On August 29, 2022, the Supreme Judicial Court issued a decision in Abner v. Massachusetts Interscholastic Athletic Association, No. 13224 (2022). The court upheld a determination by the Massachusetts Interscholastic Athletic Association (“MIAA”) that a high school senior who had repeated his junior year and had played four prior years of high school athletics was ineligible for a fifth year. The SJC decided that courts should only overturn MIAA eligibility decisions that are “arbitrary and capricious”. Applying that standard, the SJC concluded that the MIAA’s denial of the request for an extra year of athletic eligibility was a valid application of its rules.

The student attended a public high school for three years and participated in football and basketball each year. During the football seasons the coach allegedly bullied the student, causing him to develop anxiety and depression. As a result, the student transferred to a private school. Based in part on struggles the student had with learning, the student repeated his junior year at the new private school and played football and basketball. Both the public and private schools attended by the student were members of the MIAA. Since the MIAA has a rule restricting student-athlete eligibility to four years, the student was ineligible to play for his senior season unless he received an eligibility waiver. The student requested a waiver and attached a letter from his therapist describing the role sports played in relieving the student’s anxiety and depression, but the MIAA denied the application. After the student obtained a preliminary injunction in the Superior Court, the MIAA appealed and the SJC exercised direct review.

Because the student had played both football and basketball during his senior year while the appeal was pending and had then graduated, he urged the court to dismiss the appeal because the case had become “moot”. The SJC disagreed because retroactive penalties could still be imposed on the school, meaning that it retained a “stake” in the outcome, and because similar challenges to MIAA eligibility determinations are “virtually certain” to be brought in the future. Moving to the merits of the appeal, the court held that, because the MIAA is treated as a state actor for legal purposes and enjoys administrative discretion to determine student-athlete eligibility, a reviewing court should examine a challenged eligibility decision only to determine whether the decision is arbitrary and capricious. Since this is a lenient standard, the SJC determined that the MIAA’s decision was not arbitrary and capricious because it addressed every factor in its eligibility rule and it was supported by evidence.

The Abner decision is important because it sets the standard of review for MIAA eligibility decisions. So long as school districts follow the eligibility rules of the MIAA for sports that are subject to MIAA jurisdiction or use rules that they are authorized to promulgate by the MIAA, it appears that application of those rules will be subject to the generous standard laid out in Abner.

If you have any questions about the content of this update, please contact us. We are pleased to assist public and private schools with all legal issues related to athletics, including eligibility determinations, student records, and participation waivers.

This update is provided for informational purposes only and should not be considered legal advice.

On August 11, 2022, the Supreme Judicial Court issued a decision in Joseph O’Leary v. Contributory Retirement Appeal Board, No. 13229 (2022), holding that payments made in lieu of unused, accrued vacation time are not “regular compensation” for the purpose of calculating a public employee’s retirement allowance under the Contributory Retirement Law, G.L. chapter 32. The SJC invalidated prior guidance from the Public Employee Retirement Administration Commission (PERAC), which many employees had relied on to argue that payment for unused vacation time should, under certain circumstances, be considered as regular compensation.

The employee was a police officer who, pursuant to a collective bargaining agreement, was eligible to convert up to ten days of vacation time every year into compensation.  He made this election every December and the compensation was paid biweekly in the next fiscal year. When the retirement board rejected his argument that these payments constituted “regular compensation” for purposes of calculating his retirement allowance, he filed an administrative law appeal which eventually made its way to the SJC.

The SJC applied the definition of “regular compensation” in G.L. c. 32, §1, i.e., “compensation received exclusively as wages [i.e., the base salary or other base compensation of an employee,] by an employee for services performed in the course of employment for his employer.” The court concluded that these payments are excluded from “regular compensation” because they are not “recurrent or repeated” but repeat only upon specific election by the employee during the election period, even if the employee has consistently made the election. The court also held that these payments are derived from salary enhancements or salary augmentation plans which will recur for a limited or definite term and are therefore explicitly excluded from the definition of “wages” in section 1 of the Law.

This decision effectively overrules an advisory memorandum that PERAC issued in 2012 to local retirement boards. PERAC had advised that payments for unused vacation time could be included in pension calculations if they met certain threshold requirements.

The O’Leary decision is important for employers because it defines which payments are included in calculating an employee’s retirement allowance. Employers should be aware that where employees have the option to elect to receive certain payments, those payments will not be used in determining the amount of the retirement allowance if the payments are “elective rather than naturally recurring”.

If you have any questions about the content of this update, please contact us. We are pleased to assist public employers who may be confronted with questions regarding the Law, including involuntary retirement applications, employers’ rights in the retirement process, and collective bargaining issues that may implicate the Law.

This update is provided for informational purposes only and should not be considered legal advice.

On July 26, 2022, Governor Charlie Baker signed into law An Act Prohibiting Discrimination Based on Natural and Protective Hairstyles, Chapter 117 of the Acts of 2022 (the “Act”). The Act prohibits discrimination based on race-related hairstyles in the workplace, schools, and places of public accommodation.

The Act has two important components. First, it expands the definition of “race” across Massachusetts anti-discrimination statutes to include “traits historically associated with race, including, but not limited to, hair texture, hair type, hair length and protective hairstyles.” “Protective hairstyle” is defined to “include, but not be limited to, braids, locks, twists, Bantu knots, hair coverings and other formations.” These expanded definitions have now been added to the Massachusetts anti-discrimination statute, G.L. c. 151B, and the public accommodations law, G.L. c. 272, Section 98. The Massachusetts Commission Against Discrimination will adopt forthcoming rules and regulations meant to effectuate the purpose of these new definitions.

Second, the Act prevents school districts from adopting a policy that impairs or prohibits a hairstyle that is historically associated with race by amending G.L. c. 71, which applies to all Massachusetts public schools. This includes, but is not limited to, policies dealing with participation in sports or athletic events. Outside organizations that provide referees and umpires of school sports also may not have policies suppressing students’ natural or protective hairstyles. The Department of Elementary and Secondary Education is expected to publish guidance on the application of this new rule.

The Act is Massachusetts’ version of a bill passed in March by the House of Representatives, known as the Creating a Respectful and Open World for Natural Hair Act (CROWN Act). While the CROWN Act has not been taken up by the Senate, and thus is not yet federal law, eighteen (18) states have now passed versions of the law, which prohibits discrimination based on an individual’s hair texture or hairstyle that is commonly associated with a particular race or national origin.

All Massachusetts employers should review their employee policies governing dress and appearance and should refrain from banning certain hairstyles outright. Employers should also advise supervisors, especially those with hiring responsibilities, of these new protections. Employers that require certain hairstyle restrictions because of health and safety reasons should consult an employment attorney about non-discriminatory policies. School administrators should also review their student handbooks for any policies that may affect natural and protective hair.

If you have questions about the content of this update or about implications for your organization, please contact us. We are pleased to assist employers with anti-discrimination compliance and policy implementation.

This update is provided for informational purposes only and should not be considered legal advice.

On July 16, 2022, Governor Baker signed into law a new session law, An Act Relative to Extending Certain State of Emergency Accommodations, which extends certain COVID-19 related measures including provisions regarding holding remote meetings and remote public access to meetings. This extension expires on March 31, 2023.

This extension allows public bodies to continue holding meetings remotely without a quorum of the public body physically present at a meeting location, and to provide “adequate, alternative” access to remote meetings. The Act does not make any new changes to the Open Meeting Law other than extending the expiration date of the temporary provisions regarding remote meetings.

If you have any questions regarding the content of this update, or any other questions regarding the open meeting law, please contact us.

 This update is provided for informational purposes only and should not be considered legal advice.

On June 27, 2022, the United States Supreme Court issued a 6-3 decision in Kennedy v. Bremerton School District, No. 21-418 (2022), holding that a public school district violated the First Amendment rights of its high school football coach, Joseph Kennedy, when it suspended and later non-renewed him for praying quietly and without his players at the 50-yard line immediately following games. The Court’s decision concluded that the district’s actions violated both the First Amendment’s Free Exercise of Religion Clause and its Free Speech Clause, and that the violations were not justified by the school district’s interest in avoiding a violation of the First Amendment’s Establishment of Religion Clause.

The majority looked to three incidents when Kennedy walked to the center of the football field following games that he coached, knelt down, bowed his head, and said a prayer. During these incidents, none of Kennedy’s players joined him but players from the opposing team did.[1] After learning of this, the school district sent Kennedy a letter instructing him to avoid any motivational talk with students that included religious expression and explaining that any religious activity must be non-demonstrative – i.e., not outwardly discernable as religious activity. Kennedy then continued to pray alone on the field and, in response, was placed on paid administrative leave, given a poor performance evaluation, and non-renewed for the following season. Kennedy then sued the district, alleging a violation of the Free Exercise and Free Speech Clauses. After Kennedy lost in the trial court and in the U.S. Court of Appeals, the Supreme Court granted his petition for a writ of certiorari.

The Supreme Court reversed the Court of Appeals’ decision, holding in favor of Kennedy. It applied the burden shifting framework typical of First Amendment cases, under which: (1) a plaintiff must first demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses, and, if the plaintiff does so successfully; (2) the defendant must then show that its actions were nonetheless justified and appropriately tailored. The Court found that Kennedy carried his burden under the Free Exercise Clause because the school district’s actions unlawfully targeted the “religious” character of his speech and were not neutral – i.e., generally applicable as well to secular speech. It pointed out that Kennedy’s activity did not involve leading prayers with the team or before any other captive audience and that, at the school district’s request, he had voluntarily discontinued the school tradition of pre-game and post-game locker-room prayers with students. The Court also found that Kennedy carried his burden under the Free Speech Clause. It ruled that he was not subject to the limitation that applies when public employees are engaged in speech that is part of their duties because he was not “instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the school district paid him to produce as a coach.” Instead, the Court noted that Kennedy’s post-game prayer activity occurred when coaches “were free to attend briefly to personal matters—everything from checking sports scores on their phones to greeting friends and family in the stands.”

Moving to the second part of the test, the Court rejected the district’s argument that allowing Kennedy to pray on the field immediately following each game would implicate the district in a violation of the Establishment Clause. The Court held that the appropriate test was not whether the school district’s toleration of Kennedy’s activity appeared to be an “endorsement” of his practice and an “excessive entanglement with religion”, ruling that this test and its genesis in a 1971 decision by the Court, Lemon v. Kurtzman, 403 U.S. 602, has long been “abandoned.” Instead, the Court decided that the district had no interest implicated by the Establishment Clause because the focus should be on “coercion” of students. It pointed out that there was no evidence “that students felt pressured to participate in these prayers;” that not one student from the school joined Kennedy on any of the occasions for which he was disciplined; and therefore, that none of his players “could have ‘reasonably fear[ed]’ that he would decrease their ‘playing time’ or destroy their ‘opportunities’ if they did not ‘participate.’”

This decision is important for public school districts because it redefines the boundary between an employee’s right to exercise their religious beliefs and the avoidance of conduct that amounts to a violation of the Establishment Clause. The precise contours of this decision in the context of schools are uncertain and remain to be worked out by the federal courts. The same caveat applies to the import of this decision for public employers generally. For example, it can be expected that there will be a number of circumstances that arise in school settings where the element of student “coercion” is not so neatly resolved as in the three incidents selected by the Court for its majority opinion. Likewise, when and how a public employee chooses to engage in religious activity while at work could raise a host of case-specific questions. As application of this decision evolves, public employers will be forced to walk a tight rope with potential constitutional violations looming on either side. Accordingly, it is essential that a public employer faced with these issues seek the advice of counsel in addressing specific incidents.

If you have questions about the content of this update or about implications for your employees, please contact us. We are pleased to assist public employers with potential First Amendment issues.

This update is provided for informational purposes only and should not be considered legal advice.

[1] In the dissenting opinion by three Justices, they asserted that the majority simply ignored evidence in the record of other incidents that had not been used for discipline but during which Kennedy’s own players joined him in prayer.