The Lawletter Vol 36 No 11

Matt McDavitt, Senior Attorney, National Legal Research Group

While a person's entry upon the land of another without consent ordinarily constitutes tortious trespass, there are exceptions to the rule, including privileged entry based on necessity.  Factually, privileged entry might occur in a circumstance where a person's property or dependents (i.e., an animal or a child) enters or wanders onto the property of another and necessity dictates that for the parent or owner to retrieve his or her property or offspring, he or she must enter the lands of another.  This so-called "privileged entry" exception appears in the Restatement (Second) of Torts:

(1)        One is privileged to enter land in the possession of another, at a reasonable time and in a reasonable manner, for the purpose of removing a chattel to the immediate possession of which the actor is entitled, and which has come upon the land otherwise than with the actor's consent or by his tortious conduct or contributory negligence.

(2)        The actor is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the chattel is on the land through the tortious conduct or contributory negligence of the possessor.

April 24, 2012

John Stone, Senior Attorney, National Legal Research Group

Title IX of the Education Amendments of 1972 prohibits gender‑based discrimination by federally funded educational institutions. It provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).  In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Supreme Court held that retaliation against a person because that person has complained of sex discrimination is also a form of gender‑based discrimination actionable under Title IX.

On its first occasion to say what a plaintiff must prove to prevail on a retaliation claim under Title IX, the Ninth Circuit has reinstated a case for a plaintiff whose claim had been dismissed on summary judgment by a federal district court.  Emeldi v. Univ. of Or., No. 10-35551, 2012 WL 933821 (9th Cir. filed Mar. 21, 2012). As other federal circuits have done, the Ninth Circuit applied the same framework as is used to decide retaliation claims brought against employers under Title VII of the Civil Rights Act of 1964.  See, e.g., Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 91B92 (2d Cir. 2011) (applying the Title VII framework to a Title IX retaliation claim); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002) (same).

According to that framework, a plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation by showing that he or she was engaged in protected activity, he or she suffered an adverse action, and there was a causal link between the two.  Once the plaintiff has made the threshold prima facie showing, the defendant must articulate a legitimate, nonretaliatory reason for the challenged action; if the defendant does so, the plaintiff must then show that the reason is pretextual either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence.

In Emeldi, the plaintiff was a graduate student who alleged that she had been retaliated against because she had complained about bias based on gender. Her complaints were on such matters as the lack of women on the faculty, the failure to give female students the same support and attention as male doctoral candidates received, and the fact that male students had opportunities that were not available to female students, such as access to more and better resources, including more office space and better technology for collecting data.

The court found that the plaintiff's complaints to the Dean of the College of Education and, later, to an administrator about gender‑based institutional bias and about a male professor's—her dissertation committee chair's—unequal treatment of her in particular and of female graduate students in general constituted "protected activity" under Title IX; moreover, the protected status of her alleged statements stayed intact whether or not she would ultimately be able to prove her underlying contentions about discrimination.

April 17, 2012

Doug Plank, Senior Attorney, National Legal Research Group

In the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court established that the Sixth Amendment guarantee of the right to counsel requires States to provide an attorney to every criminal defendant charged with a felony.  Subsequently, in Strickland v. Washington, 466 U. S. 668 (1984), the Court went a step further and determined that the right to counsel is meaningless unless a defendant's attorney performs at a minimum level of competence at trial.  The Court thus found in Strickland that a convicted defendant could challenge the validity of his or her conviction on a showing of the ineffectiveness of his or her counsel at trial, adopting a two-part test under which the defendant has to show both (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that he or she was prejudiced as a result.  In Hill v. Lockhart, 474 U.S. 52 (1985), the Court held that Strickland's requirements extend to the situation in which an attorney provides incompetent advice to a defendant that causes the defendant to accept a plea agreement, reasoning that the entry of a guilty plea represents a waiver of a trial in violation of the right to a fair trial and that such a waiver satisfies the second prong of the Strickland test.  Most recently, in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Court held that a criminal defendant could show that he or she had been denied the effective assistance of counsel when his or her attorney recommended entering a guilty plea without explaining that a collateral consequence of the plea would be the defendant's deportation, finding that the deportation could satisfy the prejudice requirement of the Strickland test.

However, until the recent decisions of the Court in Missouri v. Frye, No. 10-444, 2012 WL 932020 (U.S. Mar. 21, 2012), and Lafler v. Cooper, No. 10-209, 2012 WL 932019 (U.S. Mar. 21, 2012), the Supreme Court had never addressed the situation in which a defense attorney renders incompetent advice that persuades a criminal defendant to reject a favorable plea agreement and to decline to plead guilty.  By 5-4 votes in each case, the Court held for the first time in Frye and Lafler that a criminal defendant has the right to effective assistance of counsel in plea negotiations even where the negotiations do not result in a guilty plea.  Commentators have hailed these decisions as being extremely significant, with one law professor stating that they represent "'the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.'"  Adam Liptak, Justices' Ruling Expands Rights of Accused in Plea Bargains, N.Y. Times, Mar. 21, 2012 (quoting Wesley M. Oliver). 

The Lawletter Vol 36 No 10

Sandra Thomas, Senior Attorney, National Legal Research Group

The Supreme Court of Pennsylvania has very recently addressed the issue of paternity by estoppel, examining the issue in the context of a complaint for child support.  K.E.M. v. P.C.S., No. 67 MAP 2011, 2012 WL 573635 (Pa. Feb. 21, 2012).  The mother of the minor child in that case filed a complaint seeking child support from the man she believed to be the biological father, P.C.S.  He responded with a motion to dismiss, relying on the mother's intact marriage to her husband to establish a presumption of the husband's paternity, and further relying on the husband's assumptions of parental responsibilities as implicating paternity by estoppel.

At a hearing on the motion, the mother testified that she had told her husband of her affair with P.C.S. and that the husband did not wish to be identified as the father on the birth certificate.  Genetic testing excluded the husband as the biological father of the child.  The mother testified that after she had received those results, she had asked P.C.S. to submit to testing.  He refused, although he acknowledged the child as his.  The mother testified that during the four years of the child's life, P.C.S. had undertaken some degree of involvement in the child's life, giving the mother money to buy Christmas presents, providing unsigned cards and gifts of his own, visiting parks and playgrounds, and providing the mother with a cell phone to assure her and the child's safety.  The mother testified that the child referred to both the husband and P.C.S. as "Daddy."  Id. at *1.

By the time of trial, P.C.S. had ended the relationship with the mother; at about the same time, the husband separated from the mother.  The trial court granted P.C.S.'s motion to dismiss the support action, finding that the presumption of paternity was controlling and, in the alternative, that the husband should be regarded as the child's father under the doctrine of paternity by estoppel.  The intermediate appellate court affirmed, differing with the trial court on the issue of whether the presumption of paternity should apply in a case in which the marriage was not being protected because the husband knew that the child was not his, but agreeing that paternity by estoppel applied, based on the husband's actions of holding the child out as his own and providing support.   The Pennsylvania Supreme Court allowed an appeal to consider application of the doctrine of paternity by estoppel to the case.

The mother argued that the child already knew P.C.S. as his father and that there was therefore "no concern over deleterious impact from a judicial determination to such effect," and questioned the "application of a legal fiction in a circumstance in which all parties involved fully apprehend the true state of affairs, a circumstance which is becoming increasingly common."  Id.  The mother also "asks that Pennsylvania law be modified to consider genetic testing, along with other factors, in determining paternity on a case-by-case basis."  Id.

In his argument, P.C.S. focused on the husband's continued participation in the marriage and the relationship with the child during the first four years of the child's life.  P.C.S. argued that application of paternity by estoppel remains appropriate "because it recognizes the importance, in a child's life, of a 'psychological father' who has provided nurturing and life's necessities."  Id.

The Lawletter Vol 36 No 10

John Stone, Senior Attorney, National Legal Research Group

The Fourth Circuit Court of Appeals has upheld summary judgment granted in favor of a university medical school that had been sued by a dismissed medical student with attention deficit hyperactivity disorder ("ADHD").  Halpern v. Wake Forest Univ. Health Sci., 669 F.3d 454 (4th Cir. 2012).  The claims of disability discrimination were brought under the federal Rehabilitation Act of 1973, which prohibits discrimination against the disabled in programs or activities receiving federal financial assistance, and that part of the Americans with Disabilities Act ("ADA") that prohibits disability discrimination in places of "public accommodation," 42 U.S.C. §§ 12181–12189.

To the extent possible, the ADA and the Rehabilitation Act are construed to impose similar requirements.  Accordingly, despite the different language these statutes use, they require a plaintiff to demonstrate the same elements to establish liability.  In the relevant context of a student excluded from an educational program, to prove a violation of either the ADA or the Rehabilitation Act, a plaintiff must establish that he or she (1) has a disability; (2) is otherwise qualified to participate in the defendant's program; and (3) was excluded from the program on the basis of his or her disability.  If a person, due to his or her disability, requires a modification to meet the essential requirements to participate in an educational program and if the necessary modification is unreasonable, then that person is not "qualified" under the ADA and the Rehabilitation Act to participate in the program.  In Halpern, the dismissed student had a disability, but his claims fell because he was not otherwise qualified to participate in the medical school's program and the modification or accommodations he sought were found to be unreasonable.

From the defendant medical school's viewpoint, the problem was not the student's disability, per se, but his objectionable behavior that may well have stemmed from the disability.  To determine whether a plaintiff has satisfied the burden of establishing that he or she is qualified for an educational program, a court must decide whether the plaintiff has presented sufficient evidence to show (1) that he or she could satisfy the essential eligibility requirements of the program, that is, those requirements that bear more than a marginal relationship to the program at issue; and, if not, (2) whether any reasonable accommodation by the defendant would enable the plaintiff to meet these requirements.  For purposes of this analysis, the court in Halpern began with the premise that the University's professional judgment as to the medical student's ability to continue in the medical program with his ADHD and anxiety disorder and as to whether his proposed accommodations would effect substantial modifications to the program was entitled to deference.