Circuit allows punishment for student's obnoxious blog post

A classic teenage firestorm over a high school "battle of the bands" has produced a First Amendment decision from the Court of Appeals which clarifies the standards governing off-campus student speech in the public school context. In short, the Second Circuit holds that a student who protested the school's decisionmaking on "Jamfest" could be punished for posting a blog which, among other things, called them "douchebags" and contained falsehoods which might disrupt school business.

The case is Doninger v. Neihoff, decided on May 29. The battle of the bands in any high school may be the social event of the year for many students. Imagine getting on stage to play before all your classmates! There is nothing like live music, whether its Jimi Hendrix at Monterey or a local band that's been practicing for months on end to win the trophy. The students in this case, though, were disappointed when the school cancelled Jamfest, and one of them, Doninger, posted a blog that openly criticized the high school administration and urged others to call the school in protest. The blog reads (spelling errors included):

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and
we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. andd..here is the letter we sent out to parents.

The post then reproduced the email that the Student Council members sent that morning. The post continued:

And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.—

Although the blog was published off-campus, the school quickly found out about it once the phone began ringing off the hook from angry music fans. Unhappy with Doninger's blog post which contained some factual inaccuracies and called administrators "douchebags," the school prevented her from taking office as Senior Class Secretary or giving a speech at a school assembly regarding elections.

Doninger's First Amendment lawsuit is met with the well-known principle that student speech rights are diminished in the school setting. The Supreme Court told us that in Tinker v. Des Moines School District (1969). Over the years, the Court has upheld restrictions on student speech in a variety of contexts, including the use of vulgarity in the building and the principal's right to censor student newspapers. The Second Circuit has more recently held in Wisniewski v. Board of Education, 494 F.3d 34 (2d Cir. 2007) that the school can even punish students for objectionable off-campus speech (such as instant messages) that reasonably can be expected to find its way to their attention on campus. The Second Circuit tells us this time around that off-campus speech may find its way to administrators in ways previously deemed unimaginable, through blogs, instant messages and other forms of electronic communication.

What this means for Doninger is that the school can punish her for the email which called administrators "douchebags" and encouraged students to "piss her off more." It was reasonably foreseeable that Doninger's blog would reach school property and she had intended for that result. In addition, the blog post "foreseeably created a risk of substantial disruption within the school environment" since, among other things, the blog contained factual inaccuracies about why Jamfest was cancelled (prompting more angry phone calls to the school) and, of course the inflammatory language in the blog was not conducive to cooperative conflict resolution. Borrowing language from the Sixth and Ninth Circuits, the Second Circuit notes that:

“[s]chool officials have an affirmative duty to not only ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place.” Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007); see also LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (“Tinker does not require school officials to wait until disruption actually occurs before they may act.”). The question is not whether there has been actual disruption, but whether school officials “might reasonably portend disruption” from the student expression at issue.

Finally, the Court of Appeals holds that Doninger's punishment fit the crime. She was prevented from serving as Senior Class Secretary. This kind of extra-curricular activity can be rescinded when school officials fail to comply with the obligations inherent in this kind of leadership role. Allowing her to serve in this position would further disrupt operations of the student government and undermine the values that student government is designed to promote.

Retaliation = discrimination

When Congress passes a law that allows people to sue for damages, it tries to be clear about what's illegal and how to remedy the violation in court. Except that sometimes Congress is not clear at all, forcing litigants and judges to figure out what the statute really means. I have handled a number of cases over the years where the courts have to figure out whether Congress intended to allow people to bring certain claims under Federal statutes, and the lawyers and the courts have to review legislative history and other case law to determine true legislative intent. This is never easy. In the context of age discrimination claims filed by Federal employees, the Supreme Court figured out this week that the law implies a right to sue for retaliation.

The case is Gomez-Perez v. Potter, decided on May 27. The Age Discrimination in Employment Act (ADEA) was enacted in 1967. It contains an explicit provision that people can sue in court if the employer retaliated against them for complaining about age discrimination. When Congress amended the ADEA in 1972 to protect Federal employees, it did not include a retaliation provision. What does it all mean when a Federal employee, then, sues in court for ADEA retaliation?

The Supreme Court says that omitting any retaliation provision does not prevent the employee from bringing a retaliation claim in court. The anti-retaliation provision is implied: "The key question in this case is whether the statutory phrase 'discrimination based on age' includes retaliation based on the filing of an age discrimination complaint. We hold that it does."

The Court reached this decision by reviewing other cases interpreting different discrimination laws, which also omitted any explicit retaliation provision. In particular, a case from 1969 involving the law prohibiting discrimination in the sale of real property was silent as to retaliation.

In Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969), we considered whether a claim of retaliation could be brought under 42 U. S. C. § 1982, which provides that "[a]ll citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold,and convey real and personal property." While §1982 does not use the phrase "discrimination based on race," that is its plain meaning.

Then in 2005, the Supreme Court interpreted Title IX, which addresses discrimination in public schools, to also prohibit retaliation even though that law says nothing about retaliation. That case was Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005). The Court made it clear that "Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination . . . . Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subjected to differential treatment."

Most recently, also on May 27, 2008, the Supreme Court interpreted Section 1981, which prohibits discrimination in the enforcement of contacts, to also prohibit retaliation, even though Section 1981 (which doubles as an employment discrimination law) says nothing about retaliation. That case is CBOCS West v. Humphries, discussed here.

The moral of the story is that Congress sometimes forgets or neglects to outline what is prohibited in the very laws that it sometimes takes years to prepare and enact. The Supreme Court then has to figure out what those laws really mean. And what those laws mean is that retaliation = discrimination. More discussion on this issue at this link.

Supreme Court: Section 1981 prohibits retaliation

There is more than one way to file an employment discrimination lawsuit. The most common way is to file a charge of discrimination with the Equal Employment Opportunity Commission, which has authority to investigate and resolve the claim. If the EEOC cannot resolve the claim, you can ask that agency to terminate the investigation and issue a "Right to Sue" letter. Then you have 90 days to bring the lawsuit in Federal court.

The easier way to sue for employment discrimination is to bypass the Title VII process completely and file directly in Federal court under 42 U.S.C. sec. 1981. We call them Section 1981 cases. Unlike Title VII, you don't need a Right to Sue letter, and you can sue employers with less than 15 employees. But Section 1981 only covers racial discrimination, unlike Title VII, which covers race, gender and religion. Until now, there was also a loophole under Section 1981 in that it doesn't specifically prohibit retaliation for invoking rights under that statute. That loophole has been closed, by the U.S. Supreme Court.

The case is CBOCS West v. Humphries, decided on May 27. Reviewing the history of Section 1981 and a related statute, Section 1982, which Congress enacted in 1860's to prohibit racial discrimination in the ownership of real property, the Court held today that Section 1981 does prohibit retaliation. The Supreme Court notes that the Courts of Appeal, including the Second Circuit, are already in agreement that Section 1981 prohibits retaliation.

In dissent, Justice Thomas, joined by Justice Scalia, argues that since the plain text of Section 1981 does not mention retaliation, the statute cannot be interpreted that way, and that "Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather, it is the result of his conduct."

The consequences of today's opinion may not be apparent to the casual observer. But as I noted above, Title VII carries a tight time-frame for pursuing rights under that statute. You have to bring the EEOC charge within 300 days of the discrimination in New York, and once the Right to Sue Letter arrives in the mail you have 90 days to bring the lawsuit. Many people put that off and miss the Title VII deadline. The backup claim is Section 1981, which carries a four-year statute of limitations.

D.C. Circuit: Paper money discriminates against the blind

The Second Circuit is not the only Court of Appeals in the federal system. There is also the D.C. Circuit Court of Appeals. In the absence of any civil rights rulings from the Second Circuit lately, we look to the D.C. Circuit today for anything interesting. The D.C. Circuit has not let us down. On May 20, 2008, it ruled that U.S. paper money discriminates against the blind.

The case is American Council of the Blind v. Paulson. The case interprets Section 504 of the Rehabilitation Act of 1973, which protects against disability discrimination in government programs that receive federal money. For most of us, spending paper money involves taking it from our wallets or purses and giving it to the guy behind the counter. But shut your eyes and figure out if that bill is a $5 bill or a $20 bill. That's what it's like to be visually-impaired. So the D.C. Circuit is ordering the federal government to do something about it.

The Court notes that "The current design of paper money springs from the world of the sighted." It adds:

Upon casual inspection, anyone with good vision can readily discern the value of U.S. currency; yet even the most searching tactile examination will reveal no difference between a $100 bill and a $1 bill. The Secretary has identified no reason that requires paper currency to be uniform to the touch. Instead, the fact that U.S. paper currency does not include features that are detectable by the visually impaired appears to have been a result of the type of “thoughtlessness and indifference” that Congress targeted under section 504. Moreover, the centrality to the Rehabilitation Act of empowering the disabled to engage in economic activity imbues the accessibility of currency with special importance. The visually impaired can hardly be “empower[ed] . . . to maximize [their] employment, economic self-sufficiency, independence, and inclusion and integration into society,” 29 U.S.C. § 701(b)(1), if in everyday transactions they cannot use the paper currency that they possess without the assistance of third persons. Where the basic task of independently evaluating the worth of currency in excess of 99 cents is difficult or impossible, the visually impaired are forever relegated to depend on “the kindness of strangers” to shop for groceries, hire a taxi, or buy a newspaper or cup of coffee.

This decision hits the federal government hard. The government defends itself by arguing that the blind can find ways to cope with the burden of paper money, i.e., relying on others to advise the nature of a $10 or $20 bill, using expensive computer equipment or folding their bills in a certain way to distinguish them from each other. But the Court of Appeals isn't buying any of this: "The Secretary's argument is analogous to contending that merely because the mobility impaired may be able either to rely on the assistance of strangers or to crawl on all fours in navigating architectural obstacles, they are not denied meaningful access to public buildings."

The government also suggests that there is no evidence that the visually-impaired have been scammed as a result of their inability to distinguish between denominations. The Court of Appeals suggests this is "[a] somewhat astounding proposition on its face" as the government "implies that criminal victimization is a necessary predicate for the disabled to invoke the rights protected under section 504. However, section 504 “is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity.”

In a disability discrimination case, the government can defend itself by arguing that accommodating the disabled will be an "undue burden." Not here, though. The government can afford to redesign paper money, and apparently suggesting that $1 bills can stay as they are, the court notes that "approximately half the paper currency that the Bureau prints in any given year are $1 bills." The government has redesigned paper currency in 1996 and 2004 to prevent counterfeiting, and it apparently squandered that opportunity to throw in some other changes to paper money that would have accommodated the disabled. Since other currency systems -- apparently abroad -- use different bill sizes or other ways to distinguish paper currency by touch, "the Secretary’s burden in demonstrating that implementing an accommodation would be unduly burdensome is particularly heavy."

Ninth Circuit: "Don't Ask Don't Tell" may be unconstitutional

The Second Circuit has been quiet as a mouse lately on civil rights issues of any kind, so here's a taste of the Ninth Circuit, which held this week that the military's "Don't Ask Don't Tell" policy governing gays and lesbians is constitutionally suspect.

The case is Witt v. Department of the Air Force, decided on May 21. Witt is a lesbian who was suspended from the Air Force, where she worked as as reservist nurse, because of her sexual relationship with another woman. The Secretary of the Air Force recommended that Witt receive an honorable discharge. She brought this lawsuit challenging the constitutionality of the "Don't Ask Don't Tell" rules which "permits discharge of members of the armed forces on account of homosexual activity." She prevails in the Ninth Circuit which finds that her substantive due process claim has merit.

Substantive due process is a legal theory that allows people to sue the government over unfair or unconscionable decisionmaking. It's not easy to win these claims, as the courts are reluctant to identify rights that are not specifically outlined in the Constitution. Examples of the kind of "fundamental rights" that may predicate substantive due process claims are the rights to privacy, travel and child-rearing. So, what about homosexual activity?

A few years ago, the courts would have, and did, uphold the constitutionality of the "Don't Ask Don't Tell" rules because gays and lesbians did not have any heightened rights under the Constitution. The law was upheld under "rational basis" review, which generally means that the government can defend the law with any rational justification. Constitutional lawyers know that rational basis review will kill any lawsuit because the government can come up with any reason to support any law. For this reasons, lawyers try to convince the courts to apply "heightened scrutiny" in reviewing their substantive due process cases. Heightened scrutiny is less deferential to the government than rational basis review.

In 2003, the Supreme Court issued Lawrence v. Texas, 539 U.S. 558 (2003), ruling for the first time that the constitutional protects the fundamental right to engage in adult consensual sexual acts. Lawrence overruled a Supreme Court decision from 1986 which held otherwise in context of gay and lesbian sex. How does Lawrence affect lawsuits challenging "Don't Ask Don't Tell"? Does rational basis review still apply when the Supreme Court has now granted protections for homosexual relationships? The answer, according to the Ninth Circuit, is yes. Lawrence changes the landscape for cases involving gay and lesbian relationships. Here's the gist of what the Ninth Circuit did:

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.

This is groundbreaking reasoning. Never before, to my knowledge, has a Federal court granted heightened protections because of sexual orientation. That protection previously applied for claims alleging racial, gender and religious discrimination.

The case will continue, as the government now has the opportunity to defend the "Don't Ask Don't Tell" law. But not just any reason will suffice this time around. The Court notes that "it is unclear on the record before us whether [Don't Ask Don't Tell], as applied to Major Witt, [is constitutional]. The Air Force attempts to justify the policy by relying on congressional findings regarding “unit cohesion” and the like, but that does not go to whether the application of [Don't Ask Don't Tell] specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest." The case is thus sent back to the trial court "to develop the record on Major Witt’s substantive due process claim. Only then can [Don't Ask Don't Tell] be measured against the appropriate constitutional standard."

The Circuit Court suggest that Witt may win the case. After noting that the question for the lower court is whether the law, as applied to Witt, is constitutional, in a footnote, the Court says that "the facts as alleged by Major Witt indicate the contrary. Major Witt was a model officer whose sexual activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under DADT and, even then, it was her suspension pursuant to DADT, not her homosexuality, that damaged unit cohesion."

Court of Appeals publicly reprimands lawyer for neglecting case

You can't take a client's money and then fail to proceed with his case because the client is not paying the bill. That's the message today from the Court of Appeals, sending an immigration lawyer to the grievance committee for possible violation of the ethical rules.

The case is Bennett v. Mukasey, issued on May 12. The lawyer took a retainer from the client but was not paid in full. So the lawyer did not process the appeal, and the Court of Appeals dismissed the case. One year later, the attorney asked the Court to reinstate the case and explained that he did not prosecute the appeal because the client wasn't paying his bill. As Judge Newman states in his ruling, "By his own admission, Rosenthal evidently believes that a
retainer agreement and initial payment for an appeal imposes upon counsel no obligation to pursue the appeal, that required steps may await further payment, and that a client’s appeal may be permitted to be defaulted and dismissed for lack of such further payment. The
Lawyer’s Code of Professional Responsibility, as adopted by the New York State Bar Association makes clear that Rosenthal is incorrect."

The Court of Appeals will not punish the client for the sins of his lawyer, so the case is reinstated. The lawyer, however, will have to answer to the Second Circuit's grievance panel. For the rest of us, here is some legal advice:

a lawyer’s practice of accepting an initial retainer fee and then deliberately failing to take required action because of non-payment of additional fees, thereby permitting his client’s petition to be dismissed, is unacceptable.

. . .

Of course, a retained lawyer can either pursue contractual remedies to collect unpaid fees or seek leave to withdraw, but he cannot abandon his client for lack of a promised payment nor neglect his professional responsibilities until such payment has been made.

Section 8 benefits restored under Article 78

There's a quick and easy way to challenge unfair governmental decisions in New York: the Article 78 proceeding. We call them Article 78's because the can be found in Article 78 of the Civil Practice Law and Rules. These are expedited proceedings that usually don't involve a trial, where you submit an affidavit and documentary evidence in an effort to convince the court that your ill-treatment by a State entity was "arbitrary and capricious" or that a hearing officer's adverse findings were not supported by "substantial evidence."

Article 78's are difficult to win because the government usually gets the benefit of its expertise in making administrative decisions. A determination is arbitrary and capricious when it shocks the conscience. A hearing officer's ruling is not supported by substantial evidence unless there is some evidence to support that decision. These burdens of proof make Article 78's an uphill battle.

But not always. In Matter of Bush v. Mulligan, handed down on May 6, 2008, the Appellate Division ruled in favor of a Section 8 recipient who was denied subsidized housing benefits because Westchester County thought she was defrauding the agency. The Appellate Division overruled that decision and ordered that the Section 8 benefits be restored. What happened was that at the hearing convened to determine whether to revoke Bush's benefits, it became clear that she was suffering from a cognitive deficit and having memory lapses. He couldn't answer the questions posed to him at the hearing. So the hearing was adjourned so that medical professionals could assess Bush's condition. These professionals unanimously agreed that Bush was not capable of remembering things and that she "cannot function autonomously at this point in her life."

The hearing officer ignored this evidence and ruled against Bush anyway, finding that "you were neglectful and avoided your responsibility to be truthful in relation to reporting complete and honest information regarding income change to the Section 8." The Appellate Division cannot understand why the hearing officer ignored all this medical evidence about Bush's mental condition. So, in particularly strong language, the Court concludes:

In light of the clear and uncontroverted evidence that the petitioner is suffering from vascular dementia, a progressive disease that affected her memory and ability to handle her affairs, combined with additional evidence that the petitioner's IQ placed her in the mildly mentally retarded range, the Department's determination to disqualify the petitioner from the Section 8 Program based upon fraud and an intentional failure to provide truthful information, was not supported by substantial evidence. The result of this disqualification is to leave this elderly, mentally-challenged individual homeless, a result not only contrary to law, but shocking to one's sense of fairness.

Can you sue the City for prosecuting an unconstitutional State law?

Here's a great question that can arise in a Section 1983 civil rights action: if you are prosecuted by the City for violating what turns out to be an unconstitutional Sate law, can you sue the City under Section 1983 on the theory that the City's enforcement of that law was the kind of unlawful "policy" that can give rise to a Section 1983 action?

That answer was resolved (kind of) by the Second Circuit in Vives v. City of New York, decided on May 1. Here's the dilemma: if you're victimized by a civil rights violation, you can sue a government official or municipality under Section 1983, which authorizes these lawsuits for the violation of a Federal right. Suing a municipality is harder than you think, because you have to show the City or County violated your civil rights under a "policy." This is because, in suing the City, it's not enough to show that your civil rights were violated by a City employee like a police officer.

In Vives, the City prosecuted the plaintiff for distributing political literature which caused a City official alarm. The Federal judge ruled that the Penal Law under which Vives was prosecuted, Section 240.30(1), governing aggravated harassment when someone's communication causes someone else "anger or alarm," violates the First Amendment because it potentially covers protected and nonviolent speech. Vives then sued the City for enforcing this law against him, arguing that its decision to prosecute him amounted to City policy. So the question, as the Second Circuit puts it, is: "whether -- and under what circumstances -- a municipality can be liable for enforcing a state law." That issue has never been resolved by the Second Circuit, and the Court cites other Circuit court rulings which have only nibbled around the edges.

The issue boils down to whether the City was required to enforce the Penal Law or whether it had a choice in doing so. A municipality's decision to fulfill its mandatory obligation in enforcing the Penal Law is not policy, as it has no choice but to comply with State laws. But the Court of Appeals holds, "On the other hand, if a municipality decides to enforce a statute that it is authorized, but not required, to enforce, it may have created a municipal policy." The Second Circuit thus sends the case back to the district court to determine whether New York City had a meaningful choice as to whether it would enforce this provision of the Penal Law and, if so, whether the City adopted a discrete policy to enforce this law insofar as that choice represented a conscious choice by a municipal policymaker.

You may ask, why doesn't the plaintiff just sue the State of New York for enacting an unlawful provision of the Penal Law which violates the First Amendment? You can't sue the State for this because it is not a "person" under Section 1983. For technical reasons, cities and other municipalities are "persons" under Section 1983. So why not sue the police officer who applied that provision of the Penal Law in arresting you? Because the police are immune from suit when they simply enforce an existing law; the officers are just doing their job. Vives' only damages action for his arrest and incarceration was against the City. When his case went to trial on that theory, the jury awarded him $3,300 for his troubles. That damages award is vacated so the trial court can resolve the question of whether the City's policy of enforcing the Penal Law violated Vives' rights.