Vassar College located in Poughkeepsie, New York, recently experienced a computer glitch that posted a “test letter” congratulating applicants on their acceptance, to the online portfolios of 122 binding early decision applicants. Only 46 of the applicants were actually accepted. It took the school only a few hours to detect and correct the error, but many of the falsely accepted applicants had already viewed the test letter. The school has offered to refund the $65 application fees of the disappointed applicants but decided not to reverse its previous admissions decisions. In a public apology letter, the school’s president, Catherine Hill, supported the school’s decision stating that “the admission process is a careful set of decisions made over a number of months, intended to give everyone a fair assessment and consideration for admission. Many talented students apply for places in a freshman class, and to do anything but honor that process would in effect deny places in the class to other students who are counting on our fair assessment.”
Tags: College Admissions, Computer Error, Early Decision, Vassar College
Posted in Industry News | No Comments »
February 4th, 2012
The First Circuit recently refused to overturn a jury’s finding of retaliation under the Age Discrimination in Employment Act (“ADEA”) despite the defendant’s claims that the plaintiff had not established a prima facie case. In Munoz v. Sociedad Espanola de Auxilio Muto Y Beneficiencia De Puerto Rico, the Plaintiff was a cardiologist who was terminated by the defendant-Hospital one day after the Plaintiff was deposed in a lawsuit against the hospital for age discrimination. The Plaintiff then promptly filed a second suit against the Hospital claiming that he was terminated in retaliation for his pending age discrimination suit. The jury agreed with the Plaintiff and awarded him nearly $2 million. On appeal, the Hospital argued that its renewed motion for judgment as a matter of law should have been granted with respect to the Plaintiff’s retaliation claim because the Plaintiff had failed to establish a prima facie case of retaliation or any evidence of a causal connection between his protected conduct and his termination.
The First Circuit rejected the Hospital’s argument that judgment as a matter of law should be granted for the Plaintiff’s failure to make out a prima facie case on the grounds that it was “not the correct focus at this juncture.” The McDonnell-Douglas framework that requires the plaintiff to prove a prima facie case before putting the burden of proof on the defendant “is not a religious rite” but “merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of retaliation.” Once the question of retaliation has been submitted to the jury “backtracking serves no useful purpose.” The First Circuit therefore held that its correct focus on appeal was whether a jury reasonably could have inferred by a preponderance of the evidence that the Plaintiff was terminated because of his protected conduct.
The First Circuit went on to reject the Hospital’s argument that the Plaintiff had failed to establish the causal connection required to prove retaliation on the grounds that the evidence presented at trial was sufficient to support the finding, even if the determination was not “inevitable.” The Hospital’s argument hinged on the fact that Hospital decided to terminate the Plaintiff three weeks before the Plaintiff was deposed in his age discrimination case, claiming that the causal element of retaliation was therefore lacking in the Plaintiff’s claim. Although the Court agreed with the Hospital that an adverse employment action pre-dating the protected activity generally cannot support a retaliation claim, it found that the remainder of the evidence presented at trial supported the jury’s finding. Accordingly, the First Circuit affirmed the trial court’s decision.
Tags: Age Discrimination in Employment Act, Causal Connection, Judgment as a Matter of Law, McDonnell Douglas framework, Prima Facie Case., Retaliation
Posted in Industry News | No Comments »
January 30th, 2012
Boston’s Children’s Hospital argued in Suffolk Superior Court on Wednesday for the dismissal of a complaint brought on behalf of 11 people who were abused by pediatrician Melvin Levine in North Carolina. In February of 2011, Melvin Levine was accused in a class action lawsuit of performing medically unnecessary genital exams to dozens of patients while he was employed at Boston Children’s Hospital from 1966-1985. Following his employment at Boston Children’s he moved to North Carolina where he became a professor of pediatrics at the University of North Carolina Medical School, but still saw patients twice a week. Levine committed suicide the day after the class action lawsuit was filed last February.
The current lawsuit against Boston Children’s alleges that the Hospital could have prevented Levine’s abuses of patients in North Carolina had it reported earlier complaints. The plaintiffs’ attorneys claim that the public is reliant on the medical community to police its own physicians. Attorneys for Boston Children’s argued that there was simply no duty under Massachusetts law between Children’s and the North Carolina plaintiffs. Moreover, the defense argued that finding to the contrary could set a bad precedent that would open up the Court for any out of state litigant who would want to sue for the acts of its former employees.
The suit against Boston Children’s touches on the larger issue of whether an institution or any other employer has a duty to forward reports of internal complaints concerning an employee. Failure to report may result in allegations of negligence from the subsequent employer, but overzealous or wrongful reporting could also lead to allegations of negligence or defamation by the employee. The Suffolk Superior Court judge did not specify when a decision will be made in the suit against Children’s Hospital.
Tags: Boston Children’s Hospital, Duty to Report, Employer Liability to Subsequent Employer, Melvin Levin, Reporting Requirements, Sexual Assault
Posted in Industry News | No Comments »
January 20th, 2012
In a decision upholding the Uruguay Round Agreements Act (“URAA”) of 1994, the Supreme Court ruled on Wednesday that removing works from the public domain violates neither the Copyright Clause of the Constitution nor the First Amendment. In Golan v. Holder, Lawrence Golan, a music professor and conductor at the University of Denver, argued that the removal of thousands of foreign musical scores and books from the public domain exceeded Congress’ authority and violated his vested First Amendment interest in the works. Professor Golan’s argument questioned the constitutionality of section 514 of the URAA, which granted U.S. copyright protection to foreign works that garnered protection in their countries of origin, but had no right to exclusivity in the United States.
In a majority opinion written by Justice Ginsberg, the Supreme Court determined that the text of the Copyright Clause of the Constitution does not exclude application of copyright protection to works in the public domain. The enactment of section 514 of the URAA perfected U.S. implementation of the Berne Convention for the Protection of Literary and Artistic works which took effect in 1886. The Supreme Court determined that Congress rationally could have concluded that adherence to the Berne Convention was consistent with the spirit of the Copyright clause in that it “promotes the diffusion of knowledge.” Furthermore, the Court found that Congress had reason to believe that full compliance with Berne would “expand the foreign markets available to U.S. authors and invigorate protection against privacy of U.S. works abroad, thereby benefitting copyright intensive industries stateside and inducing greater investment in the creative process.”
The Golan Court further held that Congress did not transgress a generally applicable First Amendment prohibition in enacting section 514 of the URAA. Professor Golan argued that he and his peers enjoyed vested rights in works that had already entered the public domain. The Court held to the contrary, finding that “nothing in the historical record, congressional practice or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain.” Accordingly, the Supreme Court upheld the constitutionality of section 514 of the URAA with respect to the Copyright Clause and the First Amendment.
Tags: Academic Freedom, Berne Convention, Constitutionality, Copyright Clause of the Constitution, Copyright Protection, First Amendment, Golan v. Holder, Uruguay Round Agreements Act.
Posted in Industry News | No Comments »
January 12th, 2012
On Wednesday, the Supreme Court unanimously held that the First Amendment precludes the application of the federal employment discrimination laws to religious institutions. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Cheryl Perich, a teacher at a Lutheran Church and School developed narcolepsy and began the first semester of the 2004-2005 school year on disability leave. When Perich attempted to return to work in January 2005, the principal told her that the school had already contracted with another teacher to fill her position for the remainder of the school year. The school subsequently terminated Perich.
Perich filed a charge with the Equal Employment Opportunity Commission claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The District Court granted the school’s motion for summary judgment on the grounds that the ADA claim was barred by the First Amendment. The Sixth Circuit vacated and remanded on the grounds that Perich did not qualify as a minister under the exception. The Supreme Court reversed.
In a majority opinion written by Chief Justice Roberts, the Court acknowledged the existence of a ministerial exception grounded in the First Amendment that precludes the application of federal law to claims concerning the employment relationship between a religious institution and its ministers. The Court reasoned that requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, interferes with the internal governance of the church and therefore the right of the religious group to shape its own faith and mission.
The Hosanna-Tabor Court further determined that the application of the ministerial exception was not limited to the head of a religious congregation. It refused however, to adopt a rigid formula for deciding when an employee qualifies as a minister within the scope of the exception. Instead, the Court examined the circumstances of Perich’s employment in reaching its determination that she qualified as a minister. In particular, the Court considered the formal title of “Minister of Religion” given Perich by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church. Accordingly, the Court concluded that Perich’s ADA claim was barred under the ministerial exception of the First Amendment.
The Hosanna-Tabor decision only applies to employment discrimination suits brought on behalf of a minister challenging their termination. The Court refused to state a view on whether the ministerial exception bars other types of suits such as actions by employees alleging breach of contract or tortious conduct by their religious employers claiming that “there will be time enough to address the applicability of the exception to other circumstances if and when they arise.”
Tags: Americans with Disabilities Act, First Amendment, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Ministerial Exception, Religious Schools
Posted in Industry News | No Comments »
January 6th, 2012
The New Hampshire House of Representatives voted on Tuesday to deprive public colleges and universities of the right to prohibit guns on campus. Current New Hampshire law permits public colleges and universities to create regulations concerning guns on campus. The bill would strip colleges of this ability and instead give the state the sole authority to regulate guns on any public land or in publicly owned buildings. Supporters of the bill argue that students have a right to protect themselves and that the bill will eliminate inconsistency in how guns are regulated. The bill’s opponents argue that teachers shouldn’t have to deal with students carrying guns and that the bill would permit people to bring guns to the state owned Verizon Wireless Arena, which is frequently the site of concerts, hockey games and other events.
Governor John Lynch has promised to veto the bill on the grounds that it would be a radical departure from the State’s current approach to public safety and would mean that private companies leasing state owned office space could not bar people from bringing weapons into their businesses. The bill passed the House 180-144, which is not sufficient to provide the two-thirds majority required to override the Governor’s promised veto.
Tags: Gun Regulation, Guns on Campus, State Gun Control
Posted in Industry News | No Comments »
December 28th, 2011
The family of Phoebe Prince, a teenage Irish immigrant who committed suicide after suffering from relentless bullying, received $225,000 from the town of South Hadley in exchange for dropping all charges against the school district, according to a copy of the settlement agreement released yesterday. Following Prince’s death in January 2010, Prince’s parents filed a complaint with the Massachusetts Commission Against Discrimination alleging that the Town of South Hadley failed to protect their daughter from discrimination. The parties settled the suit in November 2010, but the settlement amount was never released due to a nondisclosure agreement between the parties. In December of this year, a reporter for an online magazine filed a lawsuit requesting the disclosure of the settlement amount under the Massachusetts public records law. On December 23, a Hampshire county judge ruled in favor of the reporter on the grounds that Town had not demonstrated that any harm would be caused by disclosure of the settlement amount.
Tags: Confidentiality Agreement, Massachusetts Commission Against Discrimination, Massachusetts Public Records Law, Nondisclosure Agreement, Phoebe Prince, School Bullying, Settlement Agreement Details
Posted in Industry News | No Comments »
December 22nd, 2011
The Rhode Island District Court dismissed a lawsuit filed against Brown University by a former student, William R. McCormick III and his parents, claiming that Brown falsely accused McCormick of rape in 2006 and pressured him to withdraw from the University. The female student who accused McCormick, as well as her father were also named as defendants in the suit.
McCormick attended Brown University in the fall of 2006 on a full scholarship. In September of 2006, McCormick was accused of stalking and harassing a female student and raping her in her dorm room while she was trying to study.
McCormick’s lawsuit alleged that Brown University accepted the allegations of rape without an investigation due to the female student’s father status as a wealthy alum and university donor. No criminal charges were ever filed against McCormick, and no rape allegations were reported to the police. As part of the suit, Brown was ordered to disclose detailed records of the father’s donations to the school to the McCormicks, something not usually requested of a private university.
The suit was dismissed after McCormick reached a settlement with the female student and her father. Brown University was not a party to the settlement agreement, nor did it participate in the settlement negotiations. Terms of the settlement were not disclosed.
Tags: Brown University, College Rape Victims, Rape Investigations, Rape on College Campuses, Sexual Assault, University Donation Records
Posted in Industry News | No Comments »
December 21st, 2011
Eltayeb Abuelyaman, an Arab Muslim, served as an associate professor at Illinois State University’s School of Information Technology from 2001 to 2006. Abuelyaman’s performance record was consistently sub-par, and he frequently opposed policy decisions made by his supervisor. In March 2006, Abuelyaman was informed that his contract would not be renewed for the 2007–2008 school year. Abuelyaman filed suit, alleging that Illinois State refused to renew his contract based on his race, national origin, and religion, and in retaliation for several claimed instances of complaining about discrimination, all in violation of Title VII. The school was granted summary judgment on the discrimination claims in the district court, and Abuelyaman appealed to the Seventh Circuit Court of Appeals.
In an attempt to create circumstantial evidence to support his discrimination claim, Abuelyaman argued that similarly situated professors outside his protected group were treated better than he was, and thus that the district court should have considered evidence of those professors’ performance records. Abuelyaman, a non-tenured associate professor, attempted to compare his treatment to tenured professors of all ranks. Even though Illinois State uses the same criteria for evaluating all professors, and a single supervisory entity performs evaluations for every professor, tenured and non-tenured, the court found that because higher-ranking professors are expected to perform at a higher standard, a comparison between treatment of tenured and non-tenured professors was meaningless in the Title VII context. For that and other reasons, the appeals court affirmed the district court’s decision. Abuelyaman v. Illinois State University, 2011 WL 6188446 (7th Cir. Dec. 13, 2011).
Posted in Industry News | No Comments »
December 7th, 2011
Last August, University of Idaho (“UI”) psychology professor Ernesto Bustamante resigned, then gunned down Katy Benoit, a 22-year-old student, three days later. Bustamante committed suicide shortly after the shooting.
By the end of Bustamente’s fall semester class, Benoit and Bustamente had begun sleeping together. Their relationship was tumultuous and by the summer Benoit had filed a complaint with the university accusing Bustamante of sexual harassment and of threatening her life. Before that, a series of communications raised red flags for the university and prompted action: Bustamente informed his boss that he was diagnosed as bipolar, and several months later informed him that he was experiencing withdrawal symptoms because of a change in his medication; three months into the fall semester, the university’s ethics-and-compliance hotline received an anonymous call disclosing that Mr. Bustamante is having sexual relationships with students, and that a relationship with one student is abusive; Bustamente denied any policy violation, but was informed that any romantic relationship with a student must stop immediately.
Benoit’s subsequent complaint to the university charged Bustamante with sexual harassment and threatening her by holding a loaded gun to her head on three occasions and telling her in detail how he would use the weapon. The university’s human-rights office, where the complaint was directed, urged Benoit to take safety precautions and to contact the local police. The office also provided Benoit with contact information for a group that provides help for victims of domestic and sexual violence, a lawyer that she could contact for a protective order, and informed the provost and contacted the local police.
Bustamente denied Benoit’s allegations. A university threat-assessment team met to assess safety risks, and inform Benoit that she should stay somewhere other than her home. Five days after the threat-assessment meeting, Bustamente was interviewed by the university. He tendered his resignation that day, which the university later accepted only under certain conditions, to which Bustamente agreed, including a requirement that he not come to campus without first notifying his supervisor. At the beginning of the fall semester, Bustamente’s separation became final and Benoit was informed that Bustamente’s contract was concluded. Benoit was cautioned at that time to get assistance from the police if she had safety concerns, and was encouraged to take advantage of university support services. Later that day, Benoit was shot and killed near the university.
The tragedy led the school to convene an independent panel to review its policies and safety procedures, and to release more than 4,200 documents on the case, including Bustamante’s entire personnel file, in an effort to show that the university responded to Benoit’s complaint “immediately and decisively.” The panel’s report, released last week, recommended that Idaho’s policies be made clearer about exactly what administrators should do in high-risk situations – specifically those involving disruptive behavior by faculty and staff, as opposed to students.
Further complicating the role of the university as protector of its students, and cited by the university and the panel as stumbling blocks to more effective protection, are employment laws – the university may have felt it could not terminate or punish Bustamente for mere erratic behavior, after he informed it of his bipolar diagnosis – and student privacy laws and policies – it’s difficult to involve local police in discussions concerning the safety of particular students without disclosing student information.
This incident highlights the ever-present question for institutions of higher learning – where does the obligation to protect students begin and end? Even though it appears that Idaho took the complaints very seriously, and took immediate action to rectify the situation, the student still ended up dead at the hands of her former professor. There’s no lawsuit yet – but the family has hired a lawyer and alleged that administrators did not do enough to protect Benoit, or to stop Bustamente.
Posted in Industry News | No Comments »
|
