Thursday, September 27, 2007

Attorneys' fees vacated in student disability case

When a high school student in City of Newburgh was suspended for his involvement in an altercation in the hallway, his lawyers went to court seeking a temporary restraining order and preliminary injunction, arguing that the school district did not properly determine whether this misconduct was a manifestation of his disability. The district court granted the injunction in May 2004, agreeing that the student had a case under the law governing the treatment of special education students, the Individuals with Disabilities in Education Act. Although the lawyers did not exhaust all state administrative remedies before bringing the lawsuit, the district court ruled that such exhaustion would have been futile because the state administrative process was not fast enough to allow the student to return to school and graduate on time.

The Court of Appeals reversed that determination on September 25. In Coleman v. Newburgh Enlarged City School District, the Second Circuit (Walker, Straub and Winter) held firm to the view that exhaustion of state administrative procedures is mandatory before the plaintiff can seek relief in court. The exception to that rule requires a showing that exhaustion would be futile or the case presents an emergency. Without addressing the district court's finding that the timeline governing the exhaustion of state administrative remedies was not fast enough to allow the plaintiff to graduate in time, the Court instead interpreted the IDEA to mean that students do not have the right to return to school while the state administrative process unfolds so long as the school provides home tutoring. The Court further held that students do not have the right under IDEA to graduate on time; they only have the right to a free and appropriate public education. The fact that plaintiff was due to miss graduation without injunctive relief does not create an emergency under IDEA since the "emergency exception" to that statute is limited to cases where the student will suffer physical or emotional injury without court intervention.

The irony of this case is that, after the district court granted the preliminary injunction, the student returned to school and graduated on time. The case wound up in the Court of Appeals after the district court granted plaintiff's motion for attorneys fees. The school district opposed the fee application on the basis that the failure to exhaust state administrative remedies meant that the district court had no jurisdiction to hear the case in the first place and that attorneys fees were therefore inappropriate. When the district court disagreed with that argument, the case went up to the Second Circuit, which vacated the attorneys' fee award and ruled that the district court should have dismissed the case from the outset.

Disclosure: our law firm handled the case on appeal.

Monday, September 24, 2007

Even Ford Motor Credit has due process rights

The government can seize your automobile if it can show that the car played a role in your criminal conduct. The process is called civil forfeiture, and a series of cases over last few years in State and Federal court has outlined the due process that the govermment must afford the owner of the vehicle. But if you're making payments on the car, what about the due process rights of the company that retains a security interest in the vehicle, like Ford Motor Credit, Inc.?

In Ford Motor Credit, Inc. v. City of New York, decided on September 24, 2007, the Second Circuit (Walker, Hall and Cote) ruled that these companies also have rights, particularly since they still own the car until the driver pays off the loan. The problem for these companies is that civil forfeiture takes a long time, and during that lengthy process, the value of the car decreases while it sits in a secure parking lot somewhere on government property. So the Court of Appeals ruled today that "Ford Motor Credit has a property interest in the present value of a seized vehicle." That way, it can get the car back and sell it while the car still has value.

Having a property right in something means that the government must provide you due process in order to take it away. Due process is an elastic term, and the Constitution provides almost no guidance about what process is due when the government wants to strip you of a liberty or property interest. For this reason, due process law is really judge-made, based on the court's sense of fairness while recognizing the need for the government to go about its business without too much red-tape.

In the context of car forfeitures, the Court of Appeals held, in addition to the driver, Ford Motor Credit is also an "interested party" for purposes of receiving due process. The City argued otherwise, claiming that Ford Motor Credit is not in any position to help the prosecution prove its case against the driver. That may be true, the Second Circuit said, but Ford Motor Credit still has an interest in getting the car back as quickly as possible, and that financial interest means that it has the incentive to move the criminal case along quickly.

In the end, due process for Ford Motor Credit is as follows: if the company has a security interest in the seized vehicle, the government must allow it participate in the forfeiture action and the forfeiture action must commence within 25 days from Ford Motor Credit's demand for the vehicle.

Monday, September 17, 2007

Military recruiting does not interfere with academic freedom

Law schools and colleges have to allow the military to recruit on their campuses. If these schools close their doors to military recruiting, they forfeit Federal funding under the Solomon Amendment, a Federal law. Since many colleges do not want military recruiting in light of the military's prohibition against gay servicemembers, this conflict pits the First Amendment against the Federal government's need to maintain the armed forces. Except that it's no longer a conflict. In 2006, the Supreme Court ruled, in Rumsfeld v. Forum for Academic and Institutional Rights [FAIR], 547 U.S. 47 (2006), that the Solomon Amendment does not violate the First Amendment right of these colleges and law schools to distance themselves from the military's discriminatory recruitment policies.

In Rumsfeld, the Supreme Court held that the plaintiffs in that case did not really assert a First Amendment right because "accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when the host interviews and recruiting receptions." The Supreme Court also rejected other First Amendment arguments in the Rumsfeld case, but it did not say anything about whether the Solomon Amendment affects academic freedom, also a First Amendment interest.

This is where Burt v. Gates comes in. That suit was filed by a host of Yale Law School professors who are trying to get around the Rumsfeld decision by saying that the academic freedom issue was not resolved in Rumsfeld. The professers are forced to make this argument since, of course, the Supreme Court's ruling in Rumsfeld is binding on the lower Federal courts. Law professors being law professors, they came up with a way to distinguish the Rumsfeld case.

In a ruling handed down on September 17, the Second Circuit (Pooler and Raggi) disagreed with the law professors, for two reasons. First, although the Supreme Court in Rumsfeld did not specifically deal with the academic freedom argument, the Supreme Court implicitly rejected that argument. As the Second Circuit reasoned, the plaintiffs in the Rumsfeld v. FAIR case were also academics. "It would defy reason to assume that the Supreme Court ignored plaintiffs' status as academics in rejecting their First Amendment arguments. Because the parties and amici squarely argued academic freedom and the Court concluded that all of plaintiffs' First Amendment arguments lack merit, it is much more likely than not that the Supreme Court rejected the FAIR plaintiffs' academic freedom argument, thus precluding us from accepting the same argument."

But the Second Circuit ruled that even if the Supreme Court did not implicitly reject the academic freedom argument in the Rumsfeld case, the Yale Law professors should lose anyway. The Yale professors argued that academic freedom allows them to reject military recruiting without fear of losing Federal funding because they have the right to instill in their students a commitment to equal justice under law and ensuring a diverse student body. These values are threatened in allowing the military to recruit students into an environment that discriminates against gays.

As the Supreme Court has defined the phrase, academic freedom concerns the university's right to control the classroom environment without government interference. However, according to the Second Circuit, "[t]he relationship between barring military recruiters and the free flow of ideas is much more attenuated. The Solomon Amendment places no restruction on the content of teaching, the membership of teachers in organizations, the selection of students, or evaluation and retantion of students. While requiring universities to grant military recruiters that discriminate in hiring equal access to their campuses and students may incidentally detract from the academic mission of inculcating respect for equal rights, this requirement undermines educational autonomy in a much less direct and more speculative way than do the policies" that were struck down on academic freedom grounds in other Supreme Court cases over the years.

Thursday, September 13, 2007

Fraternity cannot keep out women if it wants official college recognition

A religious fraternity at a public university will not allow women to join on the theory that women will destroy collegiality at the fraternity and even disrupt the organization through possible romantic encounters which will create jealousy among the members. The public university (City University of New York) denied this fraternity official college recognition, which greatly hampered the fraternity's ability to function. So the fraternity sued in Federal court, claiming the First Amendment protects its right to intimate association. The question in this case pits the First Amendment right of association with the college policy prohibiting discrimination on campus.

The trial court granted the injunction in favor of the fraternity. In Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, the Court of Appeals (Leval, Calabresi and Gibson) on September 13 reversed and found in favor of the College of Staten Island, a CUNY institution. This decision clarifies how the courts should resolve First Amendment association claims. It also makes it quite difficult for fraternities to gain official recognition from public and even private colleges, most of which have sweeping anti-discrimination policies.

The fraternity won the injunction at the trial court because the judge simply held that the fraternity had a right to freedom of association under the First Amendment. The Court of Appeals ruled that this analysis was too simplistic. When associational rights affect close familial relationships, then it is nearly impossible for the government to interfere with those rights without advancing a compelling interest which is usually impossible to establish. Since the fraternity did not invoke the familial associational right, it was not an issue here.

Other associational claims fall within a gray area. This includes the fraternity's desire to keep women out of the club. While the Supreme Court recognizes that organizations do have the right to "intimate association" for purposes of emotional enrichment and the promotion of shared beliefs, we look at the organization's size and selectivity in determining whether that associational right may be upheld. While the fraternity in this case is small, that is not by choice and its president hopes to have more student members some day. While the fraternity is selective, it needs to keep replenishing its membership each year as students graduate. And while the fraternity claims the men's-only policy promotes brotherhood and close relationships among its members, that policy could affect any number of student organizations on campus. The fraternity also sponsors events at which non-members are invited, including women. These factors, the Court of Appeals ruled, weigh against recognizing the fraternity's First Amendment associational rights.

Meanwhile, the Court noted, the College itself has certain interests at stake, including enforcing its policy of non-discrimination on campus. The College of Staten Island, like most colleges, has a written policy advancing diversity and non-discrimination. While fraternities and sororities have long existed as single-sex institutions, the Second Circuit ruled, the college's interest in promoting anti-discrimination outweighs the fraternity's interest in brotherhood. Since the fraternity can exist even without official college recognition (which confers certain benefits), the College wins the case.

Sunday, September 9, 2007

Title VII retaliation: the cover-up is worse than the crime

A Southern District judge has ruled -- apparently for the first time -- that an employer in a discrimination case cannot avoid liability in arguing that it erroneously thought the employee was complaining about discrimination in bad faith. While the employer may claim that its erroneous belief proves that it did not maliciously retaliate against the plaintiff, the values promoted by the anti-retaliation laws override that defense.

The discrimination laws mean very little if an employer can retaliate against an employee for complaining about discrimination. This is why nearly all anti-discrimination laws contain a built-in retaliation prohibition. Without the anti-retaliation protection, the employee may win the battle (the underlying discrimination dispute) but lose the war (getting fired). The only hitch is that the employee must raise his discrimination complaint in good faith. The anti-retaliation provisions do not protect an employee who tries to save his job by raising a frivolous discrimination claim.

In Sanders v. Madison Square Garden, 2007 U.S. Dist. LEXIS 65309 (S.D.N.Y. Sept. 4, 2007), Judge Lynch considered the question of whether the employer can win the case by showing that it punished the employee because it (erroneously) thought she raised her discrimination complaint in bad faith. In Sanders, the employer argued that this evidence means that it did not act with an unlawful motive. On a motion for summary judgment, Judge Lynch agreed with the employer, rejecting the plaintiff's retaliation claim. But on the plaintiff's motion for re-argument, the Court changed its mind, stating, "On reflection, the Court finds that this was a mistake."

When was the last time we saw this kind of mea culpa? Motions for re-argument are rarely granted in any court. That would require the court to acknowledge that it made an error. I would imagine that, when presented with a strong motion for re-consideration, the judge takes a few walks around the block and really thinks it over. After Judge Lynch wandered around the neighborhood surrounding the Federal courthouse in lower Manhattan, he returned to his office and issued a new ruling. This is what he said:

Judge Lynch reminded us that the following elements make out a retaliation claim: the "plaintiff must show that: (1) she engaged in a protected activity; (2) defendant was aware of that activity; (3) she suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse action." Although the employer may think the plaintiff complained of discrimination in bad faith, the fact remains that the employee still "engaged in protected activity." Judge Lynch reasoned (italics mine):

This is not just a matter of too close a verbal parsing of language in court opinions. There is a good reason why this is so. Contrary to what the Court indicated in the summary judgment opinion, if an employer fires an employee because he believes her otherwise-protected activity opposing alleged sex discrimination amounts to extortion or obstruction of justice, this is not a firing for a reason distinct from her oppositional behavior. On these assumptions, if the employer's "knowledge" of the employee's conduct actually "influence[s] the manner and timing of" the employee's discharge, the employer is in fact firing the employee because of the employee's protests, and not for some other reason.

If an employer were permitted to fire employees who protested alleged illegal discrimination, simply because the employer believed the complaints were unfounded or malicious, the employees' protection would be illusory. Employers could easily make false claims that they disbelieved in the employees' good faith. But it is not just a question of possible false defenses. Undoubtedly, many employers do in fact believe that employees' complaints of discrimination are completely without merit. But the law requires the employer to tolerate such complaints, and not to retaliate because of them. So long as the employee in fact acts in good faith when she brings a discrimination complaint, she is absolutely protected against retaliation for her complaint, even if the employer's alleged conduct does not actually violate Title VII. She only loses this protection if she is in fact acting in bad faith. Although employees who make up false complaints of discrimination are not protected by the act, if an employer chooses to fire an employee for making false or bad faith accusations, he does so at his peril, and takes the risk that a jury will later disagree with his characterization.
This language represents a ringing endorsement of the policies underlying the anti-retaliation clauses of most employment laws. Message to the employers: as the cover-up is often worse than the crime, punish the complaining employee at your own risk.

Monday, September 3, 2007

The Second Circuit giveth, and taketh, away

Prisoners file Habeas Corpus motions following their convictions in an effort to gain a new trial or burst free from the chains of incarceration once and for all. Habeas Corpus is a procedure that allows the inmate to show that his conviction was obtained illegally. In our court system, that usually requires a showing that the trial judge in State court committed unconstitutional errors in finding you guilty. The Federal court then rules on the Habeas petition. Under a law passed in 1996 to make it more difficult to overturn State court convictions, the inmate wins if he can show the State court violated clearly established Federal constitutional law. Remember that phrase: "clearly established" Federal constitutional law.

Last week, in Rodriquez v. Miller, the Court of Appeals (Cardamone, McLaughlin and Parker) reversed itself in a Habeas Corpus case. At first, the Court granted the inmate's Habeas petition after finding that the trial court had improperly closed the trial to public scrutiny when, in order to protect his identity, the undercover officer who had arrested the defendant was scheduled to testify. Under the Sixth Amendment, courtrooms cannot be closed to the public for even a limited time without a compelling reason. In early 2006, ruling in favor of Rodriquez, the Court of Appeals ruled that, while the courtroom could generally be closed to the public when the undercover officer testified, the State trial court violated the Constitution because defendant's family was excluded from this portion of the trial. 439 F.3d 68 (2d Cir. 2006). As the Second Circuit reasoned back then, "in particular, we questioned the district court's reliance--without more--on the geographical proximity of the Undercover's territory and the residences of Rodriguez's family members to support the courtroom closure. We relied on a host of decisions of our own Court to support our conclusion that "exclusion of family members requires stricter scrutiny than exclusion of the public."

Then the Supreme Court issued a ruling in a different Habeas Corpus case, Carey v. Musladin, 127 S.Ct. 649 (2007), reiterating the proposition that "clearly established" Federal law is narrowly-defined. To win a Habeas petition, the inmate has to show the State court in some way squarely violated a Supreme Court ruling as opposed to violating a general principle outlined by the Supreme Court. This is not a semantic exercise. Supreme Court dicta (language which is not necessary to the ruling) is not enough; the Habeas petition has to show that the State court violated a Supreme Court holding (squarely applying facts to Supreme Court precedent).

The Carey decision represented the newly conservative Supreme Court's stamp on Habeas Corpus jurisprudence. That case was applicable to Rodriquez because it involved whether a defendant received a fair trial when the victim's family wore certain buttons a trial, potentially influencing the jury. As the Second Circuit summarized the Supreme Court's ruling in Carey, "in contrast to warring decisions among the federal circuits, the effect on a defendant's fair-trial rights of spectator conduct . . . is an open question in our jurisprudence." This means that the Supreme Court does not regard these kinds of cases as "clearly established." For those who file Habeas petitions that allege the illegal closing of a criminal trial courtroom, their chances for success are significantly diminished.

As the Second Circuit saw it, the Supreme Court in Carey quite narrowly interpreted its own precedents in finding that the spectator's button-wearing in that case did not violate clearly-established Supreme Court case law. But since the Supreme Court dictates how the Second Circuit must decide cases, when Rodriquez v. Miller returned to the Court of Appeals, the Circuit had no choice by to take away the Habeas award. Carey changed the way that the Courts of Appeal decide these cases. As the Second Circuit stated, "in the past we (and other courts) occasionally have relied on our own precedents to interpret and flesh out Supreme Court decisions to decide variegated petitions as they come before us. It would appear that we can no longer do this." In other words, the Second Circuit's own precedents are no longer operative in resolving these disputes; only the Supreme Court's narrow rulings can apply.

Under this restrictive standard, the constitutional violation that Rodriquez complained about -- allowing the undercover officer to testify without his family present -- was no longer so profound that the Federal court had to grant the Habeas Corpus petition. In rehearing the Rodriquez v. Miller case, the Second Circuit, which had previously granted Rodriquez's Habeas petition and given him the taste of freedom, had to take it back. The Court of Appeals thus giveth, and taketh, away.