SUNY Albany's student fee guidelines violate the First Amendment

Conservative students at SUNY Albany brought a First Amendment challenge to the university's rules governing the allocation of student activity fees. The students (who belong to the College Action Leadership League of New York) objected that the student government allowed their classmates to vote in a non-binding referendum how much money to allocate for campus organizations. Since this procedure might affect how much money the student government would budget for certain organizations, it violates the First Amendment requirement that the government cannot discriminate on the basis of political viewpoint.

The case is Amidon v. Student Association of the State University of New York, decided on November 20. On its face, the case may not seem to have much of an impact, but the ruling has important consequences in the ever-complicated world of First Amendment law and the requirement that government actors regulate speech according to viewpoint-neutral principles.
At its most simplistic level, this means that, if the student government is allocating money for an anti-war group, it cannot deny money for a pro-war group based on the latter's viewpoint. That's sort of what happened here, as the student-plaintiffs belong to a conservative policy organization and they seem to distinguish themselves from New York Public Interest Research Group (NYPIRG), which has a real presence on college campuses.

The principle of viewpoint neutrality is harder to apply than it looks. SUNY Albany was allowing students to vote on how much money goes to a campus organization. But this vote was non-binding; the student government was free to disregard it. The student government could only use the referenda for advice regarding the appropriate level of funding, not whether to fund the organization at all. So why does the procedure violate the rules of viewpoint neutrality? Because, according to the Second Circuit, "protected speech will be chilled when school officials 'cast disapproval on particular viewpoints of its students . . . in one of the vital centers for the Nation's intellectual life, its college and university campuses.'" Moreover, according to the Second Circuit,

A university’s viewpoint-discriminatory decision respecting how much funding to allocate to a [recognized student organization] raises the same concerns as a viewpoint-discriminatory decision respecting whether to fund a [recognized student organization] at all. The level of funding a group receives may serve as an expression of approval or disapproval of the group’s message. And the amount allocated to a group, whether a lot or a little, can skew debate on issues on which the group advocates a position. In this context, a comparatively low level of funding may not be much different than a complete denial of funding.

Since a majority of the students in theory could vote to give an unpopular student organization less money than other political organizations, the rules at SUNY Albany raise the substantial risk that the unpopular organization will get shafted because of its viewpoint. This is especially so since the student government could take the non-binding student vote into account in allocating less money to an organization. That violates the First Amendment, and SUNY Albany's procedures are stricken. Those of you reading this who are not familiar with the First Amendment may wonder how a theoretical risk can give rise to a real constitutional issue. But that's how the First Amendment works.

This case raises a number of issues which have not surfaced in the Second Circuit in years. Since the Supreme Court has issued several important First Amendment/viewpoint discrimination cases in the last decade or so, this case gave the Court of Appeals an opportunity to re-consider this complicated doctrine. For example, and this may be an issue that only First Amendment lawyers can love, the Second Circuit held for the first time that viewpoint neutrality prohibits the government from maintaining discretionary speech rules (which create the possibility that decisionmakers will deny or inhibit speech for personal or inappropriate reasons). On this point, the Second Circuit follows the lead of the Seventh Circuit, which in turn applied a Supreme Court ruling, Board of Regents v. Southworth, 529 U.S. 217 (2000).

Jury wheel at the White Plains courthouse is constitutional

A capital murder case in the White Plains courthouse of the Southern District of New York led the defendants to challenge the fairness of the jury selection procedure. Racial minorities are under-represented in these jury pool. But, the trial court held, that does not mean the defendants will be denied a fair trial. Motion to stay the trial denied.

The case is United States v. Barnes, 04 Cr. 186 (SCR), reported at 2007 U.S. Dist. LEXIS 77426 (S.D.N.Y. Oct. 15, 2007). Judge Robinson summarized the findings of a report analyzing the jury pool in the northern counties of the Southern District of New York. While most media coverage of SDNY proceedings focus on the heralded Foley Square courthouse in downtown Manhattan, the White Plains courthouse in suburban Westchester County is no slouch, both architecturally and in terms of the quality of the Federal bench. But the report, conducted by law professors, found the following statistical anomalies:

1. Whites comprise 71.56 percent of the population in the northern counties but make up 78.10 percent of the qualified jury wheel.

2. Blacks comprise 10.66 percent of the population but make up 7.42 percent of the qualified jury wheel.

3. Hispanics comprise 12.19 percent of the population but make up 8.96 percent of the qualfied jury pool.

In other words, according to the report, "White-Americans are therefore overrepresented by approximately 5 percent in the Qualified Jury Pool relative to their voting age population, while African-Americans ar underrepresented by 2.8 percent and Hispanic-Americans are under-represented by 2.3 percent."

Citing the Sixth Amendment's guarantee of a jury selected from a fair cross-section of the community, these statistics prompted the defendants to move to stay the trial on the grounds that the SDNY is not properly selecting juries for the White Plains courthouse. The trial court disagreed, applying a statistical analysis called "absolute disparity" in finding that the defendant will not receive an unfair trial, reasoning as follows:

African-Americans are underrepresented by approximately 2.8 percent and Hispanic Americans by approximately 2.3 percent. This would require the addtion of between one and two African-Americans and one and two Hispanic-Americans to a 60 person venire in ordder to reach proportionality. Similar figures have not been repeatedly held to not support a fair cross-section claim.

Non-practicing pro se attorney gets another chance to draft her ADA complaint

We all know the basic rules about pro se pleadings: courts will give pro se litigants the benefit of the doubt and broadly read their papers in the understanding that they are not lawyers and therefore cannot always articulate their claims properly. But what about pro se litigants who are non-practicing attorneys? Do they get special treatment from the courts also?

The answer seems to be yes. The case is Smith v. New York Presbyterian Hospital, decided on November 15. This is a summary order, i.e., an unpublished opinion that generally can't be cited as precedential authority. But its worth noting that the Court of Appeals reversed the dismissal of this Americans with Disabilities Act case. The district court ruled that Smith did not properly allege a connection between her disability and her mistreatment at work. The Second Circuit sent the case back to give Smith another shot at drafting her Complaint properly.

Had Smith been like any other pro se litigant, this holding would be unremarkable. But she isn't. As the Second Circuit reasoned, "While licensed attorneys proceeding pro se need not be afforded the same pleading consideration as in [other cases holding pro se attorneys to the usual high standards], where, as in this case, the plaintiff has not practiced law for years, largely due to psychiatric impairments that are the basis for her disability claim, there is no reason to distinguish her from pro se plaintiffs generally."

No vicarious liability against Vermont church for priest's sexual abuse

A "John Doe" sued a church in Vermont alleging that he was sexually abused by a priest. He sued the church and the priest, who defaulted and presumably lost the case for failure to defend himself. Doe then went after the church, maybe because the priest was judgment-proof and had no money to pay out damages. The problem is employers are not always legally responsible for the misconduct of their employees. What to do?

The case is Doe v. Newbury Bible Church, decided on November 14. This was the second time this case landed in the Court of Appeals. The first time around, in 2006, the Second Circuit ruled against Doe because there was no evidence that the church knew or had reason to know that the priest had a propensity for sexual misconduct. That decision is reported at 445 F.3d 594 (2d Cir. 2006). But the Court of Appeals asked the Vermont Supreme Court to decide whether the law in that State would allow Doe to sue the Church by virtue of the priest's employment there. The Vermont Supreme Court answered "no." This dooms the case in the Second Circuit.

The issue for the Vermont Supreme Court was whether, under Vermont law, "a church [is] subject to vicarious liability for tortious acts of its pastor under the Restatement (Second) of Agency section 219(2)(d) if the pastor was allegedly 'aided in accomplishing the tort by the existence of the agency relation' with the church." In other words, was the priest able to abuse Doe as a result of his relationship with the church? In a prior case in Vermont, the State court there ruled that a county sheriff's department could be vicariously liable for sexual misconduct by a police officer. But, the Vermont Supreme Court ruled, that is quite different from cases involving sexual abuse by a priest at a church. while police cases involve "the extraordinary power that a law enforcement officer has over a citizen," the Vermont courts apparently deem the sexual abuse scenario a different circumstance entirely. Adopting the views of the Vermont courts, the Second Circuit dismissed Doe's case against the church.

Cancelling teen dances at nightclub may violate due process

A proprieter in upstate New York opened a dance club called Fun Quest which immediately became a big hit with local teenagers, who overcrowded the place. Such a hit, in fact, that the Town Board amended the special use permit to prohibit teenage dances. As local officials debated what to do about this problem, the Town Supervisor allegedly made racial comments about Fun Quest's black patrons. The constitutional dispute wound up in the Court of Appeals, which held that Fun Quest has a case.

The case is Cine SK8 v. Town of Henrietta, decided on November 8. After the district court granted dismissed the case on summary judgment, the Second Circuit reinstated the case, outlining how parties in zoning disputes can prevail in a constitutional challenge. Here's what the Court of Appeals (Feinberg, Calabresi and Wesley) did:

1. On the substantive due process claim, Fun Quest arguably had a property interest in the permit which Town officials subsequently amended to prohibit teen dances. It's not easy to show a property interest in zoning cases (which is why many of these cases are sent to State court), but here, Fun Quest's property right was "vested" since it did receive the permit and also invested $2.3 million in renovations in reliance on that permit.

2. The due process claim is also viable because the government had arguably revoked the permit for arbitrary reasons. While this is also a difficult standard to meet, Fun Quest gets a trial on this issue because of the alleged racial animus which motivated the Town Supervisor to oppose the teen dances. What makes this case unique is the Second Circuit's holding that the improper views of one member of a municipal board can make the Town liable even if the rest of the board did not share those views. Unlike other courts, the Second Circuit "has never adopted the rule that a plaintiff must demonstrate that a majority of a public body acted with racial animus or in an otherwise unconstitutional maner in order for that plaintiff to hold the municipality liable for constitutional violations." Instead, to prevail, the municipality must prove that a majority of the board acted for legitimate reasons. In other words, the illicit views of one member creates a presumption that the entire board acted improperly. Not only does the Second Circuit's standard take into account the secretive nature of racism, but it comports with employment discrimination cases holding that the impermissible bias of one decisionmaker can infect the entire process. In this case, at least three members of the board used racial code words, i.e., "city kids," in opposing teen dancing at Fun Quest. That's enought for a trial on this issue.

3. Another reason the plaintiffs get a trial here is the irregular process leading up to the permit amendment. A planning dispute tainted by procedural irregularity is enough to show arbitrary treatment in zoning/due process cases. Here, the Town Board had no lawful authority to amend the permit (it can only suspend or revoke them) and the Board failed to provide Fun Quest any procedural rights at the hearing (such as cross-examination of hostile audience members or the chance to respond to incendiary allegations at the hearing). This allows the substantive due process claim to go forward at trial.

When is an EEOC charge a "charge"?

The U.S. Supreme Court is reviewing a Second Circuit ruling which broadly interprets the employment discrimination laws to allow plaintiffs to seek relief without technically complying with the requirements governing the filing of an administrative complaint. The case arises at a time when scholars are criticizing the Supreme Court for interpreting the civil rights laws in an overly technical manner.

The case is Federal Express v. Holowecki, 440 F.3d 558 (2d Cir. 2006). Last year, the Second Circuit reinstated an age discrimination lawsuit even though the plaintiff did not formally file the administrative complaint with the Equal Employment Opportunity Commission, which reviews and tries to settle discrimination cases before the plaintiff brings the lawsuit. Without first filing a complaint with the EEOC, the plaintiff cannot bring the lawsuit.

In Holowecki, the plaintiff instead filled out a lengthy questionaire with the EEOC outlining the nature of the case. The Second Circuit equated the questionaire with the formal charge that plaintiffs normally file with the EEOC. The issue may seem overly technical, but if the plaintiff neglects to file a formal charge within 300 days of the discrimination, he cannot bring the lawsuit in court. If the questionaire -- which elicits all the information the EEOC needs to process the case at the administrative level -- qualifies as a "charge," then doing so within 300 days preserves the plaintiff's right to bring the lawsuit later on.

The best argument in favor of dismissing Holowecki's case was that since he did not file a formal charge of discrimination, Federal Express did not know that he had gone to the EEOC. One of the reasons for the EEOC process is to allow the employer to investigate the allegations and possibly settle the case before it becomes a full-blown lawsuit. But the Second Circuit said that the real question is whether Holowecki signaled his intent to proceed with a charge of discrimination in completing the questionaire.

Oral argument at the Supreme Court on this case was held yesterday. According to a web site that tracks the Supreme Court, "Although the dispute in this case was nominally between defendant Fed Ex and plaintiff Holowecki, it was evident at oral argument that the Court held the EEOC at fault for creating the dispute both by issuing unclear guidance regarding what constitutes a charge of age discrimination and by implementing inconsistent enforcement practices under its regulations." Indeed, press reports suggest that Holowecki will prevail at the Supreme Court.

"Monell, Monell, Monell"

I was in court once and an attorney was trying to convince the judge that he had a great case. The judge kept interrupting the lawyer, telling him, "Monell, Monell, Monell." Non-lawyers would not know what the judge meant, but any lawyer in the room would understand what the court was trying to convey: the lawyer was suing the wrong entity.


Monell is shorthand for a legal principle under the federal civil rights laws, particularly what we call Section 1983, which is the law that allows us to bring suit for a civil rights violation. Monell v. Department of Social Services, 436 U.S. 658 (1978), was the Supreme Court ruling that outlined when you can sue a municipality under that law. Generally, you can't sue a municipality, such as town, village, county or school district, for something that a government employee did. In other words, there is no respondeat superior in Section 1983 litigation. There are ways around this, but it's not easy. That was the lesson in Reynolds v. DeBuono, decided by the Court of Appeals on October 31, 2007.

In Reynolds, the plaintiff alleged that the State and City of New York were not properly enforcing the new welfare rules enacted in 1996. The district court agreed, finding that welfare recipients were being denied benefits improperly. The State and City were found liable for this, but only the State, and not the City, appealed. The question was whether the State was liable for the City's derelictions. In a lengthy opinion that provides a good primer on the scope of Monell liability, the Court of Appeals said no, primarily for two reasons.

First, and this is a highly technical issue, the Court joined other Circuits in holding that Monell's prohibition against respondeat superior liability applies not only when the plaintiffs seek money damages but also injunctive relief. The Court noted that this view is not unanimous around the Circuits, so the Supreme Court may someday resolve this issue. Since the Second Circuit resolved that issue in this case, that ends the debate in these parts.

Second, while Monell recognizes municipal liability where decisionmakers fail to supervise their subordinates, that's always been a difficult way to get around Monell. The plaintiff has to show that the high-ranking supervisors knew to a moral certainty that their failure to supervise would result in a rights violation. But here, according to the Court of Appeals, it was not enough for the plaintiffs to argue that the State had a "non-delegable duty" to ensure that the City was in compliance with the welfare laws. That's no different from asserting respondeat superior liability, the Court held, because it would make the State automatically responsible for the City's failures. Since plaintiffs could not otherwise show that the City's welfare policies were patently inadequate, requiring the State to intervene to ensure that the welfare policies were fairly administered, their inadequate supervision argument -- theoretically another way to get around Monell -- failed.

The moral of the story is that, once again, efforts to get around Monell's general prohibition against suing superior officers or municipalities are not easy, even when the subordinate officers have utterly failed in respecting civil rights. Relief in these cases is against the subordinate officers in their personal capacities, not the municipalities.