It took twenty years, but, together with co-counsel, I represented an African-American man who was a Vietnam War veteran who wanted to be a police officer in the City of Salem. The reasons for his being by-passed were in writing and were held to be pretextural, but the case had to be re-tried after the hearing officer from the Massachusetts Commission Against Discrimination (MCAD) who first heard the case died before he could finish writing his opinion. Along with co-counsel, we worked closely with the plaintiff to deal with his discouragement along the way. But through our persistence, we ultimately prevailed, and we were able to give him a check for $339,000 in damages. Significant attorney's fees and costs were also awarded. City of Salem v. Massachusetts Commission Against Discrimination, et al. [Brown v. City of Salem], 44 Mass. App. 627, 693 N.E. 2d 1026 (1998).
Along with co-counsel, we defended challenges to a consent decree providing for affirmative action for police officers seeking to be sergeants in the Boston Police Department (BPD). The 1980 consent decree established procedures for administering valid civil service exams as well as goals and timetables for promotions. An early challenge to intervene and vacate the consent decree on the basis of reverse discrimination was denied by the District Court and affirmed on appeal by the First Circuit Court of Appeals in Massachusetts Association of Minority Law Enforcement Officers (MAMLEO) v. Boston Police Department (BPD), 106 F.R.D. 80 (D.Mass.1985), aff'd, 780 F.2d 5 (1st Cir. 1985).
Because no promotions were made for several years, plaintiffs sought an extension of the term of the consent decree. A comprehensive settlement was reached in 1991, applying the consent decree to sergeants, lieutenants, and captains and the application of the requirement that promotional examinations be validated (even though the affirmative action goals were only applicable to sergeants) was challenged by the Superior Officers Union. The District Court denied the motion of white officers to enjoin revocation of the prior eligibility list, holding, first, that the union failed to demonstrate a cognizable injury to its members and, second, in rejecting the union's challenge to the redesign of the 1992 examination, held that applicants on waiting lists had no vested interest in the maintenance of the lists for any period of time. Stuart v. Roache, 739 F.Supp. 54 (D.Mass. 1990), aff'd 951 F.2d 446 (1st Cir. 1991).
With co-counsel, I represented two non-United States citizens in successfully challenging a practice or policy of the Massachusetts Bay Transportation Authority (MBTA) in excluding non-United States citizens from being bus drivers for the MBTA. Daley, et al. v. MBTA, 27 EPD 32,159.
For twenty-three years I collaborated with other co-counsel in the litigation of the Massachusetts school finance case on behalf of children and their parents from property-poor communities in Massachusetts. The liability phase of this complex litigation resulted in a finding for plaintiffs by the Supreme Judicial Court (SJC) in McDuffy v. Secretary of Education, 415 Mass. 545 (1993). I was involved in all aspects of this litigation, from strategic decision-making, drafting of pleadings, discovery, stipulations, research memoranda, and briefs, and the preparation for oral argument. I contributed to the creative lawyering through the development and presentation of the record to the SJC by way of extensive negotiated stipulations, thus avoiding a lengthy and costly trial. To date, this case is the only school finance case in the country submitted on a negotiated stipulated record. The judgment of the court declared, "...the provisions of...the Massachusetts Constitution impose an enforceable duty on the magistrates and legislatures of this Commonwealth to provide education in the public schools for the children there enrolled whether they be rich or poor and without regard to the fiscal capacity of the community or district in which such children live."
After this decision the Legislature passed the Education Reform Act of 1993. After monitoring its implementation for its seven year phase-in, plaintiffs returned to the SJC seeking further relief, claiming that the Commonwealth has not fulfilled its fiscal and supervisory responsibilities contained in the Court's decision. The SJC appointed a Superior Court Judge to hear the evidence and make a report. The judge conducted a 78 day trial and made a comprehensive report of over 300 pages, finding all of the facts presented by plaintiffs to be true and agreeing with plaintiffs that the cost of implementing the state standards ought to be conducted. However, the SJC, while accepting all of her findings of fact, rejected the recommendations and denied plaintiffs' Motion for Further Relief. Hancock v. Driscoll, 443 Mass. 428, 822 N.E.2d 1134 (2005).
For almost thirty years I represented parents in efforts to secure equal educational opportunities for their children in a desegregated school system in the City of Holyoke. In Hispanic Parents Advisory Council v. City of Holyoke, Civil Action No. 80-0172-FHF, after drafting and filing the complaint and pursuing discovery, working with Holyoke's special counsel, an effective school desegregation program was developed, which was incorporated into a consent decree along. After several years of monitoring, we returned to court for further relief as the 1991 state budget cuts removed many of the necessary programs required by the desegregation plan. This was the only school desegregation case in Massachusetts at that time still under court supervision with an opportunity to seek restoration of the funds. The Federal Court appointed a monitor with whom counsel have worked for over ten years. The school desegregation plan was revised and approved by the Court 2001. The revised plan was developed to meet the new problems that Holyoke then faced, as the Hispanic population had grown from 30% when the initial plan was developed, to 80%.
Through litigation, or contemplated litigation, and with the collaboration of co-counsel, I represented parents of children of limited English proficiency in twelve communities in Massachusetts to address improper implementation of bilingual education programs. In each instance, I collaborated in the drafting of what was known as Voluntary Lau Compliance Plan, which was named after, what was at that time, the only Supreme Court decision on this subject, involving Chinese students in San Francisco. In each case, we had to evaluate the particular problems in each community and draft language that addressed the process by which limited English proficient students are identified, assessed as to their linguistic proficiency and academic achievement, placed in appropriate programs, provided for how those programs implemented equal educational opportunities in languages comprehensible to these children while, at the same time, providing English as a Second Language instruction, how staff was recruited and trained, how parents were involved, and how those programs would be monitored and evaluated.
As the state of the art changes in terms of educational testing and pedagogy, we often returned to renegotiate certain aspects of the program in several of these communities, working cooperatively with the parents and school officials. However, the adoption of Question 2 by the voters in 2002 significantly changed the state law as the first-ever transitional bilingual education program was eliminated and replaced by a structured immersion program. Since its implementation, standardized test scores for children of limited English proficiency remain on the bottom of the performance levels of all students. In the case of Boston, while cooperatively negotiating a Voluntary Lau Compliance Plan in 1979, and successful re-negotiations of that plan in 1981, 1985, and 1992, it became apparent that the school department was reneging on its implementation, and, along with co-counsel, we challenged the failure of the school department to implement the Lau Plan. The trial resulted in the court finding that plaintiffs proved that the school department failed in its obligations, but found that, as a school policy, the School Committee could revoke that policy, and that is what the Boston School Committee did after the court's decision. Bilingual Master Parents Advisory Council v. Boston School Committee, 2002 Mass. Super. LEXIS 156, 14 Mass. L. Rep. 612 (2002).
In attempting to enforce the Massachusetts anti-aid amendment that requires public control over public functions, representing parents of school children in the City of Chelsea, and working with co-counsel, including Multicultural Education Training and Advocacy (META), Inc. and with the New York law firm of Cravath, Swain & Moore, we challenged the takeover of the Chelsea Public Schools by Boston University. Although unsuccessful after seven years of litigation of the ten year contract, the School Committee of the City of Chelsea became more responsive as to its obligations to the education of children of limited English proficiency, I believe, as a result of the litigation. 51 Hispanic Residents of the City of Chelsea v. School Committee of the City of Chelsea, et al., 421 Mass. 598, 659 N.E. 2d 277 (1996).
Master Parents Advisory Council and Latino Parents Association v. Boston Public Schools (“BPS”) - In 1991, along with META we brought a federal law suit against the BPS, claiming that limited English Proficient students were being denied equal educational opportunities because the BPS was not spending a proportionate share of federal Title I funds on these students, when compared to how much was spent in each school. In 1992, the Federal District Court approved a Consent Decree reached with the BPS. In 1994, this Consent Decree was amended to include a literacy program, called Students with Interrupted Formal Education (“SIFE”) for students who came to the BPS from other countries where they had missed two or more years of formal education. This represents the first such program in the country and other cities have adopted it and the Massachusetts Department of Education developed guidelines and expanded the program to include students with limited formal education (Students with Limited or Interrupted Formal Education, “SLIFE.”). We monitor the schools each year, including visits to approximate 20 schools each year, and the review of all school budgets and spending, and meet with BPS officials to inform them of our findings, which has resulted in additional spending of state and local funds to make up for misspent or unaccountable spending from Title I funds. We are also currently negotiating entrance and exit requirements from SIFE/SLIFE.
After being unsuccessful in the First Circuit, I was approached about seeking a writ of certiorari from the United States Supreme Court in a case where teachers were fired from an allegedly private school in Brookline for supporting the right of students to protest school administration policies. Along with co-counsel from Bingham, Dana & Gould, we drafted a petition for certiorari, which was granted by the Supreme Court. We argued that the actions of the teachers were protected under the First Amendment and that there was state action under 42 U.S.C. §1983. The case was decided 7-2 against our clients, Rendell-Baker v. Kohn, 457 U.S. 830 (1982), but a later U.S. Supreme Court decision, though attempting to distinguish Rendell-Baker, casts doubt on the rationale for the Court's decision that there was no state action. See Brentwood Academy v. Tennessee Secondary School Athletic Association, 535 U.S. 971, 122 S.Ct.1439 (2002).
On behalf of coalitions of minority residents, and working with co-counsel from Boston law firms, several voting rights cases were initiated involving "one person, one vote" guarantees of the Fourteenth Amendment and protections against the dilution of minority voting strength under Section 2 of the Voting Rights Act of 1965. In addition to recruiting law firm assistance as co-counsel, it was my credibility among different minority communities that enabled them to work together for the benefit of all in developing proposed maps for political representation. A legal victory in one of those cases resulted in a House district being drawn that saw the first Hispanic state representative elected in 1988. I was involved in all aspects of these cases, from drafting pleadings, securing experts, depositions, settlement negotiations, research and legal memoranda writing, trial and appellate briefing, etc., as well as being the conduit to the individual community groups.
See, Latino Political Action Committee, et al. v. City of Boston, 568 F.Supp.1012 (D. Mass. 1983), stay denied, 716 F.2d 68 (1st Cir. 1983), stay denied, 463 U.S. 1319 (1983) (Latino PAC I); 581 F.Supp. 478 (D. Mass. 1984) (regarding legislative immunity); 609 F. Supp. 739 (D. Mass. 1985), aff'd 784 F.2d 409 (1st Cir. 1986) (Latino PAC II); Black Political Task Force, et al. v. Connolly, et al., 679 F. Supp. 109 (D. Mass. 1988) (3-Judge Court); Vecinos de Barrio Uno v. City of Holyoke, et al., 880 F. Supp. 911 (D. Mass. 1996), rev'd and remanded, 72 F.3d 973 (1st Cir. 1995), 926 F. Supp. 23 (D. Mass. 1996) (on remand); Stanton, et al. v. Southern Berkshire Regional School District, where I represented the Town of Sheffield in a "one person, one vote" case against the regional school district and the four other towns comprising the regional school district. See, 28 F. Supp. 2d 37 (D. Mass. 1998), aff'd 197 F. 3d 574 (1st Cir. 1999) (issue of attorney's fees).
On behalf of a community group in Chelsea, with co-counsel, a federal court challenge was initiated regarding the disbursement of federal funds under the Housing and Community Development Act (HCDA) of 1974 to the City of Chelsea, which our clients maintained discriminated against them in terms of employment, housing and contract compliance. The legal questions involved whether plaintiffs could maintain a private right of action under Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968, or directly under the HCDA.
The Court of Appeals agreed with the District Court that a private right of action did not exist under these statutes to challenge HUD's award of HCDA funds. Plaintiffs tried to distinguish the question of the proper standard of proof under these statutes from the question as to whether a private right of action existed. Latinos Unidos de Chelsea en Accion v. Secretary of Housing and Urban Development, 799 F. 2d 774 (1st Cir. 1986). An earlier decision on whether plaintiffs had standing to sue is reported in 607 F.2d 514 (1st Cir. 1979).
I was one of the authors of a brief amicus curiae in Commonwealth v. Abimael Colon-Cruz, et al., 393 Mass. 150 (1984) where the Supreme Judicial Court invalidated the last death penalty statute enacted in Massachusetts, and did so for the reasons stated in our brief; i.e. the constitutional defect was that the statute permitted a defendant who pled guilty to avoid the death penalty while subjecting a defendant who insisted on a jury trial to the death penalty. I am on the Board of Directors of Massachusetts Citizens Against the Death Penalty, Inc., a death penalty abolition-advocacy organization formed many years ago to keep the death penalty out of Massachusetts. I am also the president of Massachusetts Citizens Against the Death Penalty Fund, Inc. a non-profit, tax-exempt organization that provides education about the facts of the death penalty through educational programs.
I was one of seven principal drafters of G.L. c. 93, §102, which was a state legislative effort to provide the protections of 42 U.S.C. §§1981 and 1982 under state law. In addition, this law adds to the federal protections, coverage of sex discrimination, a private right of action, the right of trial by jury, compensatory and punitive damages, a provision for costs and attorneys' fees, and a reduced standard of proof.
For a description of the intent of the drafters, see, Stephen Johnson,The Massachusetts "Equal Rights Law": A Short History, 34 BBJ 17, 18- 19 (March-April 1990). In 2009 the Legislature enacted and the Governor signed H-4817, which provides that persons caring for other people's children can make certain medical and educational decisions in the absence of the parent and short of having to seek formal court guardianship. This legislation is codified as G.L. c. 201F. I was the principal drafter of this legislation.
I worked as co-counsel on the appeal of this case shortly after I moved from New Jersey to Connecticut. This case, known as the "three hot meals" case, dealt with the interpretation of a contract workers signed that was negotiated between the Secretary of Labor of the Commonwealth of Puerto Rico and the tobacco growers. Plaintiffs argued that this "contract" was negotiated in interstate commerce, with the assistance of the United States Department of Labor, and therefore the federal court had jurisdiction over its terms through the interstate commerce clause of the Constitution.
I was co-counsel in this landmark case where visitors were granted access to the largest migrant farm labor camp in Connecticut based on First Amendment constitutional analysis.
I prepared a "Know Your Rights, Farmworkers" pamphlet and sent a paralegal to labor camps to distribute the pamphlets. The tobacco company challenged the constitutionality of regulations promulgated pursuant to a Massachusetts state statute that granted visitors access to migrant farm labor camps. A unanimous SJC upheld the constitutionality of the state regulations.
This suit challenged the right of growers to recruit foreign (Jamaican) workers to harvest the New England apple crop when domestic (Puerto Rican) workers were available under the H-2 Program of the Department of Labor regulations of the INS.
Since 2014 I have represented a class of approximately 180 per-diem court interpreters against the Trial Court of Massachusetts, who allege that they were misclassified as independent contractors instead of as employees, even though many work the same hours and days as staff court interpreters. They also charge that the Trial Court has violated the terms of its Standards and Procedures (governing rules for working as court interpreters), that interpreters allege is a contract between them and the Trial Court, that they must sign before they are permitted to work for the Trial Court. The litigation is currently at the discovery stage.
Based on experiences I had through the years up to then, I designed a law school course entitled, "The Legal System and the Hispanic/Latino Community." I developed 1200 pages of materials and taught the course for three years, 1978, 1979, and 1981, at Northeastern University School of Law. The course covered the subjects of the legal relationship between the United States and Puerto Rico, bilingual notice/services requirements, bilingual education, the rights of farm workers, and the rights of non-U.S. citizens. I enjoyed the extra time I spent as a mentor for students before and after class.
For many years I have participated as a student advisor in the Trial Advocacy Workshop program at Harvard Law School (held twice a year) and judging Harvard's Ames (appellate) competition. I also have judged appellate competition at Boston University Law School's yearly appellate competitions over the years. I have also been a guest lecturer in a course on Education Law at Boston College Law School, Tufts University, and Clark University and Suffolk University and University of Massachusetts law schools, teaching a class on the Massachusetts school finance litigation. From 2008 through 2014 I taught a graduate course, "Legal Frameworks of Social Policy" at Tufts University.