Substantive due process claim proceeds to trial in wrongful death case

Remember substantive due process? We learned about it in law school. It says that the Fourteenth Amendment recognizes an implied claim for a substantial rights violation even if the Constitution says nothing about it. The courts are skeptical about substantive due process claims, but people do win these claims from time to time. This is one of those cases.

The case is J.M. v. Sessions, issued on December 23. J.M. is C.B.'s mother. C.B., who was autistic and various disorders, died at the age of 34 while living at a state-run facility, Valley Ridge Center for Intensive Treatment. She says that caretakers at Valley Ridge ignored her son's pleas for help and obvious signs of heart failure, causing his death. The summary judgment record shows that C.B.'s health deteriorated quickly in his final days, but the staff did not take these symptoms seriously. There was also a cover-up, as one staffer lied about how frequently she watched over C.B. on the night of his death. 

The district court's order granting summary judgment for the state is reversed and there will be a trial in this case. The Supreme Court has held that substantive due process requires state officials to take good care of people housed in a state institution. This includes inmates and people like C.B. The leading cases in our jurisdiction on this issue are Youngberg v. Romeo, 457 U.S. 307 (1982), and Society for Good Will v. Cuomo, 737 F.3d 1239 (2d Cir. 1984). As the Court of Appeals puts it, "once a person is in the state's custody and dependent on the state for their essential needs, the state acquires a duty to provide for those needs in a manner that does not deprive that person of constitutional rights." These rights do not extend to the public at large, however, as shown by DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), one of the most hated Supreme Court rulings all time, holding that the police could not be sued for failing to protect a boy who was severely beaten by his father after the family had repeatedly reported the father's abuse to county social workers. Without a "special relationship" between the victim and the police, there is no such claim.

This is not a DeShaney case but a Youngberg case, the Second Circuit (Kahn, Parker and Carney) holds. Society for Good Will was decided more than 40 years ago, but the Second Circuit uses this case to reiterate its holding "that anyone in a state institution has a right to safe conditions regardless of whether they are voluntary or involuntary residents." Good Will remains good law post-DeShaney. We have an extended discussion on this topic as the Court of Appeals reviews substantive due process cases over the last 35 years to see if the Supreme Court's analysis in DeShaney cuts Good Will off at the knees. It does not. That means J.M.'s case against the state will proceed to trial.

Circuit applies "futility" rule in student disability cases

The general rule is that if you want to sue a school district or the State of New York over the deprivation of your disabled child's rights in the educational setting, you have to initially file an administrative complaint and give local and then state authorities an opportunity to address the problem. Without the exhaustion of these administrative remedies, the case is dismissed for lack of subject matter jurisdiction. There is an exception: we call it "futility."

The case is J.M. v. New York City Dept. of Education, issued on December 9. Plaintiffs argue that the City violated the Individuals with Disabilities in Education Act in maintaining a policy of discontinuing the services of disabled students before their 22nd birthday. The Second Circuit held in 2021 that the IDEA requires school districts to provide educational services to such students until they turn 22. That case originated in Connecticut. The claim here is that New York City is not following that mandate. Parallel state court litigation on this issue is raging in the Appellate Division and the New York Court of Appeals, but the Second Circuit decides this issue on its own without binding guidance from the state courts.

The Second Circuit holds that the 22-year-old policy applies in New York. What it all means for purposes of administrative exhaustion is that, since the plaintiffs are challenging a statewide policy, any administrative claim that would ultimately wind up at the State Department of Education would be futile. Why? Because futility doctrine recognizes that the state agency that is maintaining an unlawful policy is not likely to change its mind through an administrative proceeding. While the normal course of action is to bring the administrative action through the local school district and then the State Education Department when the district denies a disabled student their proper educational services, a structural challenge to state policy, like this one, is a different ballgame altogether.

The "policy or practice" futility exception to the "exhaustion of administrative remedies" rule is alive and well and applies to this case. If you handle IDEA cases and wish to proceed in court without exhausting the administrative remedies, this case is a must-read, as the Court of Appeals (Cabranes, Chin and Robinson) offers a thorough discussion on the history of the IDEA and the futility doctrine. The end result is this case returns to the district court docket to determine whether the State of New York violated the rights of the student-plaintiffs in this case.

No due process claim for inmate who claims his disciplinary hearing was rigged against him

Inmates have constitutional rights, but their constitutional rights are fewer once they enter the prison, which has security concerns to balance out the right of due process and other protections. This inmate learns that the hard way.

The case is Baltas v. Jones, issued on December 15. Plaintiff says that the jailers began issuing false disciplinary complaints against him, landing him in the restrictive housing unit (RHU). When he was about to be released from RHU, a Captain emailed two other correction officers asking what are we going to do about this inmate, as he may be leaving RHU the next day. One CO, Jones, said they did not want him in the G-unit because there were too many inmates placed there. Jones then sent an email to other officers asking that plaintiff be processed for CD, which is restrictive housing for inmates who receive too many disciplinary notices and pose a safety risk in the jail. A CD hearing ensued and the hearing officer found that plaintiff had 64 different infractions on his record. Plaintiff wound up in CD.

This due process claim asserts that the hearing result was planned in advance, in violation of due process. He claims that a jail official admitted during the hearing that he had been ordered in advance to recommend plaintiff for CD. Sounds like a great due process case, right? A pre-ordained result means the plaintiff did not get a fair shake at the hearing.

Plaintiff loses the case. Yes, he had due process rights. But the Prison Litigation Reform Act, enacted in the mid-1990s, requires inmates to file an internal grievance prior to any lawsuit. This gives the jail a chance to correct the problem, or at least investigate the issue so it can create a record that might prove useful in court. In his grievances at the time of the hearing, plaintiff did assert a due process violation. He wrote that the outcome of the hearing was a foregone conclusion. But the Court of Appeals (Jacobs and Kearse) holds that plaintiff's grievance was not specific enough: he failed to assert that the outcome of the hearing was predetermined in the literal sense that the hearing officer was powerless to reach any other outcome beyond confinement to CD. He did not claim in the grievance what he claimed in federal court: that the hearing officer was simply doing what his boss told him to do. Plaintiff should have asserted in the grievance that the hearing officer was a pawn. This ruling imposes a strict specificity requirement guiding inmate grievances.  

Judge Lohier dissents, writing that the court has recognized a liberal grievance pleading standard under the PLRA, allowing for unsophisticated inmates to process their claims in-house before filing suit in court. Lohier finds the grievance here was enough to alert prison officials that the hearing denied him due process because he did not receive proper notice prior to the hearing, the hearing officer introduced false information during the hearing, and officers orchestrated the disciplinary allegations in advance to transfer him out of the facility or placement on restricted status. "Fairly read, Baltas's allegations at the very least suggest a broader, structural claim that 'Calderon was powerless to reach any other outcome' and that prison officials had conspired to create a rigged hearing without meaningful procedural protections." 

Conservative student group loses First Amendment case against SUNY Buffalo

The University at Buffalo adopted a plan after a controversial organization spoke on campus, the Young Americans for Freedom. The campus YAF chapter was part of a nationwide organization. The student government adopted a National Affiliation Ban, which derecognized clubs that remained "a chapter of or otherwise part of any outside organization." This meant the YAF was no longer recognized on campus. YAF then sued SUNY Buffalo.

The case is University at Buffalo Young Americans for Freedom v. University at Buffalo Student Organization, a summary order issued on Nov. 3. YAF brought this case under the First Amendment. But the students on both sides of the caption learned something about the First Amendment: the language of the First Amendment may speak in absolutes but its application is among the most complicated areas of constitutional law, as the courts have to balance competing interests: the interest of the speaker and the interest of the government.

YAF loses the case because the injury of derecognition, by itself, is not a First Amendment violation. The Supreme Court said that in 1972 in Healy v. James. They did not suffer the loss of reserving table space at the Student Union Building or classroom space for its weekly meetings. YAF did not seek out these opportunities, and no one denied them to YAF. There is no objective evidence that YAF was chilled from speaking on campus. That means there is no injury in fact and therefore no standing to sue.

YAF also loses because a university forum for student organizations is a "limited public form,"which grants you fewer rights than a full public forum where the government cannot discriminate based on the content of your speech. The Supreme Court in 2010 rejected a similar claim in Christian Legal Society v. Martinez. In such cases, the plaintiff can only win if the government discriminates on viewpoint.

But the Second Circuit (Parker, Carney and Nardini) says there is no viewpoint discrimination here. While YAF claims the new rules give the student government broad discretion to ban certain groups, the new rules are reasonable and therefore consistent with the First Amendment. SUNY argues that the Legal Status Ban limits the Student Association's legal liability and protects Student Association funds. It also prevents clubs from agreeing to predatory contracts, holding events without insurance, or depleting student government funds by virtue of a club's negligence. 

Ministerial exception does not bar plaintiffs from suing their religious employers for a hostile work environment

 

The Appellate Division First Department has ruled for the first time in New York that the ministerial exception -- which bars employees working for religious institutions from suing for certain forms of employment discrimination -- does not bar these employees from suing their employers for a hostile work environment, including sexual, race and age harassment. 

The case is Boliak v. Reilly, issued on December 18. Plaintiffs worked for a religious high school, where the principal, Father Michael Reilly, subjected them to endless racist, sexist, ageist and other shocking comments that you'd never expect from a religious figure. The plaintiffs are two retired NYPD detectives and a Social Studies teacher. The case was dismissed in State Supreme Court on ministerial exception grounds. That holding is reversed. I argued the appeal. The law firm of Alterman & Boop filed the case and handled the extensive discovery.  

The ministerial exception is a judge-made doctrine, rooted in the First Amendment's religious clauses, that protects religious employers from judicial review of certain personnel decisions. The U.S. Supreme Court has not ruled on whether this exception applies to hostile work environment claims, an issue on which courts around the country are split. Essentially, the First Department says there is no religious component to the racial and sexual harassment that typically comprises a hostile work environment. While courts will not entertain wrongful discharge or demotion claims against religious employers on the basis that they will not interfere with personnel decisions involving "ministers," or employees who have religious duties, that logic does not apply to hostile work environment claims, where the employer is subjecting employees to verbal abuse that has no religious component. 

 

Key points from the decision:

1. "Although the ministerial exception was created to protect churches from state interference in their decisions to employ and supervise ministerial employees, it was not intended as a shield from all types of workplace conduct."

2. Courts around the country are divided on the applicability of the ministerial exception to hostile work environment claims that do not involve concrete personnel actions.

3. "In the absence of controlling case law, we follow the 9th Circuit’s approach and find that the ministerial exception should not be extended to apply to conduct such as unlawful harassment simply because such conduct is perpetrated by a religious employer. As the 9th Circuit observed, there is no First Amendment reason to permit the ministerial exception to shield a religious institution from its 'obligation to protect its employees from harassment when extending such protection would not contravene the Church's doctrinal prerogatives or trench upon its protected ministerial decisions.'”

4. "Plaintiffs are correct that there is no religious justification for Father Reilly’s appalling conduct, and analyzing their hostile work environment claims would not require the Court to improperly interfere with religious doctrine or defendants’ personnel decisions. Accordingly, plaintiffs’ hostile work environment claims should not have been dismissed on the basis of the ministerial exception."

Plaintiff who was fired for blogging on Gaza loses under the "ministerial exception"

There is a funny little statute in New York that says you can't fire someone because of their recreational activity. But "recreation activity" does not carry a definition.What it does even mean? The statute is not clear. This case was a good vehicle for resolving that issue because the plaintiff in this case was fired after she posted a blog entry on recent events in Israel/Gaza. Is blogging recreational activity under the Labor Law? If so, the question is whether management can fire you for making controversial statements that might reflect poorly on the employer, especially a defendant like this, a Jewish entity.

The case is Sander v. Westchester Reform Temple, issued by the New York Court of Appeals on December 16. The Court of Appeals does not address whether the plaintiff's blogging was recreational activity under the statute. Instead, it finds that the defendant is immune from liability under the "ministerial exception," a judge-made doctrine that says courts cannot resolve employment disputes like this. As the Court of Appeals summarizes this doctrine, quoting from Supreme Court rulings,

That exception "precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers." Requiring a religious institution "to accept or retain an unwanted minister, or punishing [them] for failing to do so" both "infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments" and "violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions."

The question, then, is whether the plaintiff was a "minister" under the statute. While plaintiff was not a minister in the traditional sense (imagine someone preaching to the choir), under Supreme Court authority, a minister includes anyone at the religious organization who teaches religious principles. The Court holds, "She was responsible for teaching religious texts through one-on-one study and weekly Torah portions, as well as planning and attending religious programming. Those duties leave little doubt that she was charged with 'educating young people in their faith.' Although Plaintiff counters that her responsibilities were 'secular rather than religious,' that allegation is conclusory, limited to a single paragraph in her complaint, and plainly untenable from the face of the offer letter."

Judge Rivera concurs, agreeing that the case should be dismissed but for different reasons. This may be the most extensive discussion on the statute from a high-level judge that we've ever had. Lawyers will use Judge Rivera's analysis in the future. Ultimately, Judge Rivera says, plaintiff would lose under the statute under the conflict-of-interest exception, defined this way: "the 'material conflict of interest' exception applies even when an employee does not receive a financial benefit from their activity. What matters is whether and how the activity affects the employer's business interest, which includes how the business is perceived within the relevant community and whether the employee's activity places the business and its mission in a negative light." Under this exception, plaintiff would lose: 

Plaintiff espoused a viewpoint (i.e. anti-Zionism) at odds with her employer's "philosophy" (i.e. Zionism) and its mission.Thus, as the Temple asserts, plaintiff's publicly posted assertions and opinions directly undermine the Temple's business interest as a synagogue, as some congregants may view Zionism as a feature of their religious or ethnic identities as Jews. Additionally, Sander's presence as a Jewish educator of children could invite a backlash among at least some of her students' parents due to her anti-Zionist views. If the Temple were to lose membership en masse, its proprietary or business interests—even as a nonprofit—would inevitably suffer. The fact that plaintiff gained no financial benefit from her blogging does not diminish or eliminate the conflict of interest that exists here. ... [T]he conflict of interest arose solely out of the potential reputational harm to the employer resulting from the employee's conduct. 

Sex discrimination verdict stands despite debatable jury charge at trial (Krause v. Kelahan Part III)

This is the unusual case where the Court of Appeals finds that the district court, during trial, gave the jury a less-than-accurate statement of legal principle that did not affect the ultimate outcome, which was a verdict for the plaintiff on her sex discrimination claim in excess of $400,000.

The case is Krause v. Kelahan, issued on December 3. I briefed the appeal, which was argued by A.J. Bosman, Esq., who tried the case. Other write-ups on this case are found at this link and this link.This appellate ruling resolves lots of issues, including a plethora of evidentiary matters; essentially, counsel for the school district appealed most of the evidentiary rulings from trial, including hearsay and other matters. 

Plaintiff was a school principal who found herself on the receiving end of the Superintendent's sexist push-back. Plaintiff was eventually fired, and defendants claimed the reasons included her unilateral modification of a student's Section 504 accommodation plan without consultation with the appropriate officers in the school district court, known as the 504 Committee. In response, Plaintiff argued in part that she was told she could implement a temporary modification to the Section 504 plan to see how it would play out.

Here is what happened: when plaintiff's mentor was on the witness stand, defense counsel read allowed a provision of state law: Education Law sec. 4402. That provision governs individualized education plans (IEP's), another way to accommodate disabled students. Under that provision, school districts can modify an IEP without a CSE committee meeting if the parties agree in writing to the changes. The district court then interjected and told the jury that it "just ... heard the law concerning the 504," and that the jury may have to determine if the district complied with the law.

On appeal, defendants argue that the trial judge was essentially telling the jury that the IEP law, Section 4402, guides this case, and that since that law says the IEP may be modified without committee, the jury might find that defendants offered false reasons for plaintiff's termination in finding that plaintiff was essentially fired for doing what the law allowed her to do.

The Court of Appeals finds that a new trial is not in order despite the trial court's statement regarding Section 4402.In light of the "record as a whole," the Court of Appeals (Carney and Lee) finds it was improbable for the jury to be "substantially swayed by the court's brief comment," for the following reasons:

1. The trial court's comment was "somewhat garbled" and contained odd phrasing and was not really a clear instruction that § 4402 applied to § 504 plans.The trial court did not tell the jury that it was required by law to allow plaintiff to agree to the changes in the § 504 plan without consultation with the Section 504 committee.

2. Plaintiff did not exploit the trial court's remark, choosing instead to focus at trial "that she followed the procedure that CSE Chair Lobdell recommended: test proposed changes to the Section 504 Plan for a two-week period and then convene the Section 504 Committee to consider making a formal amendment." Plaintiff's counsel never told the jury that Section 4402 allowed plaintiff to unilaterally change the § 504 plan. This means the trial court's remark "turned out to be peripheral to the main dispute at trial: whether plaintiff had properly altered the § 504 plan without consulting with the proper district authorities.

3. Defendants are partly responsible for this confusion because their lawyer read aloud to the jury the language in Education Law § 4402. In addition, "over the course of the litigation Defendants took inconsistent positions about whether Education Law § 4402 applied to Section 504 plans. For example, at summary judgment, they posited that Education Law § 4402 requires schools to “establish committees and/or subcommittees for the evaluation and placement of students with handicaps,” including students with Section 504 plans." For example, on the summary judgment motion, defendants argued that "Section 504 plans are 'governed by ... state law," Section 4402. They also submitted affidavits from district officials to that effect. "It was not until Beck’s cross-examination (and even then, not until after the court made the disputed comment) that defense counsel first suggested that Education Law § 4402 governed only IEPs."

This issue is quite complex, and probably explains why it took the Court of Appeals 2.5 years to resolve the appeal following oral argument. This issue also informs the dissenting opinion by Judge Sullivan, and treats this issue like a traditional "bad jury instruction."