The Journal of the Nassau County Bar Association July/August 2019 www.nassaubar.org Vol. 68, No. 11

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NCBA COMMITTEE MEETING CALENDAR Page 22 An Exclusive SAVE the DATES BBQ AT THE BAR Member Experience Thursday, September 5, 2019 5:30 p.m. at Domus By Ann Burkowsky See Insert and pg. 6 Being a member of the Nassau Coun- ty Bar Association means you are part of JUDICIARY NIGHT the largest suburban bar association in the Thursday, October 17, 2019 country, a thriving organization consisting 5:30 p.m. at Domus of nearly 5,000 attorneys and legal profes- See pg. 6 sionals who strive to successfully build and grow their careers within the legal field. As OPEN HOUSE members of the NCBA you have access to Thursday, October 24, 2019 an array of unprecedented, exclusive mem- 3:00 p.m.-7:00 p.m. at Domus ber benefits that many bar associations do Volunteer lawyers needed not offer. to give consultations. In addition to networking opportunities Contact Gale Berg at (516) 747-4070 or and social events, the NCBA provides its [email protected]. members with the opportunity to meet top legal practitioners, judges, specialists and authorities; take a stand on important WHAT’S INSIDE issues affecting our county and country; and obtain the tools to grow a successful Education/Constitutional Law practice. Academic Freedom: Who And What When asked about the benefit of being Does It Protect? Page 3 a member, NCBA President Richard D. Designated Duty: A University’s Collins shared that, “Being a member of the Photo by Ann Burkowsky Obligation to Students with Mental NCBA is the easiest way for an attorney to Health Issues Page 5 become more involved shaping the future of know is that the NCBA now offers FREE the legal community. The NCBA offers an Reasonable Expectation? “Chalking” unlimited live academy and committee experience unlike any other bar association. Tires May Violate the Fourth CLE, as well as 12 free credits of CD/DVD Our members have face-to-face opportuni- Amendment Page 6 rental for those who are unable to attend ties to grow meaningful relationships, build an in-house CLE program. Suspension of Students with their practices, and maintain professional Under the leadership and tireless Disabilities for Sexualized Utterances success.” efforts of Jennifer Groh, Nassau Acade- and Behaviors Page 7 Free CLE: Includes my of Law Director, and Patti Anderson, Municipal Fees and the Eighth Executive Assistant, the NCBA is able Amendment’s Excessive Bridge-the-Gap Weekend to provide its members with an array of Fines Clause Page 8 Continuing Legal Education (CLE) is engaging CLE programs and seminars Proposed Due Process Protections a mandatory requirement in New York that cater to every facet of the legal field. for Students Accused of for admitted lawyers. What many of our Sexual Misconduct Page 9 current and prospective members do not See MEMBER EXPERIENCE, Page 4 Photo by Hector Herrera The Intimate Association Between the First and Fourteenth Amendments Page 10 The Second Department’s Position on CPLR 5015(a)(3) Page 12 RENEW YOUR MEMBERSHIP TODAY! PLAY REVIEW A Mockingbird Lands at the Shubert Theatre Page 16 The 2019-20 membership year is here. Renew your NCBA membership today to continue to enjoy exclusive benefits and networking opportunities. You don’t want to miss out. OF NOTE This is the final chance to be included in the NCBA Membership Directory. Renew your membership and indicate your committee choices today! The full committee description list is located on page 25. NCBA Member Benefit - I.D. Card Photo Obtain your photo for Secure Pass Court Indicate your choices on your membership renewal form when you renew online ID cards at NCBA Tech Center at www.nassaubar.org. For further information, contact Stephanie Pagano in our Only For New Applicants Membership Department at (516) 747-4070 or [email protected]. Cost $10 • August 6, 7, & 8 & September 3, 4 & 5, 2019 9 a.m. - 4 p.m.

UPCOMING PUBLICATIONS CONFIDENTIAL HELP IS AVAILABLE COMMITTEE MEETINGS AT TO LAWYERS AND JUDGES alcohol or drug use, depression or THE BAR ASSOCIATION other mental health problems Thursday, September 5, 2019 12:45 p.m. Call Lawyer Assistance Program Thursday, October 3, 2019 12:45 p.m. (888)408-6222 2 July/August 2019 Nassau Lawyer

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Having recently celebrated the Fourth of growth of nonsectarian univer- tution (promoting inquiry and they are to think intelligently.”6 July, the issue of academic freedom seems sities in the United States during advancement of knowledge).4 According to the Declaration, the power particularly timely. Attorneys practicing edu- the late 1800s.1 With the rise of The Declaration affirms that a to determine when violations of these obli- cation law are regularly faced with issues ideological conflicts, especial- university must provide a safe gations have occurred, should be vested in concerning academic freedom. What is meant ly relating to economic theory, haven free from the criticisms of bodies composed solely of members of the by the term “academic freedom” and what faculty members at many US public opinion and punishment academic profession. role the law plays are two very important universities felt the need for pro- for providing thought-provoking Like attorney discipline in the legal questions. tection against their dismissal discussion.5 profession, the Declaration indicates that Apparently, it is not always clear where aca- for views administrators found The Declaration describes non-academics do not possess the full com- demic freedom as a set of professional princi- disagreeable. what it considers the obligations petence to properly judge requirements. ples ends and the law begins. Academic free- In 1915, the American Asso- of those bestowed with such free- Also, they may be seen as acting on motives dom has been recognized by the United States ciation of University Professors doms. Specifically, the teacher: other than zeal for academic integrity and Supreme Court and by lower federal courts (the “AAUP”) was founded and Cynthia Augello “in giving instruction upon the maintenance of professional standards. in connection with First Amendment cases issued its Declaration of Princi- controversial matters, while At the same time, placing this authority involving both universities as institutions and ples on Academic Freedom and under no obligation to hide his exclusively in the hands of faculty mem- the individual rights of faculty members. Academic Tenure (the “Declaration”).2 The own opinion under a mountain bers imposes a corresponding obligation to Academic freedom is largely unanalyzed, Declaration states that the academic free- of equivocal verbiage, should, if he is fit police the standards of their profession.7 undefined, and unguided by principled appli- dom of a teacher “comprises three elements: for his position, be person of a fair judicial In 1940, the AAUP and the Association cation, leading to its inconsistent invocation. freedom of inquiry and research; freedom mind; he should, in dealing with such sub- of American Colleges (today the Associa- Thus, the relationship between academic free- of teaching within the university or college; jects, set forth justly, without suppression of tion of American Colleges and Universities) dom and the First Amendment is unclear. Like and freedom of extramural utterance and innuendo, the divergent opinions of other agreed to a revised version of the Declara- many other terms bandied about these days, action.” investigators; he should cause his students tion, known as the 1940 Statement of Prin- “academic freedom” is something that means It then discusses three considerations to become familiar with the best published ciples on Academic Freedom and Tenure different things to different people, and for deemed critical to understanding these expressions of the great historic types of (the “1940 Statement”).8 The 1940 State- that reason is often misunderstood. principles.3 These three considerations in doctrine upon the questions at issue; and ment, which reaffirmed the basic principles sum and substance are: (1) the basis of he should, above all, remember that his of the Declaration, together with its 1970 What is Academic Freedom? academic authority (education institutions business is not to provide his students with Interpretive Comments, have been endorsed American principles on academic free- as a public trust); (2) the nature of the aca- ready-made conclusions, but to train them by hundreds of organizations and scholarly dom were heavily influenced by the practices demic calling (independence of faculty); to think for themselves, and to provide them of German universities as well as by the and (3) the functions of an academic insti- access to those materials which they need if See ACADEMIC, Page 24 Appellate Counsel

The Hon. Joseph Covello, former appellate division judge and Christopher J. Chimeri are frequently sought by colleagues in the legal community to provide direct appellate representation for clients, as well as consulting services to fellow lawyers. The firm’s appellate team is highly equipped to navigate, or help you navigate, the complexities and nuances of appellate practice, including all aspects of matrimonial and family law in all Departments in New York State and the Court of Appeals, as well as civil and commercial matters in the Federal Courts. Quatela | Chimeri pllC attorneys and Counsellors at law 888 Veterans Memorial Highway, Suite 530 215 Willis Avenue Hauppauge, New York 11788 Mineola, New York 11501 (631) 482-9700 (516) 750-8811 www.QCLaw.com 4 July/August 2019 Nassau Lawyer Nassau President’s Column Lawyer Summer is here, and with that begins a brand Among all of the benefits that the NCBA offers, The Official Publication new membership year at the Nassau County Bar the one that I believe is the most valuable is the vol- of the Nassau County Bar Association Association. As I reflect on the past year, I am happy unteer opportunities that are available to members. 15th & West Streets, Mineola, N.Y. 11501 to report that the NCBA is thriving. Our member- As attorneys, we dedicate our lives to helping others. Phone (516)747-4070 • Fax (516)747-4147 ship is increasing at a rapid pace, and we are con- We strive to change lives. What better way to cata- www.nassaubar.org tinuing to provide exclusive member benefits and lyze positive change in our community than to take E-mail: [email protected] opportunities designed to help you succeed. advantage of one of the many volunteer opportunities NCBA Officers If you are a returning member, we are thrilled to that the NCBA has to offer? President have you back at Domus. If you are a new member, I If you didn’t already know, as a member of the Richard D. Collins, Esq. would like to personally welcome you to the NCBA. NCBA, there are multiple ways to get involved in the President-Elect We are honored to have you join our professional community. Have some free time available? Donate Dorian R. Glover, Esq. community of nearly 5,000 attorneys and legal that time to volunteer at one of the numerous mort- Vice President professionals who share the same dedication and gage foreclosure clinics that the NCBA hosts each Gregory S. Lisi, Esq. passion for the legal field. From the year, or at an open house clinic where residents can Treasurer As the 117th President of the NCBA, I have stated receive free legal advice on any legal issue they may Rosalia Baiamonte, Esq. that one of my main goals for my term is to make the President be experiencing. Looking to make a difference in the Secretary Bar Association stronger than ever through collabo- lives of children or teens? You can volunteer to mentor Sanford Strenger, Esq. rative networking events, the use of modern technol- Richard D. a middle school student in need of guidance through Executive Director ogy, engaging CLE courses, and exclusive member Collins our Student Mentorship Program, or coach or judge a Elizabeth Post benefits. An additional goal of mine is to continue high school mock trial tournament with students who to grow our social media platforms. Please like us on are eager to learn more about the legal system. Editor-in-Chief Facebook (Nassau County Bar Association) and fol- In addition to countless volunteer opportunities, Christopher J. DelliCarpini, Esq. low us on Instagram at nassaucountybar_association. There you the NCBA has many events planned this year that all members Copy Editor will find event photos, CLE updates, dining room menu options should take advantage of. Our annual member appreciation “BBQ Allison C. Shields, Esq. and more. We would love to have you join us. at the Bar” will take place on Thursday, September 5, 2019, on the Editor/Production Manager As we commence this new Bar year together, with the sup- front lawn at Domus. Returning members can gather to socialize, Ann Burkowsky port of the Executive Committee, Board of Directors, NCBA enjoy some delicious BBQ fare, meet with colleagues and create Photographer staff and you, our valued members, I am excited to reach those new friendships. Also, many prospective members and non-mem- Hector Herrera goals and to share with you some of the benefits, events and ber law students will stop by to see what the NCBA is all about — opportunities that there are to look forward to in the months be sure to extend a hearty welcome to them and encourage them July/August 2019 ahead. to join our ranks (law student membership is free!). Education/Constitutional Law The NCBA staff is dedicated to providing you with the oppor- WE CARE will also be hosting some exciting events this fall, Cynthia Augello, Esq. tunities and tools to grow and succeed within the legal profession. including the Tunnel 2 Tower 5K Run/Walk, Las Vegas Night, Focus Editor We encourage you to take advantage of those benefits. Enjoy and the Leukemia & Lymphoma Society’s annual Light the Night Rhoda Y. Andors, Esq. lunch at Domus in our beautiful dining room with your col- Walk. Please stay tuned for additional information and event Rudolph Carmenaty, Esq. leagues or clients, join a committee, attend a free CLE program, dates. Ellin Regis Cowie, Esq. network with other members at one of our many annual events, I foresee a successful and productive 2019-20 Bar year ahead. Christopher J. DelliCarpini, Esq. showcase your expertise and write an article for the Nassau Law- I look forward to seeing you at Domus, and encourage you to Andrea M. DiGregorio, Esq. yer, volunteer your time and skills at an open house or mortgage get involved and take full advantage of the exclusive benefits that Anthony J. Fasano, Esq. foreclosure clinic. The opportunities are endless. come with being a member of the NCBA. Thomas McKevitt, Esq. Jeff H. Morgenstern, Esq.

Upcoming Focus Issues September 2019 Real Estate/Municipal Law October 2019 Esquires Fine Dining offers its guests an a la carte menu daily, as well as a General/OCA variety of hot buffet options, a salad bar, desserts, and more. The restaurant MEMBER EXPERIENCE ... November 2019 is also available to cater NCBA Members’ private events at Domus. Continued From Page 1 Criminal Law Exclusive Perks: Attend an Event, Submit an Article, NCBA Committees: Cultivate Relationships, Give Back to the Community Committee Members Improve Your Practice Rhoda Y. Andors, Esq. Events Anthony J. Fasano, Esq. The NCBA presents its members with the opportunity to join and The NCBA hosts numerous special events each year, including Judi- Cynthia A. Augello, Esq. participate in over 50 operational, professional, and working commit- ciary Night, BBQ at the Bar, Holiday Party, Law Day, Annual Dinner Deborah S. Barcham, Esq. tees that are designed to confront the challenges and changing needs of Dance, Golf Outing, and more. Gale D. Berg, Esq. the legal profession. Wahida Bhuyan, Esq. Monthly Subscription to the Nassau Lawyer Ranging from mental health law to environmental law, commit- Deanne Marie Caputo, Esq. Members are automatically subscribed to Nassau Lawyer, the offi- tees offer members the chance to meet and network face-to-face Rudolph Carmenaty, Esq. with other attorneys, an opportunity that can’t be obtained through cial publication of the NCBA, which offers insightful articles on the Danielle Corbisiero a computer or phone. This is especially valuable for new lawyers, latest legal issues, laws, and procedures. Only members of the NBCA Ellin Regis Cowie, Esq. solo practitioners, or members of smaller firms looking to grow their can contribute articles to Nassau Lawyer, and are encouraged to do Christopher J. DelliCarpini, Esq. connections. so as often as possible. Andrea M. DiGregorio, Esq. In addition, committees keep members up-to-date on current Business Development Nancy E. Gianakos, Esq. changes within the legal profession, and also provide the opportunity to Business development opportunities are available to members, Naela Hasan, Esq. develop referrals and cultivate valuable relationships. including potential new client referrals, cost-effective mediation and Adrienne Flipse Hausch, Esq. There is no extra fee to join a committee, and members may join as arbitration, and access to legal job openings. George M. Kaplan, Esq. Kenneth J. Landau, Esq. many as they would like. To view the full list of NCBA Committees and Community Service descriptions, see page 25. Michael J. Langer, Esq. Members who are looking to give back to the community can do Douglas M. Lieberman, Esq. Domus Dining Room: Meet for Lunch so by volunteering at free legal clinics hosted by the NCBA. Coach Thomas McKevitt, Esq. or judge a high school mock trial; mentor a middle school stu- Jeff H. Morgenstern, Esq. One of the most unique features of the NCBA is its headquarters, bet- dent through the Student Mentorship Program; address community Marian C. Rice, Esq. ter known to members as “Domus.” The beautifully designed historical groups, or interpret for non-English speaking residents. Allison C. Shields, Esq. building is modeled after feudal architecture, and offers a “home” for its Tammy Smiley, Esq. members to gather, share ideas, and learn from one another. The NCBA takes pride in offering an exclusive member experi- Published by Domus features the Great Hall, multiple meeting and conference ence. Don’t miss your chance to connect with colleagues and take Long Island Business News rooms, and an in-house restaurant where members can meet with col- advantage of these valuable opportunities. If you would like to renew (631)737-1700; Fax: (631)737-1890 leagues outside of the courtroom. The NCBA is one of only four bar your membership, or know of an attorney who would like to join the Associate Publisher Graphic Artist associations in the country that offers an in-house dining experience to NCBA, please contact Donna or Stephanie in the membership office Joe Dowd Ryan O’Shea its members. at (516) 747-4070. Nassau Lawyer (USPS No. 007-505) is published monthly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association that are of substantive and procedural legal interest and at additional entries. Contents copyright ©2018. Postmaster: Send address changes to the Nassau to our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to Nassau Lawyer, County Bar Association, 15th and West Streets, its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations. Mineola, NY 11501. Nassau Lawyer July/August 2019 5 Education/Constitutional Law Designated Duty: A University’s Obligation to Students with Mental Health Issues

College is the start of an exciting new him names. ognized, however, that the law summer research assistant position.5 Nguyen’s chapter—one of self-discovery, indepen- School administrators learned generally does not place a duty to father sued MIT for the wrongful death of his dence and growth. However, for many college of the student’s delusions and protect others from the conduct son, alleging MIT and the individual defen- students, this transition is accompanied by attempted to provide mental of third parties unless there is a dants were negligent in not preventing his considerable stress, anxiety, depression and health treatment over the course special relationship between the son’s suicide. other mental health challenges. of many months, but the student parties. The court found that “[t] The Superior Court of Massachusetts A fall 2018 survey from the American ultimately refused to work with he college-student relationship found that MIT had no duty to prevent College Health Association found that over the school’s counseling center, thus fits within the paradigm of Nguyen’s suicide and dismissed the case. The 60 percent of college students “felt over- refused to take his medication, a special relationship.”3 Supreme Court of Massachusetts, on appeal, whelming anxiety” and over 40 percent of and refused voluntary hospital- The MIT Case affirmed the ruling. In its decision, however, students “felt so depressed that it was dif- ization. Without warning or prov- the court found that colleges and universities ficult to function” at least once in the last ocation, during a chemistry lab In Nguyen v Massachusetts have an obligation, under certain circum- 12 months. Further, 45 percent of students one morning, the student stabbed Dina L. Vespia Institute of Technology,4 Han stances, to prevent suicides. reported experiencing a “more than average” Katherine Rosen, a fellow stu- Duy Nguyen, a graduate student The court noted that, in certain circum- 1 level of stress within the last 12 months. dent, in the chest and neck with at MIT, suffered from mental stances, there is a special relationship, such With today’s college students experienc- a kitchen knife. She was taken to health issues and was receiving as one between a university and its student, ing mental health concerns at an alarming the hospital with life-threatening treatment from psychiatrists out- that may result in a corresponding duty to rate, colleges and universities are challenged injuries, but ultimately survived. side of the university. Nguyen take reasonable action to prevent suicide. with responding in a manner that balances The student pled not guilty by informed a psychiatrist that he Accordingly, when an institution has “actual student needs, autonomy, privacy, campus reason of insanity to the criminal had previously attempted suicide knowledge of a student’s suicide attempt that safety and compliance with disability laws. charges. twice, numerous years prior to occurred while enrolled at the university or Rosen sued UCLA and several joining MIT, but did not feel recently before matriculation” or “a student’s The University of California Case of its employees, alleging they immediately suicidal. Despite stated plans or intentions to commit suicide,” Recent case law makes clear that, when failed to protect her from the poor academic performance and the institution has a duty to take reasonable faced with circumstances involving students student’s foreseeable violent acts. meetings with the Ph.D. program measures under the circumstances to protect exhibiting mental distress, institutions can The lower court held that UCLA coordinator and MIT’s mental the student. and should take action, including dismissal, had no duty to protect Rosen and Hayley B. Dryer health and counseling service, to protect students and the campus commu- the case was ultimately appealed. Nguyen continually refused Reasonable measures include initiating nity. For example, in Regents of University of The Supreme Court of Cali- accommodations. a suicide prevention protocol if the uni- 6 California v. Superior Court of Los Angeles fornia, in overruling the Court of On June 2, 2009, Nguyen versity has developed such a protocol. In County,2 a student was experiencing audi- Appeals, held that universities owe a duty to jumped off the roof of a MIT building to his the absence of such a protocol, reasonable tory hallucinations. Specifically, the student protect or warn its students from foreseeable death. Nguyen did so after a phone call with measures requires the institution (including believed other students in the classroom and acts of violence by other students in the class- his professor who had “read him the riot act” dormitory were criticizing him and calling room or during curricular activities. It rec- about an email message he sent regarding a See UNIVERSITY, Page 26

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In Taylor v. City of Saginaw, the of those tickets had been issued by Sixth Circuit held that “chalking” Ms. Hoskins. Each ticket indicated tires in municipal parking lots is a the date and time that a tire of Ms. search under the Fourth Amend- Taylor’s vehicle had been marked ment, and municipalities relying on with a “chalk-like substance.”11 Ms. the practice must therefore comply Taylor asked the district court to Thursday, September 5, 2019 with Constitutional standards.1 certify the case as a class action, Chalking tires to gauge wheth- to declare the chalking unconsti- 5:30 PM—7:30 PM er cars have overstayed their tutional, and to order the city to time is a practice as ubiquitous cease chalking and refund all relat- (rain or shine) as it is overlooked. It does raise ed tickets.12 significant revenue, however, The defendants moved to dis- for municipalities in New York Christopher J. miss under Federal Civil Rule and across the country. If the DelliCarpini 12(b)(6), and the district court courts ultimately find the practice granted the motion: “Reasonable unconstitutional, then munici- minds might disagree regarding palities—and their counsel—will have to find whether a search occurred here, but there is no other ways to enforce time limits in their doubt that any such search was not unreason- parking lots. able in a constitutional sense.”13 Chalking tires to determine whether a car The Fourth Amendment’s has overstayed its time, the court found, meets Requirements the two-part test in Jones for a search: a trespass 14 The Fourth Amendment provides: “The for the purposes of gathering information. right of the people to be secure in their persons, Such a search is reasonable, however, under houses, papers, and effects, against unreason- two exceptions. First was the automobile excep- tion, based on the lower expectation of privacy able searches and seizures, shall not be violated, 15 To register, contact Special Events at and no warrants shall issue, but upon probable in one’s vehicle. Second was the communi- cause, supported by oath or affirmation, and ty-caretaker exception, under which police can, (516) 747-4070, ext. 226 or [email protected]. for example, tow away abandoned or disabled particularly describing the place to be searched, 16 and the persons or things to be seized.” New vehicles in the interest of public safety. York’s Constitution contains identical language On appeal the Sixth Circuit reversed and in Article 1, Section 12. remanded, agreeing that chalking constitutes a In United States v. Jones, the U.S. Supreme search but holding that it might not fall under Court explained the two possible definitions of either exception. a search under the Fourth Amendment.2 The The automobile exception, the court held, traditional definition, tied to common-law tres- permits police to search an automobile without pass, was whenever the government “physically a warrant only if they have “probable cause to believe that the vehicle contains evidence of a occupied private property for the purpose of 17 obtaining information.”3 Jones held accordingly crime.” In the case of chalking cars, there is that placing a GPS device on a car constituted no probable cause; indeed, the point is to chalk SAVE THE DATE a search, and New York’s Court of Appeals has the cars before they have overstayed their time. agreed.4 The Sixth Circuit also held that chalking cars In Katz v. United States, however, the Court does not fall under the community-caretaker held that wiretapping also constituted a search, exception, which only applies “when delay is reasonably likely to result in injury or ongoing broadening the definition beyond physical 18 intrusion: “there is a twofold requirement, first harm to the community at large.” The city, the that a person have exhibited an actual (subjec- court noted, had failed to show how a lawfully JUDICIARY parked car poses any safety risk. “Because the tive) expectation of privacy and, second, that the expectation be one that society is prepared purpose of chalking is to raise revenue, and not 5 to mitigate public hazard,” the city was not act- to recognize as ‘reasonable.’” As Jones made 19 NIGHT clear, however, Katz added to the traditional ing in its role as community caretaker. definition of a search without supplanting it.6 Accordingly, the Sixth Circuit denied the Thursday, October 17, 2019 For a search to be reasonable, it must either defendants’ motion to dismiss, but was careful be authorized by a warrant or fall within one to constrain the effect of its decision: 5:30 PM at Domus of the narrow judicial exceptions. As the Katz This does not mean, however, that Court put it: “searches conducted outside the chalking violates the Fourth Amend- judicial process, without prior approval by ment. Rather, we hold, based on the Join the Officers, Directors and judge or magistrate, are per se unreasonable pleading stage of this litigation, that two Members of the Association as we salute the under the Fourth Amendment—subject only exceptions to the warrant requirement— to a few specifically established and well-delin- the “community caretaking” exception Judges of Nassau County. eated exceptions.”7 and the motor-vehicle exception—do not New York courts, however, have in some apply here. Our holding extends no fur- instances constrained the federal exceptions, ther than this. When the record in this granting further protections from warrantless case moves beyond the pleadings stage, searches. For example, in People v. Scott the the City is, of course, free to argue anew Court of Appeals held that landowners’ rea- that one or both of those exceptions do apply, or that some other exception to the sonable expectation of privacy goes beyond 20 the curtilage of the home,8 rejecting the fed- warrant requirement might apply. eral “open fields” doctrine of Oliver v. United Time’s Up? “Municipalities” 9 $80 NCBA members States. Options After Taylor Chalking Tires Non-members Taylor: Taylor did not bring the practice of chalk- $140 of Lawfully Parked Cars ing tires to an end. The decision only decided In 2017 Allison Taylor brought suit under the city’s motion to dismiss, remanding the 42 USC § 1983 against the City of Saginaw, case to the district court and leaving Saginaw Michigan, and Tabitha Hoskins, a parking free to reargue any exceptions that the facts Questions? Contact Special Events at 21 enforcement official with the city.10 She alleged support. Notwithstanding, the city has peti- (516) 747-4070 x226 or [email protected]. that since 2014 she had received 14 parking tickets for exceeding time limits, and that all See CHALKING, Page 22 Nassau Lawyer July/August 2019 7 Education/Constitutional Law Suspension of Students with Disabilities for Sexualized Utterances and Behaviors

It is not uncommon for the student facing A FAPE consists of special edu- services, parent counseling and appropriate interim alternative educational disciplinary suspension to also be a disabled cation and related services provid- training and more.5 setting (IAES), another setting, or suspen- student classified with special needs. In certain ed to an eligible child with a disabil- sion for a period not to exceed five consec- matters, the nature of the student’s disabili- ity at public expense under public School Disciplinary utive school days and the amount of time ty dovetails with sexually charged utterances, supervision and direction and in Procedures and Disabled that a nondisabled student would be subject behaviors, or both, which of course violate conformity with an individualized Students to suspension for the same behavior.9 The school codes of conduct. Where such a student education program.2 According to superintendent may order the placement of Every school has a code of has been classified, however, their IEP (Indi- the United States Supreme Court, a student in an appropriate IAES another conduct. Students with disabili- vidualized Educational Plan) and BIP (Behav- an IEP, individualized education setting or suspension for up to 10 consecutive ties face disciplinary suspensions ioral Intervention Plan) may omit references program is to be tailored to meet school days, inclusive of any period of suspen- for violating school codes of con- to the propensity for the sexualized utterances sion imposed. The superintendent may order the unique needs of that student. duct nearly twice as often as their or behaviors incident to the disability. These additional suspensions of not more than 10 The Supreme Court rejected the typical classmates.6 In response to omissions can result in suspensions. The pur- Rebecca Sassouni consecutive school days in the same school “merely more than de minimis this trend, in 2016 OSERS (U.S. pose of this article is to consider the impli- 3 year for separate incidents of misconduct that standard” Department of Education Office cations of these omissions and suspensions, do not constitute a disciplinary change of The IEP is a written statement of Special Education and Rehabilitative Ser- 10 and how to minimize them through careful placement. outlining the plan for providing an educational vices) issued a guidance document, known as planning. Multiple suspensions cumulatively may program for the disabled student based on a “Dear Colleague” letter, which emphasized constitute a change of placement.11 The Disabled Students’ Right his or her unique needs. School districts must that schools must provide positive behavioral determination whether a suspension con- make a FAPE available to all eligible children to an Education supports to students with disabilities who stitutes a disciplinary change of placement with disabilities, regardless of the severity of need them. The OSERS guidance clarifies based on a pattern of removals is made Since the 1970s the movement to main- their disability.4 Special education means spe- that repeated use of disciplinary actions may on a case-by-case basis, depending on the stream students with disabilities in order to cially designed individualized or group instruc- suggest that children with disabilities may not student and factors involved and is subject educate them with their typical peers in the tion or special services or programs provided at be receiving appropriate behavioral interven- to review through due process and judicial least restrictive setting is predominant. Under no cost to the parent to meet the unique needs tions and supports.7 proceedings. Logically, this is problematic the IDEA, the Individuals with Disabilities of the eligible student with a disability. Generally speaking, school districts may insofar as the very nature of this case-by- Education Act, students with disabilities are In addition, related services consist of trans- suspend or remove a disabled student from case analysis leaves the burden on the family afforded the right to a FAPE, a free and appro- portation and such developmental, corrective, school in accordance with the procedures and of the student with special education needs priate public education in the least restrictive and other services which may be required to safeguards set forth in both federal and state to appeal the repeated suspensions in order environment.1 In New York State, Article 89 of assist a child with a disability, including identi- law and regulations.8 to demonstrate that the pattern of removals the Education Law and Part 200 of the Com- fication of the disabling conditions, psycholog- A school board, superintendent of schools, constitutes a change of placement. missioner’s regulations serve as the primary ical services, physical and occupational therapy, or a building principal may order the place- vehicle for implementing IDEA regulations. social work and counseling services, medical ment of a student with a disability into an See SUSPENSION, Page 20

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Contact Stephanie Pagano at (516) 747-4070 x217 or [email protected]. 8 July/August 2019 Nassau Lawyer Education/Constitutional Law Municipal Fees and the Eighth Amendment’s Excessive Fines Clause The Eighth Amendment to the Unit- forfeiture after the guilty plea to obtain the car; Excessive Fines Cases: hold water not just in rural Indiana but in ed States Constitution provides: “Excessive however, as noted by others, “[v]ery often, law Relevant Factors Long Island, another area where one must have bail shall not be required, nor excessive fines enforcement will seize assets of the accused access to a motor vehicle. “[I]n rem forfeitures imposed, nor cru- without an actual conviction.” Cruel and Unusual Punishment prevents [are] intended not to punish the defendant but el and unusual pun- Until Timbs v. Indiana, the Supreme Court the imposition of a punishment which is “gross- to compensate the Government for a loss or ishments inflicted.”1 of the United States “never…decided wheth- ly disproportionate” to the crime committed. to restore property to its rightful owner [and, Unlike other forms er…the Eighth Amendment’s prohibition of Three factors are relevant to this inquiry: (1) the therefore] fall outside the scope of the Excessive of punishment that excessive fines applies to the States through inherent gravity of the offense; (2) the sentenc- Fines Clause.”23 “A forfeiture is unconstitution- impose costs on gov- the Due Process Clause.”9 Timbs is character- es imposed for similarly grave offenses in the ally excessive ‘if it is grossly disproportional to ernment, fines cre- ized as “a sweeping ruling that strengthens same jurisdiction; and (3) sentences imposed the gravity of a defendant’s offense.’”24 2 for the same crime in other jurisdictions.16 The ate revenue. Nassau property rights and could limit controversial Only case law will determine whether it Supreme Court in Browning-Ferris recognized County has engaged police seizures, such as those done through civil is the quality (i.e. a car) or the quantity (i.e. that the Excessive Fines Clause is an essential in everything from forfeiture, nationwide.”10 Its application to the dollar-value) that will be guiding light of what 3 check on the government’s tendency to “use speed cameras to states in Timbs, like Supreme Court decisions is or is not excessive in Nassau County. In a booting cars,4 forfei- 11 the civil courts to extract large payments or such as Mapp v. Ohio (Fourth Amendment) 17 country that was founded by Bostonians who 5 forfeitures for the purpose of raising revenue.” Cory Morris ture(s), and proper- and McDonald v. City of Chicago12 (Second did not want to pay tax for tea,25 perhaps people 6 Therefore, the first question in an excessive ty tax hikes to gener- in the 21th century will mount a federal court Amendment), should reverberate the message fines case is whether the fine at issue is pun- ate revenue. While it that states cannot police for profit. challenge to the regular forfeiture of vehicles in has taken quite some ishment. The second step of the excessive fine The Excessive Fines Clause was taken ver- inquiry is whether the fine is in fact excessive. driving while intoxicated cases, administrative time for the Excessive Fines Clause to become batim from the English Bill of Rights of 1689. fees, the doubling and tripling of traffic fines, applicable to the states, perhaps the fines and The Supreme Court in United States v. Baja- “One of the main purposes of the ban on kajian has explained that a fine imposed as the threat of daily fines offered by municipal fees generated by Nassau County may become excessive fines was to prevent the King from entities, or the regular booting of cars here in the subject of a constitutional challenge. punishment is excessive under the Excessive assessing unpayable fines to keep his enemies Fines Clause only “if it is grossly disproportion- Nassau County. Timbs v. Indiana: Eighth in debtor’s prison.”13 The Supreme Court in al to the gravity of a defendant’s offense.” “The Cory Morris is a Credentialed Alcoholism and Amendment Excessive Fines Browning-Ferris Industries of Vt., Inc. v. Kelco touchstone of the constitutional inquiry under Substance Abuse Counselor-Trainee and Disposal, Inc observed that “that the [Exces- the Excessive Fines Clause,” moreover, “is the adjunct professor at Adelphi University. The Clause Applies to States sive Fines] Clause derives from limitations in principle of proportionality: The amount of Law Offices of Cory H. Morris focuses on English law on monetary penalties exacted in helping individuals facing addiction and crim- The petitioner in Timbs v. Indiana, Tyson the forfeiture must bear some relationship to inal issues, accidents and injuries, and lastly, Timbs, was a first-time offender suspected of civil and criminal cases to punish and deter the gravity of the offense that it is designed to accountability issues. Mr. Morris maintains drug sale.7 After Timbs pleaded guilty, Indiana misconduct.” The Excessive Fines Clause thus punish.”18 While not addressed in the Supreme offices in Dix Hills and in Fort Lauderdale, moved to forfeit the car he was driving when “limits the government’s power to extract pay- Court’s Timbs decision, Nassau County’s costs Florida. ments, whether in cash or in kind, ‘as pun- associated with punishment, are likely to he was arrested: “a $42,000 Land Rover, which 1. U.S. Const. amend. VIII. 14 he had bought with money from his father’s life ishment for some offense.’ ” This “notion of become subject to constitutional scrutiny, thus 2. Harmelin v. Michigan, 111 S. Ct. 2680, 2693 n. 9 (1991) insurance policy.”8 In addition to a punishment punishment... cuts across the division between bringing the issue out of the local court. (Scalia, J.) and the fines Timbs paid, Indiana utilized civil the civil and the criminal law.”15 In Dubin v. County of Nassau,19 Judge Joseph 3. See, e.g., Paul LaRocco and Robert Brodsky, Speed Camera repeal to trigger tougher revenue choices in Nassau, F. Bianco allowed excessive fines claims against Newsday (Dec. 14, 2014), available at nwsdy.li/2MKKY2R. the Nassau County Traffic and Parking Viola- 4. Rick Brand, Boot and tow program coming for Suffolk tions Agency (“TPVA”) to survive a motion to ticket scofflaws, Newsday (Jan. 24, 2019), available at nwsdy. dismiss. In Dubin, the Nassau County TPVA li/2ZkFGww. 5. Nicole Fuller, LI accounts for 40% of state seizure of Driver’s Responsibility Fee (Nassau County alleged criminal assets, Newsday (Oct. 7, 2017), available at Ordinance 190-2012) was charged as a non-dis- nwsdy.li/2WItQ2t. cretionary penalty imposed merely for having 6. Candice Ferrette, Nassau property tax challenges approaching record numbers, Newsday (May 6, 2019), avail- been issued a ticket. able at https://nwsdy.li/2XTk4XD. Bizarre as it might seem, the complaint from 7. 138 S. Ct. 2650 (2019). which the TPVA sought dismissal in Dubin 8. Jason Snead and Elizabeth Slattery, Supreme Court’s 9-0 alleged that the fine “is an excessive fine issued Ruling Protects Americans Against Excessive Fines, The Daily Signal (Feb. 21, 2019), available at dailysign.al/2M- against those whose only improper action is FQdRv. simply being issued a ticket,” and that “[b]y 9. McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3035, charging a penalty after the charges/accusatory fn. 13 (2010) (citing Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 276, n. 22, (1989); instrument have been dismissed, defendants see also, e.g., Hall v. Florida, 134 S. Ct. 1986, 1992 (2014); have violated the Eighth Amendment’s prohibi- Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424, tion upon excessive fines in comparison to the 433–34 (2001); Thompson v. Oklahoma, 487 U.S. 815, 819 accused actions.” In acknowledging the appli- n.1 (1988) (plurality opinion). 10. German Lopez, Why the US Supreme Court’s new ruling cability of the Excessive Fines Clause, Judge on excessive fines is a big deal, VOX (Feb. 20, 2019), avail- Bianco noted it was based upon the allegations able at bit.ly/2Wxnluj. and not the argument that the fine was uncon- 11. 367 U.S. 643 (1961). stitutionally excessive or disproportionate. 12. 561 U.S. 742 (2010). 13. U.S. v. Bajakajian, 524 U.S. 321, 355 (1998) (Kennedy, J., dissenting) (citations omitted). Excessive Fines Case against 14. Austin v. U.S., 509 U.S. 602, 609–610 (1993) (emphasis Nassau County? deleted). 15. Id. at 610 (quoting United States v. Halper, 490 U.S. 435, Nassau County citizens are the subject of 447–48 (1989)). See also Prince v. City of New York, 966 increased taxation, from recording a deed to N.Y. S.2d 16, 20 (1st Dep’t. 2013) (stating that “[t]he relevant inquiry is not whether the fine fines and penalties associated with routine traf- arises in the civil or criminal context, but whether the fine fic matters that greatly differ from county to constitutes punishment” (collecting cases)). county. Suffolk County is starting to follow this 16. Solem v. Helm, 463 U.S. 277, 290–92 (1983). 17. 492 U.S. 257, 275 (1989). trend perhaps to a greater degree. Indeed, one 18. 524 U.S. 321, 334 1998). commentator has noted that “[t]he misuse of 19. No. 16 –CV-4209 (JFB)(AKT) (EDNY Sept. 27, 2017). the forfeiture statutes has become epidemic 20. Charles P. Pierce, The Supreme Court Just Stopped Local among local and state police departments[…] Sheriffs From Carjacking to Pay the Bills, Esquire (Feb. 20, 2019), available at bit.ly/31u6wEn. it leads to baroque corruption, and it also 21. J. Justin Wilson, Florida Man Could Lose His Home for functions as a backdoor way to fund basic Having Long Grass, Institute for Justice (May 8, 2019), avail- services in municipalities that don’t have the able at bit.ly/2WCQXLB. 20 22. J. Justin Wilson, Doraville Homeowners Win Round guts to ask their citizens for tax increases.” One in Lawsuit Challenging City’s Overzealous Ticketing Evident in municipalities other than Nassau Scheme, Institute for Justice (April 1, 2019), available at bit. County, a recent challenge under the Excessive ly/2WEeADu. Fines Clause in Florida arises from $30,000 of 23. Id. (citing Bajakajian, 524 U.S. at 329; and Paroline v. 21 United States, 134 S. Ct. 1710, 1726 (2014) (“The primary fees associated with having long grass, and goal of restitution is remedial or compensatory, but it also yet another over “overzealous ticketing”22 in serves punitive purposes. That may be sufficient to bring it Georgia. within the purview of the Excessive Fines Clause.”) In Timbs, it was argued that the car in rural 24. Id. (quoting Bajakajian, 524 U.S. at 334). 25. See History.com Editors, Boston Tea Party, History.com Indiana was “incidental not instrumental” to (updated May 16, 2019) (last accessed on May 31, the sale of drugs. Perhaps this argument will 2019), available at bit.ly/2wXffAV. Nassau Lawyer July/August 2019 9 Education/Constitutional Law Proposed Due Process Protections for Students Accused of Sexual Misconduct A long-awaited change of policy by the Response to That change is central to the right Moving Forward Department of Education is good news for to due process and is an essential “Dear Colleague” Letter The proposed rules are a big step in the right college and university students who have protection for innocent students direction. If they are adopted, they will enhance been accused of sexual misconduct. Revers- Many lawyers, law professors, who are falsely accused. the opportunity for accused students to receive ing a 2011 policy that encouraged schools and civil libertarians were shocked Discretion to Follow Accus- a fair hearing. to trample the due process rights of accused by the Department’s reinterpreta- er’s Wishes: The proposed regu- How colleges and universities will respond students, the Department has proposed tion of Title IX. The burden of lations would no longer require to the new rules remains to be seen. For exam- rules that balance the need to make schools proof mandated by OCR was a par- schools to initiate a disciplinary ple, it is not clear whether schools that changed safe against the need to assure that wrongly ticularly troubling issue. Expulsion, process against an accused student their standards of proof in response to OCR accused students are not subjected to unwar- suspension, and other serious dis- unless the accuser files a formal pressure will reinstate a “clear and convinc- ranted discipline. cipline impose enormous costs on complaint.20 If the accuser does students. Apart from losing their not believe that formal proceed- ing evidence” standard. However, schools that Misguided Guidance investment in a college degree, stu- Scott Limmer ings are necessary, the school must apply a “preponderance of evidence” standard dents might lose the opportunity to to sexual misconduct accusations but apply a The Department of Education adminis- offer supportive measures to the obtain a degree and to move ahead “clear and convincing” evidence standard to ters federal laws that affect public and private alleged victim without punishing in life. other accusations that carry the same potential educational institutions that accept federal a student whose wrongdoing has Just as troubling was OCR’s insistence that discipline will now be required to give students funds. Since nearly all institutions of higher not been proved. the accuser should not be subjected to cross-ex- accused of sexual misconduct the same pro- education accept students who pay tuition Disclosure of Evidence: The proposed rules amination. The law has long recognized that would require the school to prepare an inves- tection it gives to students accused of other with federally guaranteed loans, the Depart- cross-examining an accuser is the best way to violations. ment exercises considerable authority over tigative report prior to holding a hearing on a expose false accusations.12 An accuser who fab- formal charge. The school must give both the The rules do not force schools that uni- nearly every college and university. ricates a story but is not cross-examined under formly apply a “preponderance of the evidence” One law that the Department administers accuser and the accused an equal opportunity oath has the opportunity to ruin a student’s life. to inspect and review any evidence obtained as standard to all violations to change their stan- is Title IX of the Education Amendments Cross-examination reveals inconsistencies in a dard of proof. Schools that abandoned the Act of 1972. That law prohibits sex discrim- part of the investigation that is directly related story and exposes spite and other motivations to the allegations raised in a formal complaint.21 “clear and convincing” evidence standard in ination (including sexual harassment and to make a false accusation. An accuser who is response to the “Dear Colleague” letter may violence) that is directed at either faculty or The rules would give both parties at least 10 not cross-examined is free to lie with impunity. days to review and respond to the evidence decide that it is too much trouble to reinstate students in a college or university that accepts the old rules. Faced with the threat of lawsuits, federal funding. so that the responses can be included in the The Department’s New Rules final report. Both parties must then be given however, public institutions may decide that it There is no doubt that schools must play Without acknowledging that it caused the the final report at least 10 days in advance of a would be advantageous to respect the student’s an important role in preventing sexual vio- problem, OCR now recognizes that schools disciplinary hearing.22 constitutional right to due process. lence on campus. Schools comply with Title have adopted “unpredictable Title IX sexual Discipline Limited to Education-Re- In the meantime, the proposed rules would IX in part by adopting clear rules that pro- harassment systems under which complainants lated Incidents: The new rules would only at least improve the ability of accused students hibit sexual violence and sexual harassment and respondents have been thrust into incon- require investigations of sexual misconduct that to receive a fair hearing. Combined with rep- on campus. sistent grievance proceedings that often deprive occur within a school’s “program or activity.”23 resentation by a lawyer who has substantial Except in its address of gender equity both parties of a fair process.”13 As a partial but Explanatory comments accompanying the new experience defending students in disciplinary in athletic participation, Title IX was a rel- much welcomed solution to that problem, the rules suggest that schools will not be required hearings, the new rules give students a fighting atively uncontroversial law. That changed Department withdrew the guidance provided to investigate off-campus incidents.24 However, chance to obtain a fair hearing and to avoid in 2011 when the Department sent a “Dear by its 2011 “Dear Colleague” letter.14 the rules do not prevent the investigation of losing the opportunity to receive the education Colleague” letter to all the colleges and uni- The Department is now moving forward in which they invested. 1 alleged assaults that are unrelated to school versities that accept federal funds. The letter with the process of creating new administrative activities or property did not (and could not) formally adopt new Scott Limmer’s practice concentrates in the rules that will have the force of law. The Depart- Standard of Proof: Schools would be free areas of criminal defense and college dis- rules, but it announced a new interpretation ment has proposed new regulations and has to choose to adopt a standard that gives greater ciplinary law, where he advises college and 2 of existing law. The letter also purported to invited public comment.15 The Department will protection to students who have been wrongly graduate students across the country when offer “significant guidance” concerning the consider any comments received by January 28, accused. The proposed rules allow a school they are accused of violating their school’s policies and practices that schools should 2019, and then will decide whether to adopt the to apply the “preponderance of the evidence” code of conduct. Scott is also the co-host adopt to comply with Title IX.3 Schools of the “Reboot Your Law Practice” podcast, rules in their present form, to adopt the rules standard to a sexual misconduct accusation where every month, he and his co-host understood that failing to follow that guid- after amending them, or to leave the existing only if it applies that same standard to all other 4 discuss the issues that face small and solo ance could result in a loss of federal funding. rules in place. accusations that may result in the same pun- practitioners. The letter outlined grievance procedures The proposed regulations define sexual ishment.25 In other words, if an accusation of that the Department deemed to be a neces- harassment (including sexual violence), spec- plagiarism that could result in expulsion must sary response to a suspected incident of sex- 1. Letter from Russlynn Ali, Assistant Secretary for Civil ify the circumstances under which a school be proved by clear and convincing evidence, Rights, U.S. Department of Education, Office for Civil 5 ual violence or harassment. The most con- that receives federal funding must respond to that same standard of proof must be applied to Rights, to Colleague [hereinafter “Ali Letter”] (Apr. 4, 2011) troversial aspects of the procedures included: allegations of sexual misconduct, and explain an accusation of sexual misconduct that could 2. Id. at n.1. • Prohibiting mediation and similar 3. Id. how a school must respond. The proposed result in expulsion. 4. Id. at 16. informal means of negotiating a res- regulations recognize the need to balance an Cross-examination: The proposed regu- 5. Id. at 8-14. olution of a complaint of sexual vio- honest accuser’s interest in being protected lations would require the accuser to attend 6. Ali, supra n.1, at 8. lence, even if the person making from further harassment against the right of an the hearing at which a final decision about 7. Id. at 10-11. 8. Id. the complaint preferred an informal accused student to a fair hearing.16 discipline would be made. It would also give 6 9. Id. resolution. The most fundamental change in the the accused student the right, through an advi- 10. Id. at 9. • Requiring schools to use a “prepon- Department’s proposed regulations would sor or lawyer, to cross-examine the accuser. 11. Kathryn Joyce, The Takedown of Title IX, NY Times derance of the evidence” standard to (Dec. 5, 2017), available at https://nyti.ms/2ixhZO9. make clear that colleges and universities will Students who do not retain a lawyer would be 12. See Doe v. Baum, 903 F.3d 575 (6th Cir. 2018); Lee v. evaluate complaints and disallowing not lose federal funding simply because they furnished with an advisor to conduct cross-ex- University of New Mexico, No. 17-1230 (D.N.M. 2018) the higher standard requiring “clear provide accused students with rights that are amination. The accuser and accused would (disposing of defendant’s motion to dismiss plaintiff’s due and convincing evidence” that many guaranteed by the U.S. Constitution.17 The not personally ask each other questions, but process claims, Title IX claim, and contract claims). schools had adopted.7 13. Office of Civil Rights, Background & Summary of the constitutional right to due process protects the advisors or lawyers acting on their behalf Education Department’s Proposed Title IX Regulation, • Strongly discouraging schools from the property interest that students have in the would be permitted to seek that truth through U.S. Dept. of Education (2018), available at https://bit. allowing the accused student to education they receive from public colleges and cross-examination. ly/2Su4NJP. cross-examine the accuser.8 universities. If the rules are adopted, schools Unbiased Decision-Makers: Schools must 14. U.S. Dept. of Education, Department of Education • Requiring a “timely” resolution of Issues New Interim Guidance on Campus Sexual will no longer be forced to choose between train investigators to conduct a fair investiga- Misconduct, (Sep. 22, 2017),available at https://bit. the grievance procedure, which the respecting the due process rights of students tion and to train decision-makers to conduct ly/2fEPltg. Department suggested should “typi- and risking the loss of federal funds. fair hearings that ensure due process protec- 15. See Nondiscrimination on the Basis of Sex in Education cal[ly]” take no more than 60 days.9 The new regulations would encourage tions for the accused. Decision-makers must be Programs or Activities Receiving Federal Financial Assistance, 83 Fed. Reg. 61,462 (Nov. 29, 2018) (to be codi- The “Dear Colleague” letter included schools to test the evidence offered by the trained to base decisions on credible evidence fied at 34 C.F.R. pt. 106). warnings that the Department’s Office of accuser and to give fair consideration to any rather than preconceived notions of guilt, to 16. Id. at 61,472. Civil Rights (OCR) intended to review griev- evidence offered by the accused.18 The most be fair to both the accused and the accuser, 17. Id. at 61,480. ance procedures to determine whether they important changes, from the perspective of a and to maintain impartiality throughout the 18. Id. at 61,472. 19. Id. at 61,474. were in compliance with procedures that lawyer who defends students accused of sexual proceeding. In particular, the proposed rules 20. Nondiscrimination, 83 Fed. Reg. at 61,474. OCR deemed necessary.10 Schools under- misconduct, are discussed below. would prohibit the common practice of assign- 21. Id. at 61,475. stood those warnings to mean that a failure Presumption of Innocence: The proposed ing an investigator, who not only conducts an 22. Id. to comply with the Department’s new under- 23. Id. at 61,467. regulations would expressly require colleges investigation, but also makes the decision if the 24. Id. at 61,487. standing of Title IX could result in a loss of and universities to presume that a student who evidence gathered in the investigation estab- 25. Nondiscrimination, 83 Fed. Reg. at 61,499. federal funding.11 is accused of sexual misconduct is innocent.19 lishes guilt.26 26. Id. at 61,472. 10 July/August 2019 Nassau Lawyer Education/Constitutional Law

The Intimate Association Between the First and Fourteenth Amendments Federal courts in New York have long rec- Amendment and that, “[a] relation- adopt the stricter “intentional con- claims asserted under the First Amendment ognized the United States Constitution’s pro- ship as important as marriage can- duct” standard for a Fourteenth verses those asserted under the Fourteenth tections of intimate associations. The intimate not be penalized for something as Amendment intimate association Amendment. Claims should not be broad- associations generally protected from govern- insubstantial as a public employer’s claim.18 The court noted, however, ly labeled as intimate association, but rather ment interference include the closest family discomfort about a discrimination that it had never before required should be linked to the particular amendment connections such as husband and wife and lawsuit brought by an employee’s such a showing, and it declined to applicable to the facts of the case, to avoid con- parent and child. Courts have sometimes s p ou s e .” 10 Thus, the concept of a adopt such a rule in Patel, finding fusion and to be sure the allegations meet the described the right of intimate association as First Amendment intimate associ- it unnecessary because the facts legal requirements for the claim. arising under the First Amendment, while at ation claim was solidified in New before the court showed intention- Defendants should scrutinize intimate asso- other times it is described as arising under the York. al conduct directed at the family.19 ciation claims for the vulnerabilities identified Fourteenth Amendment. This article explores Intimate Thus, the court declined to decide by Gorman. For First Amendment intimate the differences between these rights as recent- Roberts: the standard because the conduct association claims, defendants should look to ly delineated by the Second Circuit Court of Associations Under the Matthew before it satisfied the highest stan- attack the claim for failing to identify the pro- Appeals, and the decision’s impacts on intimate Fourteenth Amendment Weinick dard. Accordingly, the standard tected activity of a family member. When ana- association claims in New York. In addition to the First Amend- for Fourteenth Amendment inti- lyzing Fourteenth Amendment intimate associ- ment, intimate association claims mate association claims in New ation claims, defendants should review whether Adler: Intimate Associations as a York remained unsettled. Indeed, the claim is supported by allegations showing First Amendment Right have arisen out of the Fourteenth Amendment’s guarantees of sub- as recently as August 2018, Mag- conduct was intentionally directed at the family The Second Circuit closely examined the stantive due process. In 1984, the istrate Judge Tomlinson acknowl- relationship. right to intimate association and the haziness Supreme Court in Roberts v. Unit- edged the “ambiguity surround- Intimate association claims may not be of its contours for the first time in 1999, in ed States Jaycees acknowledged the ing the issue” of whether a plain- commonly litigated, but when they were, con- Adler v. Pataki.1 The case arose in the context existence of a “freedom of asso- tiff must allege that a defendant fusion swirled around the differences between of an employment dispute where a government ciation” as being a “fundamental “intended to interfere with” the First and Fourteenth Amendment claims as 20 lawyer alleged that he was fired by the state in element of personal liberty.”11 In protected relationship. well as the standards for each claim. After Gor- retaliation for a lawsuit his wife filed against the Roberts, Justice Brennan noted that Just months later, however, man, New York’s District Courts and litigants state, who was also a state-employed lawyer.2 some relationships are so import- in December 2018, the Second in those courts, have clearer guidance about This action, the plaintiff alleged, constituted a ant that the constitution protects Circuit resolved the ambiguity in constitutional torts which may arise when a Lucas Klirsfeld 21 violation of his First Amendment right of inti- them from “unwarranted state Gorman v. Rensselaer County. In government interferes with close family rela- mate association.3 interference.”12 As this general con- Gorman, the Second Circuit, rely- tionships. ing on Supreme Court precedents At the time of the Adler decision, the Sec- cept developed in the Second Cir- Matthew Weinick, partner with Famighetti & ond Circuit observed that “[t]he source of the cuit, courts required a showing of government limiting due process claims to deliberate con- Weinick, PLLC in Melville, represents indi- intimate association right has not been authori- conduct which was “so shocking, arbitrary, and duct, squarely held that intimate association viduals in employment litigation matters and tatively determined.”4 The confusion, according egregious that the Due Process Clause would claims must allege “state action was specifical- constitutional torts. He is Vice-Chairperson to the court, arose because the Supreme Court not countenance it even were it accompanied ly intended to interfere with the family rela- of the NCBA Labor and Employment Law sometimes suggested that the right to intimate by full procedural protection.”13 tionship.”22 Moreover, in differentiating First Committee and can be reached at mbw@ As Fourteenth Amendment intimate asso- Amendment and Fourteenth Amendment inti- fwlawpllc.com or http://linycemploymentlaw. association emanated from the Fourteenth com. Amendment’s guarantees of personal liberty as ciation claims were litigated across the coun- mate association claims, the Circuit clarified a component of due process.5 Other Supreme try, cases diverged along two lines: govern- that First Amendment claims may arise when Lucas Klirsfeld is a Hofstra Law student and Court cases, the Circuit noted, described the ment action which had an “incidental effect the state intrudes into a family relationship to a law clerk with Famighetti & Weinick, PLLC. Mr. Klirsfeld assisted in drafting this article. right of intimate association as being comprised of severing” the intimate relationship and con- retaliate for a family members’ exercise of his or 23 of the First Amendment rights of intimate asso- duct which was “aimed specifically at inter- her First Amendment rights. 1. 185 F.3d 35 (2d Cir. 1999). ciation and expressive association.6 fering with the relationship.”14 Many circuits, Thus, Gorman has settled confusion about 2. Id. at 38-39. In Adler, the Second Circuit expressed uncer- including the Third, Fourth, Sixth, and Tenth, intimate association claims in New York in at 3. Id. tainty not only about the source of intimate required the higher standard of intentional least three ways. First, Gorman makes clear that 4. Id. at 42. 15 5. Id. (citations omitted). association rights, but also about the appropriate conduct. In these circuits, government action intimate association claims may arise under 6. Id. standard to evaluate such claims.7 The Court which had the effect of terminating a protected the First Amendment and the Fourteenth 7. Id. at 43. found three possible standards applied by the intimate association, but which was caused by Amendment, depending on the alleged con- 8. Id. at 43-44 (citations omitted). 9. Id. at 44. Supreme Court and Circuit Courts: (1) the vio- conduct which was not intended to end the duct. Second, First Amendment intimate asso- 16 10. Id. lation must have the effect of “likely . . . ending relationship, did not violate due process. For ciation claims must allege that a family member 11. 468 U.S. 609, 618 (1984). the protected relationship,” (2) the state’s action example, if a police officer intentionally shoots engaged in protected First Amendment activity 12. Id. at 619. must have had the purpose of “affecting the and kills a person out of fear that the individual and that the state retaliated against the fam- 13. Anthony v. City of New York, 339 F.3d 129, 143 (2d Cir. has a gun, the victim’s family does not have an ily based on that activity. Third, Fourteenth 2003) (citation omitted). relationship,” or (3) the state’s actions must be 14. Russ v. Watts, 414 F.3d 783, 787 (7th Cir. 2005) (col- “arbitrary” or constitute an “undue intrusion . . . intimate association due process claim because Amendment intimate association claims must lecting cases). into the marriage relationship.”8 the officer did not intend to end the victim’s allege that the government intentionally inter- 15. Id. (citations omitted). 17 The court determined, however, that Adler relationship with his family. This is true, even fered with the family relationship. 16. Id. if the officer was mistaken about the gun. 17. See id. at 790. was not alleging that the state undertook to Be Clear About Your Claims 18. 305 F.3d 130, 137 (2d Cir. 2002). regulate or to end his marriage, but rather took Gorman: The Second Circuit Accepts 19. Id. action against him in retaliation for his wife’s New York practitioners should pay close 20. Donohue v. Wing, No. 17-3879, 2018 U.S. Dist. LEXIS 9 Claims Under Either Amendment 140812, at *33 (E.D.N.Y. Aug. 17, 2018). conduct. “Though the matter is not free from attention to the Gorman decision when litigat- 21. 910 F.3d 40 (2d Cir. 2018). doubt,” the Adler court decided that such a In the 2002 case Patel v. Searles, govern- ing intimate association claims. Plaintiffs should 22. Id. at 48 (citation omitted). claim touched on the protections of the First ment defendants asked the Second Circuit to recognize the significant differences between 23. Id. at 47. Let’s Build A Future Together Trust Us to Help Guide Your Financial Future

Alan Schoenberger CFP® Endeavor Financial Planning, LLC 445 Broad Hollow Rd., Suite 25 | Melville NY 11747 631.870.0957 | [email protected] www.endeavorfp.com 12 July/August 2019 Nassau Lawyer The Second Department’s Position on CPLR 5015(a)(3)

I dedicate this article to the memory of the State Legislature is clear and dix) and broadens the basis for vice Bar Ass’n, Local 237, Intern. Broth. my first law mentor, David Kadane. He was unambiguous, and involves no relief by motion beyond that Teamsters v. City of New York, 64 N.Y.2d one of the founding professors of the Hofstra absurdity or contradiction, there recognized in prior case law, 188, 485 N.Y.S.2d 227, 474 N.E.2d 587 University School of Law and more. He drilled is no room for construction and which required the movant to (1984).” into me that a good lawyer does not rely courts have no right to add to establish the commission of a on squibs and conclusory opinions, as they or take away from the meaning. fraud (5 Weinstein-Korn-Mill- In the Second Department, may be erroneous. Instead, a good lawyer When this doctrine is violated, a er, N.Y. Civ. Prac., par. 5015.08, Shaw Remains the Law p. 50-234). continues the research until he finds the heart court impermissibly encroaches Notwithstanding what the Court of Though the Advisory Com- of the issue and starts from there. upon the legislative and execu- Appeals made clear, the Second Depart- mittee notes make clear that The Second Department’s determination tive domains and thereby vio- ment remains married to Shaw v. Shaw the fraud forming the basis that CPLR 5015(a)(3) requires a defaulting lates the foundation of the sepa- and ruled, in 2019, on a case where the for a CPLR 5015 motion may defendant to show an excusable default and ration of powers doctrine.” issue of the Separation of Powers Doctrine be either extrinsic or intrinsic a meritorious defense came from Justice In Shaw v. Shaw, that court David was orally argued on November 1, 2018, (Third Preliminary Report of Mangano’s concurring opinion in Shaw v. said: Bythewood that: “[T]o prevail on a motion pursu- 1 Advisory Comm on Practice Shaw. There, it is clear that Justice Manga- [H]owever, defendants’ motion ant to CPLR 5015(a)(3) where intrinsic and Procedure, p. 204 (1959)), and the no improperly merged CPLR 5015(a)(1)’s to vacate the judgment of divorce is not fraud is alleged, a defendant must demon- removal of that troublesome distinction requirements into CPLR 5015(a)(3) without brought on the ground of excusable default strate a reasonable excuse for her default has been applied by analogy to an indepen- any explanation, and by doing that, he added as delineated in paragraph 1 of subdivision and a meritorious defense.” Bank of New dent action to set aside a judgment (Levine to that statute and violated the Separation of (a) of CPLR 5015. Rather, his motion to York Mellon Trust Company, N.A. v. Kristin v. O’Malley, 33 A.D.2d 874, 307 N.Y.S.2d Powers Doctrine. vacate, being predicated on an accusation Ross,4 a ruling with no explanation of how 918), it is by no means clear that an inde- that he was lulled into a false sense of secu- or why it did not violate the Separation of Shaw v. Shaw: Justice pendent action can be based upon misrep- rity with respect to the divorce action, in Powers Doctrine. resentation or misconduct, as can a motion Mangano’s Concurrence essence an allegation of extrinsic fraud is The Second Department also relies on under CPLR 5015 (subd. (A), par. (3).” brought pursuant to paragraph 3 of subdi- Bank of New York v. Logakos.5 This case is The plain language of CPLR 5015(a) Later, the Court of Appeals further vision (a) of CPLR 5015. That paragraph cited by the Second Department in Bank (3) is clear: “On motion, the court which expounded on CPLR 5015(a)(3). allows a judgment to be vacated upon the of New York Mellon Trust Company, N.A. v. rendered a judgment or order may relieve As originally drafted, CPLR 5015 (subd. ground of fraud, misrepresentation or other Kristin Ross. Examining Bank of New York a party from it upon such terms as may be Par. 3) provided for a vacatur of a misconduct. In our opinion, a movant seek- v. Logakos it is clear that, notwithstanding just, on motion of any interested person judgment only on the ground of fraud with such notice as the court may direct, ing relief from a judgment under this para- other cases cited, its foundation and that of graph, at least on the ground of extrinsic (see Third Prelim. Report of Advisory upon the ground of fraud, misrepresen- Comm. On Practice and Procedure, the other cases cited therein is Shaw v. Shaw. tation, or other misconduct of an adverse fraud, need not show that he has a meri- Analyzing Bank of New York v. Logakos torious defense or cause of action.” Shaw v. N.Y. Legis. Doc., No. 17, 1959, p. 203). party;...” Examining that statute, there is no In a subsequent draft patterned in Rule we see that it is also in direct conflict with ambiguity or other valid basis for adding to Shaw, 97 A.D.2d at 403. Oppenheimer v. Westcott and Civil Service Then, in his concurring opinion, Justice 60(b)(3) of the Federal Rules of Civil or taking away from it. There is no mention Procedure, the text of the CPLR para- Bar Ass’n, Local 237, Intern. Broth. Team- of intrinsic or extrinsic fraud. CPLR 5015(a) Mangano, notwithstanding Oppenheimer v. sters v. City of New York. Neither of these 3 graph was revised to include fraud, (3) just says “fraud.” There is no mention of Westcott wrote: Court of Appeals cases is cited therein, and it is a well established principle that a misrepresentation or other misconduct a defaulting movant having to show merit (see Oppenheimer v. Westcott, 47 N.Y.2d instead, the reliance is on Shaw v. Shaw, or any excuse. motion to vacate a default judgment is like all of the cases relied on by the Second addressed to the discretion of the court 595, 603, 319 N.Y.S.2d 908, 393 N.E.2d Notwithstanding the plain language of 982; Fourth Prelim. Report of Adviso- Department. that statute, Justice Mangano, in Shaw v. and should not ordinarily be granted in The Second Department’s determination the absence of (1) a valid excuse and (2) ry Comm. on Practice and Procedure, Shaw, added to CPLR 5015(a)(3) when he N.Y. Legis. Doc., No. 20, 1960, pp. 214- in Bank of New York v. Logakos as to CPLR wrote: “It is well established that a motion to a demonstration of merit.” Shaw v. Shaw, 5015(a)(3) was that the defendants alleged 97 A.D.2d at 406. 215; 5 Weinstein Korn-Miller, N.Y. Civ. vacate a default judgment will not ordinarily Prac., par. 5018.08. Misrepresentation that the plaintiff obtained the underlying be granted in absence of (1) a valid excuse and misconduct were added to broaden default judgment through “intrinsic fraud,” Oppenheimer: The Court and that the plaintiff’s allegations as to the and (2) a demonstration of merit.” of Appeals on CPLR 5015(a)(3) the basis for granting relief to include Confusing? Yes! That is because Jus- situations in which it would be ineq- defendants’ default on the mortgage were tice Mangano imposed the requirement That is not the law written by the New uitable to permit a party to retain the false (Morel v. Clacherty, 186 A.D.2d 638, for vacating a default, pursuant to CPLR York State Legislature. To know what the benefits of a judgment where it is shown 639), rather than through “extrinsic fraud,” 5015(a)(1), upon vacating a prior judgment law is and should be, we need go no further that the party engaged in nonfraudulent which is fraud practiced in obtaining a or order, which is pursuant to CPLR 5015(a) than Oppenheimer v. Westcott. but wrongful conduct in obtaining the judgment such that a party may have been (3). Therein, the Court of Appeals made judgment (see 5 Weinstein Korn-Mill- prevented from fully and fairly litigating The Separation of Powers Doctrine is it clear that there was to be no distinc- er, op. Cit., pars, 5015.08, 5015.09, 7 the matter (Shaw v. Shaw, 97 A.D.2d 403). laid out in People v. Cahill,2 “Our function tion between intrinsic and extrinsic fraud Moore’s Fed. Prac., par. 60.24). Relief The defendants were therefore required to as judges is to interpret the law. The gov- under CPLR 5015(a)(3). “The inclusion is thus authorized when it is estab- show a reasonable excuse for their default erning rule of statutory construction is that in CPLR (Subd. (A), par. (3) of “mis- lished that thejudgment sought to be (see Fischman v. Gilmore, 246 A.D.2d 508; courts are obliged to interpret a statute to representation and other misconduct” is vacated is infirm in consequence of Berardo v. Berardo, 205 A.D.2d 1036; Morel effectuate the intent of the Legislature. The based upon the parallel wording of rule fraud, misrepresentation or other mis- v. Clachety, supra) .” clearest indicator of legislative intent is the 60 (subd. (B), par. (3)) of the Rules of conduct practiced on the court in which statute itself. If the language chosen by Civil Procedure (U.S. Code, tit. 28, Appen- the judgment was granted.” Civil Ser- See CPLR, Page 21

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LIBN—CLE centerfold July 2019 Paper size 23” x 15”; image size 21.25 x 13.25 14 July/August 2019 Nassau Lawyer

NEW DEAN JAIME D. EZRATTY Live CLE programs resume in September. Below is a snapshot of upcoming offerings. We have changed the time of our lunchtime Dean’s Hours to 12:45—1:45 p.m. so as to accommodate attendees that need to be in court at 2:00 p.m. Pre-registration required for all programs.

September 12, 2019 Dean’s Hour: New York City’s Specialized High Schools in an Age of Diversity and Inclusion With the NCBA Education Law and Diversity and Inclusion Committees 1 credit in diversity, inclusion and elimination of bias

September 18, 2019 Dean’s Hour: Statewide Housing Security and Tenant Protection Act of 2019 With the NCBA District Court Committee Jaime D. Ezratty has been elected the 30th Dean of the Nassau Academy of Law, the 1 credit in professional practice or skills educational arm of the Nassau County Bar Association. Ezratty is a partner at Horing September 24, 2019 Welkinson & Rosen P.C., Williston Park, where he practices in the areas of landlord/tenant Dean’s Hour: Ethical Obligation to Maintain Confidentiality in an Electronic Age law. With the NCBA Ethics Committee 1 credit in ethics Jaime Ezratty is a very active member of the Nassau County Bar Association. In addition to his role as Dean, he is also the outgoing Chair of the District Court Committee and is a past September 25, 2019 Director of the NCBA Board of Directors. Dean’s Hour: Fireside Chat with Lawrence Bryne, Former Chief Legal Officer of the NYPD 1 credit in professional practice Jaime began his legal career at Reid & Priest in New York City, where he practiced before the New York State and federal courts. His experience includes conducting trials, depositions, and September 25, 2019 Can a Judge Have an Extra-Judicial Life? (An Evening with Hon. Frederic Block) all types of motion practice. In 1991, he went into private practice, concentrating most of his With the NCBA Federal Courts Committee resources in the area of landlord/tenant law. 1 credit in ethics Sign-in begins 5:30 p.m.; Program 6:00—7:00 p.m. In addition, the following attorneys were elected to Nassau Academy leadership positions for the 2019-20 membership year: Associate Dean Anthony Michael Sabino of Sabino & Sabino, Mineola; Assistant Deans Terrence L. Tarver, Tarver Law Firm, Garden City and Susan Katz SAVE THE DATE Richman, Attorney-in-Chief, Nassau County District Court Law Department; Secretary Hon. Joseph Goldstein Bridge-the-Gap Weekend Michael E. Ratner of Abrams, Fensterman et al. Lake Success; Treasurer Scott J. Limmer, March 14—15, 2020 Mineola, and Counsel Gary Petropoulos of Catalano, Gallardo & Petropoulos LLP, Jericho. 16 credits in one weekend! BTG is free for NCBA Members! LIBN—CLE centerfold July 2019 Paper size 23” x 15”; image size 21.25 x 13.25 Nassau Lawyer July/August 2019 15

NEW DEAN JAIME D. EZRATTY Live CLE programs resume in September. Below is a snapshot of upcoming offerings. We have changed the time of our lunchtime Dean’s Hours to 12:45—1:45 p.m. so as to accommodate attendees that need to be in court at 2:00 p.m. Pre-registration required for all programs.

September 12, 2019 Dean’s Hour: New York City’s Specialized High Schools in an Age of Diversity and Inclusion With the NCBA Education Law and Diversity and Inclusion Committees 1 credit in diversity, inclusion and elimination of bias

September 18, 2019 Dean’s Hour: Statewide Housing Security and Tenant Protection Act of 2019 With the NCBA District Court Committee Jaime D. Ezratty has been elected the 30th Dean of the Nassau Academy of Law, the 1 credit in professional practice or skills educational arm of the Nassau County Bar Association. Ezratty is a partner at Horing September 24, 2019 Welkinson & Rosen P.C., Williston Park, where he practices in the areas of landlord/tenant Dean’s Hour: Ethical Obligation to Maintain Confidentiality in an Electronic Age law. With the NCBA Ethics Committee 1 credit in ethics Jaime Ezratty is a very active member of the Nassau County Bar Association. In addition to his role as Dean, he is also the outgoing Chair of the District Court Committee and is a past September 25, 2019 Director of the NCBA Board of Directors. Dean’s Hour: Fireside Chat with Lawrence Bryne, Former Chief Legal Officer of the NYPD 1 credit in professional practice Jaime began his legal career at Reid & Priest in New York City, where he practiced before the New York State and federal courts. His experience includes conducting trials, depositions, and September 25, 2019 Can a Judge Have an Extra-Judicial Life? (An Evening with Hon. Frederic Block) all types of motion practice. In 1991, he went into private practice, concentrating most of his With the NCBA Federal Courts Committee resources in the area of landlord/tenant law. 1 credit in ethics Sign-in begins 5:30 p.m.; Program 6:00—7:00 p.m. In addition, the following attorneys were elected to Nassau Academy leadership positions for the 2019-20 membership year: Associate Dean Anthony Michael Sabino of Sabino & Sabino, Mineola; Assistant Deans Terrence L. Tarver, Tarver Law Firm, Garden City and Susan Katz SAVE THE DATE Richman, Attorney-in-Chief, Nassau County District Court Law Department; Secretary Hon. Joseph Goldstein Bridge-the-Gap Weekend Michael E. Ratner of Abrams, Fensterman et al. Lake Success; Treasurer Scott J. Limmer, March 14—15, 2020 Mineola, and Counsel Gary Petropoulos of Catalano, Gallardo & Petropoulos LLP, Jericho. 16 credits in one weekend! BTG is free for NCBA Members! 16 July/August 2019 Nassau Lawyer LAWYER LIT A Mockingbird Lands at the Shubert Theatre

Review by Rudy Carmenaty racist, the venomous incarnation of every Like most Americans, I became aware of malevolent thought imaginable. That being Harper Lee’s To Kill a Mockingbird as an ado- said, he could easily have been played as a lescent. Required reading in middle school, caricature. But in the hands of Fred Weller, the Pulitzer Prize winning novel tells of Atti- this stock villain displays a combination of cus Finch. Finch is a small-town lawyer who menace as well as ignorance that is more than defends an African-American man falsely just frightening because it all too familiar and accused of raping a white woman in the era much too common. of Jim Crow. These performances capture the human Told from the perspective of Finch’s chil- face of prejudice in all its ugliness as well as dren, his daughter Scout and son Jem, the all its pathos. Atticus isn’t wrong when he says story is a wistful remembrance of growing these are people to be pitied. But it is Calpur- up in Depression-era Alabama climaxed by a nia whose judgements are closer to the mark pensive, racially charged trial sequence. Being when it comes to the Ewells, as well as to the a rite of passage for the nation’s youngsters, respectable white people in the community To Kill a Mockingbird transcends the bounds who condone such hatred in the first place. of fiction becoming a part of the tapestry of One would be remiss not to mention Neal American folklore. Huff’s evocative performance as Link Deas. In 1962, Lee’s tale of childhood innocence Deas is Tom’s employer and he testifies on his amidst the cauldron of race, sex and class in behalf. Dismissed readily when first intro- the Old South was brought to the cinema. duced as the “town drunk”, he is someone who Gregory Peck won an Academy Award for his the townspeople consider morally suspect on Lincolnesque performance. Peck portrayed account of his familiarity with and fairness to Atticus Finch as an avatar of moral courage African- Americans. and decency in the face of legally-sanctioned Appearances being deceiving, Link is not a drunk. The paper bag he always carries with bigotry. Photo by Rudy Carmenaty To Kill a Mockingbird has now come to him contains not alcohol but Coca Cola. As Broadway and done so gloriously. The classic it turns out, he acts decently towards his black Ms Richardson Jackson is a graduate of Spell- Unlike Atticus, Calpurnia blames the tale remains ostensibly the same but recon- neighbors because of the most elemental of man College.2 With every breath she draws jurors explicitly for their actions. She calls all human motivations: love. Link loved a figured for the limitations of time and space upon the stage, there is little doubt that she is them “monsters” after rendering an unjust black woman who commits suicide after their inherent on the stage. Adapted by Aaron upholding a tradition nurtured at that histor- verdict of guilty after only 37 minutes of child dies from fever caused by strep throat. Sorkin and directed by Bartlett Sher, the ically black institution. deliberations. With Tom dead, they are in her Hauntingly, we learn that the child was denied courtroom drama is fully integrated into the In fortifying Calpurnia’s role, Sorkin wise- eyes now “murderers” for having set things medical care simply because he was biracial. story forging the spine of the narrative as less ly imbues her with a wisdom and dignity in motion. Clearly, Calpurnia’s voice needs Link, the mirror opposite of Bob Ewell, is emphasis is placed on the children’s story.1 that was not seen in earlier characterizations. to be heard well-beyond the cozy confines of among of the walking-wounded. Prejudice has Considering how much the original is uni- She stands in stark contrast to an endless the Shubert. scarred his life in ways that are unspeakable, versally admired, I must confess approaching litany of condescending stereotypes that have Similarly, the character of Tom Robinson costing him first his child and then his com- this production with some skepticism. The unfortunately defined the roles available to obtains a new stature. It would have been mon-law wife. As such, he serves as “link” if underlying question for every theatergoer, African-American actresses for far too long. simpler to have Tom serve as an abstraction, you will not only between Blacks and Whites particularly every lawyer in the audience, In this production, the relationship a representation of all victims of racial injus- in Maycomb, but as a link to our common would be who could ever fill the shoes or wear between Atticus and Calpurnia is not one tice. Going well beyond the “Yes Sirs” and humanity. that seer-sucker suit other than Gregory Peck. of a paternalistic employer and a faithful “No Sirs”, Gbenga Akinnagbe portrays Tom To Kill a Mockingbird is cause for a unani- The answer turns out to be Jeff Daniels. retainer, but rather there is a bond of mutual as a fully realized human being. A husband, mous and approving verdict. Thanks to Aaron Daniel’s portrayal of Atticus Finch is far respect. Perhaps it is ahistorical to the actual a father, a man who does not want his kids Sorkin and company, Harper Lee’s tale of from Lincolnesque. Yet with his innate decen- period depicted, as Atticus and Calpurnia to see him go to the electric chair3 if he is memory and morality is an illuminating the- cy and his almost Christ-like appreciation of are described by Scout as being more like convicted. atrical experience. The play succeeds, much as people, he reinterprets the character subtlety “brother and sister”. But it does seem natural, Akinnagbe presents a man so conscripted Lee’s novel and Peck’s film, because the story rendering a performance which rings true unforced and in its own way symbolic of by racial and sexual mores of such hateful provides a ray of hope and understanding with every cadence. Supremely honorable, the deep-rooted ambiguities of the American proportions, that every facet of his humanity against not only prejudice but despair as well. this Atticus Finch is a man who is perhaps South. is as much in question as his very life is in This nation has historically waxed and too pure. One who fails to see that the world Calpurnia is on a par with Atticus as the jeopardy. Indeed, what convicts Tom in the waned between complacency and panic when around him does not share his values much play’s moral center. In the novel or as realized eyes of a jury that is never seen on stage4, is confronted by race. What emerges from this less his virtues. by Gregory Peck, Atticus has an air of unques- that he felt genuine sympathy for his accuser. production is that human culpability, despite Amazingly enough, for a story set in the tioned righteousness. Daniel’s rendition pres- During this time, no black person could ever the passage of time, is inescapable. The play 1930’s about a shameful time in our collec- ents a less traditionally authoritative figure. assert that he or she in any way fathomable provides many voices, not just that of Atti- tive history, the play has a contemporary feel This is not a projection of frailty on the part was superior to a white person. cus, which speak to a recurring burden from which nevertheless remains authentic. Per- of Daniels, but instead a demonstration of a Tom’s left arm is paralyzed as result of the past which continues to mar the present. haps times have not changed as much as we benign blindness on the part of his character. an accident with a cotton gin. The physical These voices, a panorama of Southern voices would like to believe. In this vein, Sorkin has It is because he is an attorney, has a formal evidence shows conclusively that the victim’s to be sure, speak to broader American themes. reimagined Harper Lee’s characters making education, and is a white male, that Atticus attacker was left-handed. But in a vicious Maybe it’s time we listened. them vividly alive for a twenty-first century has the luxury to believe that all people are cross-examination, Tom is baited by the bigot- One final note, the first Broadway show I audience. essentially good. That you all you have to do, ed prosecutor into admitting he felt sorry for a ever saw was A Chorus Line at the Schubert In doing so, he brings to light depths as he says often, is live in another person’s white woman thus sealing his fate. more than forty-years ago. I recall the spectac- of meaning unexplored in previous incar- skin for a while to understand them. His sta- Frankly it matters not what the actual evi- ular dance numbers and the soaring musical nations of the material. More to the point, tion in life permits him an almost Olympian dence indicates, because it is Tom’s humanity score, but what stays most with me was the voices, which in a prior age went unheard or detachment. Calpurnia occupies a decidedly which is on trial and which the jury that con- plea for tolerance that was an integral part whose words were left unspoken, are finally different place in the social pecking order. victs him found so objectionable. Tom had of that show. It warms my heart to know that permitted to at last speak their peace. The As Scout details, in Maycomb, Alabama a simple human feeling, it was a cardinal sin spirit is once again at home in this wonderful pronounced sensibilities of a post-Civil Right in 1934, Blacks occupy the lowest strata, fol- worthy of conviction and even death in the old theater that is the crown jewel of Broad- movement America, as well as the echoes of lowed by white farmers, then by white towns- Old South. In Akinnagbe’s sterling perfor- way. a post-Obama America, seem to have mari- people, and above them all is the white profes- mance, one sees Tom Robinson more clearly Rudy Carmenaty is a Deputy County nated in the retelling of this American classic. sional class. Calpurnia has no alternative but as a man and not just a victim. Attorney and is the Director of Legal Atticus Finch remains very much the focus to see things, not as Atticus would ideally like Sorkin’s reconceptualization of the char- Services for the Nassau County Department of the production, as does Scout and Jem and them to be, but rather as they really are. She acters is not confined to African-Americans of Social Services. even old Boo Radley is revealed behind the cannot afford to close her eyes to the brutal alone. Depth is added to the character of Tom’s door as we remember so fondly. But strokes 1. The roles of Scout, Jem, and their friend Dill, are all reality that consistently confronts her and accuser Mayella Ewell, hauntingly played by performed by adults. This casting adds to the “matura- of texture and resonance have been applied every other African-American. Erin Wilhelmi. A victim herself, racism has tion” evident in this production, and the shift away from to various other characters, adding new layers Her cathartic moment comes in the Sec- become for her a defense mechanism for the the material being simply a story for children. of poignancy and humanity to the situations ond Act when she learns that Tom Robin- sexual and physical abuse she experiences at 2. Playbill for To Kill a Mockingbird, p. 43. 5 3. As made clear in all versions of Lee’s story, the rape of portrayed. son, the African-American man who Atticus the hands of her father Bob Ewell. After being a white woman by an African-American man is a capital This dynamic is at its most striking in the defends at trial, has been shot in the head five seen with Tom, her father, who is left-handed, offense punishable by death if convicted. character of Calpurnia, the Finch family’s times while trying to escape from jail. Her beats her savagely calling her a whore. 4. An empty jury box serves as the dramatic personae of maid, who is regally played by LaTanya Rich- But whereas his daughter’s action come the jury during the production. Perhaps, it is we the audi- pain is profound, born of four centuries of ence who are the jury empaneled at the Schubert Theatre. ardson Jackson. Her performance is nothing black women shedding tears for black men from a deep-seated well of ignorance, abuse, 5. The element of sexual abuse is more pronounced in short of a revelation. The Playbill notes that wrongfully killed. and despair; Bob Ewell is a gaunt, vicious this rendition of the material.

18 July/August 2019 Nassau Lawyer

WE CARE Teams Up with Rebuilding We Care Together Long Island, Inc. We Acknowledge, with Thanks, Contributions to the WE CARE Fund DONOR IN HONOR OF Richard G. Fromewick Jaime Ezratty, installed as the Dean of the Nassau Academy of Law Joanne and Frank Gulotta, Jr. Jeff Forchelli, 50 Year Anniversary of his Admission to the Bar Joanne and Frank Gulotta, Jr. Sy Reisman, 60 Year Anniversary of his Admission to the Bar Joanne and Frank Gulotta, Jr. Hon. Jack B. Weinstein, 70 Distinguished Years as a Lawyer and Judge Miriam Harris-Kaplan Sarah Fastow, daughter of Judith and and George Kaplan Fred Fastow, on her forthcoming wedding Sharon Levy Mike Levine, for your kindness and generosity Andrea and Sandy Nagrotsky Maya Weller, granddaughter of Hon. Joseph and Marissa Lorintz Peter Panaro Irene Angelakis, installed as President of the Women’s Bar Association

For over a decade, WE CARE, the charitable arm of the Nassau County Bar Association, Hon. Denise Sher Jaime Ezratty, installed as the Dean has partnered with Rebuilding Together Long Island, Inc., a charitable organization dedicated of the Nassau Academy of Law to repairing and rebuilding the homes of individuals and families in need in Nassau County, The Law Department of Nassau including low-income residents who are elderly, veterans, disabled, or families with children. County District Court Tom Bucaria, Happy Birthday This year, the group volunteered to assist on another special project that helped to repair Stephen Gassman Cecile Blitstein, mother of Esther Schonfeld the home of a disabled gentleman who is living on his own now that his veteran brother has been moved to a nursing home. IN HONOR OF RICHARD D. COLLINS, INTALLED AS THE 117TH PRESIDENT OF THE NASSAU COUNTY BAR ASSOCIATION Richard G. Fromewick Hon. Denise Sher Hon. Joy M. Watson

IN HONOR OF FLORENCE FASS, STEPHEN GASSMAN AWARD RECIPIENT DiMascio & Associates, LLP Hon. Carnell T. Foskey Richard G. Fromewick Stephen Gassman Lois Schwaeber Hon. Joy M. Watson

IN HONOR OF STEPHEN GASSMAN, NASSAU COUNTY BAR ASSOCIATION DISTINGUISHED SERVICE MEDALLION RECIPIENT DiMascio & Associates, LLP Hon. Carnell T. Foskey Richard G. Fromewick Hon. Joy M. Watson

IN HONOR OF MARILYN K. GENOA, INSTALLED AS THE PRESIDENT OF THE NASSAU COUNTY MAGISTRATES ASSOCIATION Richard G. Fromewick Lois Schwaeber Hon. Denise Sher DONOR IN MEMORY OF DiMascio & Associater, LLP Jeffrey Ratner, father of Michael Ratner Joanne and Frank Gulotta, Jr. Craig H. Goldman, brother of Jan D. Goldman Joshua Gruner Cecile Blitstein, mother of Esther Schonfeld Hon. Denise Sher Craig H. Goldman, brother of Jan D. Goldman Hon. Denise Sher Jeffrey Ratner, father of Michael Ratner Hon. Ira B. Warshawsky Jason Rothman Richard and Kathleen Wright Rani Makhijani, mother of Mili Makhijani IN MEMORY OF CHARLES HUFFMAN, FATHER-IN-LAW OF HON. IGNATIUS MUSCARELLA Hon. Andrea Phoenix Hon. Denise Sher Hon. Joy M. Watson

Checks made payable to Nassau Bar Foundation — WE CARE Contributions may be made by mail: NCBA Attn: WE CARE • 15th & West Streets Mineola, NY 11501 Nassau Lawyer July/August 2019 19

NCBA and NAL Installation of Officers • June 4, 2019

NCBA President Richard D. Collins NCBA President Richard D. Collins takes the oath of office (1-r) NCBA Secretary Sanford Strenger, Treasurer Rosalia administered by Hon. Robert A. McDonald. Baiamonte, and Vice President Gregory S. Lisi

NCBA Elected Directors: (standing 1-r) Michael Cardello Ill, Rudolph Carmenaty, Anthony J. Fasano, Lisa M. Petrocelli, Daniel W. Russo, Lisa R. Schoenfeld, Adam E. Small, and Danielle M. Visvader. (seated 1-r) Sanford Strenger, Rosalia Baiamonte, Gregory S. Lisi, Dorian R. Hon. Robert A. McDonald spoke on Glover, Richard D. Collins, behalf of President Richard D. Collins. NAL Dean Jaime D. Ezratty Stephen G. Leventhal, and Elena Karabatos.

Nassau Academy of Law Executive Board: (1-r) Associate Dean Anthony Michael Sabino, Assistant Dean Terrence L. Tarver, Assistant Dean Susan Katz Richman, Secretary Michael E. Ratner, Treasurer Scott J. Limmer, and Counsel Gary Petropoulos sworn in by Hon. Nassau Academy of Law Dean Jaime NCBA President-Elect Dorian R. Glover Norman St. George. D. Ezratty sworn into office by his sworn into office by Hon. Norman St. uncle, Professor Owen M. Fiss. George. Photos by Hector Herrera

VOLUNTEER ATTORNEYS NEEDED FREE Confidential Help Is

U COU SA N S T A Y Available N

B Founded A 1899 N R I O Exclusively for the Legal Community A T S S O C I A

OPEN HOUSE Alcohol Thursday, October 24, 2019 Drugs Stress 3:00 p.m. - 7:00 p.m. Anxiety The Nassau County Bar Association, Nassau Suffolk Law Services and The Safe Center Depression invite all attorneys to volunteer for an OPEN HOUSE. Practice Closings Any Nassau resident can come to the Bar Association’s headquarters, located at the Gambling corner of 15th & West Streets in Mineola, and speak with an attorney.

Attorneys knowledgeable in the following areas of law are needed to advise these residents.

Ÿ Bankruptcy Ÿ Mortgage Foreclosure and Housing Confidential Ÿ Divorce and Family Issues Ÿ Senior Citizen Issues Protected by Ÿ Employment Ÿ Superstorm Sandy Section 499 of the Judiciary Law Attorneys DO NOT provide legal representation. Attorneys are needed between the hours of 3:00 to 5:00 p.m. and 5:00 to 7:00 p.m. LAWYER ASSISTANCE PROGRAM (888) 408-6222 [email protected] Please contact Nassaubar-lap.org Cheryl Cardona at (516) 747-4070 or [email protected]. LAP is supported by grants from the WE CARE Fund, part of the Nassau Bar Foundation, NCBA's charitable arm, and the NYS Office of Court Administration. 20 July/August 2019 Nassau Lawyer

In Brief

Michael Cardello III, a Partner in the law “Didn’t Pay Your New York State At its June 27, 2019 Annual 12th Annual Arbitration Training Institute, firm of Moritt Hock & Hamroff LLP, who Sales Tax? 8 Consequences Restau- Meeting, the Nassau County Vil- which was held in Philadelphia on May 16 and concentrates his practice in all areas of business rant Owners Need to Know” and lage Officials Association, which 17, 2019. Mr. Feather led a panel discussion on and commercial litigation, was recently elected was featured on a podcast for Heller represents 64 incorporated villages employment law arbitrations. to serve on the Board of Directors of the Nassau Wealth Management. with more than 450,000 residents, County Bar Association for a three year term. elected Edward Lieberman, mayor The Nassau Lawyer welcomes submis- Ronald Fatoullah of Ronald of the Village of Sea Cliff, president sions to the IN BRIEF column announc- Barket Epstein Kearon Aldea & LoTurco, Fatoullah & Associates presented for 2019-2020. ing news, events and recent accom- LLP, a boutique criminal defense and civil “Learn How to Protect Your Assets,” plishments of its current members. Due rights firm with offices in New York City and a complimentary and educational Assistant District Attorney, René to space limitations, submissions may on Long Island, announced that Donna Aldea, seminar for seniors who are plan- P. Fiechter, Director of Communi- be edited for length and content. the partner heading its appellate and post-con- ning and preparing for possible ty Affairs for Nassau County Dis- PLEASE NOTE: All submissions to the viction litigation group, will be featured in the long-term care needs hosted by Marian C. Rice trict Attorney Madeline Singas, was IN BRIEF column must be made as fourth episode of the latest Netflix true crime the New York Public Library in the recipient of the Community WORD DOCUMENTS. original series, “Exhibit A,” an exploration into Manhattan. In addition, the firm Leadership Award of Valor pre- the American criminal justice system through participated in the Parker Jewish Institute’s sented by H.E.V.N. Help End Violence at its the uncertainties of forensic science as a result Healthcare Expo in New Hyde Park for Social 20th anniversary celebration for being one of PLEASE EMAIL YOUR SUBMISSIONS TO nas- of the case Ms. Aldea won on appeal by chal- Workers and Case Managers. Mr. Fatoullah the originators of the anti-gang organization. [email protected] with subject line: lenging the validity of the prosecution’s DNA also presented “Planning for Later Life—Be Fiechter was also presented with the Drug Free IN BRIEF evidence. Prepared,” sponsored by New York State Sen- Hero Award by the Foundation for a Drug Free The In Brief column is compiled by Marian ator Liz Krueger’s community outreach pro- World at their Gala for work as a “community C. Rice, a partner at the Garden City law firm Elizabeth Forspan is thrilled to announce gram and provided an overview of important leader making the biggest difference in the New L’Abbate Balkan Colavita & Contini, LLP the formation of Forspan Klear LLP, which is advance directives and how to ensure eligibility York Area,” and the Ann Irvin Award presented where she chairs the Attorney Professional based in Great Neck and focuses on Elder Law, for Medicaid to over 100 seniors attending the at Domus by the Nassau County Coalition of Liability Practice Group. In addition to repre- Trusts & Estates, and Health Care Law. Ms. event. Debby Rosenfeld, a senior attorney with Youth Agencies annual legislative breakfast for senting attorneys for 35 years, Ms. Rice is a Past President of NCBA. Forspan also recently lectured at the AICPA the firm, presented “Estate Planning and Long- a lifetime of work and dedication to the county’s Engage conference in Las Vegas where she sat term Care” for the Association of Retired Police youth. on an Estate Tax Planning panel and gave a in Mineola. lecture on “Planning for the Sandwich Gener- Richard P. Cronin and Erin A. O’Brien For Information on ation.” Mark E. Alter, Senior Partner in the Law have joined Certilman Balin Adler & Hyman, Offices of Mark E. Alter, with offices in Garden LLP as Partners in the Tax Certiorari and Con- LAWYERS’ Karen Tenenbaum of Tenenbaum Law was City and Massapequa, is pleased to announce demnation Law Practice Group. They were both the moderator at the NYU Tax Controversy that Erica L. Alter has joined the firm as an formerly partners at the firm, Cronin, Cronin, AA MEETINGS Forum on the topic of NYS Residency Audits. associate attorney. Ms. Alter will concentrate in Harris & O’Brien, P.C., located in Mineola. Ms. Tenenbaum, Leo Gabovich and Hana the areas of criminal, personal injury and mat- Call Boruchov presented at the NYSSEA, Metro rimonial law and will practice out of the firm’s Feather Law Firm, P.C. is pleased to Chapter on IRS Audits and Tax Collection. Massapequa office. announce that David S. Feather was on the fac- Ms. Tenenbaum was published in Upserve, ulty of the ABA Section of Dispute Resolution’s (516) 512-2618

FBA must be based on multiple sources of severely disrupted, his family bore significant While some disturbance to the school com- SUSPENSION ... data and provide sufficient detail to form the legal fees, and the school district faced exten- munity may be possible, this inconvenience Continued From Page 7 basis for a BIP. sive costs of litigation. must be weighed against the rights of the stu- Neither federal or state law specifies who In the second hypothetical, the FBA could dent with a disability to access his or her edu- Where the disabled student’s behavior must conduct an FBA. Rather, the US Depart- and should have included note of the tics, out- cation, including education regarding socially is found not to be related to the disability, ment of Education merely indicates school bursts, and the perseverative quality of these acceptable sexual norms. Extended suspensions the student may be actually suspended as districts are to ensure “properly trained pro- resulting in the blurting and drawing of the have no pedagogical value in these instances, would a typical nondisabled peer, i.e. for fessionals” are available to conduct FBAs.17 A very things that grip and occupy the student’s and serve only a punitive purpose. Certainly longer than 10 days and up to 45 days in BIP or behavioral intervention plan is based thought process. The BIP could and should for my clients, the families of students with dis- an IAES if there is a concern for harm to on the results of the FBA and includes a have offered tools for educators to allow the abilities, the costs of having to wage appeals to the student or others. Even in the best of description of any problem behavior along student to leave the room, to take breaks, as keep their children in school sometimes extend circumstances, as with any suspension, the with global and specific hypotheses as to why well tools for contextualizing and ignoring beyond mounting legal fees to further isolation student’s routine and access to education it occurs, along with intervention strategies the comments and drawings no matter how and significant emotional tolls as well. and related services are disrupted. In Honig to address the behavior.18 The need for a BIP offensive. Absent these, since the student’s Rebecca Sassouni is the principal of Rebecca v. Doe, the U.S. Supreme Court established should be documented in the student’s IEP FBA and BIP omitted all of these, the student’s Sassouni Esq., PLLC, offering consultation a student with a disability cannot be unilat- and revised at least once a year. family unilaterally withdrew her from public and representation for students with special erally removed from school for more than school, enrolled her in an expensive private education needs as well as students facing 10 days for misconduct that arose from the Toward A Solution for Students and school where she was bullied, removed her disciplinary suspension. She can be reached student’s disability.12 Schools: Two Hypotheticals from there for home schooling and is sadly at [email protected] or (516) 423-2599. Where a student is both disabled and facing back to trying to find a safe placement for the Consider the following two hypothetical 1. 20 USC §§ 1400–1482; 34 CFR Part 300. suspension, a Manifestation Determination13 students: child to learn. 2. 20 USC § 1401(9); 34 CFR § 300.17. consists of a review of the relationship, if 1. Male student with autism, teenaged, 3. 137 S.Ct. 988 (2017). any, between the student’s disability and the Facing the Problem 4. 20 USC § 1412; 458 U.S. 176 (1982). non-verbal, highly impaired receptive behavior subject to disciplinary action: Was To Craft A Solution 5. 20 USC § 1401(26); 34 CFR § 300.34; Education Law § skills, suspended for masturbating in 4401(2)(k). the conduct either caused by or directly and 6. Courtney Perkes, “Report: Students With Disabilities substantially related to the disability; or, was the school. Rather than avoid or omit sexualized con- 2. Female student with Tourette syn- tents, student’s IEPs and BIPs should be crafted Disciplined Twice As Often As Peers,” disabilityscoop (Feb. conduct the direct result of the school district’s 28, 2018), available at https://bit.ly/2t60bSi. 19 failure to implement the student’s IEP.14 The drome, anxiety disorder, obses- and subsequently revised to more specifically 7. Dear Colleague Letter, U.S. Dept. of Education (Aug. 1, 20 Manifestation Determination must be made sive-compulsive disorder , possibly anticipate and address the sexualized behavior 2016), available at https://bit.ly/2Zn3jVb. bisexual, teenaged, suspended for and to articulately spell out the appropriate 8. 34 CFR §§ 300.530–300.537; Educ. Law §§ 3214 (3)(g), timely and immediate steps must be taken to 4404(1); 8 NYCRR Part 201. remedy any deficiencies in the student’s IEP uttering sexualized phrases about behavioral or therapeutic response to mitigate 9. 20 USC § 1415(k)(1)(B); 34 CFR § 300.530(b)(1); 8 implementation identified during the manifes- other people’s bodies, and for doodling same. NYCRR § 201.7(b). tation determination review process.15 a penis during class. Though sexually charged and challenging 10. Id. With regard to the first hypothetical, a behavior, where the conduct can be shown to 11. 34 CFR § 300.523 (a)(b). Where the manifestation is found, a func- 12. 484 U.S. 305 (1988). tional behavioral assessment (“FBA”) must be thorough FBA would have noted that ado- be substantially related to the student’s dis- 13. 8 NYCRR § 201.4(a). conducted and implementation of a Behavior- lescent males his age, including him, often ability and/or due to failure to implement the 14. 20 USC § 1415(k)(1)(E); 34 CFR § 300.53(e); 8 NYCRR al Intervention Plan16 (“BIP”) to include ser- self-stimulate. The FBA could and should BIP, and poses no imminent physical threat § 201.4(c). have included hypotheses about the envi- to school personnel or other students, clas- 15. 34 CFR §. 300.530(e)(3); 8 NYCRR § 201.4(e). vices and modifications designed to address 16. BIP 20 USC § 1415(k)(l)(D);34 CFR § 300.530(d); 8 the behavior violation so that it does not ronmental factors that lead to the behavior sified students whose disabilities manifest in NYCRR §§ 201.2(k), 201.10(c), (d). recur. A thorough FBA involves the pro- at school and at home. The student’s BIP sexualized behaviors or utterances should not 17. OSERS Response to Inquiry, 51 IDELR 253 (June 5, cess of determining why the student engages could and should have included intervention- be subjected to extended suspensions. These 2008), available at https://bit.ly/2KGD3km. in behaviors that impede learning and how al strategies to re-direct, occupy, and distract suspensions are tantamount to a change of 18. 8 NYCRR § 200.1. 19. Tourette Syndrome symptoms generally present in the behavior relates to the environment. It the student away from the behavior, as well as placement. In addition, they feel punitive and childhood and are characterized by compulsive arm move- includes identification of the problem behav- appropriate settings to allow time and space retaliatory to special education students and ments, facial tics, grunts, groaning and shouting. In 10% ior; the definition; contextual factors which for the behavior in a private setting i.e., toilet their families. Repeated suspensions may be of cases, copralalia is present. Copralalia is characterized contribute; and the formation of a hypothesis, room or home. Had a more comprehensive shown to be a change of placement, but the by the excessive, uncontrollable, involuntary use of foul or obscene language. regarding the general conditions under which FBA and BIP been in place, the student would burden on the family to demonstrate this on a 20. OCD is characterized by obsessive and/or perseverative the behavior usually occurs and the probable not have been suspended for several months case-by-case basis makes even a victory only a thoughts that repeat in a loop, causing the person to be consequences that serve to maintain it. The during which time his family and he were pyrrhic one. stuck in hyperfocus, not purposely defiant or stubborn. Nassau Lawyer July/August 2019 21

the plaintiffs had obtained the underlying CPLR ... judgment of default through “intrinsic Continued From Page 12 fraud” (Morel v. Clacherty, 186 A.D.2d 638, 639, 589 N.Y.S.2d 231), rather than LAW YOU SHOULD KNOW Morel v. Clacherty,6 also dealing with through “extrinsic fraud” (Shaw v. Shaw, on 90.3 FM WHPC CPLR 5015(a)(3), states, 97 A.D.2d 403, 467 N.Y.S.2d 231). There- Celebrating 25 Years! fore, she was required, inter alia, to show On appeal the husband contends that Learnon About the Radio the Law because he moved to vacate the default a reasonable excuse for her default (see, Hosted by Kenneth J. Landau, Esq. judgment of divorce pursuant to CPLR Morel v. Clacherty, supra; Berardo v. Berar- Shayne, Dachs, Sauer & Dachs, LLP • Mineola 5015(a)(3), he does not have to pres- do, 205 A.D.2d 1036, 614 N.Y.S.2d 935). ent a reasonable excuse for his default. Again, there is no analysis of the law, the This contention would be correct if the Court of Appeals is completely ignored, and Ethics for Real Estate Brokers* movant alleged that the default judg- it is all based on Shaw v. Shaw. Wed., July 31, 2019 • 3:00 p.m. ment was procured through “extrinsic Finally in, Berardo v. Berardo,8 the Appel- fraud” (Shaw v. Shaw, 97 A.D.2d 403, late Division Third Department followed Ethics for Real Estate Brokers Part 2* 467 N.Y.S.2d 231). However, since the the Second Department, and stated, “There- Wed., August 7, 2019 • 3:00 p.m. plaintiff husband’s primary argument after, defendant moved, pursuant to CPLR 5015(a)(3), for an order vacating judgment... Meet the New President of the NCBA is that the defendant wife’s allegations Wed., August 14, 2019 • 3:00 p.m. and testimony were false (i.e. intrinsic Inasmuch as defendant’s request was based fraud), he is required to make some on intrinsic fraud, he was required to make What Lawyers Need to Know About QDRO Agreements* some showing of a meritorious defense and a showing of a meritorious defense and Wed., August 21, 2019 • 3:00 p.m. reasonable excuse for defaulting (see, reasonable excuse for defaulting (see, Morel Weinstein-Korn- Miller, N.Y. Civ. Prac. v. Clatcherty, 186 A.D.2d 638, 589 N.Y.S.2d P5015.05b; cf Shaw v. Shaw, supra). 778).” Again we have a complete avoidance How Doing Pro Bono Helps You Again, the Court of Appeals is ignored of the Court of Appeals. Wed., Sept. 4, 2019 • 3:00 p.m. and the foundation of the court lies in Strangely, we are left with the Second Justice Mangano’s concurring opinion in Department being in direct conflict with the When You Need Worker’s Compensation Insurance Shaw v. Shaw. It also erroneously relies on Court of Appeals on CPLR 5015(a)(3), and Wed., Sept. 11, 2019 • 3:00 p.m. Weinstein-Korn-Miller, N.Y. Civ. Prac. P. it appears this will not be resolved until the 5015.05, a provision that specifically deals specific issue finds its way to the Court of Opportunities with Lawyers Without Borders with CPLR 5015(a)(1). Those paragraphs in Appeals again. Wed., Sept. 18, 2019 • 3:00 p.m. Weinstein-Korn-Miller that apply to CPLR David A. Bythewood, Hofstra Law School 5015(a)(3) are 5015.08 and 5015.09. “Class of ‘81,” has a general practice. He You can earn CLE by listening to broadcast, podcast (or purchasing CDs) 7 * Fischman v. Gilmore, like others, follows is a former Chair of the NCBA Banking Law of these shows. Check with the Nassau Academy of Law for details. Shaw v. Shaw, and gives only a conclusion. Committee. Contact (516) 747-4464 or visit www.nassaubar.org. It holds: 1. 97 A.D.2d 403 (2d Dept. 1983). In this mortgage foreclosure action, the 2. 2 N.Y.2d 14, 100 (2003). appellant moved to vacate a judgment of 3. 47 N.Y.2d 595 (1979). On WHPC 90.3 FM radio default entered against her based upon 4. AD 2017-11649. for Voicestream or PODCASTS of these or recent shows “fraud, misrepresentation, or other mis- 5. 27 A.D.3d 678, 679 (2d Dept. 2006). 6. 186 A.D.2d 638, 639, (2d Dept. 1992). go to www.nccradio.org conduct of an adverse party” (CPLR 7. 246 A.D.2d 508 (2d Dept. 1998). 5015(a)(3)). The appellant alleged that 8. 205 A.D.2d 1036 (3d Dept. 1994). 22 July/August 2019 Nassau Lawyer

Perhaps some affirmative act could con- CHALKING ... stitute ongoing consent to search-by-chalk- NCBA Mortgage Foreclosure Program Continued From Page 6 ing. Residents could apply for a permit that allows them to park for free up to the posted Receives Grant from NY Bar Foundation tioned for en banc rehearing, and the Sixth time limit, so long as they agree to have their Circuit has granted leave for the Internation- tires chalked. The municipality would have al Municipal Lawyers Association to file an amicus brief. to either restrict lots to residents or provide Regardless of the outcome, Taylor will metered parking for out-of-towners, neither not govern municipalities in states outside of which seems workable for commercial the Sixth Circuit.22 Indeed, one Pennsylva- districts. An option to either pay for park- nia borough has already announced that it ing or affirmatively consent to chalking in will continue to chalk tires unless and until exchange for free parking might be feasible, forced to collect revenue through more but would require the expense of either an expensive methods, like parking meters, app or pay stations without the revenue of kiosks, or pay stations.23 universal paid parking. There seems little reason, however, to Technology may circumvent these con- think that New York State or Federal courts cerns, but it cannot negate them. If courts would not similarly hold that chalking must ultimately find that chalking violates the comply with constitutional requirements. Fourth Amendment, then municipalities The Second Circuit has recognized the tres- will have to decide whether the revenues pass definition of a search expressed in Jones,24 and New York State courts have from parking tickets justify the expense of construed the automobile- and communi- enforcement that complies with the Con- ty-caretaker exception much as in the Sixth stitution. Circuit.25 Christopher J. DelliCarpini is Chair of the Municipalities in New York may there- NCBA Publications Committee and an attor- Gale D. Berg, Director of the NCBA Mortgage Foreclosure Program, and Elena fore find it prudent to explore alternative ney with Sullivan Papain Block McGrath & Karabatos, NCBA Immediate Past President, were presented with a grant from Emily means of policing their parking lots. One Cannavo P.C. in Garden City, representing Franchina, Chair of the Fellows of the NY Bar Foundation and NCBA Past President. might think that snapping photos with some plaintiffs in personal injury matters. He can cell phone app might do the trick, but that be reached at [email protected]. The NCBA Mortgage Foreclosure Program received a grant from the NYS Bar Association would not prove that a car had been contin- that will enable them to continue providing pro bono services to residents of Nassau County uously parked in that spot.26 Municipalities 1. 922 F.3d 328 (6th Cir. 2019). who are facing mortgage foreclosure. 2. 565 U.S. 400 (2012). could install pay stations, or perhaps use 3. Id. at 404. apps to make it easier for patrons to pay for 4. People v. Lewis, 28 N.Y.3d 179 (2014). parking. The beauty of chalking, however, is 5. 389 U.S. 347, 361 (1967) (Harlan, J., concurring). that patrons do not have to pay for parking 6. Jones, 565 U.S. at 409. as long as they do not overstay their time. 7. Katz, 389 U.S. at 357. On company, AutoChalk, promises to solve 8. 79 N.Y.2d 474, 485–89 (1992). 27 9. 466 U.S. 170 (1984). this problem by “digitally chalking” cars. 10. Taylor, 922 F.3d at 331. NCBA Committee Perhaps the solution is to create consent 11. Taylor v. City of Saginaw, 2017 WL 4098862 (N.D. to “search” by chalking. The protections Mich. Sept. 15, 2017). afforded by the Fourth Amendment may 12. Id.at *1. Meeting Calendar be waived by consent, provided it is freely, 13. Id. at *3. voluntarily, and understandingly given.28 14. Id. at *3–4. 15. Id. at *5–6. Aug. 1 - Sept. 11, 2019 The difficulty would be establishing consent 16. Id. at *6–7. without the subject’s signature or other 17. Taylor, 922 F.3d at 334 (citing U.S. v. Smith, 510 F.3d Questions? Contact Stephanie Pagano manifestation of express consent and in 641, 647 (6th Cir. 2007). showing that consent was truly without 18. Id. at 335 (quoting U.S. v.. Washington, 573 F.3d 279, at (516) 747-4070 or [email protected]. coercion. 289 (6th Cir. 2009)). Consent cannot be created, however, 19. Id. at 335 (quoting Washington, 573 F.3d at 287). Please Note: Committee Meetings are for NCBA by simply posting a sign to the effect that 20. Id. at 336. 21. Taylor, 922 F.3d at 336. Members. Dates and times are subject to change. parking in a given lot creates consent to 22. Kentucky, Michigan, Ohio, and Tennessee. 28 USC “search” by chalking. Courts have rejected § 41. Check www.nassaubar.org for updated information. the notion that the State may post a sign at 23. Katie Anderson, “Waynesburg to continue chalking the entrance to a courthouse or hospital and tires,” Observer-Reporter (May 3, 2019), available at then conclude that everyone who enters has https://bit.ly/2WAk4OR. PUBLICATIONS HOSPITAL & HEALTH LAW 24. El-Nahal v. Yassky, 835 F.3d 248 (2d Cir. 2016); Thursday, August 1 Thursday, September 5 consented to be searched without a warrant 25. People v. Molnar, 98 N.Y.2d 328 (2002); People v. 29 or probable cause. One might think that Tardi, 122 A.D.3d 1337 (4th Dep’t 2014). 12:45 p.m. 8:30 a.m. chalking tires is less intrusive than search- 26. Ben Bromley, “Baraboo, Portage police address the Christopher J. DelliCarpini Leonard M. Rosenberg ing briefcases, so much so that consent to chalking ruling,” Baraboo News Republic (May 5, 2019), this limited search, albeit warrantless, may available at https://bit.ly/2W6xygX. COMMUNITY RELATIONS & PUBLIC PUBLICATIONS be implied. Jones, however, makes no such 27. https://tannerycreeksystems.com. 28. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); EDUCATION Thursday, September 5 distinction: once the state creates a com- U.S. v. Lavan, 10 F.Supp.2d 377, 388 (S.D.N.Y.1998). Thursday, August 1 12:45 p.m. mon-law trespass to obtain information, it 29. Chenkin v. Bellevue Hosp. Ctr., 479 F. Supp. 207 has effected a search that must conform to (S.D.N.Y. 1979); People v. Alba, 81 A.D.2d 345 (1st Dep’t 12:45 p.m. Christopher J. DelliCarpini the Fourth Amendment. 1981). Joshua D. Brookstein COMMUNITY RELATIONS & PUBLIC ASSOCIATION MEMBERSHIP EDUCATION Wednesday, August 14 Thursday, September 5 12:45 p.m. 12:45 p.m. Michael DiFalco Joshua D. Brookstein

DIVERSITY & INCLUSION LGBTQ Thursday, August 15 Tuesday, September 10 6:00 p.m. 8:15 a.m. Hon. Maxine Broderick Joseph G. Milizio/Barrie E. Bazarsky

ACCESS TO JUSTICE PLAINTIFF’S PERSONAL INJURY Wednesday, September 4 Tuesday, September 10 12:30 p.m. 12:30 p.m. Kevin P. McDonough/Gregory S. Lisi Ira S. Slavit

MEDICAL-LEGAL MATRIMONIAL LAW Wednesday, September 4 Wednesday, September 11 12:30 p.m. 5:30 p.m. Mary Anne Walling/Susan W. Samuel J. Ferrara Darlington Nassau Lawyer July/August 2019 23 June 2019 Open House

JUNE 2019 OPEN HOUSE VOLUNTEER ATTORNEYS

Zeena Abdi Rhonda L. Maco Michael Amato Kathleen Maher James A. E. Asquith Kimberly B. Malerba Rachel Baskin Douglas D. Moyal Howard R. Brill Jon Press Lauren B. Bristol Ashley Pulito Gail Broder-Katz Seth M. Rosner Adam L. Browser Anna Rusanov Cristina Cerón Anthony W. Russo Vanessa Sanders Volunteer attorneys Seth M. Rosner, James R. Klein, and Joseph Volunteer attorney Rhonda L. Maco consulting with Nassau Michelle Cuevas R. Harbeson, Past Co-Chair of the NCBA Access to Justice County residents. Adam D’Antonio Vincent David Scala Committee, volunteered at the June 2019 NCBA Open House. Jay Jeffrey Davis Thomas R. Scanlon Nicole Della Ragione Michael A. H. Schoenberg Gale D. Berg York State Pro Bono Week on October 24, hopefully we were able to help resolve some Hon. Anthony Elizabeth Schulman The Nassau County Bar Association held 2019. of their problems or point them in the right Falanga Kranz its semi-annual Open House on June 13, Help is provided on various issues, includ- direction.” Joanne Fanizza Harold M. Somer 2019, where residents of Nassau County were ing mortgage foreclosure, matrimonial and Our volunteer attorneys met one-on-one George P. Frooks family, bankruptcy, labor and employment, with residents to explain complicated legal William J.A. Sparks able to register to speak with an attorney to Stuart P. Gelberg trusts and estates, immigration, and even issues and provide guidance, counsel and receive an answer to any legal question. Rita Stein questions concerning trademarks. The public referrals. When asked, many of the attorneys Douglas J. Good Approximately fifty attorneys volunteered Ronald M. Terenzi registers to ask questions on any legal topic who volunteer their time at the NCBA Open Joseph R. Harbeson to show their support by participating in the Nathalie Thomas they have and receive guidance on how to House clinics will say that it is a rewarding Tracy A. Hawkes Open House at Domus, and answered legal Donna June resolve it. experience. Carol M. Hoffman questions for nearly 100 residents. The areas Turetsky “Because of the Mortgage Foreclosure Mortgage Foreclosure clinics are held Joy Jankunas of law included family law, real estate, labor, Jonathan I. Ullman Project, the Nassau County Bar Associa- twice a month, and volunteer attorneys are Stanford Kaplan and mortgage foreclosure, as well as other tion’s dedicated staff, and the volunteer law- always needed. Please volunteer if you haven’t Ingrid J. Villagran Gail Kenowitz areas. ers who generously donated their time, the already done so. In addition, you can also Jerold L. Wank Since 2011, NCBA has hosted an Open Open House was a success,” remarked Kevin become a member of the Access to Justice James R. Klein Matthew Weinick House jointly with Nassau Suffolk Law Ser- McDonough, Co-chair of the Access to Jus- Committee to help recruit volunteers. The S. Robert Kroll Esther S. vices and The Safe Center L.I. twice a year. tice Committee. “The people who came for next meeting is scheduled for Wednesday, Christina Lamm Zelmanovitz The next Open House will be during New legal assistance were very appreciative and September 4, 2019 at 12:30 PM at Domus. 24 July/August 2019 Nassau Lawyer

respect for the opinions of others, teaching, scholarship, political associations other activities on the campus or in the ACADEMIC ... and should make every effort to indi- or extramural utterances. Notwithstanding classroom. This limitation justifies reason- Continued From Page 3 cate that they are not speaking for the this development, the concept of academic able restrictions regarding the time, place institution.9 freedom has been diluted somewhat by the and manner of protests and other expressive associations and adopted by many colleges On the other hand, the AAUP has recog- courts in later years. activities both on and off university cam- nized that although there are “special obliga- puses.21 Second, student speech and writing and universities across the United States. It Academic Freedom After Garcetti is often incorporated into or referenced in tions of faculty members arising from their in the classroom context is subject to the faculty contracts as well as faculty handbooks position in the community” as noted above, In Garcetti v. Ceballos, the Supreme academic authority of the teacher to evaluate and other university documents. “an institution may file charges ... if it feels Court held that public employees do not their course work based on legitimate aca- The 1940 Statement states: a faculty member has failed to observe the enjoy freedom of speech when their speech demic factors. • (a) Teachers are entitled to full free- above admonitions and believes that the or expression is made “pursuant to their The Supreme Court has supported this dom in research and in the pub- professor’s external utterances raise grave official duties.”13 The Justices in Garcetti limitation in Hazelwood School District v. doubts concerning the professor’s fitness for rejected a free speech claim made by a Kuhlmeier.22 In Kuhlmeier, the Court upheld lication of their results, subject to 10 adequate performance of their other service . . . .” prosecutor who had been allegedly fired in a high school principal’s right to delete two This standard, however, clearly includes academic duties; but research for retaliation for his testimony on behalf of a pages from a student-run newspaper. The that “a faculty member’s expression of an pecuniary return should be based criminal defendant that a sheriff’s deputy Court held that “educators do not offend opinion as a citizen cannot constitute grounds upon an understanding with the falsely obtained a search warrant. the First Amendment by exercising editorial for dismissal unless it clearly demonstrates authorities of the institution. The Court in Garcetti held that “when control over the style and content of student the faculty member’s unfitness to serve. • (b) Teachers are entitled to freedom public employees make statements pursuant speech in school-sponsored expressive activ- Extramural utterances rarely bear upon a in the classroom in discussing their to their official duties, the employees are ities so long as their actions are reasonably faculty member’s fitness for continuing ser- not speaking as citizens for First Amend- related to legitimate pedagogical concerns.”23 subject, but they should be careful vice.”11 In sum, according to the AAUP, there not to introduce controversial matter ment purposes, and the Constitution does Of course, precedents from the K-12 con- must be a connection, between the speech text are not necessarily applicable to higher which has no relation to their subject. not insulate their communications from and the ability of the faculty member to fulfill 14 education because of the age and maturity of Limitations of academic freedom employer discipline.” Since the parties his/her responsibilities of teaching, research, students at issue. Also, there is a stronger tra- because of religious or other aims stipulated that the speech in question was and service. dition of free inquiry in a college or univer- of the institution should be clearly made pursuant to the prosecutor’s duties, In the 1950’s and 1960’s the concept of sity setting which militates in favor of greater stated in writing at the time of the the Court dismissed the complaint. academic freedom found its way into several student rights. Nevertheless, it remains true appointment. In his dissenting opinion, Justice Sout- opinions of the United States Supreme Court. that a students’ right to free speech in any • (c) College and university teachers er expressed a concern that the decision Such cases dealt with statutes barring on the classroom will be subject to the legitimate are citizens, members of a learned might “imperil First Amendment protec- employment of faculty members who were academic standards and concerns of the fac- profession, and officers of an educa- tion of academic freedom in public colleges accused of belonging to treasonous organi- and universities, whose teachers necessar- ulty and the institution.24 tional institution. When they speak zations or who refused to take a loyalty oath. ily speak and write ‘pursuant to . . . offi- Cynthia Augello is a member of the Law or write as citizens, they should be Those opinions connected academic freedom 15 free from institutional censorship or cial duties.’” In response, Justice Kennedy Offices of Cynthia A. Augello, P.C. where to the First Amendment’s guarantee of the wrote: she practices in the areas of education, discipline, but their special position freedom of speech and association. “Justice Souter suggests today’s decision employment, and commercial litigation. in the community imposes special However, these decisions, and those from may have important ramifications for aca- obligations. As scholars and educa- numerous federal courts, provided an incom- 1. Richard Hofstadter & Walter P. Metzger, THE demic freedom, at least as a constitutional DEVELOPMENT OF ACADEMIC FREEDOM IN THE tional officers, they should remem- plete definition of either academic freedom value. There is some argument that expres- UNITED STATES (1955). ber that the public may judge their 12 or its legal basis. Academic freedom was sion related to academic scholarship or 2. AAUP, POLICY DOCUMENTS & REPORTS 291-301 profession and their institution by (10th ed. 2006), available at http://www.aaup.org/AAUP/ established as a legal principle, possibly with classroom instruction implicates additional their utterances. Hence, they should constitutional underpinnings, which protect- pubsres/ policydocs/contents/1915.htm. constitutional interests that are not fully 3. Id. always be accurate, should exercise ed faculty members from termination based accounted for by this Court’s customary 4. Id. appropriate restraint, should show on an ideological disagreement with their 5. Id. employee-speech jurisprudence. We need 6. Id. not, and for that reason do not, decide 7. Id. whether the analysis we conduct today 8. AAUP, POLICY DOCUMENTS & REPORTS, supra would apply in the same manner to a case note 2, at 3-7, available at https://bit.ly/2XXZOEt. 9. Id. involving speech related to scholarship or 10. Committee Statement on Extramural Utterances, teaching.” 16 AAUP POLICY DOCUMENTS AND REPORTS, 9th In subsequent decisions, lower courts Edition, 2001, at 32. 11. Id., supra note 18, at 32 have wrestled with the application of Garcet- 12. See e.g., Wieman v. Updegraff, 344 U.S. 183 (1952); ti in determining free speech claims by fac- Sweezy v. New Hampshire, 354 U.S. 234 (1957). ulty members in public universities. First, it 13. 547 U.S. 410, 421 (2006). must be determined when faculty members 14. Id. 15. Id. at 438. are speaking pursuant to their official job 16. Id. at 425. duties. 17. See, e.g., Gorum v. Sessoms, 561 F.3d at 187; Renkin Most courts have interpreted this con- v. Gregory, 541 F.3d 769, 774 (7th Cir. 2008) (dispute cept broadly, including nearly everything over research grant); Hong v. Grant, 516 F. Supp. 2d 1158 (C.D. Cal. 2007) (criticism of department chair and that faculty traditionally do within the uni- dean); Ezuma v. City Univ. of N.Y., 665 F.Supp.2d 116, versity setting, at least where the speech was 129-30 (E.D.N.Y. 2009) (transmittal of complaint about directed to others within that setting.17 By sexual harassment). But See Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir. 2010) (complaints about the han- contrast, speech by faculty members direct- dling of student discipline in public secondary school). ed to audiences outside of the university 18. See Adams v. Tr. of Univ. of North Carolina, 640 F.3d and not related to the faculty member’s job, 550, 561-62 (4th Cir. 2011) (non-scholarly columns and have not been viewed as within their official articles published outside the university are protected 18 by the First Amendment even though they were sub- duties. sequently submitted by faculty member in support of application for promotion). Academic Freedom and 19. Byrne, supra note 11, at 262; see also Byrne, supra the Rights of Students note 28, at 100 (“Student free speech rights against universities reflect political values rather than academic The principles of academic freedom apply ones.”) 20. See, e.g., Rosenberger v. Rector and Visitors of the differently to students. As discussed above, Univ. of Virginia, 515 U.S. 819 (1995)(state university academic freedom serves to protect the intel- student publication); Widmar v. Vincent, 454 U.S. 263 lectual independence of faculty members (1981)(state university student group desiring to use in their teaching and related scholarship. facilities for religious worship and discussion); Healy v. James, 408 U.S. 169 (1972) (State university found to Within the academic community, students violate First Amendment rights of students in refusing attend universities to learn from the faculty. to recognize student political organization because of its A student’s freedom of speech has nothing to views.) Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 do with “the preservation of the unique func- U.S. 503 (1969) (First Amendment protects junior and senior high school students wearing armbands in protest tions of the university, particularly the goals of the Vietnam War). of disinterested scholarship and teaching.”19 21. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, It cannot be said, however, that students 117-21 (1972); Tinker, 393 U.S. at 513. 22. 484 U.S. 260 (1988). do not have any rights relating to the free 23. Id. at 273. expression of their views and opinions. Stu- 24. See Brown v. Li, 308 F.3d 939 (9th Cir. 2002), where dents at public universities are certainly the court upheld the refusal of a faculty committee to protected by the First Amendment against approve a master’s thesis unless the student removed the “disacknowledgements” section because it did not restrictions on their rights of free speech and meet professional standards. The court applied to a association.20 There have been myriad court university setting the principles of Hazelwood, holding cases discussing this freedom. that “the First Amendment does not require an educator This freedom of expression by students is to change the assignment to suit the student’s opinion or to approve the work of a student that, in his or her subject to two important limitations. First, judgment, fails to meet a legitimate academic standard.” student expression may not interfere with Id. at 949. Nassau Lawyer July/August 2019 25 2019-20 NCBA Committees and Chairs

Access to Justice — Develops innovative pro- Condemnation Law & Tax Certiorari — Hospital & Health Law — Considers legal issues New Lawyers — Structured events and activities grams to provide free or reduced fee access to Focuses on issues related to real property valu- impacting health care, hospitals, nursing homes, of benefit and interest to newer attorneys (within legal counsel, advice and information. ation and litigation. physicians, other providers and consumers. ten years of admission) and law students, includ- Co-Chairs: Kevin P. McDonough and Gregory Chair: Douglas W. Atkins Chair: Leonard Rosenberg ing social and professional activities. Establishes S. Lisi Vice Chair: Richard P. Cronin Vice Chair: Colleen McMahon support network for new lawyers. Co-Chairs: Steven V. Dalton and Glenn R. Adoption Law — Discusses issues relating to Construction Law — Provides a forum for dis- Immigration Law — Discusses problem areas Jersey, III all aspects of the adoption process, including cussion on topics related to construction law. in immigration law. laws and legislation. Chair: Michael D. Ganz Chair: George A. Terezakis Paralegal — Promotes the exchange of informa- Co-Chairs: Martha Krisel and Faith Getz Vice Chair: Raymond A. Castronovo Vice Chair: Lorena E. Alfaro Rousso tion between paralegals and attorneys and pro- Criminal Court Law & Procedure — Reviews vides and establishes a networking opportunity In-House Counsel — Shares information and Alternative Dispute Resolution — Reviews legislation related to the field of criminal law between paralegals and attorneys . support to assist in-house counsel and new innovative trends and strategies regarding and procedure, and discusses problems, ques- Chair: Maureen Dougherty subject matter skills. alternative dispute resolution, including tions and issues pertinent to attorneys practic- Vice Chair: Cheryl Cardona Chair: Tagiana Souza-Tortorella NCBA’s Arbitration and Mediation program. ing in this field. Co-Chairs: Marilyn K. Genoa and Jess A. Bun- Chair: Dennis O’Brien Plaintiff’s Personal Injury — Discusses new Insurance Law — Reviews insurance claim shaft Vice Chair: Dana L. Grossblatt developments and changes in the law that procedures, insurance policies, substantive affect plaintiff’s lawyers and their clients. Animal Law — Focuses on animal law-related Defendant’s Personal Injury — Discusses insurance law and related issues. Chair: Ira S. Slavit issues and their interrelationship with other new developments and changes in the law that Co-Chairs: Frank Misiti and Michael C. Cannata Vice Chair: David J. Barry areas of the law. affect defendants’ lawyers and their clients. Co-Chairs: Matthew A. Miller and Kristi L. Chair: Matthew A. Lampert Intellectual Property Law — Provides a source DiPaolo of information to practicing attorneys whose Publications — Solicits and develops articles District Court — Discusses issues arising interests relate to patents, trademarks, copyright for the monthly Nassau Lawyer publication; Appellate Practice — Addresses effective brief from practice in District Court, and promotes and other intellectual property matters. advises and supports efforts of the Nassau writing and oral arguments on appeal as well dialogue between the bench and the bar with Chair: Joseph Farco Lawyer editor. as developments in the law or court rules that respect to issues of common concern. Co-Chairs: Christopher J. DelliCarpini and may impact appellate practice. Co-Chairs: S. Robert Kroll and Roberta D. Scoll Labor & Employment Law — Analyzes pro- Andrea DiGregorio Chair: Barry J. Fisher posed federal and state legislation, administra- Diversity and Inclusion — Encourages more tive regulations, and current judicial decisions Real Property Law — Considers current Association Membership — Develops strate- diverse membership participation at the Bar relating to employer-employee relations, pen- gies to increase and retain membership as well developments relating to the practice of real and promotes discussion of issues related to sion, health and other employee benefit plans, as expand member services and benefits. estate law. diversity in the practice of law. Social Security and other matters in the field of Chair: Michael DiFalco Co-Chairs: Mark S. Borten, Anthony W. Chair: Hon. Maxine S. Broderick labor and employment law. Vice Chair: Philip Nash Russo, and Bonnie Link Vice Chair: Rudolph Carmenaty Chair: Paul F. Millus Bankruptcy Law — Reviews recent decisions Domus House — Oversees repairs and refur- Vice Chair: Matthew B. Weinick Senior Attorneys — Members approximately on bankruptcy law and their implications for bishing of the NCBA headquarters. 65 and older meet to discuss pertinent issues attorneys who represent debtors or creditors. Chair: Maureen Dougherty •*Lawyer Assistance Program — Provides in their personal and professional lives. Chair: Neil H. Ackerman confidential assistance to attorneys struggling Co-Chairs: George P. Frooks and Joan Lensky Vice Chair: Jeannine M. Farino Education Law — Discusses topics related to with alcohol, drug, gambling and other addic- Robert tions & mental health issues that affect one’s the legal aspects of school systems. Business Law, Tax, and Accounting — Edu- professional conduct. *Application & Presiden- Chair: Candace J. Gomez Sports, Entertainment & Media Law — Con- cates members on emerging issues in corpo- tial approval required Vice Chair: John P. Sheahan siders topics and factors specifically related to rate and tax law as well as accounting related Chair: Henry E. Kruman practice in the field of sports, entertainment matters, and promotes the exchange of infor- Vice Chair: Annabel Bazante mation between attorneys and accountants. Elder Law, Social Services & Health Advocacy — and media law. Addresses legal issues related to health, mental Co-Chairs: Jennifer L. Koo and Scott •*Lawyer Referral — Advises the NCBA Law- Chair: Seth L. Berman hygiene and social services for the public and L. Kestenbaum yer Referral Service; addresses policy questions special population groups, including the poor, the Vice Chair: Anthony Michael Sabino regarding fees, law categories and member- Supreme Court — Provides a forum for dia- aged and the disabled. ship. *Presidential approval required logue among bar members and the judiciary Co-Chairs: Katie A. Barbieri and Patricia A. By-Laws — Periodically reviews and suggests Chair: Peter H. Levy on topics related to Supreme Court practice. appropriate changes in the current by-laws Craig Chair: William Croutier, Jr. of NCBA, NCBA Fund, Assigned Counsel Vice Chairs: Marianne Simoni and Suzanne LGBTQ — Addresses equality in the law and Vice Chair: Steven Cohn Defender Plan and Academy of Law. Levy the legal concerns of the LGBTQ community. Chair: Sandy Strenger Co-Chairs: Joseph G. Milizio and Barrie E. Surrogate’s Court Estates and Trusts — Environmental Law — Establishes a forum for Bazarsky Deals with estate planning, administration and Civil Rights Law — Explores issues related to the exchange of information regarding sub- Vice Chair: Charlie Arrowood litigation; reviews pending relevant New York the protection of the rights of minorities and stantive and procedural law in the burgeoning State legislation; and maintains an interchange the various civil rights legislation. field of environmental matters. Matrimonial Law — Promotes the standards of ideas with the Nassau County Surrogate and Chair: Robert L. Schonfeld Chair: Nicholas C. Rigano and improves the practice of matrimonial law. staff on matters of mutual interest. Vice Chair: Bernadette K. Ford Chair: Samuel J. Ferrara Co-Chairs: Lawrence N. Berwitz and Jennifer Ethics — Responds to member inquiries Vice Chairs: Jeffrey L. Catterson and Karen L. Hillman Commercial Litigation — Provides a forum relating to ethics and propriety of all facets of Bodner Vice Chairs: Amy F. Altman and Brian P. for attorneys practicing commercial litiga- practicing law, including advertising, conflict tion, including interaction with justices and Corrigan of interest and confidential relationships. Medical Legal — Reviews issues relating to support staff of Nassau County’s Commercial Chair: Matthew K. Flanagan medical malpractice litigation for plaintiffs and Part. Works with other related committees Veterans & Military Law — Reviews legisla- defendants. and NCBA Officers and Directors on issues Family Court Law & Procedure — Addresses tion and regulations associated with military Co-Chairs: Mary Anne Walling and Susan W. of corporate law affecting both litigated and issues that relate to the practice of law in Family law and veterans’ affairs, in particular, the Darlington non-litigated matters. Court. needs of reservists and National Guard called Vice Chair: Christopher J. DelliCarpini Chair: Matthew Didora Chair: Ellen Pollack to active duty. Vice Chair: Jeffrey A. Miller Vice Chair: Susan G. Mintz Chair: Gary Port Mental Health Law — Provides programs Vice Chair: C. William Gaylor, III Community Relations & Public Education — Federal Courts — Monitors developments on legal issues concerning mental illness and developmental disabilities, including but not Provides speakers to schools, libraries and in federal practice and interfaces with federal Women in the Law — Examines current limited to, capacity, civil rights, access to treat- community organizations; conducts mock trial judges and court personnel. trends regarding women in the court system, competition for high school students; promotes Chair: David Shargel ment and dual diagnosis, as well as discusses and seeks to protect their rights to equal treat- Law Day; and plans public education seminars Vice Chair: Matthew C. McCann relevant statutes, case law and legislation. ment. on current topics. Co-Chairs: David Z. Carl and Jamie A. Rosen Co-Chairs: Jennifer L. Koo and Christie R. Chair: Joshua D. Brookstein General/Solo/Small Firm Practice Manage- Jacobson Vice Chair: David J. Gugerty ment — Provides networking opportunities Municipal Law — Reviews trends and devel- for general, solo and small-firm practitioners, opments concerning zoning and planning, Vice Chair: Jessica C. Moller Conciliation — Provides an alternative vol- and explores ways to maximize efficient law elections, employee relations, open meetings law, untary process through which fee disputes practice management with limited resources. and preparation and enforcement of ordinances Workers’ Compensation — Discusses current between clients and attorneys are arbitrated. Encompasses a variety of areas of practice. and local laws. legislation related to Workers’ Compensation Chair: M. Kathryn Meng Chair: Deborah E. Kaminetzky Co-Chairs: John C. Farrell and Chris J. Coschi- regulations and benefits. Vice Chair: Steven L. Keats Vice Chair: Scott J. Limmer gnano Chair: Adam L. Rosen 26 July/August 2019 Nassau Lawyer

UNIVERSITY ... Continued From Page 5 non-clinicians) to contact the appropriate officials at the university empowered to assist the student in obtaining medical care or, if the student refuses such care, to notify the student’s emergency contact.7 Importantly, “[t]he duty is not triggered merely by a university’s knowledge of ide- ations without any stated plans or intentions to act on thoughts. The duty hinges of fore- seeability.”8 Ferris State Case In Mbawe v Ferris State University,9 a student in FSU’s pharmacy program began to experience various paranoias, including that people were spying on him, following him and injecting him with foreign substances while he slept. When FSU learned about these issues, it began to extensively inter- act with the student, recommended various counselors, and it also recommended that he withdraw from the program while he sought help. The student rejected the recommenda- tions of the institution, even as his delusions increased, and he continued to struggle aca- demically. Eventually, the student was involuntarily committed to a psychiatric hospital. Sub- sequently, FSU involuntarily withdrew the program or activity conducted by any Exec- of OCR resolution letters and agreements a student poses a risk of harm to self or to student from the pharmacy program. The utive agency.”14 issued since 2011 provides the parameters others, the institution should take appro- student sued, alleging that FSU unlawfully Under both the ADA and § 504, “disabil- within which institutions should consider priate action to protect the student and the discriminated against him in violation of ity” means, inter alia, a “physical or mental such circumstances. campus community. In doing so, the institu- Title II of the Americans with Disabilities impairment that substantially limits one or In assessing complaints of discrimination tion will minimize exposure and ensure that Act (the ADA) and § 504 of the Rehabilita- more major life activities of such individ- in this context, OCR employs a “different students receive the support they need to tion Act of 1973 (§ 504) and deprived him of u a l .” 15 treatment” analysis—that is, whether “sim- successfully complete their college journeys. adequate 14th Amendment procedural due ilarly-situated, non-disabled students were Dina L. Vespia is a Partner in the Corporate process. Office of Civil Rights Guidance treated differently.”19 OCR will determine In granting FSU’s motion for summary Department at Cullen and Dykman LLP, and For many years, it appeared well settled, whether the institution acted pursuant to a can be reached at DVespia@cullenanddyk- judgment, the court held that the student’s neutral policy that applied universally to all man.com. Hayley B. Dryer is a Partner in the ADA and § 504 claims failed because he based on guidance from the U.S. Depart- ment of Education’s Office for Civil Rights students and did not provide different pol- Commercial Litigation Department, and can was not “otherwise qualified” to continue be reached at Hdryer@cullenanddykman. (OCR), one federal agency charged with icies for students with different disabilities. his studies in the pharmacy program, with OCR is careful to avoid the phrase “threat com. Dina and Hayley are also members or without a reasonable accommodation. enforcing Title II and § 504 on college of the Higher Education Practice Group at campuses, that, despite these prohibitions, to self,” given the absence of such language Cullen and Dykman LLP. Moreover, because Mbawe’s dismissal was 20 institutions could involuntarily withdraw a from Title II. academic rather than disciplinary, FSU did Thank you to Jeremy Musella and Floyd disabled student who posed a “direct threat” In its review of a complaint filed in 2018 not deprive Mbawe of adequate procedural against Rutgers University that alleged dis- Howard, III, Associates at Cullen and due process by failing to afford him a formal to him or herself or to others without violat- Dykman LLP, for their assistance with this ing the ADA or § 504. crimination based on a student’s involun- article. hearing prior to withdrawing him from the tary withdrawal because of mental health 10 During this time, neither Title II nor program.” Additionally, the court found 21 Section 504, or their corresponding regula- issues, OCR evaluated Rutgers’ safety that the FSU officials were careful and delib- intervention policy and found that this pol- 1. Fall 2018 Reference Group Executive Summary, tions, expressly addressed situations involv- American College Health Association, (2018), available at erate in their decision making, and Mbawe icy was neutral on its face in application to was given “particularized professional atten- ing a “direct threat.” Title III addressed https://bit.ly/2IJHVmd. circumstances in which an individual posed all students, and the acts performed by the 2. 413 P.3d 656 (Cal. 2018). tion by faculty members at all levels in effort administrators were individualized to the 3. Id. at 668. a “direct threat to the health or safety of to protect patients while helping [Mbawe] complainant. 4. 96 N.E.3d 128 (2018). 11 others.”16 5. Id. at 138. improve his chances of success.” In a January 2013 resolution agreement Still, based on OCR guidance, institu- 6. Id. at 145. with Princeton University,22 OCR noted that 7. Id. ADA and § 504 tions believed that “direct threat” included the institution followed its policy in han- 8. Id. at 144. threats both to others and to self, and As indicated in Mbawe, while colleges dling a student suffering from mental issues 9. 751 F. App’x 832, 840 (6th Cir 2018). that, when faced with situations involving 10. Id. and universities may have a duty to act to that the University determined may result students who threatened their own health 11. Id. at 842. protect students exhibiting mental distress in self harm. Specifically, Princeton made 12. 42 USC § 12132. A “public entity” is defined as “(A) or safety, institutions could take action, or the campus community, they must care- an individualized determination regarding any State or local government; (B) any department, agen- including dismissing the student from the cy, special purpose district, or other instrumentality of a fully consider how to proceed in a manner the student, and its written policy included institution, to protect the student and cam- State or States or local government; ….” 42 USC 12131. that does not run afoul of antidiscrimina- meetings, individual review, consultation 13. 42 USC § 12182(a); 28 CFR § 36.301(a). tion laws. Two federal laws, the ADA and pus community without violating antidis- Undergraduate or postgraduate private schools or other 17 with medical experts, and provided a right § 504, prohibit discrimination on the basis crimination laws. to the student to appeal the decision. places of education are considered “a place of public of disability, and provide a framework for In 2011, the U.S. Department of Justice Thus, despite the absence of “threat to accommodation.” 42 USC § 12181(7)(J). enacted a new Title II regulation that called 14. 29 USC § 794(a). Subsection (b) provides that the decision making in complex cases. self” language from the regulations, OCR term “program or activity” “means all of the operations of Title II of the ADA (Title II) applies to this practice into question. The regulation, has, on several occasions, affirmed institu- – a college, university, or other postsecondary institution, public colleges and universities and pro- effective March 15, 2011, provides that pub- tions’ ability to monitor and, if necessary, act or a public system of higher education.” 29 USC § 794(b) vides, “…no qualified individual with a dis- lic institutions are not required to permit an in such circumstances to protect students, (2)(A). See also 34 CFR § 104.4(a). individual to participate “when that indi- 15. 42 USC § 12102(1)(A). A “major life activity” ability shall, by reason of such disability, be provided certain guidelines and best prac- includes, but is not limited to “caring for oneself, per- excluded from participation in or be denied vidual poses a direct threat to the health or tices are met. forming manual tasks, seeing, hearing, eating, sleeping, 18 the benefits of the services, programs or safety of others.” (emphasis added). In a 2018 briefing hosted by the Nation- walking, standing, lifting, bending, speaking, breathing, The regulation does not address situ- learning, reading, concentrating, thinking, communicat- activities of a public entity, or be subjected al Association of College and University ing, and working.” 42 USC § 12102(2)(A). to discrimination by any such entity.”12 Title ations wherein individuals pose a direct Attorneys, then-acting Assistant Secretary 16. 42 USC § 12182. III of the ADA (Title III) extends such pro- threat to themselves. The omission of lan- for Civil Rights Candice Jackson confirmed 17. OCR Letter to Woodbury University, Complaint tections to those attending private colleges guage relating to a threat of self-harm left this process when she advised institutions Number 09-00-2079 (June 29, 2001); OCR Letter to 13 higher education administrators and attor- Spring Arbor University, Complaint No. 15-10-2098, 15 and universities. to abandon the “‘direct threat to self’ termi- (Dec. 16, 2010). Section 504 prohibits discrimination on neys questioning institutional policies for nology and framework,” and recommended 18. 28 CFR § 35.139(a); see also 28 CFR § 36.208(a). the basis of disability by any institution involuntary withdrawal as they relate to that institutions “focus on generally applica- 19. OCR Letter to Spring Arbor University, Complaint that receives federal funding: “No other- students reasonably believed to pose a risk ble health and safety requirements and con- No. 15-10-2098, 15 (Dec. 16, 2010). to their own health or safety. 20. NACUA Briefing with Candice Jackson, available at wise qualified individual . . . shall, solely by duct individualized assessment of a student’s https://bit.ly/2XRzcoi. reason of her or his disability, be excluded OCR Parameters Since 2011 risk of self-harm.”23 21. OCR Letter to Rutgers University, Complaint No. from the participation in, be denied the Real life situations involving student 02-18-2006 (Apr. 27, 2018). Since 2011, OCR has declined to issue 22. OCR Letter to Princeton University, Complaint No. benefits of, or be subjected to discrimina- safety are complex and factually driven. If, 02-12-2155 (Jan. 18, 2013). tion under any program or activity receiving formal guidance on circumstances involving after conducting an individualized assess- 23. NACUA Briefing with Candice Jackson, available at Federal financial assistance or under any a direct threat to self. However, a review ment, an institution reasonably believes that https://bit.ly/2XRzcoi. 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