ATTORNEY BOB SMITH OF NELSON, KINDER, MOSSEAU & SATURLEY, P.C. SELECTED TO SPEAK AT UNIVERSITY RISK MANAGEMENT AND INSURANCE ASSOCIATION (URMIA) SOUTHERN REGIONAL CONFERENCE

(Boston | Manchester, N.H.) – The law firm of Nelson, Kinder, Mosseau & Saturley, P.C. (NKMS), of Manchester, New Hampshire; Boston, Massachusetts; and Portland, Maine, is pleased to announce that attorney Bob Smith will be presenting at the University Risk Management and Insurance Associations’ Southern Regional Conference on May 8, 2008 in New Orleans.

Mr. Smith’s presentation, “Understanding Experiential and Service Learning,” will identify experiential and service learning and discuss how and why it is manifesting itself on the nation’s campuses. Mr. Smith will explore the areas of risk and potential liability and provide ways to appropriately analyze and facilitate mutually beneficial activities while protecting institutions.

“We are pleased that Bob is able to share his expertise at the URMIA Southern Regional Conference,” states William C. Saturley, President of NKMS. “His knowledge of College and University Law, paired with his dynamic speaking style, will provide an engaging and informative presentation.”

About Nelson, Kinder, Mosseau & Saturley, P.C.
Nelson, Kinder, Mosseau & Saturley, P.C. is a firm of trial attorneys, with offices in Boston, Manchester, New Hampshire, and Portland, Maine. The firm serves both regional and national clients. The firm’s attorneys pride themselves on achieving a high degree of knowledge of industry fundamentals and the laws that apply in certain select practice areas, such as medical services, construction, environmental, energy/utility, employment, and higher education. For more information, please call 617.778.7500 or visit www.nkms.com.

The University Risk Management and Insurance Association has recently issued its 2007-08 Journal. The lead article, co-authored by Robert B. Smith who leads our College & University practice group, entitled:

Tragedy at Virginia Tech Student Suicide, School Shootings and the Campus Mental Health Crisis is available here.

Massachusetts Attorney General Spring 2008 Conference for Non-Profits & Charities

The Massachusetts Attorney General’s Non-Profit/Public Charities Division is conducting a conference on June 8 on significant issues facing for non-profit institutions of every kind and nature.

Robert B. Smith, who leads our College & University practice, has been invited to serve on a panel in 2 break-out sessions on governance and crisis management described as follows:

“Good Governance/Dealing with Crises: Using real-life examples learn how to respond to incidents of malfeasance or misfeasance in the operation of a NPO. Offered in Sessions One and Two.”

The preliminary conference agenda is linked here.

John C. Kissinger, head of the firm’s Professional Liability Group has provided the following:

Lawyers Barred From Networking Clubs That Mandate Cross-Referrals: Massachusetts

Participation in any networking club that requires its members to refer work to each other violates Professional Conduct Rule 7.3 says the Massachusetts Bar Association Committee on Professional Ethics. The Rule, except in limited instances, forbids lawyers from giving anything of value in exchange for a referral. Networking clubs that require cross-referrals don’t qualify for the limited exceptions. Opinion 2008-01 (March 21, 2008).

Lawyer Who Prepared Will Naming Himself as Beneficiary Suspended For Thirty Days: Maine

A lawyer began a personal relationship with an elderly client, assisting in her routine care. At her request, he prepared a will that included himself as a beneficiary. He refunded the bequest when it was questioned after her death. Because the lawyer’s conduct violated the per se rule against drafting an instrument that directly benefited himself, the Maine Supreme Judicial Court suspended him. Absent the self-dealing, the lawyer’s actions were exceptional, as he “went above and beyond the call of duty in ministering to a troubled and infirm elderly woman.” Given his mixed motives, however, the Court suspended him for thirty days. Board of Overseers v. Clark, BAR-07-02 (January 24, 2008).

Preparation of Divorce Paperwork by Suspended Lawyer Constituted the Unauthorized Practice of Law: Massachusetts

A suspended lawyer prepared a divorce complaint and related paperwork for an acquaintance, who filed the documents pro se. The Supreme Judicial Court rejected the lawyer’s arguments that his work was primarily of a clerical nature. Particularly interesting was the court’s treatment of the divorce work as qualifying as both the practice of law and as paralegal-level activity. In the Matter of Kafkas, SJC-10008 (March 28, 2008).

Lawyer’s Attempt to Criminally Charge Client was Petitioning Activity Protected by the Anti-SLAPP Statute: Massachusetts

A client’s check to pay fees was returned for insufficient funds. The lawyer applied for a criminal complaint against the client, which was denied. The former client then sued the lawyer for malicious prosecution and malpractice. The malicious prosecution count was dismissed under the anti-SLAPP statute. The application for a criminal complaint, while unsuccessful, was not frivolous, and qualified as petitioning activity protected by the statute. Wenger v. Aceto, SJC-10065 (March 27, 2008).

For more information on these topics, and prior issues of Professional Liability Update, visit the ‘Articles’ topic on our website at: www.nkms.com

Christopher Vrountas, head of the firm’s Employment Counseling & Litigation Group has provided the following update:

What do you MEAN Someone Hacked Into Our System?

You hear almost daily news reports about security breaches at companies that result in the release of confidential information. It could be customer information, personnel files, healthcare information or other kinds of personal information that many businesses routinely maintain. Yet, Congress has failed to enact any uniform federal legislation to govern what companies should do in the event of a breach of confidential data security. Some industries, like banking or covered entities under HIPAA, may have their own particular requirements, but other businesses have no federal guidance in the area. Many states have, however, enacted their own statutes concerning data breaches, which has led to a patch work of requirements across the country. Quite recently, Massachusetts enacted Mass. Gen. Laws. Chapter 93H. That statute imposes, among other things, specific duties on holders of data who become aware of any data breach, requiring notice to the persons whose data was accessed and in some cases notice the Attorney General’s Office and other agencies. This comprehensive statute may well become the model for best practices in other jurisdictions and may also pave the way for more standard, federal legislation. For now, the law varies widely among the several states. You should contact legal counsel immediately if you have experienced a data breach, as many state laws require companies to act “without undue delay” in order to avoid regulatory action or civil liability.

We Have a New Lawyer!

Judith Feinberg has joined NKMS with over 10 years of experience counseling employers in a range of industries and topics, including dram liability, premises liability, general commercial liability and discrimination issues. Judith brings valuable guidance to employers in any field and we are very excited that she has joined us.

We Have a New Blog!

Please visit our blog, “Legal Bites,” for morsels on legal matters affecting the food and hospitality industry.

For more information on these topics, and prior issues of Employment Law Updates, visit our ‘Articles’ topic on our website at www.nkms.com.

NELSON, KINDER, MOSSEAU & SATURLEY, P.C.

Judith Feinberg joins NKMS’s Medical Services Practice Group

Nelson, Kinder, Mosseau & Saturley, P.C., (NKMS) is pleased to announce that attorney Judith Feinberg has joined the firm as Of Counsel. She will be working with NKMS’s Medical Services and Employment Counseling & Litigation Practice Groups.

Judith graduated from Brandeis University (1988) and Boston University School of Law magna cum laude (2000) where she received additional honors in Health Law. From 1987-1999 she was a paramedic/EMT for Cataldo Ambulance Service, Inc., providing pre-hospital emergency medical services, and serving as the company’s Director of Training and Quality Improvement.

Judith brings years of experience in medical law and litigation to the firm. Her work on behalf of medical professionals in administrative investigations, credentialing and licensing disputes, and in medical malpractice litigation has earned her great respect. In 2007, she was recognized as a “Rising Star” in the legal profession by Boston Magazine – an acknowledgement of her work at Adler, Cohen, Harvey, Wakeman & Guekguezian, LLP, on behalf of doctors, dentists, oral surgeons, and chiropractors. Judith has trial experience and she has obtained defense verdicts in medical malpractice trials in several different forums. Additionally, Judith practices in the area of employment law, and has experience counseling physicians and other health care providers on issues relating to employment law in the health care industry.

Judith recently published an article on trends in licensing complaints against physicians in AAOS Now, a publication of the American Academy of Orthopedic Surgeons.

On Tuesday, March 25, 4:00 - 7:00 p.m., the Litigation and College & University Section will be sponsoring the CLE program, “The Campus Mental Health Crises.” Lisa Arrowood and Paul Milligan, the program chairs, have been working hard to line up some expert speakers, and this should be a great program!

The Campus Mental Health Crisis: Growing Liability Concerns

Tuesday, March 25, 2008
4:00 p.m. – 7:00 p.m.

Register Online (It’s safe, reliable, simple and quick!)

Use our fax-back registration form (PDF)

Sponsored by:
Litigation Section
College & University Law Section

A number of high profile student suicide cases have been decided or settled in recent months. These cases will have far-reaching implications for other colleges and universities and will affect not only schools facing student suicide litigation of their own, but also those that operate mental health or suicide prevention programs throughout the year.

While colleges and universities have historically not been considered responsible for student suicides, recent decisions indicate that institutions of higher education are likely to face greater liability when they fail to take certain preventative measures.

Attend this program to learn the latest about student suicide litigation and tort actions, responses by colleges and universities and recent decisions from the United States Department of Education and the courts.

Specific Topics will include:

Mental health care and counseling on college campuses
Using the disciplinary system: is it appropriate and if so, when?
Situations when courts have found schools liable
Other mental health issues: depression, drug use, binge drinking and other self-destructive behavior
Panelists

Harold W. Potter, Jr., Esq.
Holland & Knight LLP

Robert B. Smith, Esq.
Nelson, Kinder, Mosseau, & Saturley PC

Program Co-Chairs

Lisa G. Arrowood, Esq.
Todd & Weld LLP

Paul T. Milligan, Esq.
Nelson, Kinder, Mosseau, & Saturley PC

Program Prices

$120 - BBA members
$155 - Non-Members
$85 - BBA Sponsoring Section Member
$65 - BBA Member Legal Services/Government Lawyer
$25 - Law Student

http://www.bostonbar.org/cle/0708/mentalhealth022008.htm

Christopher Vrountas, head of the firm’s Employment Counseling & Litigation Group has provided the following update:

Talk to the Face or tell it to the Judge

Claiming that her boss regularly stared at her breasts at work, an office secretary stated a viable claim for sexual harassment against her employer, says the First Circuit, because the conduct was not isolated, happening repeatedly and severely enough to satisfy “the severe and pervasive” standard and to give rise to a hostile work environment. Although the First Circuit allowed her sexual harassment claim, it determined that her reassignment to another secretarial position after her complaint was not motivated by retaliation and that the job transfer in any event did not amount to a materially adverse employment action to support a retaliation claim.

Nancy M. Billings v. Town of Grafton et al.

No Retaliation Claim under the ADEA against Federal Employers

A postal worker who alleged retaliatory assignment of employment duties and breach of a prior settlement agreement against the Post Office lost his retaliation claim because, among other things, he failed to file his claim within 90 days from the date the EEOC rejected his claim and, with regard to his age discrimination claims in particular, because “[u]nder First Circuit case law, the ADEA does not provide a cause of action for retaliation by federal employers.”

Raymond T. Murphy v. John E. Potter, Postmaster General, United States Postal Service.

For more information on these topics, and prior issues of Employment Law Updates, visit our ‘Articles’ topic on our website at www.nkms.com.

NELSON, KINDER, MOSSEAU & SATURLEY, P.C.

Christopher Vrountas, head of the firm’s Employment Counseling & Litigation Group has provided the following update:

Who must prove what is reasonable? That is the question the Supreme Court will decide shortly.

The Supreme Court will soon consider whether it is the employer who must prove the reasonableness of criteria used to evaluate employees when selecting whom to lay off, or whether the employee must prove lack of reasonableness, in a case brought under the Age Discrimination in Employment Act (ADEA). Laid-off former employees of a federal research laboratory who were all over the age of 40 won their ADEA case in a jury trial, but the Second Circuit overturned the verdict on the ground that the employees failed to carry their burden of showing that the evaluation system was unreasonable. The employees will argue to the Supreme Court that the burden is actually on the employer to prove the reasonableness of its actions.

Meacham v. Knolls Atomic Power Laboratory, No. 06-1505.

Complainers are protected, but their witnesses might not be under Title VII.

A payroll coordinator employed by the City of Nashville was fired after answering questions about her supervisor’s behavior, which she characterized as harassment, during the course of an office investigation commenced in response to her coworkers’ complaints. The payroll coordinator sued for retaliation, but the Sixth Circuit rejected her claim and ruled that protection from retaliation is available only to employees who have themselves initiated a complaint or made a formal charge with the EEOC. The former employee now has a date to argue otherwise with the United States Supreme Court.

Crawford v. Metropolitan Government of Nashville, No. 06-1595.

FMLA Changes Coming Soon.

The U.S. Labor Department is rewriting its FMLA regulations, which currently allow workers to take up to 12 weeks of unpaid leave per year to deal with medical or family issues. The DOL now seeks to end the current practice where workers can be absent for two days prior to making a FMLA request. In a separate development, Congress recently passed legislation extending FMLA leave to wounded veterans and families of reservists called up for duty. Click here for more.

For more information on these topics, and prior issues of Employment Law Updates, visit our ‘Articles’ topic on our website at www.nkms.com.

NELSON, KINDER, MOSSEAU & SATURLEY, P.C.

AIG Executive Liability

• Report Outlines National Good Governance Practices for the Nonprofit Sector
• Senator Grassley Gets Religion

Bill Saturley and John Kissinger of the firm’s Professional Liability Group have provided the following:

Attorney Disqualified After Exploiting Privileged Material Inadvertently Produced By Opposing Counsel: California

In a case receiving nationwide attention for its potential implications, the California Supreme Court labeled an attorney’s actions as unethical when he inadvertently acquired privileged work product of opposing counsel, reviewed the document, made copies, and used it to depose an opposing expert. Once the attorney recognized the privileged nature of the document, which he admitted he did within a minute or two, he should have returned the document without reading further, the Court found as a matter of common law – without citing any rules of professional conduct. Rico v. Mitsubishi Motors Corporation, S123808 (December 13, 2007).

Revised New Hampshire Rules of Professional Conduct Take Effect January 1st.

The new rules can be found here.

Statistics Indicate the Maine Attorney Discipline Office May Be Stricter Than Its Counterparts in Neighboring States

According to an article in the Portland Press Herald, a statewide newspaper, in 2006 the Maine Attorney Discipline Office found probable cause for a hearing on about 5% of complaints compared to a national average of about 3%. Of 23 attorneys whose matters went to public hearings, 17 were either warned or otherwise disciplined.

Massachusetts Attorney Suspended for Deceiving His Mortgage Lender

An attorney intentionally mis-recorded some documents, depriving his mortgagee of its rightful priority. The Massachusetts Supreme Judicial Court upheld the Board of Overseers’ decision to suspend the attorney’s license for six months and one day. Why the extra day? SJC Rule 4:01, section 18 requires an attorney to pass the Multi-State Professional Responsibility Exam before reinstatement, if the suspension period exceeds six months. In the Matter of Firstenberger, SJC-09978 (December 21, 2007).

FOR MORE INFORMATION ON THESE TOPICS, AND PRIOR ISSUES OF PROFESSIONAL LIABILITY UPDATE, VISIT THE ‘ARTICLES’ TOPIC ON OUR WEBSITE AT: www.nkms.com

Christopher Vrountas, head of the firm’s Employment Counseling & Litigation Group has provided the following update:

If the Job Don’t Fit, You Must Aquit.

A forest service worker lost his age discrimination claim because he was not qualified for the position with the Department of Agriculture he sought as a matter of law, says the federal court in New Hampshire. The court noted that the position had specific requirements, such as “1 year of graduate level education or superior academic achievement; OR 1 year of specialized experience,” while plaintiff had a high school diploma with no other training, and while plaintiff could point to no other specialized experience. As the applicant failed to explain how he could be truly qualified, the DOA was not expected to speculate as to the applicant’s qualifications in the litigation and the court granted the DOA’s motion for summary judgment. Cossette v. U.S. Sec’y Dept. Agriculture, D.N.H. (December 3, 2007).

One out at the Human Rights Commission Does Not End the Game.

An employer who won a finding of no reasonable cause on an employee’s disparate impact discrimination claim at the state human rights commission could not use such finding to preclude the same discrimination claim brought by that same employee in federal court, says the United States District Court for the District of New Hampshire. The court denied the employer’s attempt to use the state commission’s finding of no probable cause because un-reviewed administrative determinations by state agencies have no preclusive effect in federal court, even though they could have such an impact in an appeal to state court. Usher v. Cracker Barrel, D.N.H. (December 4, 2007).

For more information on these topics, and prior issues of Employment Law Updates, visit our ‘Articles’ topic on our website at www.nkms.com.

NELSON, KINDER, MOSSEAU & SATURLEY, P.C.

Robert B. Smith, head of the firm’s College and University group has provided the following:

Judge Bruce R. Henry, a Massachusetts Superior Court judge in Worcester, recently rejected a request for a preliminary injunction that would ban Worcester State College from implementing a new policy allowing campus police officers to carry weapons on campus. The ruling comes in response to a lawsuit filed by four faculty members seeking to overturn the decision.

The suit does not directly address charged policy questions about student safety and guns on campus, but rather alleges that the Board of Trustees violated the state’s Open Meeting Law by deliberating about the change at a dinner preceding the public meeting where the Board approved the change. The ten trustees responded by each submitted an affidavit stating under oath the issue was not discussed at the dinner. In rejecting the plaintiffs’ request for the preliminary injunction, Judge Henry ruled that the professors failed to demonstrate either of the requirements necessary to secure an injunction while a case is pending: that they had a likelihood of success on the merits, or that irreparable harm would occur if the injunction was not issued.

The firearms policy was recommended by College President Janelle Ashley, and received a 9 to 1 vote in its favor by the trustees. The college must still enact a formal policy on side arms and train the campus officers before WCS students will see armed officers.

Click here for an article on the subject in the Worcester Telegram & Gazette.

Robert B. Smith, head of the firm’s College and University group has provided the following:

The U.S. Court of Appeals for the First Circuit this week rejected a challenge against a university’s discretion in reporting campus crimes, as is mandated under the Cleary Act – 20 U.S.C. § 1092(f). The Act requires colleges and universities that accept federal funding to report to students, faculty, and staff when certain violent crimes or theft offenses occur on, or in the vicinity of, campus.

The challenge arose following an off-campus fight between the plaintiff and another student. The defendant, Johnson & Wales University, issued a Cleary Act notice to the campus community identifying the plaintiff by name, naming his fraternity, and reporting that a witness observed the plaintiff with a knife. On the same day the notice was sent out, a student conduct board found the plaintiff responsible for assaulting another student and engaging in lawless behavior, but cleared him of the charge of possessing a knife. The plaintiff was acquitted by a jury in a subsequent criminal trial, and sued Johnson & Wales for defamation and breach of contract.

The case reached the First Circuit after the district court granted the university’s summary judgment motion. In analyzing the intersection between state defamation law and the requirements of the Cleary Act, Judge Seyla focused on the legislative history and language of the Act to determine that it “vests substantial discretion in each campus security office to phrase and disseminate reports in those ways that the particular institution deems best suited to apprise its constituent campus communities of incipient criminal activity.” Because the Act afforded institutions with such discretion, the court brushed aside the plaintiff’s highly technical argument that the fight was not within the “mathematically precise metes and bounds” specified by the Act, as well as his claim that the university official who drafted the release exceeded the scope of the Act by using his name or including the report of the knife. Because the university acted under the reasonable belief that the report as filed was necessary under the Cleary Act, the university had a qualified privilege against plaintiff’s defamation claim.

The courts also turned aside the plaintiff’s breach of contract claim based on the university student handbook.

The full text of the opinion can be accessed here.

Robert B. Smith, head of the firm’s College and University Group has provided the following:

The United States Court of Appeals for the Second Circuit reverses the dismissal of a hostile envrionment claim based upon a supervisors’s receipt and viewing of pornography in the workplace:

“Specifically, the district court concluded that Plaintiff failed to allege that she faced an objectively hostile work environment, “because [she] never saw the videos, witnessed Clark watch the videos, or witnessed Clark performing sexual acts.” Patane, 435 F.Supp.2d at 316. However, Plaintiff does allege that she regularly observed Clark watching pornographic videos. This Court has specifically recognized that the mere presence of pornography in a workplace can alter the “status” of women therein and is relevant to assessing the objective hostility of the environment. Wolak v. Spucci, 217 F.3d 157, 160-61 (2d Cir.2000). Moreover, Plaintiff alleges that she was regularly required to handle pornographic videotapes in the course of performing her employment responsibilities of opening and delivering Clark’s mail; and that she once discovered hard core pornographic websites that Clark viewed on her workplace computer. Combined with Plaintiff’s other allegations regarding Clark’s sexually inappropriate behavior in the workplace, including her allegation regarding his earlier harassment of Dr. Peirce, see Cruz, 202 F.3d at 571 (holding that discriminatory behavior not directed at plaintiff can still contribute to the creation of an overall hostile work environment), and with Fordham’s failure to take any action notwithstanding Plaintiff’s numerous complaints, a jury could well conclude that Plaintiff was subject to frequent severely offensive conduct that interfered with her ability to perform her secretarial functions. See Torres v. Pisano, 116 F.3d 625, 631 (2d Cir.1997) (concluding that “general allegations of constant abuse” create a jury question as to severity and pervasiveness “even in the absence of specific details about each incident"). Though whether a particular work environment is objectively hostile is necessarily a fact-intensive inquiry, we conclude that Plaintiff has alleged sufficient facts to be “entitled to offer evidence to support [her] claim[ ].” See Scheuer, 416 U.S. at 236. [19] Defendants also argue that Plaintiff has not alleged that the harassing conduct was aimed at her–let alone aimed at her because of her sex. However, some of the conduct that Plaintiff has alleged was undoubtedly aimed at her–for instance, the hard core pornographic websites on her computer and the pornography-containing mail that Clark knew she was responsible for handling. Moreover, a plaintiff need only allege that she suffered a hostile work environment because of her gender, not that all of the offensive conduct was specifically aimed at her. In Petrosino v. Bell Atlantic, we recognized that sexually charged conduct in the workplace may create a hostile environment for women notwithstanding the fact that it is also experienced by men. 385 F.3d 210, 223 (2d Cir.2004).”

Click here for the full opinion is here.

Stephen D. Coppolo, an associate with the firm has provided the following update:

At the time we posted about the litigation brought against San Francisco State University by the College Republicans, Judge Wayne D. Brazil had signaled his intent to preliminarily enjoin SFSU from basing disciplinary actions against students for violations of a section of the student code of conduct requiring “civility.” No written order had yet been issued, however.

Judge Brazil’s 33-page order enjoins SFSU from taking disciplinary actions based on the civility requirement, and also from disciplining on the undifferentiated ground that a student’s conduct was “inconsistent with SF State goals, principles and policies.” The judge did not enjoin SFSU from taking disciplinary action against students who were alleged to have engaged in harassment or intimidation in a manner that threatens the health or safety of another member of the university community.

Christopher Vrountas, head of the firm’s Employment Counseling & Litigation Group has provided the following:

Maine Redefines Disability

The Maine legislature recently amended its law prohibiting disability discrimination. The old law broadly defined disability as “any disability, infirmity, malformation, disfigurement, congenital defect or mental condition” and, unlike federal law, did not require the plaintiff to prove that the impairment substantially limited a major life activity. Maine has now recently adopted a new standard that defines disability as a physical or mental impairment that substantially limits one or more of a person’s major life activities or significantly impairs physical or mental health. This new definition under Maine law more closely mirrors the federal law prohibiting disability discrimination. According to the federal court in Maine, the new definition will not apply to cases filed before the law was enacted although it will apply to cases filed after the enactment. Rooney v. Sprague Corp., Civ. No. 06-20-B-W (D. Maine, 2007).

Depressed does not mean delayed

A nurse technician who was chronically late for work, often only by minutes, allegedly because she was “sick and depressed” was not entitled to treat her tardiness as “intermittent leave” under the FMLA, says the United States District Court for the District of Maine. The court noted that, whatever the employee’s condition, she was capable of performing her job well once at work; she simply could not get to work on time. “To be sure, getting to work on time is an important part of a nursing technician’s job function. But to treat chronic lateness, even if caused by a medical condition, as an incapacity, or inability to perform, that requires intermittent ‘leave’ for the brief duration of the lateness, distorts the English language and trivializes the purpose of the Act.” Brown v. Eastern Maine Medical Center, Civ. No. 06-60-PH (D. Maine, 2007).

For more information on these topics, and prior issues of Employment Law Updates, visit our ‘Articles’ topic on our website at www.nkms.com.

NELSON, KINDER, MOSSEAU & SATURLEY, P.C.

Robert B. Smith, head of the firm’s College & University Group has provided the following:

Chemical Facility Anti-Terrorism Standards ……

The Department of Homeland Security (DHS) finalized the Chemical Facility Anti-Terrorism Standards yesterday, and colleges and universities have 60 days (extendable to 120 days) to inventory for 325 chemicals and report to DHS if we exceed any of the thresholds. The rule is available on the DHS website at:
http://www.dhs.gov/xprevprot/programs/gc_1169501486179.shtm

Stephen D. Coppolo, an associate with the firm has provided the following:

At a time when many have questioned the extent to which American universities remain open to the free exchange of viewpoints and ideas, a California judge recently barred a state university from disciplining students for speech the university deems uncivil.

At an October 31, 2007 hearing, Federal Magistrate Judge Wayne D. Brazil, himself a former college professor, signaled he would enter an injunction against San Francisco State University, barring it from taking disciplinary action against those violating the university’s policy requiring students to act civilly toward each other. The ruling came in response to a lawsuit filed by the San Francisco State College Republicans after the university conducted a five-month investigation of the group under the civility policy and other portions of the Student Code of Conduct. San Francisco State is part of the 23-campus California State University system.

The impetus for the investigation and subsequent lawsuit was an October 2006 anti-terrorism rally held by the College Republicans. During the rally, members of the group stomped on the flags of Hamas and Hezbollah. This action angered a number of onlooking student who pointed out that the flags contained the word “Allah” written in Arabic. Members of the Republican group attempted to cover the word “Allah” with black marker, but this did not solve the situation. Approximately one week later, a member of student government body filed a complaint with a university conduct board, arguing that the College Republicans had “incited violence” and engaged in “actions of incivility.”

The letter led to a full-scale disciplinary investigation by the university and the unanimous condemnation by the student government organization, which signaled its intention to strip the College Republicans of student activity funding if the group was ultimately sanctioned. Though the University eventually cleared the College Republicans of any conduct violations, the College Republicans brought a federal § 1983 civil rights lawsuit, alleging that parts of the conduct codes have an unconstitutional chilling effect on free speech, and that they are too vague to indicate the types of speech or conduct prohibited.

Though Judge Brazil has not yet issued a written order, he stated at the hearing that he would enjoin the university from disciplining students who are accused of violating the civility requirement. He upheld the university’s prohibitions against harassing or intimidating conduct, but held that this provision could only be used to discipline students who threatened the health or safety of another student, and not when the complaint is made on the basis of speech perceived to be offensive. “The civility provision is just way too broad,” said Judge Brazil at the hearing. “It just can’t pass constitutional muster.”

Click here to read a San Francisco Chronicle article on the judge’s ruling.

Click here to read a transcript of the October 31, 2007 hearing.

Robert B. Smith, head of the firm’s College and University Group has provided the following:

The Department of Education released new brochures on the Family Educational Rights and Privacy Act Tuesday that focus less on what FERPA prohibits, and more on what it permits. A college-specific brochure, “Balancing Student Privacy and School Safety,” follows up on a federal report on the Virginia Tech shootings finding that overly stringent interpretations of the law inhibit the information sharing needed to protect students.