Plaintiff may litigate anti-white bias in the workplace influenced by the City's diversity training

The Court of Appeals has held that a white woman who was subjected to racial comments arising from her public employer's diversity training may sue the New York City Department of Education for a hostile work environment. This is among the few cases where a white plaintiff has enough evidence to proceed on such a claim.

The case is Chislett v. New York City Department of Education, decided on September 25. Plaintiff, an educator with the Department of Education, attended mandatory implicit bias training, which focused on white supremacy and related topics. The Court says a rational jury may find that "racist comments were expressed during bias trainings" and that this bias spilled into everyday workplace interactions as "employees expressed terminology from the trainings at [plaintiff]." Viewing the record in plaintiff's favor (a necessary process in reviewing the propriety of summary judgment), the Court notes that, following this training, coworkers criticized her by stating, i.e., she was making "race-based judgments," could "not be trusted," benefited from white privilege, and that she was racist and "white and fragile." 

The district court rejected plaintiff's racial harassment claim, but the Court of Appeals finds she has a case. The Second Circuit (Leval, Nardini and Bianco) holds the evidence supports a finding that the Department has a custom or policy of racial harassment against white employees, sufficient to support a Monell claim, because the racially hostile work environment may have been "the product of a municipal policy." This is a unique holding, as "policy and practice" claims often fail under the stringent legal standards articulated by the Supreme Court. The pattern of racist comments that followed the training permits the finding that this took place because of the training sessions. While some of the anti-white comments were directed toward other employees, the Court notes that "discriminatory conduct not directly targeted at or spoken to an individual but purposely taking place in her presence can nevertheless transform her work environment into a hostile or abusive one." 

While the conduct of implicit bias trainings is not per se racist, the Court says, "What matters here is the way the trainings were conducted," and employers risk liability "when employment trainings discuss any race with a constant drumbeat of essentialist, deterministic and negative language about a particular race." This is the first time the Second Circuit has said this, borrowing language from a district court ruling in Pennsylvania. When the Court of Appeals relies on an out-of-Circuit district court ruling, you know the Court means business about this issue. What hurts the City in this case was its failure to remedy the problem when plaintiff lodged a complaint about the offensive workplace statements, often dismissing her concerns outright, and the "tolerant awareness" of supervisors, suggesting they were "acquiescing in such abuse."

While the city argued that "many of the identified statements should not form the basis of a hostile work environment claim because they occurred in the context of discussions about combating discrimination," the Court says "the fact that the purpose of the sessions was to combat race discrimination does not excuse the alleged presence of race discrimination in the conduct of the sessions." At the same time, the Court says "we do not suggest that calling someone racist by itself constitutes racial discrimination or forms the basis of a hostile work environment claim."

Italian-American organization cannot sue New Haven to retain Columbus statue owned by the City

The City of New Haven removed a statue of Christopher Columbus from Wooster Square Park, a prominent public space. The plaintiff is an Italian-American organization that wants the statue to return to the public square. They sue the City under Section 1983, asserting the statue was removed in violation of due process. The plaintiff loses.

The case is Italian-American Defense League v. City of New Haven, a summary order issued on September 25. While Columbus was long viewed as a hero for "discovering America" in 1492, historians over the years have raised serious questions about his ill-treatment of the Native Americans who got there first. The removal of these statues, and renaming Columbas Day as Indigenous Peoples Day, is the product of the revised focus on Columbus. That's the backdrop for this case.

Plaintiff gets a minor victory along the way. The Second Circuit (Menashi, Cabranes and Livingston) says the organization has associational standing to bring this lawsuit, as it represents the interests of the individuals who object to the statue's removal. The organization "represented that several of its members live near Wooster Square Park, the former site of the Christopher Columbus statue. The complaint described the neighborhood around Wooster Square Park as 'home to many Italian-Americans who have chosen to live there so as to share their lives with others of similar[] heritage.'" The Court adds that "these residents 'place a unique value on living in the vicinity because it is known to many as 'Little Italy' and hosts 'annual festivals and events celebrating Italian-American heritage.' These allegations gave rise to the reasonable inference that many of the residents derived aesthetic and recreational benefits from regularly viewing a statue that 'was intended to signal the contributions Italian-Americans had made to American culture and society.'” These facts give the organization standing to bring this case. 

But plaintiff loses the case on the merits. That's because, to prevail under the Due Process Clause, you have to show the government denied you a liberty or property interest without due process, usually in the form of a fair hearing or a chance to be heard.

There is no such liberty or property interest in this case. The Supreme Court has given "liberty" and "property" precise definitions. Here, the Court says, while "the plaintiffs alleged a 'property interest in the historical preservation of Wooster Square Park, its buildings, structures and features,'" New Haven’s Charter gives the City the power to manage, regulate and control all City property,” and “[t]he Columbus statue is property of the City of New Haven.” Since the organization does not own the statute, it lacks any property interest in its continued placement in the park. In other words, "The plaintiffs do not have a property interest in a statue that belongs to the City. Nor do the plaintiffs have a 'liberty' interest in the statue remaining in the neighborhood."

New trial for inmate after jury ruled against him

The best way to get a new trial if the jury rules against you is to argue that the trial court got the jury charge wrong. A good deal of the trial court's decisionmaking at trial is difficult to challenge on appeal, as the judge had discretion to admit or deny certain evidence. But the judge has no authority to instruct the jury improperly. We learn that lesson in this case.

The case is Sloley v. Vanbremer, a summary order issued on September 26. This case alleges that correction officers subjected plaintiff to a body cavity search in violation of the Constitution. The trial court initially dismissed the case on summary judgment, but the Second Circuit reinstated case on the basis that the jury could find the officers conducted the highly-intrusive cavity search without reasonable suspicion. The citation for that ruling is 945 F.3d 30 (2d Cir. 2019).

While other searches, such as one that does not involve cavity searches, do not carry the reasonable suspicion standard, this heightened standard applies to cavity searches because they are more intrusive. Under the reasonable suspicion standard, the officer needs "reason to believe, based on specific and articulable facts, taken together with rational inferences from those facts, that an arrestee is secreting contraband inside a body cavity." That language derives from the earlier appeal in this case.

Since plaintiff won the first appeal, the case went to trial. The jury ruled against plaintiff. But the case is not over! When the trial court charged the jury, it said that "the relevant question is do the circumstances of plaintiff's arrest support a reasonable suspicion that he was hiding contraband in or on his person?" The "in or on" language is the problem here. The "on" component of the jury charge allows the jury to rule against plaintiff if it found the officer had reasonable suspicion to believe that plaintiff had drugs on his person rather than in his body cavity. If the jury interpreted the charge that way, then it could have determined that the cavity search was OK even if the officer only thought that plaintiff had drugs on his person instead of inside a body cavity. 

Since the jury charge was incorrect, plaintiff gets a new trial, as the plaintiff may have lost the case under an incorrect legal principle. The defendants argued that, notwithstanding this charge, the charge overall was OK because the jury elsewhere in the charge gave the jury a correct statement of the law. But the Court of Appeals (Merriam, Parker and Newman) notes that the Second Circuit has long held that a bad charge is not cured by the correct standard elsewhere in the charge. And, while the verdict sheet correctly stated the legal principle guiding this case, that does not cure the error in the jury charge, either, since language in the charge and not the verdict sheet controls this inquiry. As the Second Circuit states, "the jury can only read the verdict form in the light of the explicit instructions the court has given."

Sexual harassment claim is reinstated on appeal

The Court of Appeals has reinstated a hostile work environment claim asserted by a small-town police officer who claims her superior touched and groped her in a manner that violated Title VII and state law. 

The case is Arnold v. Town of Camillus, a summary order issued on September 23. I briefed and argued the appeal. A.J. Bosman, Esq., handled the case in the district court and assisted on appeal. 

On the summary judgment motion, the Northern District of New York held that plaintiff did not establish that the hostile work environment was "severe or pervasive" because it did not happen frequently enough. But as the Second Circuit has held over the years, it is enough for plaintiffs to allege the harassment took place on a regular basis, even if the plaintiff does not provide details about time and place. That is what happened here, and that claim is revived on appeal. The Court summarizes the evidence as follows:

 

For example, she offered testimony that “throughout the course of [her] career at the Camillus Police Department,” Defendant James Nightingale, a more senior police officer, engaged over an extended period in repeated “unwelcome and offensive touching of [her] body, including [her] arms, shoulders, and back” and, on one occasion, “above [her] groin,” even though it was “unnecessary” to perform his job duties. In addition, male officers testified that they had “never had [Nightingale] touch [them] in that way nor seen him touch other men in that fashion.” Male colleagues also observed Nightingale “repeatedly touch” Arnold, “stand directly over her while she was on the computer or sitting in a chair,” “plac[e] his hand on her back or shoulder,” and “touch[] her with his hands as he would walk by her.” Arnold also testified that Nightingale’s “conduct was frequent and noticeable enough that it became a running joke” within the police department, and that “the incidents began long before” she began documenting them in 2017.

While plaintiff did provide a summary of the harassment when she complained to the Police Chief about Nightingale in 2017, she did not list all the incidents. That omission, however, does not mean the jury cannot credit plaintiff's testimony about the other episodes. This may raise a credibility issue for trial, but it cannot be used against plaintiff on summary judgment if she details them in an affidavit in opposition to dismissal.

 

Plaintiff also asserted a disparate treatment claim, asserting that Nightingale did not sent her to enough training or allow her to instruct fellow officers, and that he did so because of her gender. The Court of Appeals affirmed summary judgment on this claim because plaintiff  could not show these personnel decisions were gender based. While the harasser was the same individual who assigned the training and instruction, and plaintiff heard him say that "women shouldn't be cops," the Court of Appeals said without significant discussion that this was not enough to prove the training and instruction denials were based on sex discrimination. The Court reasons, "The statement, offensive though it is, is not connected to any “workplace policy, practice, or decision” Nightingale made about Arnold’s training or instructional opportunities." For this principle, the Court cites Young v. United Parcel Serv., Inc., 575 U.S. 206, 213 (2015). 

 

It is unclear to me how Young supports this holding, In Young, the Supreme Court stated that "We have also made clear that a plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas." I guess the Second Circuit interprets this language to mean that, to support a finding that Nightingale denied plaintiff certain workplace benefits because of sex, he had to say "women shouldn't be cops" in the precise context of his decision to deny her training and instructional opportunities. I ask you this: would the jury require such a connection in order to find that Nightingale's comment means he denied plaintiff these benefits because of her sex? If the jury believes plaintiff's testimony that Nightingale thinks women should not be police officers, and it further finds that he prevented plaintiff from attending certain training sessions, would it be too much for the jury to say that sex discrimination motivated these personnel decisions?

Various gun control laws in New York do not violate the Constitution

This gun-rights litigation challenges New York's gun control law and its application in Suffolk County. The Court of Appeals finds the "good moral character" requirement for owning a gun is consistent with the Second Amendment. It also holds that New York can legally require permit-seekers to have an in-person meeting with the permit-giver to submit certain information, except that the requirement forcing applicants to list their social media accounts is likely unconstitutional. The requirement that applicants complete 18 hours of firearms training is also likely legal, and the plaintiffs will most likely lose their arguments that Suffolk County takes too long in issuing permits. 

The case is Giambalvo v. Suffolk County, issued on September 12. This lengthy ruling issued one week prior to another gun-rights case also decided by the Second Circuit, the summary of which you can all read about at this link. Both rulings were written by Judge Bianco, who is now the unofficial expert on the Second Amendment in New York. 

 

Plaintiff sought a preliminary injunction against enforcement of these rules, which requires a showing that they are likely to win the case and will suffer irreparable harm without an early ruling in their favor. The loss of constitutional rights usually creates irreparable harm, so these cases usually turn on whether the plaintiffs can win the case when the litigation is over.

Ever since the Supreme Court issued a new constitutional framework in New York State Rifle and Pistol Ass'n v. Bruen (2002), gun rights cases have become more complex. In a nutshell, gun control laws violate the Second Amendment unless the challenged law is consistent with the laws in place when the Second Amendment was enacted in 1791 and the Fourteenth Amendment was enacted in 1868. Not an easy task, as judges have to review older statutes, court rulings, and scholarship going back over 100 years. 

Here's what the Court of Appeals (Bianco, Parker and Rakoff [D.J.]) did in this case, nearly two years after oral argument (again, owing to the complexity of these issues):

1. The good moral character requirement is likely constitutional. The Court of Appeals has already held as such in Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), and this panel reaffirms that reasoning in this case. The family-relations disclosure requirement was also upheld in Antonyuk, as was a requirement that gun permit seekers disclose other personal information. But that case said the social media requirement was likely unconstitutional, so that holding applies to this case.

2. New York also requires permit-seekers to disclose character references. Prior cases have said this requirement is legal. One case said that colonial-era gun rules had a reputation-based character reference requirement. You don't want an unsavory character to be running around with a gun, do you? This challenge therefore fails.

3. What about the requirement that permit-seekers have an in-person review in order to obtain a concealed carry license? Similar regulations were on the books many years ago, from the colonial era to the Reconstruction era, in various states. You want a face-to-face meeting with the gun owner to size him up and ensure he will not be shooting his gun off like Quick Draw McGraw. That makes this law constitutional.

4. We got ourselves a firearms training requirement, as well. The Supreme Court, in its seminal decision, District of Columbia v. Heller (2008), which said for the first time that the Second Amendment protects the right to individual gun ownership, said such training requirements are legal. We want gun owners to know what they are doing. Since then, other courts have held the same. The 18-hour training requirement is presumptively legal under the Second Amendment.

5. Finally, plaintiffs allege that Suffolk County takes its sweet time in issuing gun permits. While the Supreme Court has said that "lengthy wait times" may have constitutional implications, plaintiffs have no right under the Second Amendment to require that the county rule on such permits within 30 days. This qualifies as the kind of short delay that the Constitution will tolerate. 

New York's gun control law does not violate the Second Amendment

The latest round of Second Amendment litigation in the Second Circuit holds that, consistent with the Second Amendment, New York can (1) prohibit carrying firearms in "sensitive locations" like the New York City subway system, the Metro-North Railroad, and Times Square, (2) prohibit "open carry," and (3) require that a state concealed-carry license holder receive a New York City-specific permit to carry a gun in New York City. These bans are most likely legal and can withstand a constitutional challenge.

The case is Brey v. City of New York, issued on September 19. The plaintiffs sought to preliminary enjoin enforcement of these gun restrictions. To win, they have to navigate the Supreme Court's ruling in New York State Rifle and Pistol Ass'n v. Bruen, issued in 2022 and which holds that gun laws violate the Second Amendment unless the government can show the current restrictions bear some relationship with the gun restrictions in place when the Second Amendment was enacted in 1791 (when the Bill of Rights were enacted). We also consider the legal landscape in 1868, when the Fourteenth Amendment, which incorporates the Bill of Rights against the states was enacted. This framework, new to constitutional law and incorporating classic "original intent" principles of constitutional interpretation, forces federal judges to master the history of gun laws, not an easy task since we are reaching back well over 100 years to solve the problems of today. 

1. On the "sensitive location" gun restrictions, the Court of Appeals (Sack, Raggin and Bianco) finds that this nation's historical tradition of gun laws has regulated firearms in crowded places. This goes back centuries, and it therefore applies to Times Square (with 300,000 visitors daily and hundreds of restaurants and other attractions, like Broadway), the subways and the railroad, where we are often packed in like sardines. Older firearms laws barred guns in enclosed crowded spaces, and nothing says enclosed crowded spaces like the New York City subway and the Metro-North Railroad. 

2. The open carry ban in New York, requiring that we conceal our guns in public, is consistent with language in Bruen stating that modern Anglo-American history has subjected us to rules guiding "the manner of carry," open carry in particular. 

3. As for the requirement that gun owners get a special city permit, even assuming this issue is properly before the Court, which can only permit a facial challenge to a statute if the law is unconstitutional in all its applications, plaintiffs cannot enjoin its enforcement because "we have a strong historical tradition of allowing localities to implement their own, often stricter, regulatory measures within their jurisdictions." Like the rest of this court ruling, the opinion cites older statutes, court rulings, and scholarship such as law review articles. 

 

One week after the Court of Appeals issued this case, it handed down another Second Amendment that for the most part upheld other portions of New York's gun control laws. And you can read all about that case tomorrow. 

Non-lawyers may not be able to give legal advice in debt-collection cases

 As the Second Circuit puts it in this case, debt-collection lawsuits "are one of the most common lawsuits in New York," in which credit card and other lenders sue people for not paying their bills. Yet, the vast majority of these cases result in a default judgment for the money-people, as the defendants do not show up in court. All the while, the Court says, many of these cases are actually baseless and the defendants don't owe anyone anything. The plaintiff organization in this case is trying to help debt-defendants fight these cases in court, but with one catch: the plaintiff is not a lawyer and would assist clients as laypeople, not lawyers. Plaintiff thus challenges New York's prohibition against the unauthorized practice of law in this context. While the trial court ruled in plaintiff's favor, that victory is now in jeopardy as a result of this court ruling. The law may in fact be constitutional, and the trial court will have to take on this issue once more.

The case is Upsolve v. James, issued on September 9. If you want to give legal advice in New York, you have to go to law school and pass the bar. The plaintiff-organization in this case is trying to get around that by advising debt-collection defendants on how to fight back against credit card and related lawsuits to recover unpaid debt. Particularly, they want to advise pro se New Yorkers on how to complete the state's check-the-box form for answering debt-collection lawsuits. 

Plaintiffs frame this lawsuit under the First Amendment, claiming their advice to pro se litigants in these cases is free speech. The Court of Appeals denies the plaintiffs' argument and says that while plaintiff is technically engaging in speech, the speech regulation is content-neutral and may be legal under the more government-friendly standard that the trial court must apply to the case on remand.

As I noted, these lawsuits are commonplace and often meritless, but when the defendant fails to show up in court, the debt-collectors win the case and the defendants' credit rating collapses and they suffer wage-garnishment and other consequences. The plaintiff is a "justice advocate" in the Bronx who has seen  his community suffer the consequences these debt-collection lawsuits, as they don't understand their rights and cannot afford to hire a lawyer. While plaintiff is not a lawyer, he has probably mastered this process to ensure that his "clients" are not getting the shaft.

In this preliminary injunction posture, where the plaintiffs have to show they are likely to prevail on the merits and therefore deserve a favorable court order right now, the Second Circuit (Sullivan, Leval and Merriam) agrees that the law is a speech restriction. Legal advice is free speech. Courts have said this over and over. 

But the First Amendment does not advance absolute speech rights. There are limits. Otherwise, George Carlin's "seven dirty words" would be broadcast on network television every night. Even if a statute regulates speech, it is legal unless it regulates speech based on content, i.e., it discriminates on the basis of what someone wants to say. If the law is content-neutral, then the law does not violate the First Amendment unless the government can advance a darn good reason for the speech restriction. 

Since the statute regulating the unauthorized practice of law applies to any individual practicing law, regardless of the type of law he wishes to practice, whether it involves debt-collection or personal injury, this facial-neutrality may be consistent with the First Amendment. But we are not 100% sure of this at the moment, as the case returns to the district court to apply "intermediate scrutiny" (more favorable to the government in these cases) than "strict scrutiny" (almost a sure win for the First Amendment plaintiffs). Since the district court wrongly applied strict scrutiny and not intermediate scrutiny, the district court must apply this new analysis to the case.

Important but unsettled prevailing wage issue sent over to the New York Court of Appeals

Under New York Labor Law, no worker performing certain work on public works projects can be paid less than the prevailing rate of wages. Courts hold that a worker can sue to recover prevailing wages on a third-party beneficiary breach of contract theory. In this case, the plaintiffs worked as fire alarm testers and inspectors for a private entity, Comfort Systems, which did not pay them the prevailing wage. That tees up a number of important issues guiding these claims, and one of those issues lands at the doorstep of the New York Court of Appeals, which will resolve that question so the Second Circuit can further proceed with the case.

The case is Walton v. Comfort Systems USA, issued in September 9. The defendant contracts with public entities in New York for fire alarm testing and inspection, including school districts, community colleges, and the like. Its contracts with these public entities shortens the statute of limitations for a claim against Comfort Systems for one year. Some contracts even state that Comfort Systems is not required to pay the prevailing wage under local, state or federal law. The entire case got dismissed in the Northern District of York, but the Court of Appeals brings it back, holding as follows:

1. The work performed by plaintiffs is covered under the Labor Law, defined as "construction, maintenance or repair work." Testing and inspecting fire alarms qualifies under this statute. The New York Department of Labor has already decreed as such, and the court defers to the DOL due to its expertise on labor matters. The DOL has said that state contracts related to fire system maintenance treat "maintenance services" as including "testing, inspection and monitoring." If it's good enough for DOL, then it's good enough for the Court of Appeals.

2. The Second Circuit is unable to decide whether Plaintiffs can vindicate their right to enforce the Labor Law through a civil claim against Comfort Systems for breach of contract based on a  third-party beneficiary theory. Reviewing state court rulings and legal principles on this issue, the Circuit says the cases and rules are all over the place on this point, and the New York Court of Appeals has never resolved this issue, either. Policy justifications for and against allowing plaintiffs to bring a third-party beneficiary action also point in different directions.Here is the dilemma:

On the one hand, the New York Legislature’s requirement that public works contracts specifically include a prevailing wage commitment suggests it intended to give workers a private contract claim to enforce the prevailing wage right—especially given the lack of any other enforcement mechanism at the time. And it would be incongruous to allow a public contractor to avoid that potential  liability by simply ignoring its statutory obligation and omitting the required language from the public works contract. A strong argument can be made that by virtue of § 220(3)(a), every public works contract includes the required prevailing wage provision, whether or not it expressly says  so, and without regard to the contracting parties’ intent to allow a third-party beneficiary claim. 

On the other hand, under ordinary common law principles in New York, that’s not how third-party beneficiary claims usually work. And Comfort Systems makes a fair point that Plaintiffs chose to pursue a third-party beneficiary breach of contract claim rather than to pursue administrative claims.

Once the New York Court of Appeals resolves this issue, the case will return to the Second Circuit to apply the new legal principle to this case.

3. What about the reduced statute of limitations? We have a six-year statute of limitations for ordinary third-party beneficiary breach of contract claims. The contract used by defendant in this case only gives you one year. While parties to a contract may stipulate to a shorter statute of limitations, and a one-year limitations period is generally reasonable. In addition, under New York law, third-party beneficiaries are generally bound by the terms of the contracts to which they sue, including reduced statutes of limitations. Under these principles, "there is a reasonable probability that the Court of Appeals of New York would conclude . . . that Plaintiffs' claims are time-barred." But, what complicates this issue is "the recognition that New York courts do not appear to apply standard third-party beneficiary common law principles when assessing claims by workers to enforce their rights" under the Labor Law. Cases go either way on this issue. That issue is now for the New York Court of Appeals, as well.

Certification to the New York Court of Appeals will delay resolution of this appeal by another year. You have to comply with a new briefing schedule and then oral argument, which will take place in 2026. Since these are new issues for the New York Court of Appeals, it will take time for that court to settle this issue. Then the case returns to the Second Circuit to follow-up on the State Court of Appeals' resolution of this issue. We will get a final ruling on this appeal by late 2026 or 2027.

 

Christian School cannot be punished for forfeiting basketball game against transgender athelete

I am surprised this case has not gotten more attention. The Court of Appeals addresses a prominent issue in the modern culture wars: transgender athletes. The Court holds that a private Christian school may challenge the Vermont Principals' Association's decision to punish the school after it forfeited a basketball game in which the opposing team which had a transgender girl on the roster.

The case is Mid Vermont Christian School v Saunders, issued on September 9. This was a playoff game where the opposing team had a transgender athlete. The Christian School forfeited the game because it violated their religious principles. As the Court of Appeals puts it, "The school believes that forcing girls to compete against biological males would affirm that those males are females, in violation of its religious beliefs." In a press release, the school also said that "playing against an opponent with a biological male jeopardizes the fairness of the game and the safety of our players," and that allowing the transgender athlete to complete in the game "sets a bad precedent for the future of women's sports in general." In forfeiting the game, the defendant association expelled the school from all state-sponsored extracurricular activities. Hence this case brought under the First Amendment's Free Exercise Clause.

The Second Circuit (Park, Wesley and Sullivan) says the district court should have granted the school a preliminary injunction striking down the adverse consequences of its failure to complete against the team with the transgender athlete. While free exercise challenges fail when the government applies a facially-neutral rule against everyone, that rule does not apply here because the school can show the VPA did not act neutrally toward plaintiff's religious beliefs. Here's why:

1. Shortly after this all happened, Jay Nichols, the VPA's executive director, testified before Vermont's House Education Committee as follows:

A state approved Christian private school sends a letter to the VPA asking that another school no longer be allowed   to   play   a   transgender   identifying youth . . . . [T]his Christian school forfeits so they won’t have to play against this team that has a transgender student . . . . The VPA followed the law, of course, and our policies, and will continue to ensure this child and all transgender  student  athletes  have  equal  access  to educational opportunities the same as all Vermont children should have.  Thank goodness the student in question didn’t attend that religious school . . . but what if they did?  Would we be okay with that blatant discrimination under the guise of religious freedom?

The Court of Appeals says this public comment "supports the inference that the VPA's punishment was informed by hostility toward certain religious beliefs." This would mean that Nichols "failed to serve as a neutral decisionmaker who gave full and fair consideration to Mid Vermont's religious objection."

2. In the school's administrative appeal to the VPA's Academic Standards Committee, that body "explained that the substance of the religious claim was 'wrong,'" and it therefore did not just attack the school's  religious sincerity but the validity of the school's objection. As "courts should not inquire into the centrality of a litigant's religious beliefs," the committee imposed discipline based on its view that the school's religious objection was wrong.

3. Expelling the school from extra-curricular activities violated VPA's own norms, as it has never before banned a school from all sporting events, and the school was also banned from any interschool activity, such as spelling bees and math competitions. Nor did VPA follow its own procedures in imposing the expulsion, the Second Circuit holds, as it rushed to impose discipline without conducting a formal investigation and other due process guarantees.
 

 

Second Circuit gives one to the inmates

This inmate rights case issued last week. In earlier blog posts, I explained why their due process and conditions-of-confinement claims failed. But the Second Circuit further holds that two of the inmates have a First Amendment claim alleging that corrections officials violated their right to religious expression.

The case is Baltas v. Chapdelaine, issued on September 3. Inmates do have First Amendment rights, and the religious freedom provisions are found in the First Amendment. They do not have the same rights that the rest of us do, as they are locked up in a prison. The Supreme Court has said that jailers can restrict these freedoms if they assert a "legitimate penological interest," such as prison security. That deferential standard dooms many such cases, but not all of them.

Plaintiffs claim that defendants infringed their right to the free exercise of religion because they requested to attend Native American religious services but those requests were denied. As the Court of Appeals (Park, Nardini and Carney) puts it, "Defendants declined to offer any penological justification for refusing Baltas and Tarasco access to those services." This particular prison in Connecticut has a "sweat lodge," which allows inmates to pursue their Native American rituals. "Sweat-lodge ceremonies may involve healers and participants sitting around a steam-producing fire in a domed lodge."

Even though the prison did not offer any justification for denying the plaintiffs' request to attend these services, the district court said the defendants are nonetheless immune from suit because no prior case says inmates have the right to attend a sweat lodge. In other words, the district court said, objectiely speaking, plaintiffs cannot win their case. But the district court framed the qualified immunity inquiry too narrowly. The right question is whether inmates have the right to access congregate religious services where they already exist and are available. Viewing the issue from that angle, plaintiffs had a clearly-established right that defendants may have violated, and the case may proceed.

The prison also denied plaintiff's request to "smudge," which involves burning grasses or tobacco led by an elder or spiritual leader. The district court again granted the defendants immunity on the basis that there is no case that says you have the right to smudge in prison. Once again, the trial court framed the qualified immunity question too narrowly. The Court of Appeals finds that inmates have a more general right to attend congregate religious services. This claim will also proceed to trial.

Inmates lose due process claim over solitary confinement and denial of religious services

These inmates sued the state of Connecticut because they were locked up in solitary confinement, enduring what they claim were unconstitutional conditions of confinement. They sue under the due process clause, which the Supreme Court has interpreted to protect inmates from certain liberty deprivations without due process. The inmates lose this claim.

The case is Baltas v. Chapdelaine, issued on September 3. Inmates do have rights, you know. The Supreme Court will not go so far as to strip inmates, even convicted criminals, of their rights just becase they are bad people. But the Court has made it difficult to win these cases. In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court scaled back due process for inmates in holding that they can only prove a deprivation of liberty when the jail conditions post an "atypical or significant hardship," and the conditions create a "major disruption" to their living environment. The Second Circuit has further explained the rules this way:

Relevant factors “include the extent to which the conditions of the  disciplinary  segregation  differ  from  other  routine  prison conditions and the duration of the disciplinary segregation imposed compared to discretionary confinement.” “[E]specially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical.”

Plaintiffs lose the case. They claim that 23 hours of solitary confinement, with only one hour per day for outside recreational activity, deprives them of a liberty interest. But other inmates, in general population, only get two hours of outside recreation per day. As the Court of Appeals (Carney, Park and Nardini) states, "We have never held that such a deprivation of recreation and socialization constitutes an atypical and significant hardship[.]" Without such a holding, the defendants are entitled to qualified immunity.

Plaintiffs also claim their jailers violated their religious liberty by depriving access to religious services. "But their allegations do no rise to a cognizable hardship under Sandin," the Court holds, because one plaintiff was stuck in solitary confinement for five months, and "there is no caselaw establishing that denial of religious services for five months imposes an aytpical or significant hardship. While a prior Second Circuit case held a jail may deprive an inmate of religious services for 18 days -- far less time than the plaintiff asserts here -- the Second Circuit says "our decisions do not clearly establish a bright-line rule about when such deprivations are actionable under Sandin." Under the qualified immunity analysis, where the plaintiff has to show the public defendants violated a clearly-established right, plaintiff therefore cannot proceed with the case.

No constitutional claims for 22-hour solitary confinement or limited toilet access

Nine inmates in the Commonwealth of Connecticut sued their jailers, claiming jail conditions were bad enough that the prison system was violating their constitutional rights. We have a mixed victory for the plaintiffs. Some win the appeal, but most lose. In this segment, we talk about the ones who lost, shedding light on how qualified immunity works.

The case is Galtas v. Chapdelaine, issued on September 3. Plaintiffs were confined in Q-Pod, where you spend 22 hours a day, often without a cellmate, so it is true solitary confinement. During the other two hours, they get to play basketball in an outdoor yard, and they have visitation. Inmates in general population get three hours of such freedom each day. The Q-Pod also has toilets that only allow you to flush twice per five minutes. If that happens, you have to wait another give minutes before flushing again, and if you flush too often during a compressed time period, the toilet won't flush for 30 minutes. The prison says this flush policy is part of a municipal water-use policy, but plaintiffs claim the officer shut off the Q-Pod inmates' water for hours at a time. Is this a case?

On the isolation claim, the Court of Appeals (Carney, Park and Nardini) holds the defendant officers are entitled to qualified immunity, which shields them from suit if the law was not clearly-established at the time of the violation. You need a precedent in the Second Circuit that is close enough to yours on the facts to avoid this immunity. Otherwise, the officers are not on notice that they are violating the law. The Court holds that the 22-hour isolation rule is only one hour less than all other inmates, "and the Supreme Court has never held that 22 hours per day of isolation constitutes cruel and unusual punishment" in violation of the Eighth Amendment. Nor has the Second Circuit, and cases from around the country have not foreshadowed a particular ruling on this issue. The claim is too esoteric for the court to allow it to proceed.

As for the toilet flushing claim, same result. "Neither the Supreme Court nor this Court has held that shutting off toilet flushes 'for two to three hours at a time' violates the Eighth Amendment." While some cases hold that close exposure to your fecal waste is sufficiently degrading to permit a constitutional claim, those cases are more disgusting than this one. The Court holds, "Our caselaw does not clearly establish that a few hours without a flushing toilet violates the Eighth Amendment,"such that qualified immunity attaches on this claim, as well. 

From this case, you see how qualified immunity works. You can't just claim that the Eighth Amendment permits your lawsuit. And you can't cite cases that bear some relationship to your case. To proceed under Section 1983 for damages, you have to find a case that is sufficiently similar to yours that the defendants can be expected to know they are violating the Constitution in violating your rights. That is not the case on these claims, and they are dismissed for good.

How not to force arbitration on consumers

Courts often enforce arbitration agreements on the basis that the parties to that agreement know what they are getting into, even if the balance of power is one-sided, such as an arbitration agreement between a large employer and a new employee. But sometimes the courts find a way to hold the agreement is not enforceable, usually because the process is flawed and the objecting party did not have a fair shake. This is one of those cases.

The case is Sudakow v. CleanChoice Energy, Inc., issued on August 27. The plaintiffs contracted with CleanChoice to buy electricity. Defendant then sent plaintiffs a dispute-resolution form which contained an arbitration agreement. Companies like arbitration because any dispute will be resolved by a private arbitrator, not a court, which issues its rulings in public and must comply with the Federal Rules of Civil Procedure or its state-law counterpart. Plaintiffs did not sign the arbitration agreement, and when a real dispute arose two years later, they sued CleanChoice for breach of contract and deceptive business practices. CleanChoice moved to compel arbitration.

The district court found, and the Court of Appeals (Carney, Park and Kahn) agrees, that this case cannot be arbitrated and must be resolved in open court because plaintiffs never had sufficient notice that they were assenting to arbitration. The complication is this: “Under New York law, when an offeree does not have actual notice of certain contract terms, he is nevertheless bound by such terms if he is on inquiry notice of them and assents to them through conduct that a reasonable person would understand to constitute assent.” "New York courts look to whether the term was obvious and whether it was called to the offeree's attention."

The record contains no evidence of "actual notice" that would bind plaintiffs to any arbitration agreement. While defendant, later on, sent plaintiff the arbitration provision, it was "temporally and spatially decoupled" from plaintiff's enrollment in the service. In other words, the arbitration provision was sent too long after the original contract was signed. "And nothing in the Enrollment Agreement itself called attention to the possibility of any such forthcoming change. Accordingly, a reasonable person would not have understood that the Subsequent Terms altered her contract with CleanChoice." Nor was the arbitration provision sent to plaintiffs "in a clear and conspicuous way," arriving in a nondescript package that did not identify CleanChoice as the sender. The body of the letter inside obscured the existence of the arbitration provision. "CleanChoice thus failed to 'raise[] a red flag vivid enough to cause a reasonable person to anticipate the imposition of a legally significant alteration to the terms and conditions.'”

The anomaly in all of this is that if CleanChoice did it right and had plaintiffs sign the arbitration agreement from the outset, without shielding the agreement, plaintiffs may have signed it without giving the agreement much thought. The average consumer does not anticipate bringing a lawsuit against an energy provider (or any other entity) upon signing the initial contract. Nor do employees anticipate a wrongful discharge lawsuit two years later. Yet, once things went sideways with CleanChoice and plaintiffs went to see a lawyer who determined the arbitration agreement was unenforceable, it was too late for CleanChoice to undo the mistake and compel arbitration.