Friday, October 24, 2008

Court strikes down prohibition against political leafleting in teacher mailboxes

In Weingarten v. Board of Education, 08 Civ. 8702 (LAK), 2008 WL 4620573 (S.D.N.Y. Oct. 17, 2008), Judge Kaplan upheld the City's prohibition against teachers wearing political buttons to class. I wrote about that part of the case here. While that ruling generated news coverage, another part of the opinion was ignored, even though the teachers won that battle.

The Board of Education enforced a rule that allowed the union to distribute literature in teachers' mailboxes, but political literature could not be similarly distributed. The same rule applied to teacher bulletin boards. While courts have held that teacher mailboxes are not traditional public forums in that they do not have to accommodate unbridled free speech, even nonpublic forums cannot discriminate without any rational basis at all. Judge Kaplan cannot discern any rational basis for allowing union speech but disallowing political speech in teacher mailboxes and bulletin boards. This is especially the case where students have no opportunity to view the bulletin boards, which only service the teachers. So unlike the rule prohibiting teachers from wearing political buttons to class, there can be no argument that the bulletin board rule would confuse or unduly influence young student minds.

Judge Kaplan therefore enjoins enforcement of these speech restrictive rules. This is one of the rare cases where the plaintiff in a First Amendment case prevails in challenging speech restrictions in nonpublic forums. Even in this context, where the government has significant leeway in regulating speech, it must articulate a reasonable basis for the speech distinctions. In failing to do so, the Board of Education loses.

Wednesday, October 22, 2008

Court upholds prohibition against teachers wearing political buttons in school

New York City teachers wanted to wear political buttons to class in this election year. But the Board of Education requires teachers to "maintain a posture of compelte neutrality with respect to all candidates." The City was asking for a First Amendment lawsuit. It got one.

The case is Weingarten v. Board of Education, 08 Civ. 8702 (LAK), 2008 WL 4620573 (S.D.N.Y. Oct. 17, 2008). The trial court resolved a preliminary injunction motion by reviewing the state of free speech in the public schools. As a general rule, teachers and students have First Amendment rights in school, but those rights are limited in light of the need for efficient public service. We call that the Tinker principle, named after a 1969 Supreme Court ruling which remains the starting point for free speech in public schools. But that was 40 years ago, and this doctrine has undergone many twists and turns, mostly in favor of school districts.

Judge Kaplan had to iron out conflicting rulings on this issue. In James v. Board of Education of the Town of Addison, 461 F.2d 566 (2d Cir. 1977), the Second Circuit held that, without a concrete showing that this activity would interfere with the educational process, a high school teacher could not be punished for wearing an anti-war armband to class. But that was 30 years ago, and the case law has tilted in the direction of school districts even further. In 1988, the Supreme Court held in Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) that public schools can censor school newspapers to ensure both that students are protected from inappropriate speech and that controversial speech is not attributed to the school.

James may have been the Second Circuit's high point for teacher speech. Judge Kaplan finds that its persuasive authority has been seriously undermined by later developments in the Supreme Court. While James made it more difficult for school officials to regulate speech, Judge Kaplan finds that, post-Hazelwood and other court rulings over the years, the question today is "whether the defendants' view that the opinions conveyed by teacher-worn political buttons 'might reasonably [be] perceive[d] to bear the school's imprimatur' or otherwise interfere with the accomplishment of defendants' public role."

Formulating the issue this way hurts the plaintiffs. Judge Kaplan finds that school officials reasonably believed that the political buttons would interfere with the educational process. The court defers to the district's expert authority on the effect these buttons would have on young and impressionable students. Since the challenged regulation does not discriminate on the basis of political messages and teachers have other ways to express support for political candidates (like wearing their buttons outside of school), the regulation represents a good faith effort by school officials about the impact of political buttons in school. For this reason, the prohibition against wearing political buttons to school is upheld.

Friday, October 17, 2008

The New York lis pendens law is constitutional

In New York, someone filing a lawsuit that would affect title to real property can file a lis pendens, a document that makes it difficult for the defendant to sell off the land. The lis pendens is also filed when the lawsuit would affect use and enjoyment of the property. The document alerts future buyers of the land that a pending lawsuit involves that very property. While the landowner can sell the land, realistically, it's impossible with a lis pendens, because the buyer will have to live with the result of the lawsuit, and that result may frustrate the buyer's use of the property. Who would buy land with an active lis pendens? That's the point.

The lis pendens can be filed without the defendant's knowledge. The dramatic consequences of a document like this gave rise to a class-action lawsuit challenging the New York lis pendens law as a violation of constitutional due process, which guarantees notice and a right to be heard before the government deprives you of a property interest. Interesting case, to the say the least. So interesting that the Court of Appeals devotes 40 pages of analysis to the issue. In the end, the lawsuit fails. The lis pendens law satisfies due process.

The case is Diaz v. Peterson, decided on October 17. The Court of Appeals sidesteps the issue of whether the lis pendens represents a property deprivation, as it decides instead that even if it does, the law provides the property owner with sufficient due process.

Due process claims are more complicated than people think. The courts apply a balancing test, taking into account the property rights of the landowner, the risk of unfair property deprivation and the government's interesting in efficiently ensuring fair process. We call that the Matthews balancing test, after a Supreme Court case, Mathews v. Eldridge, 424 U.S. 319 (1976).

Under Mathews, the plaintiffs lose. First, since the property owner subject to a lis pendens continues to be able to inhabit and use the property, receive rental income from it, enjoy its privacy, and even sell it, lis pendens is deemed one of the “less restrictive” means of protecting a disputed property interest. Second, there is little risk of erroneous property deprivation under the statute, as the property owner is entitled to a hearing to make sure that the lis pendens was not filed in bad faith. While notice and hearing are afforded post-deprivation, this procedural safeguard suffices where “the nature of the issues at stake minimizes the risk” of wrongful deprivation. Finally, New York has an interest in safeguarding the property while the parties litigate the dispute in court. The concern is that an unsuspecting property buyer will walk into a legal dispute and be forced to live with the result of that lawsuit over which he has no control. This would only spawn additional litigation. The lis pendens allows New York to protect the property buyer.

Wednesday, October 15, 2008

No state action in suit against private mental health facility

The Constitution only regulates government behavior, not private behavior. Someone can censor you, and it would be legal, but if the government does it, it's illegal. We call it "state action," i.e., you can sue for a constitutional violation if there is state action. There was no state action in a lawsuit resolved today by the Court of Appeals, so the case is dismissed.

The case is Sybalski v. Independent Group Home Living Program, decided on October 15. The plaintiff sued a group home, alleging that it placed unlawful restrictions on family members from visiting their mentally-ill son after they complained about living conditions. Sounds like a First Amendment case, but it's not, because the group home does not have any connection with the government. The family argued that the home is extensively regulated by the state, and that this regulation creates a nexus between public and private entities, hence state action. But, as the Court of Appeals notes, "While the state has established substantive rights for patients in mental health facilities and procedures for protecting these rights, those actions, without more, do not amount to 'significant encouragement,' 'willful particip[ation],' or state 'entwin[ing],' in defendants’ decision to restrict the Sybalskis’ access to their son."

In other words, "While the State of New York has established procedures governing the limitations that mental health facilities place on the ability of patients to receive visitors, the administrators of those facilities make the decision about whether such limitations should be imposed. Accordingly, based on the facts alleged in the complaint, the state’s involvement in defendants’ decision to restrict the Sybalskis’ access to their son is insufficient to render that decision “state action” under the joint action test."

The plaintiffs also invoke the "public function" test, which creates state action if the otherwise private entity is performing a public function as defined by the courts. Under the public function test, “the exercise by a private entity of powers traditionally exclusively reserved to the [s]tate” can constitute “state action.” Not in this case. The operation of a facility like this is not a traditional state function, as opposed to the police or fire departments. As caring for the mentally ill is not a public function under this definition, there is no state action, and the case is dismissed.

Monday, October 13, 2008

Court of Appeals reinstates criminal conviction in civil rights case

A few years ago, an inmate at the Westchester County Jail died after he was beaten up by a corrections officer, Cote. The U.S. government brought an excessive force claim against Cote under the Federal civil rights statute, known as section 242, which criminalizes the use of excessive force by law enforcement. The case went to trial, and the jury convicted Cote. The trial court then vacated the conviction on a number of grounds, including its belief that inmate witnesses gave incredible testimony. The Court of Appeals reinstated the conviction.

The case is United States v. Cote, decided on September 24, 2008. At trial another corrections officer and three inmates testified about the beating. They recalled that Cote was angry that the victim hit another officer and that Cote punched and kicked the victim extensively. Also testifying was a medical witness from the local hospital who described the extensive external and internal injuries to the victim, Zoran Teodorovic, which included head injuries and multiple fractures in several areas. The medical witness said it was unlikely the victim sustained the injuries by simply falling to the floor.

Although the jury convicted Cote of using excessive force, the trial court vacated the verdict, reasoning that the inmate testimony was unreliable and incredible and not consistent with contemporaneous photographs which did not reflect severe injuries. The Court of Appeals reinstates the guilty verdict on the basis that the trial court has no authority to second-guess the jury's credibility assessments, particularly since "four eyewitnesses testified that Cote viciously assaulted Teodorovic while he was lying on the ground, already in a position of weakness." True, the witnesses gave conflicting accounts about how many times Cote kicked and beat the victim. But, as the Court of Appeals notes, "to the extent the inmate witnesses' testimony on the number of stomps and kicks to Teodorovic was inconsistent, however, the jury was entitled to reject the extremes of the testimony and conclude that the truth lay somewhere in between."

As for the photographs which did not depict the consequences of this brutal beating, the district court overlooked the medical testimony that serious internal injuries like those sustained by the victim are not always captured on film, and that CAT scans before the jury did reflect those injuries to the skull and brain.

Friday, October 10, 2008

Circuit clarifies standard in student disability cases

If a parent of a disabled student sues the school district under the Individuals with Disabilities in Education Act, he has to prove that the district did not provide the student with a “free appropriate public education” in “the least restrictive environment.” This means that the district has to draft an education plan for the student which will allow him to enjoy special educational benefits with the fewest restrictions possible. The question before the Court of Appeals this week was: how do the courts resolve claims that the district did not provide the least restrictive educational environment for these students?

The case is P., by and through his parents v. Newington Board of Education, decided on October 9. The courts recognize that the law contains two contradictory goals: if possible, the student should be "mainstreamed" in class with non-disabled peers, but there will be occasions when the district has to make arrangements for the student to receive his education outside the school, at a special facility for example. A factor in resolving these disputes is the recognition that educational policy is a local function, and the courts do not like to second-guess those decisions.

The Second Circuit has never determined exactly how to resolve whether a district is affording a disabled student educational services in the least restrictive environment. In this case, the court borrows the standard from the Third Circuit, which has stated:

in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services (the first prong of the two-part mainstreaming test we adopt today), the court should consider several factors, including: (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.

If, after considering these factors, the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider the second prong of the mainstreaming test – whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate.

In the end, like many legal tests, this is a case-by-case analysis, with the balance tipping toward the school district's independent judgment since these cases involve educational policy. The legal standard must also take into account the IDEA’s purpose of educating children with disabilities, “to the maximum extent appropriate, together with their non-disabled peers.” This does not mean the school district will win each lawsuit, but it's an uphill battle for the parents, including the plaintiffs in this case, who lose the case.

Wednesday, October 8, 2008

Southampton strip-search may violate the Constitution

A woman in Suffolk County, New York, was arrested and strip-searched at the Village of Southampton police station after she was pulled over for a traffic violation and the officer saw marijuana in the truck. Although the police had no reason to believe that she had drugs on her person, she was strip-searched by a female officer pursuant to police policy to strip-search all arrested females. The evidence suggested that the search was telecasted through the police department. The Court of Appeals says that can sue the Village as well as the police officers.

The case is Hartline v. Gallo, decided on October 8. The policy of strip-searching all female arrestees even without individualized suspicion that they are carrying contraband violates the Fourth Amendment prohibition against unreasonable searches and seizures. Hunches are not allowed under Second Circuit case law which, really, every law enforcement agency should know after all these years.

The Second Circuit (Wesley, Calabresi and Leval) reinstate the case which the district court dismissed. The Court is perplexed at what happened to the plaintiff, stating:

It is hard to imagine how the facts of this case could have led a reasonable officer in Officer Gallo’s position to suspect that Hartline was illicitly concealing drugs on her person. Officer Gallo had no reason to believe that Hartline was under the influence of narcotics at the time of her arrest. Officer Gallo found no useable narcotics in Hartline’s vehicle, nor did he see Hartline take any suspicious actions which might have suggested she was hiding something as he approached her vehicle. Officer Gallo did not notice anything about Hartline’s physical appearance that suggested she was secreting drugs on her person, nor did he engage in a less invasive pat down search that suggested the presence of contraband. Hartline answered every question that Officer Gallo asked her about drugs truthfully, yet Gallo did not even ask Hartline if she had any drugs on her person. Furthermore, Hartline had been arrested for nothing more serious than a B-misdemeanor.

The Circuit shot holes through the defendants' justifications for strip-searching this woman, concluding that these searches would be commonplace if the police department got away with the search here. "That result would be unacceptable in any society that takes privacy and bodily integrity seriously," the Court observes.

The only way out for the officers at this point is qualified immunity, which protects the police from lawsuits if the law was not clearly established at the time of the violation. But the Court of Appeals has been ruling against blanket strip-searches for two decades. Qualified immunity protects good-faith public officials who are not expected to be legal scholars in predicting what the court would do under unique circumstances. While the Second Circuit has never before held that a strip-search like this is illegal, it has never before suggested that it might be legal. Therefore, no qualified immunity for the officers.

Thursday, October 2, 2008

Mandatory arbitration is OK under Sarbanes-Oxley Act

A woman who sued her employer under the Sarbanes-Oxley Act (SOX) cannot maintain this whistleblower claim in court because she signed an arbitration agreement, the Court of Appeals held in a case of first impression in this Circuit.

The case is Guyden v. Aetna, decided on October 2. Under SOX, public companies cannot fire any employee who in good faith blows the whistle on a violation of federal securities law. When Guyden got her position, she signed an agreement to arbitrate any employment-related disputes. Agreements like this keep claims out of court, and most employees never think twice about signing away these rights when they start a new job. But these agreements can come back to haunt the employee when she needs to bring a lawsuit. It haunted Guyden, who was fired after blowing the whistle on securities irregularities.

Under the Federal Arbitration Act, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” As the Supreme Court noted in Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), this law embodies the “liberal federal policy favoring arbitration agreements” and “establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.”

Guyden's way out of this is case law holding that, when statutory claims are involved, a party can prevent enforcement of the arbitration agreement only by showing that “Congress intended to preclude a waiver of judicial remedies for the statutory rights at issue.” She argues that the arbitration agreement is not enforceable because her claim has a public purpose; it's not just a private lawsuit. This is so, she argues, because plaintiffs bringing a SOX whistleblower claim are acting as private attorneys general, and the litigation helps the public learn about a corporation’s fraudulent conduct.

The Second Circuit disagrees, noting that it rejected a similar argument in 1998 under a different law, the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, which had a similar objective as the SOX law. Moreover, SOX primarily aims to provide a private remedy for the aggrieved employee, not to publicize alleged corporate misconduct. And, the employee does not even have to show the allegations of corporate misconduct are true, only that she believed in good faith that they were true. As the Court of Appeals sees it, SOX is like most other employment statutes that provide for a private remedy. Claims in court may be waived in favor of arbitration.