In the most recent of legal challenges to the recitation of our country’s Pledge of Allegiance by public school students, the U. S. Federal Court of Appeals for the First Circuit rendered a decision last month in the case of Freedom From Religion Foundation v. Hanover School District, 09-2473. In this case, the Court upheld as constitutional the New Hampshire Public School Patriot Act that authorizes a period of time each school day for voluntary participation by its public school students in the recitation of the Pledge of Allegiance. This case did not consider the constitutionality of the federal Pledge statute, but was limited to an examination of the constitutionality of New Hampshire’s Patriot’s Act.


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In Equal Employment Opportunity Commission v. Simply Storage Management, L.L.C. and O.B. Management Services, 2010 U.S. Dist., LEXIS 527661, (“E.E.O.C. v. Simply Storage”) the United States District Court, Southern District of Indiana, was asked to decide a basic discovery issue in a novel context when the parties to this sexual harassment suit failed to agree on whether or not two claimants must produce internet social networking site (SNS) profiles and other communications from their Facebook and My Space accounts.


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The Connecticut Superior Court in Burbank v. Canton Bd. Of Education,  2009 WL 3366272 (Conn. Super. 9/14/09)  ruled against parents and students who sought to prohibit the Canton Public School District from continuing its practice of using local police to conduct suspicionless sweeps of parking lots and unattended lockers at its middle and high schools using dogs trained to identify illegal drugs and other contraband. The parents and the students sought a preliminary injunction challenging the practice as unconstitutional. The Burbank court rejected all of the parents’ and students’ challenges and concluded that the dog sniffing sweeps are allowable to maintain the safety of students and staff and does not amount to a fourth amendment search or seizure and that the policy/practice at issue does not intrude in any meaningful way in the core parent and student relationship.


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The Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) provides for a temporary extension of employer-provided group health coverage, which is commonly referred to as COBRA continuation coverage. The American Recovery and Reinvestment Act (“Act”), which President Obama signed on February 17, 2009, includes several changes to COBRA continuation coverage that employers quickly need to address. The most notable impact is a significant reduction in the COBRA premiums paid by certain employees whose employment is involuntarily terminated. Under the Act, eligible individuals are required to pay only 35% of his or her COBRA premium. The remaining 65% of the COBRA premium will be reimbursed to the employer through a payroll tax credit.


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Two Historic Law Firms Join Forces to Become Pre-eminent Connecticut Firm

Two of the oldest law firms in Connecticut have joined forces in a move that will create one of the most comprehensive legal services businesses in the state. Berchem, Moses & Devlin, P.C. and Wake, See, Dimes, Bryniczka & Bloom (of Westport, Conn.) have combined their practices, as of March 1, 2008, resulting in a staff of nearly 30 attorneys covering 14 different law specialties. The new firm will operate under the name of Berchem, Moses & Devlin, P.C., and will maintain existing offices at 75 Broad Street in Milford and 27 Imperial Avenue in Westport.

Areas of practice at Berchem, Moses & Devlin include education law, business and commercial law, labor and employment, civil litigation, land use, estate planning, and real estate law. The newly combined firm will have a particular strength in education and municipal law.


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On May 23, 2007, the Equal Employment Opportunities Commission (EEOC) issued guidance on the treatment of employees with “caregiver responsibilities.” While the federal discrimination statutes do not directly prohibit discrimination against “caregivers,” the new EEOC guidance does note that discrimination against caregivers that is grounded in a federally protected class, such as sex or disability, can be used as a basis for such a claim. “Family Responsibility Discrimination” as the theory is becoming known, is gaining popularity.  School Districts are not immune from such claims. Generally speaking, a caregiver is one who provides daily care for a child, elderly or disabled family member. Typically the caregiver is a female. Of course, however, such claims are not limited just to women. Such claims have typically arisen in the following situations:

·     Denying a woman an assignment or promotion based on the belief that she may not want to work the extra hours or to relocate.

·     Disciplining a caregiver for absenteeism disproportionately to an individual without caregiving responsibilities.

·     Failure to hire based upon stereotypical assumptions about external demands.

·     Denying a leave of absence or intermittent leave to deal with an ill or disabled family member.

·     Failing to hire a single mother (or father).

·     Subjecting a woman to a hostile environment because she is a parent with a young child or cares for a family member with a disability.


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On January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (“NDAA”). Section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (“FMLA”). The NDAA provides two new types of FMLA leave to employees with family members serving in the military:

1. Caregiver Leave: Permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.” The leave described in this paragraph is only available during a single 12-month period. This caregiver section is effective January 28, 2008.

2. Call to Duty Leave: The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” Technically, this provision of the NDAA is not effective until the Secretary of Labor issues final regulations defining “any qualifying exigency.”
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In at least partial response to an incident in which a pedestrian was struck and killed by a school bus driver who had cocaine in his system, a law has been passed which now requires background checks and random drug testing of school bus drivers. While bus drivers employed by school districts are already subject to background checks, the law imposes a similar requirement on bus drivers employed by outside bus services. 


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The principal of the Juneau-Douglas High School allowed students and staff, during school hours, to leave class and observe as the Olympic Torch Relay passed through Juneau. Joseph Frederick, a senior at the high school, came to school late that day but joined the spectators across the street from the school to watch the relay.  He, along with others, unfurled a fourteen foot banner which said “BONG HiTS 4 JESUS”. When the principal approached him and asked him to take down the banner, he refused to do so. He was suspended for 10 (later reduced to 8) days. The school based this discipline on its determination that Frederick’s speech, in the midst of a school sponsored activity, was reasonably interpreted as advocating illegal drug use. Frederick appealed this decision and sought damages against the principal, claiming his words were just “nonsensical” and not intended to be drug related in any way.


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The U.S. Supreme Court has ruled that the Individuals with Disabilities Education Act (IDEA) grants parents independent legal rights which encompass the entitlement to a free appropriate public education (FAPE) for their child.  The decision means that non-attorney parents can litigate IDEA claims in federal court unrepresented by legal counsel, because they are acting on their own behalf. Significantly, the Court side-stepped the question of whether IDEA authorizes a parent to litigate another party’s (the child’s) claims. 

In this action, Jeff and Sandee Winkelman sued their child’s school district after an administrative hearing officer rejected their claim that their son’s individualized education program (IEP) failed to provide him with FAPE as required by IDEA. As the case went on, the Winkelmans proceeded without an attorney. The district court agreed with the hearing officer that the school district had provided their son with FAPE, and the parents appealed to the Sixth Circuit. The Sixth Circuit held that IDEA does not authorize parents to appear pro se on behalf of their child, a question on which other federal courts were divided.


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