Transgender Protection Enacted

Gender identity now protected in Massachusetts in Employment and Education.   See post about our great coalition victory.

Ban the Box………..CORI REFORM UNDERWAY

After years of dedicated grassroots organizing, the CORI Coalition will see results from years of hard labor as the legislation is implemented. JALSA was a part of a broad coalition of civic, religious, union, and community groups working with Governor Patrick and his administration officials to address obstacles which blocked many people from obtaining work.

Starting November 4th, “Ban the Box” statewide is now in effect, making Massachusetts only the second state in the country to remove the criminal history question from initial job applications for all public and private employers. Enforcement will be by the MCAD.

Victory Opposing the Attack on the Affordable Housing Statute

Thank you to all our JALSA members who worked hard to oppose the attack on the affordable housing statute.   We were successful in preserving 40B, the state affordable housing statute which has helped to facilitate some 58,000 units of housing over the past decade.  The vote was decisive; 58% to 42%, which was the largest margin of any ballot campaign. Over 1.2 million voters and 80% of cities and towns voted to preserve the statute.  The broad coalition that worked to preserve this statute included civic, religious, and housing groups from all over the state.   Thank you to CHAPA for your leadership.

BILINGUAL BALLOT CELEBRATION.  Asian American communities celebrate success at legislative passage of Boston’s home rule petition requiring bilingual ballots.  The Chinese and Vietnamese communities worked hard for their victory notwithstanding the opposition from the Secretary of State.  JALSA was delighted to be a part of the coalition working to help make the bilingual ballot a reality.

Genocide Curriculum Guide.  Aug 11, 2010.The Federal First Circuit Court of Appeals upheld the Federal District Court in the case involving the Genocide curriculum guide. JALSA had joined a brief with members of the Armenian community to support the earlier decision that the school department could determine what ought to be in the Curriculum Guide (and could exclude viewpoints that disputed the view that the mass slaying of the Armenians in the early part of the 20th century was a genocide). JALSA had encouraged passage of the original legislation which directed that students study genocide in school.

Update of Jan 20, 2011; Victory – Supreme Court Declines Review Several years ago, JALSA members helped to get a new state school curriculum passed on Genocide. JALSA helped to provide an amicus brief in that lawsuit saying the Dept. of Education had a right to determine what was the core curriculum. The Federal District Court and then the First Circuit Court of Appeals agreed, and now the US Supreme Court has refused to take it up for review.   Thus, the earlier decision stands – a victory for those who argue that students should study and learn about genocide..

Civil Rights Impact Assessments. Secretary of Administration and Finance has issued a regulation requiring Civil Rights Impact Assessments on new policies and regulations. Great victory for the Civil Rights Initiative. See more at our page describing our Civil Rights initiative.

“The Governor Signs Executive Order in Support of JALSA’s Coalition Initiative on Civil Rights”

Civil Rights Position Established. Following an important suggestion put forth by David Harris (Charles Hamilton Houston Institute for Race and Justice at Harvard Law School at a JALSA Annual Meeting in 2007, JALSA initiated a coalition of over 70 groups to advocate for the creation of a high level civil rights position in the Governor’s office.  After much advocacy and strategic outreach, we were successful in getting the Governor to appoint Ronald Marlow as Assistant Secretary of Administration and Finance for Access and Opportunity.  Just a few days ago, we reached another milestone.  The Governor signed Executive Order 519, Establishing the Office of Access and Opportunity with the Executive Office of Administration and Finance.  This Executive Order codifies the new civil nights position and its important responsibilities which include ensuring ‘non-discrimination, diversity and equal opportunity in all aspects of state employment, programs, services, activities, and decision-making.’

Important Employment Discrimination Case Handed Down by Massachusetts Supreme Judicial Court. JALSA was the lead amicus in Haddad v. Wal-Mart where gender discrimination was at issue.  Thanks to Patty Washienko, cooperating attorney, for a great brief.

In Haddad v. Wal-Mart, the SJC did the following:
1.            Upheld a finding of pretext, where the employer gave different reasons for termination (1) at trial; (2) in answers to interrogatories; (3) in discussions with its own employees; (4) in statements to the plaintiff; and (5) in plaintiff’s termination documentation.   Pretext was also demonstrated where Wal-Mart asserted that Plaintiff was terminated based on her statements on April 14, but the termination documentation was already signed and dated April 13.
2.            In order to establish punitive damages, the Plaintiff need not prove that the employer’s agents were aware of the specific c. 151B provision that was violated.  A generalized understanding that gender discrimination is wrong is sufficient.
3.            Intentional discrimination, by itself, is insufficient to establish punitive damages.  The Court lists five factors, including harm to the plaintiff, and the employer’s efforts to conceal its conduct, which will assist a jury in finding that there is particularly egregious conduct at issue.  While the factors provide some useful criteria for future cases, it remains to be seen whether imposition of these factors reflects an overall narrowing of the pre-existing standard for awarding punitives.
4.            The Court upheld an award reflecting 19 years of front pay, based on impairment of the Plaintiff’s future career.
5.            The Court signaled a possible end to the mixed motive analysis, in footnote 27.

This case is the third employment discrimination case in which JALSA has cooperated with the Amicus Group, a coalition of civil rights groups and the employment bar, providing amici briefs to courts when the issues in particular cases are of importance to civil rights protection at large.
Earlier this year, JALSA coordinated a brief in an important case in which a Rastafarian who would not remove his facial hair — which had religious significance –to meet a new employee dress policy, was not allowed to interact with customers of Jiffy Lube.   JALSA’s brief was noted during the hearing before the SJC highlighting our contention in the brief that the case presented significant issues for both religious accomodation and civil rights policy.  Cooperating attorneys Joel Eigerman, Joel Suttenberg, Sarah Smolik (MELA), and Sarah Wunsch (ACLUM) provided this important brief.

The third earlier significant amicus win was a religious accommodation case involving an MBTA employee whose beliefs prohibited him from working Friday evenings: “An employer’s mere contention that it could not reasonably accommodate an employee is insufficient” according to the Supreme Judicial Court (SJC) in MBTA v. MCAD.   Andrew Fischer, Nicole Gann, and Joel Eigerman provided this brief.

JALSA also counts as a significant victory for civil rights in the Commonwealth Governor Patrick’s appointment of an Assistant Secretary of Administration and Finance for Access and Opportunity. A seed for the idea was planted by JALSA’s 2007 annual meeting keynote speaker, David Harris, Managing Director of the Charles Hamilton Houston Institute for Race and Justice, Harvard Law School. After Mr. Harris’s keynote, JALSA convened more than 40 organizations that advocated throughout the year for a senior civil rights position in the Patrick administration. Many organizations participated on a Working Committee, drafting ideas and job specifications, and working to encourage the Governor’s initiation of the position.

Earlier Victories

Victory in the Lynn v. Comfort Case at the US Court of Appeals

JALSA members instrumental in important desegregation case upheld in federal appellate court.

Many years ago, JALSA members were instrumental in establishing the Massachusetts Coalition for Equitable Education (MCEE). Our concern over the dismantling of desegregation programs in schools was the catalyst for the formation of this coalition. Notwithstanding increasing concerns about the achievement gap and recognition of great disparities in resources and technological equipment for minority students, conservative governors and educators were rushing to end racial fairness policies in school assignments or other recognition of racial discrimination in educational course opportunities.

Lynn v. Comfort was an important case protecting a voluntary integration program in the City of Lynn. Jalsa congratulates Richard Cole of the Office of the Attorney General who shepherded this voluntary desegregation/integration case, beginning many years ago following a meeting with our JALSA and MCEE members. The City of Lynn stood up to a challenge from Boston Children’s First, the same group that attacked the racial fairness guidelines in the Boston public schools. The Boston School Committee had capitulated to a similar lawsuit by dropping the racial guidelines that assured that all students had an equal opportunity to attend the schools considered by parents to be most desirable, irrespective of geographic housing segregation of racial groups. The City of Lynn, which had put in place earlier a broad program to ensure integration of the schools, including the use of race as one component during voluntary reassignments, stood firm and defended their program in the lawsuit.

The Lynn program was upheld initially in the federal district court, Judge Nancy Gertner presiding, and was upheld in late June in the US Court of Appeals. Judge Gertner’s written opinion was particularly compelling, and courageous, in its upholding of a voluntary program to maintain integrated classrooms in the K through 12th grade context, an area not previously resolved in judicial cases.

“The suit illustrates,” says MCEE chair and JALSA Board member Mary Ann Hardenbergh, “the need for the reauthorization of public monies under Chapter 636 to ensure that districts can offer magnet schools, professional development for educators, and other programs to ensure the ability of students to attend school together and to learn to know and work with diverse student populations.”

JALSA had submitted two briefs before the initial 3 judge panel at the US Court of Appeals, one on behalf of education groups (including Citizens for Public Schools and Massachusetts Coalition for Educational Equity) prepared by Hobart F. Popick and David B. Broughel of Day, Berry, and Taft, and one on behalf of interfaith and civil rights groups prepared by our JALSA member Ed Barshak. When the case went to the full bench, our members Allan Roth and Joel Eigerman prepared our JALSA brief on behalf of a broad group of earlier amici: religious groups, educational coalitions, and some civil rights groups, including west coast colleagues at the Progressive Jewish Alliance. Additional help on our brief had been provided by all our education consultants, especially members Sumner Z. Kaplan, Mary Ann Hardenbergh, Peggy Wiesenberg, CPS staff Marilyn Segal and Paul Dunphy, with important education statistics provided by Anne Wheelock and Steve Backman. We thank all of you.

And special thanks and congratulations to the Lawyers Committee for Civil Rights — led by our JALSA Advisory Board member Nadine Cohen, who co-ordinated all the amicus briefs and Julie Patino — who prepared a very important amicus brief on behalf of civil rights groups.

Victory in the Wirzburger v. Galvin Case
For many years, JALSA members have provided leadership in protecting the Massachusetts constitutional prohibition against public monies going to private and religious schools and the constitutional limitations on what issues can go on the public ballot as an initiative or referendum.

The Wirzburger case deal with a proposed ballot referendum to overturn the Massachusetts constitutional prohibitions on aid to private and religious schools. The key issue in the case was a clause in the Massachusetts constitution that excludes initiatives and referenda that deal with religion, jurisdiction of the courts, and certain other issues. The Attorney General had refused to certify the proposed ballot item because of these constitutional exclusions and the proponents had challenged the exclusions in the federal courts. A national conservative institute, the Beckett Fund, supported the challenge to the Massachusetts constitution. JALSA members Joel Eigerman and Mark Michelson prepared amicus briefs supporting the Attorney General’s action, defending the Massachusetts constitutional exclusion language, in the federal district court (Boyette v. Galvin) and in the US Court of Appeals (Wirzburger v. Galvin) on behalf of a broad number of religious groups and civil rights groups.

The US Court of Appeals rejected the challenge to the federal constitutionality of the parts of Massachusetts Constitutional amendment Article 48 that excludes religious matters, and any attempt to amend the anti-aid amendment, from the initiative petition process. The first Circuit rejected claims based on the free speech, free exercise, and equal protection clauses of the federal constitution.

Victory on Stem Cell Legislation
In a major legislative victory this year, JALSA fought back efforts to restrict science based on religious beliefs, and took the lead in the state on helping to draft and form the coalition to enact the Massachusetts stem cell research law.

JALSA applauded the House and Senate leadership after successful passage of JALSA’s priority legislative effort, a Massachusetts bill encouraging stem cell research in Massachusetts. This issue is central to JALSA because of our interest in access to health care, and because our organization believes strongly in the constitutional principal of the separation of church and state.
Congratulations to JALSA Advisory Committee member Cynthia Stone Creem for her outstanding work initiating the Massachusetts legislation. JALSA members were instrumental in the successful passage of this bill. JALSA board member David Freedman, a senior policy advisor to Senate President Robert Travaglini, provided a central role in the Senate; Rep.Ruth Balser provided important leadership in the House.

JALSA director Sheila Decter and legislative director Marilyn Segal provided important leadership to the effort.

JALSA helped to form broad support for the bill, including the establishment of MassCURE (Massachusetts Citizens United For Research Excellence) a broad-based coalition advocating for regenerative medicine including adult and embryonic stem cell research and somatic cell nuclear transfer.

Key legislative efforts were coordinated with Hadassah, whose national leadership had decided to emphasize stem cell research this year. JALSA staff helped to train Hadassah’s state leadership in legislative advocacy and Hadassah members provided an advocacy day and multiple forums at the State House throughout the process.

Efforts to Overturn Stem Cell Bill Thwarted
JALSA’s long term knowledge of the Massachusetts constitutional exclusions to the initiative process played a significant role in thwarting efforts to overturn the Massachusetts stem cell legislation.

JALSA is pleased that the Attorney General has not certified the proposed referendum to overturn the Massachusetts stem cell bill on the grounds that issues dealing with religion may not be the subject of the initiative or referendum process. A significant brief on this exclusion was provided on behalf of MassCURE, the coalition that helped to pass the legislation. Joel Eigerman provided a memo to the Attorney General responding to the proponents of the referendum.