Author: TSA Press

As soon as Kamala Harris arrived on the 2020 general election scene she started causing whiplash among conservative critics. Most are coalescing around pitching her as a left-wing cartoon. Trump himself is going with his “nasty” and “phony” schtick. Tucker Carlson can’t even get her name right. Josh Hawley is trying to paint her as a big business enemy of the middle class which seems a lot closer to the message that actually landed Trump in the White House in the first place.  But one thing they can all agree on is casually musing that Black and Brown people aren’t really American citizens.

It’s a conspiracy theory that popped up all over the place as soon as Biden’s camp announced that Harris was joining the ticket, but while most of this speculation was relegated to fringe message boards — indeed some of the more intellectually honest conservative media went ahead and debunked it out of the gate — Newsweek went ahead and published a whole essay about it from former Chapman Law School dean John Eastman.

The crux of the essay is that while Harris was born in the United States, if her parents weren’t citizens at the time, an outdated fringe theory of the 14th Amendment would suggest that she isn’t a natural born citizen because while born here she wouldn’t have been “subject to the jurisdiction thereof.” That provision is intended to deal with foreign diplomats, but here we are.

We make fun of U.S. News and World Report turning into U.S. Rankings and More Rankings, but that fall from grace is nothing compared to the trash bin Newsweek’s turned into.

Overnight, an editor’s note popped up seeking to dispel the impression that this foray into racist birtherism was really the foray into racist birtherism that it was:

Editor’s note: Some readers reacted strongly to this essay, seeing it as an attempt to ignite a racist conspiracy theory. That is entirely inaccurate, as this Note explains.

Oh?

Debating the meaning of these constitutional provisions and, in the particular case of Dr. Eastman’s piece, the meaning of the 14th Amendment’s phrase “subject to the jurisdiction thereof,” is not an attempt to deny facts or to make false claims. No one is questioning Harris’ place of birth or the legitimacy of an obviously valid birth certificate.

You see, this is all about textual interpretation and parsing words carefully. For example, when the editors write the denial, “Eastman’s Newsweek Column Has Nothing to Do With Racist Birtherism” you might accidentally read that as “this is not racist” when they’re really only saying “it’s not about the fact of her birth.”

In fact, though, it is totally racist and also a new flavor of birtherism as it explicitly questions the circumstances, if not the location, of her birth. The editors, Editor-in-chief Nancy Cooper and Opinion Editor (and noted internet troll) Josh Hammer, attempt to deflect the idea that this could be racist by pointing out that John McCain and Ted Cruz also faced questions about their eligibility.

Why, exactly, was Cruz’s eligibility not racist birtherism? Cruz was born in Canada, which is a good cherry on top laugh about an Ivy League guy who tries desperately to wrap himself in Texas, but his mother’s American citizenship made him a citizen from birth. The person who spent the most time questioning Cruz’s eligibility was… Donald Trump who called him an “anchor baby” and wrapped it in with his wingnut theories about Cruz’s father assassinating JFK with Castro. The point is Cruz being a Republican doesn’t give him anti-racism armor and the questions about his eligibility were always about exploiting his “funny name” and immigrant father to undermine his legitimacy.

John McCain’s issue was a bit more explicit since the United States had been taking the position that children of American parents in Panama did not have citizenship — a stance driven by the reluctance to admit, ahem, a lot of kids produced by stationing a bunch of guys down there for years. This was resolved by later statute and then Clinton and Obama joined a resolution declaring McCain eligible anyway to close the issue.

The editor’s note is just one big “hey, we’re just asking QUESTIONS” defense. An adolescent response trying to duck behind the safe haven of academic inquiry. “I’m not saying he rapes goats, I’m just saying people have wondered and I think we should consider it.” Eastman’s essay is “a woman of color with immigrant parents is not American” dressed up to sound like a serious and neutral inquiry. This isn’t an intellectual inquiry, it’s a memorandum of understanding laying out the talking points for a nagging racist hit job. If you’re looking to get on Fox or OANN, start memorizing these out-of-context statutes and cases now! These shall be your new shibboleths.

Were Harris’ parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible. Or were they instead, as seems to be the case, merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act?

Prepare for four years of people asking for her dad’s long-form Green Card.

None of this really matters of course because she was born in Oakland. The status of her parents mean exactly squat since she doesn’t fall into the long-recognized exceptions to the 14th Amendment (i.e., the aforementioned diplomats, the children of indigenous people who were not citizens at the time, and the children of a hypothetical foreign occupying army who might happen to be on U.S. soil).

It’s the same racist birtherism wrapped in a new bow. It’s moved from “was he born in Hawai’i?” to “was she born the right way in California?” but it’s all the same claptrap. Far from Newsweek’s denial, this article and its tortured reading of the Constitution to get around Harris’s cut-and-dry birth certificate actually underscores exactly how birtherism works.

It’s never been about a birth certificate.

Some Questions for Kamala Harris About Eligibility | Opinion [Newsweek]
Editor’s Note: Eastman’s Newsweek Column Has Nothing to Do With Racist Birtherism [Newsweek]

Earlier: Federal Clerk Attacks His Law School For Celebrating Pro Bono Work

The coronavirus crisis has wreaked havoc upon the legal profession and brought about changes that made working environments chaotic at best. From the the rapid transition from working in offices to working at home to the austerity measures that brought salary cuts, furloughs, and even layoffs to some law firms, associates have been put through the wringer. Now, associates are facing off against the very partners they work for in a battle for billable hours.

It seems that thanks to the pandemic, there’s been a downturn in work, and partners are taking on a lot of the work that associates and paralegals used to do. According to Bill Josten, manager of enterprise content for Thomson Reuters, there’s now a 2.7 percentage point difference between the hours partners and associates are working. “There has consistently been a gap,” he said, “but it got really wide, really quickly in conjunction with the pandemic.” The American Lawyer has some additional details on the new phenomenon that’s making associates cringe:

While hours are down across the board, Josten said the hourly dip for associates in Q2 of 2020 was significantly higher than that of partners. During Q2 of 2018, associates worked an average of 139 hours per month; in Q2 2019, it was 138 hours; and in Q2 2020, that number dropped to 126, a 10% drop from 2018.

Partners also saw a drop in hours, according to Josten. Q2 of 2018 saw partners work 124 hours per month; Q2 of 2019 was at 123; and Q2 of 2020 was 118, a 5% drop from 2018.

Whether this is due to client demand or partners simply hoarding the work that they do have, associates will be the ones who suffer in the long run. Never mind the fact that they’re not getting the professional development through challenging work that they would have in normal times, but when the holiday season comes, many associates won’t have been able to meet their minimum requirements for bonus eligibility.

Some firms are offering bonuses for extraordinary performance during the pandemic based on hours billed, but when there are fewer billable hours to be had overall, how are associates supposed to rise to the occasion (or attempt to do so)? It’s yet another unfair situation that’s been thrust upon associates during these turbulent times.

What’s the hours situation like at your firm? Are you on track to bill your usual number of hours in 2020? Please let us know in the poll below.

Partners’ Gain Is Associates’ Pain as Hours Move Upstream [American Lawyer]
When Billable Hours Are Scarce, Partners Get to Work First [Big Law Business]

---

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Heather DePremio to our pages.

All my life, I’ve wanted to be a lawyer. I used to watch Perry Mason movies whenever they came on (way before the time of TiVo, let alone Netflix and Hulu). I love the law. The intricacies, the politics, the arguments. I even have a caricature of me, age 12, being a lawyer. When I went to college, I studied philosophy and pre-law. I never had a doubt that I would be the next great thing.

But as life so often does, it threw me a curve ball. I joined the military in the middle of my sophomore year at school, learning the hard way that in order to pass class, you have to attend class. In the service, I met, and married, my husband, also a service member. Although his commitment time was longer than mine, I was still determined to reach my goal. I went to law school while he was still on active duty (and spent our first few years of marriage apart — like any good military spouse). It was tough, but I muddled through, firm in my resolve to be that lawyer. I wasn’t first in my class, but I did fairly well. Most who knew me figured I’d go on to practice, somewhere. I graduated, took the Ohio bar exam, and became a full-fledged lawyer in the fall of 2006. Then, we moved.

My husband got stationed in Virginia. Lovely place, but not where I was licensed. What’s a girl to do? Take the bar, again, of course. Oh, did I mention I was pregnant with our daughter? Yeah, fun times, y’all. Fun times. After being home with a child for a year, I decided it was high time to use those TWO law licenses, and I went out to find work. But I struggled. HARD. I was from out of state. I didn’t have the pedigree most big firms were looking for. I settled in, working pro bono for legal aid. It at least gave me experience. But my second child’s pregnancy took a toll, and I quit working. After he was born, I started working for a solo practitioner. That lasted for a while, but really wasn’t scratching the “law” itch I knew I wanted. And, of course, we had to move.

By this point, I had been six years out of law school, and in the third state. I was done. I didn’t want to take another bar. I didn’t want to deal with interviewers asking “where’s that school again” and comments like “well, we’ve never hired someone outside of a first-tiered school before” (yes, I really got told that). I had two small children that had a father that was gone often, and they needed a parent home. So I became a stay-at-home mom. Let me say, all of you that stay home with kids, you have my undying loyalty. You are the bomb-diggity. And you deserve a vat of wine. No, a whole vineyard. I love my kids, but staying at home was NOT my cup of tea. Besides, we had to move!

We moved to outside of New Orleans in the summer of 2015. It was HOT. Bugs were everywhere, and I was MISERABLE. My kids were in school full time. I didn’t know anyone. My brain was mush. I needed something to DO. I started looking for work. Any work, but legal work would be preferable. I found an opening at the U.S. Attorney’s Office for a legal assistant. I thought, “I can do this. I did this before law school.” Little did I know that the title does not always coincide with the work you actually do. In the three short years I was at the USAO, I was a legal assistant to five separate assistant United States attorneys, prepared and helped try almost a dozen federal criminal trials, and helped our office settle some of the biggest cases it had ever seen. And I fell in love with my job.

I did everything from copying papers, to processing records in computer databases, to drafting responses to motions, to legal research and writing, to presenting evidence in the courtroom for trial. I loved each and every moment of it. The courtroom is exhausting and exhilarating all at once. But there is SO much prep work involved beforehand. Much of that prep work is being done behind the scenes, much like a stage hand for an actor. I have never had much success on the stage, but oh, I love being behind it.

I’m now a paralegal specialist for the USAO in San Diego (yes, we moved, again). The first thing I tell any attorney I work with is this: “I’m here to make you look good in the courtroom, to make your job easier, and to take care of the things you do not need to.” I love what I do. I’m knee-deep in all my cases, processing records, helping present evidence to the court, reading through caselaw to assist with motions, etc. Because I have a law degree, I can understand the why behind needing certain things done a certain way. I can lend my legal knowledge to the AUSA in arguing a certain position. (I once convinced an attorney to bring up a lack of standing issue to the judge — who then promptly advised we brief on the issue. We won.) And because I am tech savvy, I can put evidence together to more clearly guide the trial team to what they need, when they need it.

The best part, though? When that next move comes (in four short months), I can take a look at all the amazing work I’ve done and skills I’ve learned, and say, “Bring on the next one, I’m ready.” No need to worry about a license. No need to worry about yet another bar exam. I stay in the law, doing what I love, with the ones I love right near me.

Being a military spouse is HARD. Moving is HARD. But being a part of the legal community? Not hard in the slightest.

---

Heather DePremio is a Paralegal Specialist with the United States Attorney’s Office for the Southern District of California. She received her undergraduate degree from National University in 2000, and her J.D. from Northern Kentucky University Chase College of Law in 2006. Heather has been with the federal government since 2015. She is a Navy veteran, a military spouse, and a mother of two. When she isn’t knee-deep in the law, Heather can be found running half marathons and having exciting family adventures on their many, many moves across country.

There’s a strong sense of déjà vu on the bar exam beat this week. Indiana pushed until the Friday before the bar exam to admit that it couldn’t go ahead with the Tuesday exam when it couldn’t run a working test of its exam software. Now Florida, attempting to use the same ILG platform, is sitting less than a week from its exam and… hasn’t run a functional test yet.

I’m starting to see a trend.

Earlier this week, we reported that Florida had called off its planned test run of the software after applicants pointed out a number of issues. The Florida Board of Bar Examiners promised that they’d let folks know when the test would happen as soon as it was ready to go. As of Thursday… there are still crickets sounding with the organization’s website topped with an emergency announcement:

The Live Trial Exam of the ILG bar examination software has not yet been rescheduled. The Board will update all applicants on the date and time of the Live Trial Exam as soon as possible by email and by posting the date and time on this website.

Yesterday, the FBBE emailed applicants and told them not to keep downloading the software at all:

If they have not yet downloaded the latest version, the ability to do so has been disabled at this time pursuant to FBBE. For those who still need to upload their Trial Exam, you will be unable to do so until the download link is reactivated and you have downloaded and installed the latest version of the software.

Are they tracking when the exam is supposed to happen for real?

The decision to kill the download comes as we’ve been receiving more reports from applicants that the software is causing all manner of glitches with their computers, up to and including concerns that it’s causing security breaches compromising their bank and email accounts. ILG says that’s not the case, but whether or not that’s really happening, the absence of any confidence in the platform’s security speaks to how miserable the online exam rollout has been: ILG has had two exams already canceled on them, ExamSoft struggled through “a cyberattack,” and Extergrity wisely watched all this and said, “Peace, we’re out.”

Another glitch identified by applicants involved a workaround that allowed users to access all their computer files while the exam was in progress. Some of these glitches were reported on social media and boards and tipsters indicate that ILG representatives have talked to applicants about these glitch reports. Unfortunately, we’re also hearing that ILG is telling people to take down these reports for “caus[ing] unnecessary anxieties about the product.” Charitably that could be an inelegant way of saying these reports have been addressed and hoping to prevent people from freaking out about stale issues. But given the history of the exam software industry — like ExamSoft’s effort to scrub the web of articles raising hacking concerns — it’s difficult to give ILG the benefit of the doubt.

The exam is set for Wednesday. There has been no test and applicants aren’t currently able to download the latest version of the software. We’ve got people wondering if they’re going to take the biggest exam of their lives in less than a week and they have no idea what’s going to happen. It’s not cool to keep people waiting around wondering when their test is going to be!

It’s time to make a decision. If a successful test isn’t in the cards by now, then the exam needs to be canceled next week. And if there’s not going to be a successful test by Monday, it’s time to pull the plug entirely. Whether that means a diploma privilege regime or an open book email test like Indiana doesn’t matter as much as a commitment that gives applicants a definite end date for this floating test situation.

Earlier: Online Bar Exam Software Still Not Working On Friday, Test On Tuesday
Florida Cancels Test Of Online Bar Exam Because, You Know, ‘Issues’

---

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

One of the tougher challenges of legal practice is to achieve the momentary ability to step back and assess the toll it takes can take on our daily lives and adjust accordingly when damage is being done. I can’t think of any better way to state it than Dan Canon has, finding the self-awareness to stop and smell the roses.

---

At age 42, and beginning a new career, I’m pleased to report I’ve hit a milestone: I’m starting to be able to enjoy things. I can toss a ball around with my kids. I can watch a movie. I can read a book without checking my email after every paragraph. I can do all this without the venial sin of sloth chewing on the leaves of my recovering lawyer’s brain. I don’t mean to brag, but it took a lot of work to get here.

A few years ago, at the apex of my hyperemployment, I realized I was miserable. I didn’t socialize with my best friends. I never saw my kids. I drank a lot and slept wherever I landed. I took it for granted that I’d be dead before 50. So, with some considerable difficulty, I retreated into the strange world of academia. The work is still demanding, but not lethally so.

It’s funny that a law school should be a place of refuge. After all, it’s where I learned a lot of my worst work habits. Fifteen years ago, universities were still squealing with delight at students who would forsake all else for the law. Replace Octavia Butler and Stephen King with Learned Hand and Erwin Chemerinsky, eschew Mario Kart for civil procedure flash cards, trade that old marriage in for a laptop and some monogram cufflinks — that’s how you kept the academy happy. So starting in my first year of law school, I dutifully siphoned the extraneous, enjoyable stuff off the top of my head, leaving only room for a list of case names and pentasyllabic argle-bargle.

As a result, I did pretty well in school, but the fundamentals of my humanity were in a catatonic state. I turned into a machine obsessed with work, incapable of sparing a moment for recreational reading, binge watching, or even modest self-reflection. Fires were stoked in my head every time I tried to do something that wasn’t working on cases. A decade later, my smoldering brain was stuck in achievement mode, with no neurons left to smell the roses I spent years cultivating.

I asked Dr. Stephanie Hall, a psychiatrist and expert witness on mental health issues, if what I was experiencing was out of the ordinary. “Not at all,” she said. “Americans have placed their identity in what they produce. I blame capitalism. If you’re not making or doing something to feed the machine, you feel empty and nervous, because that’s what you have internalized as what you’re supposed to do to be a worthwhile human.”

Sounds about right, but my efforts to abolish capitalism from inside the courthouse have been unsuccessful (so far). How do we fix ourselves? “There’s a whole body of ideas and practice in mental health right now around mindfulness, which has a central idea that just ‘being’ is worthwhile,” said Hall. So meditation is the answer, right? I tell her my persistent attempts and failures at starting a meditation practice over the years haven’t gone so well. She sets me straight.

“Mindfulness practice can take the form of meditation, but many people who have difficulty setting aside time to meditate can also practice being mindful while they do other activities. Like writing, for example. A place to start can be allowing yourself to pay attention to your thoughts without judging their worthiness. Or just paying attention to the sensory details of an activity like washing dishes, so you don’t let your random, anxious thoughts run away with you.”

I asked Professor Laura Rothstein, who teaches disability law and writes extensively on the topic of mental health in the profession, how we can best encourage students and new lawyers to develop healthy work habits. “I tell them to channel Louis Brandeis. He made sure to stop work at 5:00 p.m., take time to relax and refresh, and he took vacations. His famous quote is ‘I soon learned that I could do twelve months work in eleven months but not in twelve.’ ”

Rothstein prescribes a variety of mindfulness practices to her students, too. “I’ve had many students tell me that my weekly reminders to take time (even 15 minutes a day or a couple of hours on a weekend) has been helpful to refreshing their mind and body. This is even more important in COVID-19 times. Although we have a lot of ‘time’ on our hands now, making sure to take time to be mindful and self-aware is essential.”

A sympathetic ear on campus can make a difference, Rothstein said. “I always tell students to reach out and ask for help from a faculty member, an administrator, someone, if they are concerned about something. It’s awful to feel trapped. Knowing that someone might be able to help, to listen, or to steer you to help can go a long way to keeping one from feeling like there is no way out.”

I got lucky. I was able to take a step back and give myself the advice I now pass along to students: You’re getting a law license to make your life better, and you haven’t done that if you end up a labor droid, an alcoholic, or a corpse. To their credit, law schools and bar associations are doing better than ever at promoting mental health — much better than they were when I was a student. But we still have a long way to go. Dumb luck, pithy advice, and websites full of substance-abuse resources aren’t going to be enough to help lawyers who get it in their heads that work should eclipse all other priorities. Most litigators who wander into the thick forest of their careers don’t even recognize they’re lost. It’s on all of us — teachers, practitioners, and colleagues — to show them the way.

---

Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

Dan Canon is a civil rights lawyer and a Professor of Law at the University of Louisville, Louis D. Brandeis School of Law. Most notably, he served as lead counsel for the Kentucky plaintiffs in the case of Obergefell v. Hodges, which established marriage equality in all 50 states. He writes on civil and criminal justice issues for a variety of regional and national publications. PLEADING OUT, his book on plea bargaining reform, is scheduled to be published in early 2021. His short documentary series on activists in the Midwest can be viewed at www.midwesticism.org. He lives a noisy-but-great life in Indiana with his wife and three daughters.

For the life of me, I will never understand the resistance to wearing face masks during a freaking pandemic. Does it just make too much sense for some people? The fact that masks continue to be politicized just blows my mind. But, well, that’s where we are in 2020.

In Philadelphia, a controversy is brewing over a state judge’s reported refusal to wear a mask — and his demand that others in his courtroom follow suit. As reported by the Philadelphia Inquirer, Philadelphia Common Pleas Court Judge James Murray Lynn is the subject of a complaint over his mask protocol. In a letter to Margaret Murphy, administrative judge for the Family Division, written on behalf of public defenders and prosecutors, Lynn’s behavior is detailed:

“It has come to the attention of our offices that Judge Lynn continues to refuse to wear a mask while operating in-person hearings,” wrote Alan J. Tauber, first assistant at the Defender Association of Philadelphia, in a letter dated Friday, to Margaret Murphy, administrative judge for the Family Division, where Lynn sits. “We believe this safety breach needs to be addressed expeditiously.”

“Not only was he not wearing a mask, but he was actively ordering counsel to remove their masks while litigating,” Tauber wrote on behalf of both public defenders and prosecutors in the District Attorney’s Office.

And as also noted in the letter, this is not in compliance with stated rules:

In his letter to Murphy, Tauber noted that Lynn’s avoidance of masks runs “contrary” to a July 1 order from the state Department of Health that requires face coverings “in any indoor location where members of the public are generally permitted,” and is out of step with the First Judicial District’s own safety requirements. A sign indicating that masks are required is posted at the door leading into Lynn’s courtroom, Tauber wrote.

As is completely understandable, witnesses scheduled to appear in Lynn’s courtroom are uncomfortable appearing in a closed room where masks are not being worn:

On Aug. 5, for example, Lynn held a preliminary hearing in a domestic violence case. Assistant District Attorney Liz Hines said she was ready to proceed with witnesses and asked Lynn if he planned to put on a mask. When Lynn said no, Hines left the courtroom to talk to the witnesses, who said they “did not feel comfortable coming into the courtroom to testify if the judge was not going to be wearing a mask,” according to Tauber’s letter.

Lawyers agreed to waive the preliminary hearing so witnesses did not have to testify before Lynn that day.

It remains unclear what would have happened if it were not a preliminary hearing and the witnesses’ testimony had been required.

If you thought cooler — or at least more science-minded — heads would prevail, well, I’m going to have to disappoint you. The spokesperson for Murphy has already made a statement justifying Lynn’s anti-mask stance.

In response to questions from The Inquirer, Murphy’s spokesperson, Martin O’Rourke, said Lynn’s “presiding chair in his courtroom is positioned three feet behind a recently installed multisided plexiglass separation.”

O’Rourke added that lawyers and clients sit at least 15 feet away from Lynn and that Murphy has been in talks with lawyers with the defender’s and district attorney’s offices to resolve their concerns. O’Rourke said that Lynn asked one lawyer to “pull down his mask while he was talking” because he could not hear him.

And, O’Rourke said, the state Health Department order provides exceptions to wearing masks and permits judges to use their discretion during proceedings “where someone is required to speak (e.g., attorneys, witnesses, the judge) and to be heard intelligibly.”

Let’s all remember, that while plexiglass barriers are useful, and distance is great, the best tool we as a society have against the spread of the novel coronavirus is the consistent use of masks. Period. That is especially true in indoor spaces for extended periods of time — like during a court hearing.

Come on people, we have to do better than this.

---

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

As schools nationwide discuss how they may safely open for in-person learning, there is no doubt that remote learning is with us for the foreseeable future, and with it, concerns about online harassment and free speech rights for student protesters.

How can attorneys working with educational institutions help clients create a plan to address threats of outside cyberbullying, and to update student disciplinary guidelines regarding student demonstration in the classroom? In a recent CLE program, Addressing Online Harassment in an Educational Setting, Samatha Harris, Senior Fellow at the Foundation for Individual Rights in Education, recommends modeling preventive measures and guidelines around existing Title VI and Title IX guidelines, while ensuring that the updated rules don’t bump up against a student’s First Amendment speech protection.

What can be done to prevent student disturbance in the virtual classroom?

In response to complaints of “Zoombombing,” Online teleconferencing platform Zoom expanded its meeting privacy options to give hosts greater control over participants after uninvited outside actors, or “internet trolls,” began entering Zoom meetings to harass participants. Emboldened by online anonymity, these “trolls” would use hateful speech and post offensive imagery in online classrooms, city hall meetings, and even Synagogue services.

To combat the trend, Zoom changed its privacy settings so that meetings require a password by default, and enabled virtual waiting rooms for meeting hosts to have greater control over who can join. Only participants with the personal meeting ID may enter the ‘lobby,’ after which meeting hosts have the option to conduct a secondary screening before granting entry. 

How can public schools prepare for student demonstrations?

Chief Justice Abraham Fortas, in the landmark Tinker case, famously declared that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The virtual classroom is no different, and, so long as the student does not disrupt the learning process, much like Tinker’s infamous black protest armbands were not found to be a class disturbance, a public school may not restrict a student’s First Amendment right to free speech. 

Educational institutions preparing guidelines for students to peacefully protest online should institute viewpoint-neutral guidelines focused solely on the manner of expression, and not the viewpoint itself, to avoid potential First Amendment violations. Even If a student’s conduct does cause a severe disruption, too little case law exists to determine allowable discipline, and attorneys advising educational institutions should proceed with caution.

For a more in-depth analysis, including recent court opinions and how they may affect a school’s legal obligations, check out the full program here. 

This article was prepared with help from Max J. Cheslow, a Seton Hall Law student. 

Related Content:

1. COVID-19 Pandemic: Federal Special Education Update
2. Zero-tolerance or Zero-enforcement? A Guide to Taking on Bullies in School or Online Part I
3. Zero-tolerance or Zero-enforcement? A Guide to Taking on Bullies in School or Online Part II

There’s been a lot of controversy about the upcoming August 14 implementation of changes to Title IX — the federal regulation that sets the standards for what is legally required in educational institutions when a student (or employee) is accused of  a sexual crime on campus.

The rule changes, penned by Donald Trump appointee Betsy DeVos, are being opposed in four lawsuits joined by attorneys general from 18 states. The suits move for injunctions on the basis that the changes are impossible to implement quickly (especially with COVID-19) and unfair to accusers, who can now be cross-examined.

But from the perspective of the accused and civil rights organizations like FIRE, the changes were long needed and will help even the playing field between accuser and accused so that an allegation alone, without rebuttal or impartial investigation, won’t get a student kicked out of school.

Major revisions include:

1) The accused student will be presumed innocent, or “not responsible” during the grievance procedure. The school, not the accused student, will bear the burden of proof.

2) Both parties will have a right to submit and review evidence.

3) Both parties can be represented by an “adviser” of their choice (this can be an attorney but need not be).

4) The accused has a right, through their adviser, to ask questions of the complainant in real time, during a live hearing. (It used to be an attorney, if permitted to attend, could only suggest questions during the hearing. There was no guarantee they would be asked.)

5) The school must use trained Title-IX personnel, free from bias to either party, to evaluate all relevant evidence. The person who conducts the investigation can no longer be the adjudicator of the claim.

6) The standard of proof must be at least “preponderance of the evidence,” but can be higher such as “clear and convincing” evidence.

7) All parties (including the accused) are protected from questions about their prior sexual history, unless relevant to specific facts of the case.

9) At the conclusion of the hearing, a written analysis must justify the decision.

6) The accused student will have a right to appeal.

Coming from a criminal defense perspective, none of these changes seem radical. They guarantee some measure of due process to the accused and apply a consistent standard across the nation.

It does, however, cost money. Rejiggering the existing system, imposing new rules, training staff, etc., will require funding. “Not such an easy thing to come by these days,” said New York attorney Scott Iseman, who’s handled at least 20 of these cases. “Schools are getting more competent at it, in general, but some are more robust than others.”

Getting kicked out of school due to an allegation of sexual harassment is as traumatic as being arrested and tried for a crime. Public shaming, loss of tuition, and possible criminal investigation and punishment, make the stakes extremely high — particularly where many of the scenarios come down to a he said, she said contest.

A psychologist told me about a young man kicked out of a small private college for alleged sexual assault. He was a virgin, had been drinking at a party, and later had sex in his dorm room with a young woman. He thought it was consensual. The next day he found a sticker on his door reading: “That was not consensual, you know.”  He was expelled and went into a deep depression.

Nationally, universities have adopted an “affirmative consent” standard. It requires communication between the parties, whether verbal or nonverbal, showing that each actively consents to sexual conduct. But the devil’s often in the details, and when one or both parties have been drinking or using drugs, the line between consent and incapacity to consent becomes difficult to discern.

The new standards set up specific procedures safeguarding the due process rights of the accused without diminishing the rights of the accuser.

Because they come from an administration whose leader has been accused of sexual harassment himself, the rule changes have drawn fire from many quarters. But from the perspective of a criminal defense attorney, it seems like the modifications enhance fairness and should have happened a long time ago.

---

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Superstar Britney Spears is no stranger to legal headlines, having been the subject of a California conservatorship since 2008. Recently Spears’ case returned to court, albeit in a virtual Zoom session, in order to monitor the status of the legal arrangement.

A conservatorship, sometimes referred to as a guardianship, is a remedy used when an individual is unable to provide for her personal and/or financial needs. A conservator of the person ensures that an individual has proper health care, food, clothes, and shelter. A property conservator is appointed when a court determines that an individual cannot manage her financial affairs.

Spears’ father, Jamie Spears, and Andrew M. Wallet, Esq., were initially appointed co-conservators for her in 2008. Wallet has since resigned. Jamie Spears temporarily resigned in 2019 for health reasons. Following that, care manager, Jodi Montgomery, became conservator. The matter is set for an August 22, 2020, court appearance in order to determine the future of the conservatorship and whether it should continue. The singer’s mother, Lynne Spears, wishes to become more involved in her daughter’s care. Judge Brenda Penny has previously ordered an expert exam into Spears’ capacity with regard to the continuance of the conservatorship. Under the law, Spears has a right to have legal representation, a conservator change or to petition to end the conservatorship. At the moment no formal application has been made to end the conservatorship.

In recent months, Spears has gathered support from her fan base, which has organized under the hashtag: #FreeBritney. Many of the supporters feel that Britney should not have a conservator, that she is capable of managing her own affairs and making her own decisions, and that the conservatorship is costing her too much money. The fans appear on social media and often outside the courthouses during proceedings involving Spears. Recently, a petition has been widely circulated to end the conservatorship.

Spears’ 2020 net worth is estimated by many at approximately $50 million, although at times it is estimated to have been around $250 million. In recent days, court files have revealed costs related to Spears’ conservatorship. The alleged total paid to Spears’ advisors and attorneys was $1,202,504.30 for the year 2019. Jamie Spears was paid $128,000.00 in commissions as conservator. Court records also revealed that Britney is authorized monies to spend at stores, for her personal needs. Target, Anthropologie, and Amazon are a few of her repeated vendors. Significant funds were spent on residential costs in addition to travel expenses totaling  $91,242.01. Instagram followers will confirm that Spears has ventured to and enjoyed vacations in Turks and Caicos as well as Florida.

Conservators and guardians have to report to courts as to the care of their wards and management of their monies. A conservator will account for every expenditure made on behalf of the individual down to Starbucks coffee and Uber rides. The court will review the accounting and inquire as to monies paid out and any assets marshaled. Commissions and legal fees paid are determined by the court, either pursuant to statute and/or related to the size of the conservatorship estate and the complexities of its management.

Last week, a quarterly meeting was held to review Spears’ conservatorship. It was scheduled for Zoom and was crashed by several people who were not parties to the action. The judge “closed” the courtroom in an effort to preserve integrity and privacy of the process. Many conservatorship hearings and decisions are sealed in order protect the privacy of the individual. In a few weeks, this matter will again be at the forefront, when a court will determine the future of Spears, at least for now.

---

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

Almost exactly two years ago, Donald Trump nominated Allison Rushing to the Fourth Circuit even though she’d only graduated law school in 2007 and spent about a third of her career clerking. Many saw the nomination as a low water mark for the administration’s cynical approach to the judiciary and willingness to install ideologues with the longest possible career runways ahead of them. I wasn’t so sure that we’d seen the most egregious nomination. At the time I quipped:

Before this administration is over, a 3L serving as FedSoc Treasurer at Ole Miss could get a district court nod and not a single goddamned one of you will be shocked.

And as it turns out I wasn’t far off.

Kathryn Mizelle was just nominated for a life-tenured position on the Middle District of Florida. It’s not all that surprising to learn that a judicial nominee has featured in the Above the Law pages before as a Supreme Court clerk. It is, on the other hand, surprising to learn that she was a clerk last f**ing year.

What record is the Judiciary Committee supposed to question her on? Her Torts exam?

Mizelle has been out of law school for eight years and she’s spent four of those years clerking — most recently for Justice Thomas, serving prior stints with appellate judges William Pryor and Gregory Katsas and her probably-soon-to-be colleague James Moody of the Middle District of Florida. And when the comically inexperienced Judge Rushing graduated law school, Mizelle probably hadn’t even taken the LSAT yet! Indeed, Professor Carl Tobias of Richmond Law notes that, if confirmed Mizelle could be “the youngest person appointed to the federal bench since Reagan appointed Alex Kozinski to the Court of Claims one month after he turned 32 and to the Ninth Circuit at age 35.” And that turned out well!

Honestly, imagine looking at a resume in 5 years and getting excited to see a candidate with a federal clerkship and then realizing it’s with a judge having next to no practical experience. Anyone telling you all federal clerkships are worth it is lying — maybe even to themselves — because employers are more savvy than “derp, clerkship!” and we’re going to see a lot more careful scrutinizing of those resume lines as these classes of Trump clerks pile up.

“The Not So Magnificent Mrs. Mizelle” is an unfortunate moniker to carry into confirmation hearings but this is the burden the administration (or more accurately the FedSoc puppet masters behind it) has dumped on this young lawyer. She might well have had a great legal career ahead of her that would chalk up to a sterling application in a dozen years or so, but we’ll never know because she’s getting called up from junior varsity now. It’s not her fault that she has to say yes to this farce — there are no guarantees this will come around again.

And that’s assuming she even gets to the committee. Professor Tobias notes that the calendar doesn’t necessarily work in her favor:

It is very late in the term of a President who may lose in November, Ms. Mizelle would have to leapfrog many nominees ahead of her in the queue and the Senate has moved very slowly all year on confirmations, the Senate is poised to recess today until after Labor Day and will only return for several week until it recesses to campaign.

So this may not even end with her getting her day in front of the Senate? Given the schedule, this almost feels like a stunt. And unfortunately, either way, she gets to be the punchline for the cruel joke Trump and McConnell are playing on the judicial branch.

Earlier: Trump’s Latest Circuit Nominee Graduated Law School In 2007
Supreme Court Clerk Hiring Watch: Justice Kavanaugh’s History-Making Class Of Clerks
Donald Trump’s Devaluation Of The Federal Clerkship

---

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.