Women 'knew their place' turns out to be losing union argument to justify discrimination in port jobs

Herman Melville boarded the Acushnet at New Bedford Harbor in 1841.
RJ Peltz-Steele, 2022, CC BY-NC-SA 4.0

From the Massachusetts Appeals Court today, a reminder that however far we've come, we've yet so far to go.

Specifically, [plaintiff-appellee] Robar alleged that she was passed over for work [at the Port of New Bedford, Mass.] as a forklift operator in favor of men who not only were less qualified than she was, but who—unlike her—lacked a mandatory qualification for the position. When given the opportunity to respond, the union's then-treasurer (later president and business agent), Edmond Lacombe, supplied a written statement that proved unhelpful to the union's defense. Specifically, among other things, he recounted that the women who were hired for the traditionally female positions "did not complain"; rather, "[t]hey, more or less, knew their place when work was issued and accepted the outcome."

The union was the defendant-appellant in the case, because its referrals to the employer were de facto selections for hiring. Perhaps needless to say, the court affirmed for the plaintiff on the merits. The court also rejected the union's contention that the National Labor Relations Act preempted enforcement of state labor law, rather finding the subject-matter jurisdiction concurrent.

The case is International Longshoremen Association, Local 1413-1465 v. Massachusetts Commission Against Discrimination (Mass. App. Ct. Apr. 3, 2024) (temporary state posting). Justice James R. Milkey wrote the unanimous decision of the panel, which also comprised Chief Justice Green and Justice Grant.

Florida A&M moves to fire Latina law prof who spoke on public concern; Hispanic law students resist

You may review and sign on to a letter of the FAMU Hispanic American Law Student Association opposing Reyes's termination here. 

Prof. Maritza Reyes

My colleague Professor Maritza Reyes, who is tenured at the Florida A&M (FAMU) College of Law, is fighting alongside students and other allies to save her job and to preserve academic freedom.

Reyes has been notified of the school's intent to dismiss her for doing her job in faculty governance. Reyes commented, professionally and appropriately, in a community email discussion of the abrupt, contentious, and institutionally embarrassing resignation of the law dean at FAMU in February.

FAMU apparently did not like what Reyes had to say. In a plain violation of academic freedom, the school proferred the email discussion as the reason to terminate a tenured professor.

I have written many times, since 2011, about the failure of universities to recognize academic freedom in spaces "penumbral" to published research and classroom teaching, namely faculty governance. In the same vein, Professor Keith Whittington wrote recently about the importance of protecting "extramural" academic speech.

Reyes is an accomplished and highly respected law teacher—thus, just the sort who attract condemnation in the academic culture—who is treasured by generations of students and has especially made a difference for persons of color in law schools and legal practice. She is FAMU's first and only tenured Latina law professor. In 2022, she founded the Graciela Olivárez Latinas in the Legal Academy ("GO LILA") Workshop, which she discussed in 2023 for AALS Women in Legal Education.

Students and alumni are leading the resistance to Reyes's termination. Please review and consider signing on to the following letter.  You can share the letter further with this link: https://forms.gle/VUnYPKiMwyWtMDJx8, or via The Savory Tort.

(This post revised and updated on Mar. 19, at 5:40 p.m.)

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Dear President Larry Robinson and Provost Allyson Watson:

We, the undersigned members of the Florida Agriculture and Mechanical University (FAMU) Hispanic American Law Student Association (HALSA), joined by fellow students, alumni, allies, and friends, respectfully request that you rescind your intent to dismiss College of Law Professor Maritza Reyes (Professor Reyes) from her tenured position. For the past fifteen (15) years, Professor Reyes has been a caring professor and has made excellent contributions to the school, especially its students. Professor Reyes has also served as HALSA's faculty advisor for many years.

Professor Reyes is an accomplished teacher, scholar, and member of the legal academy and community. She began her employment in the FAMU College of Law as a tenure-track assistant professor of law in 2009, earned tenure in 2015, and is now a tenured, full professor of law (the highest faculty rank). FAMU has evaluated Professor Reyes's record during many formal evaluative processes, including applications for promotion to associate professor, for tenure, and promotion to full professor; annual reviews; and, most recently, post-tenure review. Professor Reyes has demonstrated consistent excellence and productivity in scholarship, teaching, and service. She has too many accomplishments to list here, including being recognized in the U.S. Congressional Record for her service to our community. You are well-aware of her many accomplishments including through all of the above listed evaluations.

We were heartbroken and outraged to learn that Provost Allyson Watson (Provost Watson), by letter dated February 16, 2024 (the "Notice"), informed Professor Reyes of the University's intent to dismiss her from her tenured position. According to FAMU Regulation 10.120(2)(c), the "Contents of Notice" must include the following information: "A list of documents or written explanation on which the charges are based; and a statement that documents shall be available to the employee upon request." The documents Professor Reyes received consisted of emails that were sent to the entire College of Law Community during the period of February 1, 2024 to February 5, 2024. The entire College of Law Community (faculty, staff, and students) received the emails after then College of Law Dean Deidré Keller (Dean Keller) opened this email forum on February 1, 2024 to provide notice of her resignation effective immediately. Several professors, including Professor Reyes, and three students participated in these communications and sent emails to the entire College of Law Community. The use of email forums/listservs to the entire College of Law Community was not prohibited. Professor Reyes's emails were informative, professional, and timely. They helped bring transparency and accountability regarding Dean Keller's resignation, a matter of institutional and public importance. The Tallahassee Democrat initially reported about Dean Keller's resignation on February 2, 2024. Subsequently, Dean Keller provided her letter of resignation to this newspaper, which published it in a second article on February 6, 2024. These materials were readily available online via the newspaper's website.

In response to Professor Reyes's contributions via emails about Dean Keller's resignation, Provost Watson issued a Notice of intent to dismiss Professor Reyes from her tenured position. It seems to us that Provost Watson targeted Professor Reyes for the content of her speech and sought to silence her voice and future contributions in the FAMU College of Law. In a matter of days, Provost Watson charged Professor Reyes for dismissal without allowing her an opportunity to respond to a formal complaint, go through an investigation, receive meaningful due process, and get a report. To us as law students, the way Provost Watson has handled this situation screams of injustice and lack of due process.

Many students and alumni describe Professor Reyes as an exceptional educator who made a lasting and meaningful impact on their law school experiences and legal careers. She always set high standards and would provide the guidance and skills necessary to reach them. She also inspired students to achieve their individual levels of excellence. Some of us made it through difficult situations during law school thanks to her unwavering support. Professor Reyes has also been an advocate for student organizations. Therefore, if your intent to dismiss Professor Reyes comes to pass, you will harm past, current, and future FAMU College of Law students by taking away an excellent professor who has been our teacher, mentor, advocate, ally, supporter, and friend. You will also harm the law school, including with negative publicity. You have already disrupted the high-caliber teaching law students expected to receive when they registered for Professor Reyes's courses. You abruptly replaced her with less-credentialed and less-experienced instructors who had never taught in a law school before. Many of us will be further traumatized by Professor Reyes's dismissal. We cannot remain silent in the face of such injustice.

There are currently twenty (20) tenured professors (associate and full) in the College of Law. Professor Reyes was the first and thus far only Hispanic professor hired in the tenure track and subsequently tenured in the FAMU College of Law. She has served as HALSA's dedicated, supportive, and highly competent faculty advisor. According to the FAMU College of Law American Bar Association 2023 Standard 509 Required Disclosures, Hispanic students make up 25% of the total law student body. It is important that Hispanic students be appropriately represented in the law school. While this letter is spearheaded by HALSA's Board, we are being supported in our efforts by students and alumni of diverse backgrounds who appreciate and respect Professor Reyes's teaching, mentoring, and support.

There is a strong sense among the student body that an injustice is happening in view of all of us. On February 27, 2024, students met with FAMU College of Law Interim Dean Cecil Howard and protested the intended dismissal of Professor Reyes. Interim Dean Howard responded that the decision was made by Tallahassee Administrators to whom students should voice their protests. This is what we are doing via this open letter. We have distributed this letter widely for signatures by students, alumni, allies, friends, and supporters of justice everywhere. Please hear us when we tell you that the intended dismissal of Professor Reyes is a grave injustice. You have the power to stop this intended wrong. Please do so!

We respectfully demand that you keep Professor Maritza Reyes in the tenured faculty position she earned. She has done nothing warranting dismissal. We also demand that you grant Professor Reyes's request for a public meeting regarding her intended dismissal.

[Sign.]

Taxpayers help to fatten Big Law in prosecution that Chinese community chalks up to racial profiling

Rawpixel CC0

The American trend to embrace attorney fee-shifting is a cash cow for the corporate defense bar. A pending case speaks to the problem, as the Government seeks more than $600,000 in fees on behalf of white-shoe law firms from a man whom civil rights advocates say was racially profiled.

Waning of "the American Rule."  The American legal system is unusual in the world for its default rule that every party pays its own way in litigation. This "American rule" contrasts with "the English rule," adopted in most of the world's jurisdictions, by which "loser pays."

But in part in acknowledgement of the abnormally high transaction costs, especially attorney fees, of litigation in the United States, some statutory systems have adopted the English rule. In civil rights, for example, key federal statutes require fee-shifting to victorious plaintiffs. The concern is that the victims of civil rights violations will not otherwise be able to incentivize lawyers to take their cases.

That logic has leached out of civil rights, though, into ever more adjacent areas of legal practice. Most civil claims are filed against corporations, and most civil claims are unsuccessful. So corporations and their lawyers have been keen to think of new ways to be paid for their trouble, if not to deter lawsuits to begin with. 

A key such area is anti-SLAPP, that is, legal measures against "strategic lawsuits against public participation." Anti-SLAPP, about which I have written many times, is wildly popular with lawmakers: now the law in a majority of states, perennially proposed in Congress, and presently being drafted into EU law.

Anti-SLAPP began as a modest and rational means to deter corporations from weaponizing frivolous litigation against protestors, silencing them with legal fees. Thus, many anti-SLAPP laws penalize unsuccessful civil plaintiffs by charging them for the defendant's attorney fees. But the corporate media defense bar fell in love with anti-SLAPP. It's now a potent weapon for corporations to silence persons who dare say they've been defamed, or had their privacy invaded, in mass publication. 

It's important to remember that just because a plaintiff is unsuccessful in civil litigation does not mean that the plaintiff was not wronged. Defamation and privacy law is rife with defendant-friendly mechanisms designed to over-protect media defendants from even meritorious claims, from evidentiary privileges, to limitations on discovery, to daunting burdens such as the New York Times Co. v. Sullivan (U.S. 1964) "actual malice" standard. Anti-SLAPP piles on another prophylactic defense, one that works so fast, a defendant need not even answer the complaint.

I've been consistent in my opposition to anti-SLAPP's poisonous growth, especially its fee-shifting penalty. Frequent litigant Donald Trump, by the way, has been on both sides of anti-SLAPP fees, having been awarded nearly $300,000 in attorney fees against Stormy Daniels in response to her claim of defamation. It sometimes amuses me and sometimes saddens me to see civil rights advocates, journalists, and media law professors align themselves with mega-corporations in publishing, eager to line the pockets of Big Law.

United States v. Yu. The instant case is criminal, not civil. But the case involves a civil restitution statute that allows for a criminal defendant to be charged with the legal fees incurred by a "victim." 

Haoyang Yu, a naturalized U.S. citizen of Chinese descent, was a Boston-area engineer charged with 21 crimes in connection with his work developing chip technology for Analog Devices, Inc. (ADI). The court dismissed one charge and acquitted Yu of another before submitting 19 charges to the jury. The jury acquitted Yu of 18 charges and convicted him of one only: illegal possession of trade secrets. 

More or less, Yu took his work home with him, and his work included a proprietary chip design. The government had accused Yu of much worse: intention to steal ADI tech either to start his own company or to pass research to the Chinese government. Yu was caught up in a government crackdown amid fear of foreign espionage in the American tech industry. The evidence did not bear out the suspicion.

Critics point to Yu's Chinese origin and ancestry to allege that he was a victim of racial profiling. The trial judge in the case even acknowledged, "It's hard to say that Mr. Yu’s race or ethnicity was not a factor here" (Lexington Observer, June 2, 2023). APA (Asian Pacific American) Justice has tracked Yu's case. The Intercept covered the case in 2022. Critics pointed out that allegations such as those in Yu typically are resolved in mere civil litigation over theft of trade secrets. Yu was sentenced to six months' imprisonment and a fine, and then was sued by ADI.

The part of the case pertinent here is the Government's motion in federal district court that Yu be ordered to pay $606,879 to ADI attorneys at high-end firms WilmerHale and Quinn Emanuel. The Government invoked the Mandatory Restitution to Victims Act (MRVA).

The MRVA was enacted in 1996. A U.S. Department of Justice (DOJ) summary of the law doesn't much conjure a corporation as the kind of "victim" the law was meant to help. DOJ imagined "[v]ictims of crimes such as telemarketing, child exploitation, interstate domestic violence and sexual assault." The summary contemplates victims' "lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense."

In contrast, the fat legal bills in Yu include, according to, e.g., Brian Dowling at Law360 (subscription), $1,865 per hour for a Quinn Emanuel partner to watch the trial from the gallery. Other hourly rates at Quinn range from $320 for a paralegal, $880 for a second-year associate, and $1,095 for a fourth-year associate, to $1,440 for "counsel."

When I was in practice in the mid-1990s, as a first- and second-year associate, my billing rate with Big Law in Baltimore and Washington, D.C., was in the neighborhood of $120 per hour. I made about $25 per hour. Today, in academics, I make about $115 per hour (unrealistically assuming I work only 40 hours per week for nine months). According to public data, my students graduating UMass Law today will make about what I did in 1995, public or private sector. No adjustment for inflation.

Multiplying out the Quinn counsel rate yields $2.88m per year. Even if only 20% is paid out in salary, that's $576,000 per year. Not bad. I bet, though, that the $1,865/hr. attorney, a former Acting U.S. Attorney, takes home better than 20%. I guess the difference between the 1990s and now is that back then, shame was still a thing. 

Meanwhile, the bar is eager to tell law schools that it no longer can afford to mentor and train lawyers on the job, and that we should purge from the curriculum the esoteria of legal theory and public policy in favor of producing "practice ready" billing machines.

Quinn Emanuel has an entertainment and media litigation group that defends defamation and privacy claims for mass-market publishers. If I find myself defamed or otherwise wronged by a Quinn Emanuel media client, I shudder to think what the tab might be if I sue, but can't prove actual malice. Thanks to anti-SLAPP fee-shifting, Quinn Emanuel can be very well compensated even if one of its clients is negligent in decimating a person's reputation.

Next time a purported champion of the First Amendment or Fourth Estate tells you what a good idea anti-SLAPP is, think about the mahogany furniture and extravagant lifestyle of the Big Law Boston lawyer.

In an MRVA case, Big Law even gets the benefit of taxpayer-funded litigation to get paid, as the Government carries on the demand on behalf of the "victim."

The parties in Yu are now wrangling over the fee demand. The court asked the Government to break down the ask in a spreadsheet. The Government filed a data disc in December.

The case is United States v. Yu (D. Mass. indictment filed 2019), Judge William G. Young presiding.

U.S. footballers celebrate equal pay settlement

Alex Morgan
(Jamie Smed CC BY 2.0 via Wikimedia Commons)

I was elated in April to hear of a proposed $24m settlement in the equal pay dispute brought by U.S. Women's Soccer.

I wrote about the matter in April 2021 and May 2020. There were ups and downs, and, frankly, things were not looking good for the plaintiffs.

However, the case is a lesson in persistence and the value of a public relations campaign running alongside a litigation. U.S. Soccer had the upper hand in the court of law, but was taking it on the chin in court of public opinion.

The case is Morgan v. U.S. Soccer Federation (C.D. Cal. filed Mar. 8, 2019). A June 22 motion seeks court approval of the class action settlement. Named plaintiff Alex Morgan talked to MSNBC about the settlement last week.

UPDATE, July 4, at 1934 EDT: Watch today's CONCACAF match and tell me Alex Morgan should not be US Soccer's highest paid player!

Court thins line between hate speech, free speech, while deepening European continental divide

Mural in Sofia, Bulgaria
(2019 photo by RJ Peltz-Steele CC BY-NC-SA 4.0)

A politician's racist hate speech and Holocaust denial were too readily protected by the freedom of speech in Bulgaria, the European Court of Human Rights opined in a February decision that challenges free expression and deepens tension between western and eastern Europe.

In litigation by Citizens Against Hatred and allied NGOs, plaintiffs sued in Sofia for harassment and incitement to discrimination.  Their target was Volen Siderov, a far right-wing politician, founder of the "Attack" party, who beat the drum of Bulgarian nationalism in two books and a speech to Parliament.  Siderov perpetuated denigrating stereotypes including that Jews manufactured the Holocaust as a scheme for financial extortion and that Roma people are "prone to crime and depravity."  His hate speech also targeted Turks, Catholics, and LGBTQ persons. 

Siderov's speech did not target individuals, nor call for any specific act of discrimination or violence.  The Sofia court ultimately dismissed the claims, unable to find that any one person had suffered injury or loss as a result of Siderov's vitriol.  The Sofia City Court and the Bulgarian Supreme Court of Cassation affirmed, holding, with reference to European jurisprudence, that Siderov's speech was protected by the freedom of expression.

In Strasbourg, the European Court of Human Rights held that the claimants had been denied a fair hearing in Bulgarian courts, a violation of their rights of dignity and freedom from discrimination under articles 8 and 14 of the European Convention on Human Rights.  Maybe Siderov's speech was protected expression under article 10 of the European Convention.  But the Bulgarian courts had been too quickly dismissive of the plaintiffs' claims.

"Expression on matters of public interest is in principle entitled to strong protection under Article 10 of the Convention, whereas expression that promotes or justifies violence, hatred, xenophobia or another form of intolerance cannot normally claim protection," the court explained.  "[I]t may be justified to impose even serious criminal-law sanctions on journalists or politicians in cases of hate speech or incitement to violence."

Volen Siderov
(Flickr by Nedko Ivanov CC BY 2.0)

The Bulgarian courts had not drawn an appropriate balance.  "Although the courts acknowledged the vehemence of the statements, they downplayed their capacity to stigmatise Jews as a group and arouse hatred and prejudice against them, and apparently saw them as no more than part of a legitimate debate on matters of public concern."

The decision strikes a note of discord in both westerly and easterly directions.  As a matter of free speech absolutism, American courts have been consistently resistant to regulation of hate speech.  Academics have twisted themselves into knots to reconcile the civil-rights-era First Amendment with a 1952 Supreme Court decision that momentarily sanctioned criminal libel based on race, color, creed, or religion.  Meanwhile, the First Amendment continues to be a perplexing problem for would-be regulators who link disinformation with populist nationalism of Siderov's ilk.

At the same time, the European Court decision is bound to aggravate a burgeoning resistance in Bulgaria, and throughout the east, to perceived western European cultural imperialism.  Bulgarian courts in 2018 ruled unconstitutional, and the Bulgarian Parliament was prepared to vote down, the Council of Europe convention on preventing and combating violence against women, "the Istanbul Convention" (Euractiv).  The politicization of an issue so seemingly uncontroversial is a story revealing of a deeper continental divide, and the court's strike against Siderov plays right into perceived grievances.

The case is Behar & Gutman v. Bulgaria, No. 29335/13 (Eur. Ct. Hum. Rts. Feb. 16, 2021) (LawEuro).

From soccer pitch to memoir, and now to White House, Rapinoe shines in USWNT equal pay crusade

Rapinoe speaks at the White House (from White House video).

Today a federal district court in California is expected to approve a partial settlement over working conditions in the equal pay battle between the U.S. Women's National Team and U.S. Soccer.  The settlement leaves the central issue of equal pay in play in the case.

As Tokyo seeks "to blunt" its fourth wave of coronavirus, public support and flat-out feasibility fade for pulling off the 2020 Olympic Games even in the summer of 2021.  An Olympic omission will downplay the news of late March that the U.S. Men's National Team failed to qualify for the Olympics upon a loss to Honduras.  Meanwhile the U.S. Women's National Team (USWNT) has been training up for another record-shattering international appearance.

Rapinoe, 2019 (Jamie Smed CC BY 2.0)

The USWNT has not fared as well in court as on the pitch.  On the equal-pay front, the USWNT complainants suffered a major setback in a trial court decision in May 2020.  I wrote then that the court's conclusion was defensible on the law, if arguable on the rationale and tormenting for its rank unfairness.  The complainants plan to appeal.

One is left to marvel at U.S. Soccer's shameless persistence of what I can only imagine is a cold commitment to the bottom line.  At some point, the bad PR for the sport in America must become too costly even in the commercial calculation.  And with the winds having shifted in Washington, the women wisely have opened up other fronts in the war.

A soccer legend in her own time and a hero of mine, USWNT captain Megan Rapinoe has been on a tear lately on the PR-and-lobbying circuit.  On March 24, she joined the J'Bidens at the White House to commemorate "Equal Pay Day."

The White House visit had added significance because Rapinoe feuded with Donald Trump while he was on office—see commentary in 2019 by Sue Bird, Rapinoe's then girlfriend, now betrothed—and Rapinoe said she would not go to the White House even if invited.  In March, President Joe Biden ordered resuscitation of the White House Gender Policy Council, and Rapinoe gave the White House visit a positive review.  Newsweek observed that Rapinoe received a White House invite before Sen. Mitch McConnell.

Here is Rapinoe's statement at the White House.  Watch the whole event at YouTube; Rapinoe's four minutes followed statements by USWNT teammate Midge Purce and First Lady Jill Biden.  

Rapinoe got her money's worth out of her ticket to Washington, because she also testified before the House Committee on Oversight and Reform, which was "examining the long-term economic impacts of gender inequality."  Her affirmative statement, below, ran only about two and a half minutes.  With experts representing NGOs also testifying, Rapinoe participated in the questions and answers afterward; the full-length video of the committee hearing is posted online (image from House video).

Rapinoe wound up her testimony with the USWNT rallying cry, "LFG."  She has since remained ready to fight when the situation calls for it, recently, as Comic Sands put it, "eviscerat[ing an] NBA star who criticized female athletes 'complaining' about pay gap."  An HBO Max-CNN Films documentary on the USWNT, titled "LFG" (teaser), is set for release later this year.

All the while, Rapinoe has let no artificial turf grow under her feet.  At the day job on Saturday, she scored for the USWNT to pull out a draw against Sweden and preserve the women's undefeated streak.

Rapinoe published a memoir, One Life, in the fall.

LFG.

Collateral to drug-testing race discrimination suit, Boston wins chance to demand indemnity by lab

National Archives

Is hair-follicle drug testing racially discriminatory?

That was not the question before the Massachusetts Supreme Judicial Court Friday, but the Court's decision ancillary to that disparate-impact civil rights question is instructive on indemnity.

The civil rights claim in this case was filed in 2005 and still is in litigation in federal court.  Plaintiffs in that suit are eight police officers, a police cadet, and an applicant for a 911-operator job who suffered adverse action after testing positive in hair-follicle drug tests administered by the City of Boston.  Seven of the officers were fired for cocaine-positive results.

The plaintiffs, all African American, deny drug use.  They assert that the test is inaccurate and "disproportionately yielded false positives for people of color, resulting in disparate impact by race," the SJC wrote Friday.  "During the eight years for which the plaintiffs present data, black officers and cadets tested positive for cocaine approximately 1.3% of the time, while white officers and cadets tested positive just under 0.3% of the time," the First Circuit wrote in 2014.

The city won summary judgment twice in the trial court, yet the First Circuit twice found error, in 2014 and in 2016, and remanded for further proceedings.  The case, Jones v. City of Boston, remains in the district court, though the docket shows no activity on the merits since the latter remand, suggesting a resolution might have been reached.

The instant case is a dispute in state court between the city and the test provider, Psychemedics Corp.  In the city's contract with Psychemedics, the company promised "to 'assume the defense of' the city, and to 'hold [it] harmless' from all suits and claims arising from 'wrongful or negligent' acts by Psychemedics."  After suit was filed against the city, it went to Psychemedics to talk defense.  It's not clear that the two ever got on the same page.  Psychemedics seemed to regard the suit as outside the scope of the indemnity and regarded its obligations fulfilled by offering the city technical assistance on the science.

Then, as the SJC recounted flatly, "Ten years passed."  In 2017, the city started looking around for help with its long mounting legal expenses and set its sights on Psychemedics.  "What?!" Psychemedics said.  I paraphrase.  Psychemedics sued for declaratory relief, and the city counterclaimed for breach of contract and related theories.

The case boils down to an indemnitee's duty to notify an indemnitor of the need to defend.  An indemnitee, the Court held, "must give the indemnitor 'notice and an opportunity to defend.'  The indemnitee then must allow the indemnitor to take over the defense (if it attempts to do so), and must not later block the indemnitor from doing so."  Parties are free to contract specifics, but in the absence of other specification, "'no particular form of words is necessary' to present notice and the opportunity to assume the defense."  (Citations omitted throughout.)

Justice Lenk

The SJC vacated the trial court summary judgment for Psychemedics and remanded.  The trial judge had improperly decided questions of fact, inadvertently burdening the city with having to refute the company's assertions of fact.  The SJC rejected as unproved, as yet, a number of Psychemedics theories, such as that the city had declined the company's defense or had not litigated Jones in good faith as to protect Psychemedics from liability.

To my novice reading—I am no expert on insurance or indemnity—the city fairly invoked the company's duty to defend many times, and Psychemedics tried to weasel out.  Anyway, the SJC concluded that that was how the trial court should have looked at the case on summary judgment motion, because that was the position of the city, which was the non-moving party.

The case is Psychemedics Corp. v. City of Boston, No. SJC-12903 (Mass. Jan. 29, 2021).  Justice Barbara A. Lenk, since retired, authored the opinion of the unanimous Court.

See America in black and white

13th Amendment

With the imprimatur of federal law, today is National Freedom Day, celebrating the day that President Abraham Lincoln signed the joint congressional resolution proposing the 13th Amendment in 1865.  Congress passed the proposal the preceding day, and it was ratified on December 6, 1865.  Today also is the first day of African-American History Month.

With my comparative law class recently, I had the occasion to visit a classic treatment of race in Star Trek's original series.  We were studying "the perspective problem" in comparative research, which refers to the way a legal system (any social system) can look one way when studied by someone within it, and a different way when studied by an outside observer.

There's a scene in the 1969 episode "Let That Be Your Last Battlefield" (s3e15) that's been talked about for half a century even by social commentators outside science fiction and entertainment communities.  The theme of the episode is almost cliché insofar as it typifies the tendency of Star Trek creator Gene Roddenberry and 1960s showrunner Gene L. Coon to employ heavy-handed metaphor to effect social comment.  Still, the story is effective.

Gorshin with Lou Rawls in 1977
(Orange County Archives CC BY 2.0)

What cliché might have diminished was restored and then some by ferocious performances in Frank Gorshin (Bele) and Lou Antonio (Lokai).  Gorshin, who continued acting right up until his death in 2005, was already a well known villain to TV audiences in the 1960s, as Adam West Batman's Riddler.  Antonio had recently played chain-gang prisoner Koko in Cool Hand Luke (1967).  He followed up Star Trek with a four-decades-long career in TV directing that ranged from The Partridge Family and Rockford Files to legal classics Picket Fences, Boston Legal, and The Guardian, not to mention one West Wing.

The first scene below sets the stage; you only need about the first two minutes.  I'm sorry that CBS has labeled it inappropriate for children, so you have to open a new window to watch it.  I rather disagree; I recommend the clip especially for children, especially now, part of an essential diet of dialog about race and America.

The second scene below delivers the pièce de résistance.  I won't spoil it, in case it's new to you.

For social context, this Star Trek episode aired in January 1969.  Martin Luther King Jr. had been assassinated only nine months earlier.  While this episode aired, student protestors were occupying buildings at Brandeis University; they renamed them "Malcolm X University" and demanded the creation of an African-American studies department.  Stonewall, the moon landing, and Woodstock followed in the celebrated summer of '69.

Happy National Freedom Day.

Oberlin case leaves no doubt, 'racist' accusation is capable of defamatory meaning; Koppel reports

An Ohio jury in June awarded $44m to a family-owned bakery that proved defamation by Oberlin College in a case of false accusations of racism by Oberlin students, supported by the college.  Now CBS Sunday Morning has excellent coverage from Ted Koppel.  How ever did Oberlin, a respected four-year institution of higher education committed to the liberal arts, jump on board with racism accusations without first checking the facts?  Unthinkable.

False accusations of racism or misogyny today are no less capable of defamatory meaning than accusations of child molestation or other crimes that shock the conscience.  There can no longer be any serious contention that such charges are immune from defamation liability because they are fair comment or because they do not necessarily expose a victim to hate, contempt, or ridicule in the community.

Forbes reported: "The jury initially assessed $11 million in compensatory damages and $33 million in punitive damages against Oberlin, for a total of $44 million, but the judge cut back the amount to $25 million because Ohio law has caps on damages. The judge then tacked on $6.5 million in attorney’s fees bringing the verdict back up to $31 million."

The case is Gibson Bros., Inc. v. Oberlin College, No. 17CV193761 (Ct. Common Pleas Lorain County, Ohio, Sept. 18. 2019).  The Ohio trial court publishes only the docket online.  Oberlin appealed (filed Oct. 8, 2019), and the Gibsons cross-appealed (filed Oct. 18, 2019).  CNN has the initial complaint (filed Nov. 17, 2017).

Student prevails in part in UMass Amherst due process disciplinary case in First Circuit

Last week the First Circuit held in favor of a student accused of a violent assault; however, the court largely upheld as constitutional the due process provided to the student in campus adjudication.

The case adds to federal appellate precedent on the requirements of procedural due process on campus.  The First Circuit's conclusions on these facts are not new water marks.  At the same time, observers predict that the multitude of circuit disagreements in this area will lead inevitably to a U.S. Supreme Court ruling.

In the instant case, a male student was accused of a violent assault on a female student, his romantic partner, while studying abroad in Spain under the purview of the University of Massachusetts, Amherst.  The First Circuit ruled that the university failed to provide adequate notice and hearing prior to imposing a five-month suspension on the student, after the allegations but well before the adjudication.  Authored by Rhode-Island-born U.S. Circuit Judge William J. Kayatta Jr., the court's holding came from a unanimous three-judge panel that included retired U.S. Supreme Court Justice David Souter.

The court affirmed judgment for the university as to the adequacy of the campus adjudication and consequent expulsion of the accused.  The student had challenged the adjudication for the exclusion of some evidence and the lack of opportunity to confront his accuser.  Constitutional rights in the context of the campus administrative process were not offended by those omissions, the court held, applying the flexible procedural due process test of Mathews v. Eldridge (U.S. 1976). It's the latter point, confrontation, that especially vexes critics and marks arguable disagreement with other circuit courts. 

The case arises against the backdrop of a heated national debate over higher education reform.  To my consternation, Title IX has become an area in which serious cases of sexual harassment and physical assault are lumped together on the nations' campuses with gross abuses of the rights of students and faculty.  Legitimate disciplinary processes have been perverted, and therefore caused to undermine civil rights law, by overzealous bureaucrats seeking to enforce politically correct group-think on students and to undermine academic freedom and faculty governance.  Purely in my personal capacity, I filed my own observations with the Department of Education in March.

The instant case is Haidak v. University of Massachusetts-Amherst, No. 18-1248 (1st Cir. Aug. 6, 2019).

New Kramer book tells tales of civil rights

My friend and colleague, and scholar extraordinaire, Professor Zachary Kramer has just published a new book on civil rights, Outsiders: Why Difference is the Future of Civil Rights.  Knowing Professor Kramer's ability to relate a compelling narrative, I expect this book is a great read, and I can't wait to get my hot little hands on it.  Here is the description from Oxford University Press.

Contemporary discrimination has changed in important ways from the forms it took in the 1960s, the era in which our civil rights law system originated. Previously, the primary targets of discrimination were groups: African Americans, women, and Latinos, among others. The goal of the Civil Rights Act of 1964 was to integrate marginalized groups into civic life, shatter ceilings, and break down barriers. The law sought to make us better people and America a more equal nation.

And it has. Discrimination against groups still occurs, but affected groups can marshal the rights regime to target and eliminate discriminatory policies. The challenge today, however, is to protect the individual, and our civil rights laws struggle with this. The people most likely to face discrimination today are those who do not or cannot conform to the whims of society. They are the freaks, geeks, weirdos, and oddballs among us. They do and wear strange things, have strange opinions, and need strange accommodations.

Outsiders is filled with stories that demand attention, stories of people whose search for identity has cast them to the margins. Their stories reveal that we have entered a new phase of civil rights and need to refresh our vision. Instead of dealing in protected traits, civil rights law should take its cue from religious discrimination law and provide a right to personality. Outsiders seeks to change the way we think about identity, equality, and discrimination, positing that difference, not sameness, is the feature of our age and arguing for a civil rights movement for everyone.

Professor Kramer is associate dean of faculty, professor of law, and Willard H. Pedrick Distinguished Research Scholar at the Sandra Day O'Connor College of Law at Arizona State University.

#MeToo much?

On Boston Public Radio yesterday, the usually staunchly civil rights-sensitive Jim Braude, a former union attorney, and media personality I admire greatly, said he's not so worried about due process where #MeToo condemnations are concerned.  Women have suffered oppressive exploitation for so long, historically, he reasoned, that if an accused suffers an inequity here or there today, it's a sacrifice he (or she) should be willing to make in the greater arc of justice.

I've been really upset about Braude's comment.  I haven't been able to let it go.   I've been off the blog a while, while fighting toward two Jan. 31 deadlines on different projects.  But I'm jumping on here to say my piece.

In fairness, I've taken Braude out of context.  He and co-host Margery Eagan were recalling an earlier discussion about the Aziz Ansari story.  Here's the initial essay at Babe.net that stirred the pot. It's concerning; I don't mean to take away from that.  But from Damon Linker at The New Republic, here's a good opinion in The Week that explains the longer view.  I'm sure Braude doesn't favor criminal prosecution, or even civil liability, without due process.  But there are painful and meaningful consequences that fall short of those penalties, and consequences may be warranted.  More than social and professional alienation is surely called for in countless cases, cited to Time by Linker.  From a legal standpoint, these cases sorely complicate the usual innocent-until-proven-guilty imperative because of our culture's tragic record of tolerating discrimination, exploitation, and silence, and now rapid evolution of norms.  Braude fairly raises the difficult question, if not formal due process, then what?

It especially raised my eyebrows to see Margaret Atwood on the "concerned" list in Linker's column.  Here's Atwood's piece in The Globe and Mail. Atwood told the story of a fired professor at the University of British Columbia.  Her recitation included this:

[A]fter an inquiry by a judge that went on for months, with multiple witnesses and interviews, the judge said there had been no sexual assault, according to a statement released by Mr. Galloway through his lawyer. The employee got fired anyway.

It happens that at this very moment, I have charges of gender discriminatory conduct pending against me--have had, since April 2017.  I've been admonished not to talk about it, and I will not say much.  What is salient, what #MeToo and Atwood's and Linker's columns compel me to report, is that I've been told that there is no evidence to support the allegations, but I have been recommended for punishment anyway.  That was months ago, and I still await my sentencing.

In my career, I have been falsely accused of racism, falsely accused of gender discrimination, and falsely accused of other serious charges.   I have suffered real loss and real hurt as a result.  So have my family and friends.

My question for Jim Braude and anyone who would forego due process for an accused: Will you step down from your career, give up your livelihood and support for your family, upon a false allegation, because that's just a sacrifice you're willing to make for the greater arc of justice?  If I lose my job and cannot keep my daughter in college, pursuing a career in which women have been and still are marginalized, is that a worthwhile sacrifice for the greater good for gender equality?  Am I being selfish?

Mass. SJC refuses worker-union privilege in civil discovery

The Massachusetts Supreme Judicial Court refused to find a worker-union evidentiary privilege in a civil lawsuit by an educator against her school, affirming the Superior Court.

Nancy Chadwick, a Massachusetts teacher at Duxbury High School and former president of the Duxbury Teachers Association, alleged bullying and harassment by a direct supervisor, leading to her dismissal.  She sued for discrimination and retaliation in December 2014.  At issue in discovery were 92 emails sought by the defendant and alleged by the plaintiff to be protected by a union-union member privilege.

The SJC, per Justice Hines, refused to recognize the privilege under Massachusetts labor law or in common law.  The Court recognized that labor statutes at both the state and federal level, the latter per National Labor Relations Board precedent, can privilege communication by union members.  But looking to the apparent intent of the legislature in Mass. Gen. L. ch. 150E, the Court reasoned that the scope of that privilege is the protection of collective bargaining rights, not the furtherance of a civil lawsuit.

In the common law analysis, the Court admonished that its power to recognize privilege under Evidence Rule 501 to be “exercised sparingly.”  The Court observed that the Supreme Court of Alaska recognized a broad privilege under state statute in 2012.  But that is the minority position.  New Hampshire declined to find a privilege in grand jury proceedings in 2007.  And a California appellate court opined in 2003 that the authority to create such a privilege should rest with the legislature.

The SJC agreed that “the Legislature may be in a better position to decide whether to create a privilege and, if so, to weigh the considerations involved in defining its contours.”  McCormick on Evidence (3d ed. 1984) was quoted in a parenthetical: “It may be argued that legitimate claims to confidentiality are more equitably received by a branch of government not preeminently concerned with the factual results obtained in litigation, and that the legislatures provide an appropriate forum for the balancing of the competing social values necessary to sound decisions concerning privilege.”  Moreover, the SJC found “speculative” any harm that might result to the plaintiff for the court’s refusal to recognize the privilege.

In a footnote, the SJC clarified that its decision did not diminish inherent judicial powers to award protective order, as under civil procedure rule 26(c).

The decision is significant in part because Massachusetts is regarded as a state (or commonwealth) friendly to organized labor.  The SJC decision asserts a conservative view of separated powers such as to interpret statute and to evolve the common law under rule 501.  The latter especially has implications for other potential common law privileges, such as the journalist’s privilege.  Also, because the decision arises in the context of public employment, the lack of union privilege may have implications for construction of sunshine laws that incorporate common law and “other law” confidentiality by reference.

The case is Chadwick v. Duxbury Public Schools, no. SJC-12054 (Oct. 4, 2016) (PDF).