$76,000 First Amendment verdict is taken away

This case has been kicking around for quite some time. The plaintiff argues that the Town of Babylon (on Long Island) accused him of violating the Town's rental permit requirements in violation of the First Amendment (he claimed the Town retaliated due to his free speech) and due process. The First Amendment claim survived pre-trial motion practice, and the case -- originally filed in 2012 -- went to trial in 2019. Plaintiff won the trial. But things did not end with that victory. Oh Lord, they did not.

The case is Mangino v. Town of Babylon, a summary order issued on May 29. The retaliation theory was that the Town denied approval of his rental permit and initiated civil enforcement proceedings against him because he had previously objected to the Town's fee practices and enforcement methods. So, the kinds of issues that normally play out in state court -- zoning, etc -- became a federal lawsuit due to plaintiff's First Amendment claim. The jury ruled in plaintiff's favor, awarding him approximately $76,000 in damages. 

But wait! The trial court set aside the verdict as agains the weight of the evidence and ordered a second trial. This time around, the Town won the case. Plaintiff now appeals from the earlier order throwing out the favorable verdict. He loses the appeal. 

The Court of Appeals (Walker, Lee and Robinson) reviews that order under the "abuse of discretion" theory, which is highly favorable to the trial court. Appellate courts give the trial judges the benefit of the doubt in making these rulings. The trial court is in the best position to know if the evidence really supports the verdict and whether the interests of justice warrant a new trial. This case is no different. The Second Circuit holds that the trial court "carefully reviewed both testimonial and documentary evidence and concluded that the first verdict could not be reconciled with the record." The trial court found that the verdict simply could not be supported by the trial evidence, which had serious holes in it, the Court of Appeals finds.

We tell juries that they are the ultimate arbiter of the case and that we trust their judgment. When the jury renders its verdict, it leaves the courthouse believing the case is over and they did their job. The jury has no idea the case continues while the judge and the attorneys -- and maybe even the Court of Appeals -- picks through the evidence to see if the jury got it right. This case is a good example of that. It is uncommon for the trial judge to set aside a plaintiff's verdict on these grounds, but it does happen. The lawyers may understand the trial court's reasoning in ordering a new trial after the plaintiff has already prevailed. My guess is that plaintiffs will always be confused about what happened: we won the trial, the trial judge took away the verdict, we had a second trial, and a new jury ruled against us. 

Disparate impact case for social workers' licensing exam is rejected on appeal

This race discrimination claim alleges that the licensing exam for certain social workers discriminates on the basis of race because Black and Hispanic test-takers perform significantly worse than white candidates but that the Association of Social Work Boards, which administers the tests, knew about these disparities but did not correct them, resulting the plaintiffs' failing test scores. The case loses even prior to the commencement of discovery.

The case is Alameda v. Association of Social Work Boards, a summary order issued on May 15. This is a disparate impact case, where the plaintiffs can win even if the testing board did not intend to discriminate on the basis of race. For a disparate impact case to succeed, however, the plaintiffs have to satisfy a demanding legal standard that employs statistics and particular formulas. But first we have a mundane legal issue under Title VII: can the plaintiffs even sue the testing company under this civil rights statute?

Under Title VII, you can only sue the employer for discrimination. The testing people were not plaintiffs' employers. Cases hold that you can hold a third-party liable under Title VII where your formal employer "has delegated one of its core duties to a third party." But the Second Circuit (Perez, Nathan and Katzmann [Court of Intern'l Trade]) finds the defendant here is not such a "third party" that would create an employee-employer relationship under Title VII. 

Plaintiffs also sue under Section 1981, which prohibits racial discrimination in making contracts. There is no employee-employer relationship requirement under Section 1981 in this case, but plaintiffs lose on a different ground relating to the merits of the case: they have not plausibly alleged a disparate impact claim.

Plaintiffs rely on statistics to assert their case, pointing to the disparate test results among white and Black and Latino/a test-takers. But under the cases, to assert such a claim based on statistics alone, you have to show the statistical disparity is "of a level that makes other plausible nondiscriminatory explanations very unlikely." In other words, you need a dramatic statistical disparity. The Court holds that the statistical disparities here do not satisfy that demanding test.

First Department reinstates sex discrimination case

The Appellate Division has reinstated a sex discrimination case against a securities firm on the basis that the case is not untimely and the plaintiff can argue that her termination was the product of a continuing violation. This is a useful ruling for employment discrimination plaintiffs under the New York City and State Human Rights Laws.

The case is Farmer v. Mizuho Securities, LLC, issued on May 12. Plaintiff claims the brokerage firm assigned her a smaller percentage of the market and a lower risk limit compared with male colleagues, and that a supervisor made disparaging comments about her appearance and suggested that she use her gender to gain favor with male colleagues. After plaintiff complained to HR about this, the supervisor vowed to get her fired, and he disparaged her job performance to others at the firm, calling her a cheater. She was forced to resign against her will. 

While the lower court dismissed the case on the pleadings, the First Department holds the plaintiff has a viable case, noting that pleading standards under the City law are lenient in discrimination cases, in contrast to the federal system, where cases are dismissed under a more exacting test thanks to the Supreme Court's dual rulings in the late 2000's, Twombly and Iqbal. "Given the allegations that defendant terminated plaintiff following months of consistently disparate treatment, plaintiff adequately pleads a causal connection between the disparate treatment and the termination. In addition, plaintiff's allegation that defendant falsely characterized its decision to end her employment, stating that it was a voluntary departure, further raises an inference of discrimination."

In emphasizing that federal pleading standards do not apply in state practice, the First Department says out loud what few state appellate rulings have overtly said on this topic, though the understanding that Iqbal pleading does not apply under the Civil Practice Law and Rules.  

The hostile work environment claim is also reinstated. While the lower court said this claim fell outside the statute-of-limitations, "the complaint, as pleaded, sufficiently alleges that the termination was the culmination of a single continuing pattern of discriminatory or retaliatory conduct extending into the limitations period, thus linking the wrongful conduct to the termination. It cannot be said as a matter of law that [the] alleged discriminatory and retaliatory acts . . . were not part of a single continuing pattern of unlawful conduct extending into the three-year period immediately before the filling of the complaint."

The First Department further holds that plaintiff's termination falls within the continuing violations rule, rejecting the trial court's ruling that her termination should be considered legally distinct from other kinds of gender-based treatment. The Court observes, "The City HRL focuses on unequal treatment regardless of whether or not the defendant has engaged in tangible conduct, such as hiring and firing. Thus, under the City HRL, the continuing violation doctrine can operate to link untimely allegations of unequal treatment to timely allegations of unequal treatment, such as plaintiff's termination."

Finally, have have further proof that the State and City HRL's should be interpreted identically. The City HRL, and its liberal proof requirements, has been on the books for several decades. When the State Legislature amended the State HRL in 2019, it was unclear if that law aligned with the City law. It does. Courts are now saying as such, and the First Department explicitly says so in this ruling, perhaps for the first time, though it cites Syeed v. Bloomberg LP, 41 N.Y.3d 446 (2024), a State Court of Appeals case, for that principle. 

Bergstein & Ullrich prevail in striking down speech rules at West Point

Judge Lifts West Point’s Restrictions on Civilian Professors’ Speech

A federal judge also said that the government had offered no real justification for limiting the ability of a professor who sued to express opinions in a Military Academy classroom.

The Military Academy at West Point cannot limit certain speech of its civilian faculty, a federal judge ruled.Credit...Nathan Howard/Reuters

By Benjamin Weiser

May 26, 2026

The Military Academy at West Point cannot require civilian faculty members to obtain approval before using their West Point affiliation to speak to outside audiences about their areas of expertise, a federal judge ruled on Tuesday.

The academy also cannot prevent a professor, Tim Bakken, from expressing his opinions to students in the classroom on subjects he teaches, Judge Cathy Seibel of U.S. District Court in White Plains, N.Y., said in the ruling.

Professor Bakken, who has taught at West Point since 2000, had sued the academy, saying that its policies had violated the First Amendment. He has spoken and written frequently and at times critically about the U.S. military, including West Point, his lawsuit notes.

Judge Seibel issued a preliminary injunction blocking both the approval requirement and the restrictions on Professor Bakken’s speech.

She said that the government had offered no real justification for limiting his ability to express opinions in the classroom. She said the rule was “nonsensical if the mission is to prepare the nation’s future military officers.”

“For genuine strength and leadership to result,” Judge Seibel wrote, “cadets must be exposed to a variety of viewpoints and trained to think critically about them.”

“West Point cadets are already, by definition, smart, tough and patriotic,” the judge added. “They are not snowflakes who will somehow be harmed by learning about controversial issues or competing viewpoints. They will not somehow be weakened in their future defense of our country if their classroom discussions are robust and open.”

The judge noted in her decision that the policies at West Point followed an executive order, “Restoring America’s Fighting Force,” signed by President Trump a week after he took office. It was aimed at Diversity, Equity and Inclusion programs within the military and also barred the military from promoting certain “un-American, divisive, discriminatory, radical, extremist and irrational theories,” the ruling noted.

Mr. Trump has targeted mostly private universities and their faculty since returning to office last year, often threatening to cut off funding, and accusing them of antisemitism and indoctrinating students with ideas that run contrary to his agenda. Many of the schools, including some of the most elite ones, have settled in order to avoid further investigations and restore funding.

At West Point, following the order from Mr. Trump, professors were asked to remove course materials that discussed race, gender or painful parts of American history, The New York Times reported in May of last year.

Professor Bakken, 68, who obtained his law degree from the University of Wisconsin Law School, is the longest-serving law professor in the military academy’s history, his suit says. He is also the author of a 2020 book, “The Cost of Loyalty: Dishonesty, Hubris and Failure in the U.S. Military.”

The requirement that faculty members obtain prior approval when using their West Point affiliation to speak to outside audiences lists examples like journal publications, media interviews, social media posts and podcasts, according to a copy of the policy attached to the lawsuit.

As for restrictions in classrooms, Professor Bakken said in court papers that before the directive, he routinely shared his views on topics he taught in class. He no longer does so, he says. In court papers, he cited questions he received from cadets during the fall 2025 semester seeking his opinion on whether the death penalty is effective or about the value of the movement for deinstitutionalization of mentally ill people.

“I would have provided the cadets with my opinions and views in response to their questions,” he said in court papers. He added that he refrained from doing so because of the new rules.

Judge Seibel also denied the government’s request to dismiss Professor Bakken’s lawsuit. The government had argued that a government employer was entitled to place certain restrictions on speech, as in Professor Bakken’s case, “where the agency in question is a military academy charged with training the nation’s future military officers.”

The professor was free to speak “however and to whomever he chooses,” the government wrote, “so long as he does not utilize his West Point affiliation.”

“When he seeks to invoke his status as a West Point professor,” the government said, “there is a risk that whatever message he is espousing becomes attributable to West Point or the Department of Defense.”

Professor Bakken said on Tuesday that he was grateful that he and his colleagues were “free again to search for truth, and not be subject to the censorship of the military and the government.”

“The most serious threat to free expression is a prior restraint,” he said, “and the U.S. Military Academy applied it to all of its civilian professors.”

Professor Bakken’s lawyers, Jonathan R. Goldman and Stephen Bergstein, said the lawsuit seeks class-action status on behalf of all civilian professors at West Point, and they will now seek a permanent injunction against the policies in question.

The military academy declined to comment, citing the pending litigation. The U.S. attorney’s office for the Southern District of New York did not immediately respond to requests for comment.

West Point’s faculty includes 188 civilians and 495 military officers, according to a declaration filed in the case.

Benjamin Weiser is a Times reporter covering the federal courts and U.S. attorney’s office in Manhattan, and the justice system more broadly.

Father wins constitutional appeal after the city seized his child due to mother's neglect

This case arose when the government determined to remove the child, KA, from the plaintiff-father, KW, on the basis that the child's mother was unsuitable to raise KA due to neglect and problems relating to her prior children. KW paid the price for the mother's neglect, as the government separated him from his son for nearly three years. KW, who was never accused of wrongdoing, brought this due process case.

The case is KW v. City of New York, issued on May 19. The government summarily removed the child from KW on the basis that there was no time to obtain a court order. That makes this a Fourth Amendment and due process case, which the district court dismissed on the pleadings. The Court of Appeals (Sack, Perez and Briccetti [D.J.]) notes that while cases allow the government to remove the child without a court order, it needs to prove an immediate risk of harm to the child that makes it impossible to seek court intervention prior to removal. The issue is whether the government has "reasonably sufficient time" to get a court order. On this record, the government had such time, as it did not proceed with the sense of urgency that would normally attend an emergency child removal: after reviewing KW's residence shortly after his son was born, authorities actually allowed KW to remain with his son for the night, though he was required to bring the baby into the offices of the Administration for Children's Services the following morning. The jury could find that the government did have time to get a court order before taking the child into state custody.

Plaintiffs also sufficiently alleges that the lengthy separation between KW and KA violated the Fourth Amendment because they plausibly claim that caseworkers made intentionally false statements about KW in order to obtain the removal order that separated father from son. While there was in fact a removal order, and that may support a probable cause finding against the father, that presumption is overcome by the allegations that authorities acted in bad faith in removing the child.

As for the due process claim, the Court of Appeals notes that the father has a liberty interest in not being separated from his son, one of the oldest constitutional rights in the American system. But the lawsuit plausibly asserts that KW was denied sufficient pre-deprivation notice of the child-seizure and he was further denied an adequate opportunity to defend himself against the allegations against him. 

The City asserted a qualified immunity defense, arguing that they acted in good faith and therefore did not objectively know they were violating the law. But this appeal arises in a Rule 12 motion-to-dismiss context. Courts frown upon such early qualified immunity rulings without adequate discovery. Moreover, the complaint, if true, suggests the government did violate clearly-established case law in proceeding against the father.

Union's case against Trump administration's funding requirements is moot

Here is another case that originates from the current political environment: a teachers' union sued the U.S. Department of Justice, the Attorney General, and other high-ranking federal officials, challenging the Trump administration's termination of approximately $400 million in federal funding to Columbia University and its demand that the University agree to certain programmatic changes that would align with the conservative administration's policies. But then Columbia and the government struck a deal to restore the majority of the funding and Columbia agreed to implement certain reforms. Is the case now moot?

The case is American Association of University Professors v. U.S. Department of Justice, issued on May 14. The case is moot, says the majority (Chin and Kahn [Menashi dissents]), because the requested relief is no longer needed; the parties agreed to resolve the case on their own without court intervention. 

In the district court, the judge held the union lacked standing to even bring the case, and it thus denied the motion for preliminary injunction. The union appealed to the Second Circuit. While the case started out as an exciting attack on the Trump administration and its effort to force universities to adopt its policies, the case ends in a whimper, as the Second Circuit explores whether the case is moot and, if so, whether to vacate the lower court ruling in favor of the union. 

The question is what to do about the district court ruling that denied the preliminary injunction on standing grounds. The default rule is to vacate, or do away with, the ruling, which "clears the path for future relitigation of the issues between the parties" and ensures that unreviewable judgments do not "spawn any legal consequences." We have special rules guiding whether to vacate the lower court ruling, including whether the appellant is at fault for causing the mootness. For instance, if the appellant acts in a manner intending to moot the appeal, then we don't vacate the lower court ruling. But if the appeal becomes moot because of the appellant's good faith actions, then we have vacatur. In this case, the majority opts to vacate the lower court ruling because Columbia and the government took steps to mooting the case by reaching an out-of court resolution. 

Supreme Court to deterimine if Title IX authorizes employment discrimination lawsuits

The Supreme Court is going to decide whether sex discrimination victims may sue schools and universities under Title IX, which prohibits sex discrimination in federally-funded educational institutions. This case will resolve a split in the lower federal circuits, many of which (including the Second Circuit) hold that Title IX does authorize such cases, even if you can also bring these claims under Title VII.

The case is Crowther v. Board of Regents of the University System of Georgia. The case arises in the Eleventh Circuit, which said that Title IX does not authorize such lawsuits. Title IX is a close relation to Title VII, the general employment discrimination statute that allows plaintiffs to sue for sex discrimination against their employers. But Title IX is also a sex discrimination law, though it does not expressly reference employment cases; rather, it allows you to sue educational institutions for sex discrimination, which may encompass discrimination in high school sports or college programs.

Although Title IX does not explicitly state that it prohibits employment discrimination in the educational setting, according to the certiorari petition filed in Crowther, eight Circuit Courts have interpreted Title IX to permit private claims for sex discrimination in employment. The Second Circuit is one of those circuits, ruling in Vengalattore v. Cornell Univ., 36 F.4th 87 (2d Cir. 2022), that "Title IX allows a private right of action for a university's intentional gender-based discrimination against a faculty member." Citing prior Supreme Court authority, including Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Court in Vengalattore held that it is "now well settled that . . . a private right of action is implied" for employees under Title IX. In 2022, the Sixth Circuit held in Snyder-Hill v. Ohio State Univ., 48 F.4th 686 (6th Cir. 2022), that Title IX's implied right of action is not limited to students, and can also be invoked by employees, in that case, school-contracted referees. 

As I wrote in summarizing the Vengalattore ruling four years ago:

[Title IX] is often invoked in cases involving college sports, discrimination against students, and sexual harassment. Can you also sue for employment discrimination under Title IX (which does not require an EEOC charge and therefore has a longer statute of limitations?) In dismissing this claim, the district court stated that "[a]lthough the Second Circuit has not ruled on whether a private right of action exists under Title IX for claims of employment discrimination, '[a]n overwhelming majority of district courts in this Circuit have found that an implied private right of action does not exist[] under Title IX for employees alleging gender discrimination in the terms and conditions of their employment.'" The Court of Appeals disagrees and interprets Supreme Court authority to allow such claims, noting that the Court said in New Haven Board of Educ. v. Bell, 426 U.S. 512 (1982), that "employment discrimination comes within the prohibition of Title IX." Despite that language from Bell, courts were in disagreement about the scope of Title IX, but the Second Circuit notes that most of the other circuits are in agreement that employees may involve Title IX in employment discrimination cases. 

Three Circuits disagree with the Second Circuit and the other courts that permit employment discrimination cases under Title IX: the Eleventh Circuit, the Fifth Circuit, and the Seventh Circuit. But post-Jackson, the Eleventh Circuit is the only Circuit Court to hold as such; the other cases pre-date Jackson. So the Crowther case will focus on what the Supreme Court did in Jackson and what Jackson really means. The Supreme Court has a way of re-interpreting prior cases years later. The only Justice on the Jackson case who sits on the Supreme Court today is Clarence Thomas, and he dissented in Jackson. So we can't predict what will happen in Crowther.

Why sue under Title IX and not Title VII? For one thing, if you sue under Title VII, you have to file a charge of discrimination with the EEOC and then wait six months before you can file the lawsuit. Under Title IX, you can go straight to court without bothering with the EEOC, which may or may not investigate or try to mediate or do much of anything. Also, Title VII has a shorter deadline than Title IX.