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A Northern District of New York court has permanently enjoined the statewide requirement that employers include a notice of workers rights and remedies in their employee handbooks regarding the prohibition on discrimination based on reproductive health care choices.

The requirement, which took effect in November 2019, was part of a broader bill amending the New York Labor Law to prohibit employers from accessing information on employees or dependents reproductive health without prior consent, as well as generally prohibiting discrimination and retaliatory action against an employee with respect to compensation, terms, conditions or privileges of employment because of or on the basis of the employees or dependents reproductive health decision making, including but not limited to, a decision to use or access a particular drug, device or medical service. To that end, employers that maintain an employee handbook were required to include in the handbook a notice of employee rights and remedies under this law.A Northern District of New York court has permanently enjoined the statewide requirement that employers include a notice of workers rights and remedies in their employee handbooks regarding the prohibition on discrimination based on reproductive health care choices.

In CompassCare et al. v. Cuomo, Case 1:19-cv-01409-TJM-DJS, several faith-based employers challenged the law in its entirety on the basis of violations of constitutional protections under the First Amendment. While the majority of the claims were previously dismissed, in its March 29, 2022 decision, the Northern District of New York found that the notice requirement compelled the Plaintiffs to deliver a message contrary to their religious beliefs as they relate to reproductive choices including birth control and abortion. Specifically, the court found that Plaintiffs handbooks . . . represent Plaintiffs statements to their employees about the rules that govern conduct in the workplace, the values of the organizations, and the religious perspective that guides the organizations operations, and, as such, [r]equiring that Plaintiffs also include in those handbooks a statement that the law protects employees who engage in behavior contrary to that promoted by the Plaintiffs would compel them to promote a message about conduct contrary to their religious perspective.

The district court further found that, applying the strict scrutiny standard, the State of New York failed to prove that requiring written notice in employee handbooks is the least restrictive means to achieve the States interest in ensuring workers have notice of their rights under the law. Specifically, the court found that State did not demonstrate why offering the information in a variety of other ways, including by advertising the provision generally, producing posters to be placed in workers view at the job site, and in general statements of workers rights provided by the Department [of Labor] itself would not achieve the same goals, as [d]oing so would not require the Plaintiffs to produce such speech themselves, or to include that speech in handbooks describing workers rights and responsibilities produced under the employers imprimatur.

Based on the above, the court concluded that the laws notice requirement runs afoul of the First Amendments free speech protections, and further that Plaintiffs would suffer irreparable harm from the provision and lack an adequate remedy at law, and therefore the requirement must be permanently enjoined.

While it remains to be seen whether the decision will be appealed, for the moment employers in New York are no longer obligated to include the written notice in their employee handbooks. We will continue to monitor and report on further developments.

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New York District Court Permanently Enjoins Reproductive Health Notice of Rights Requirement for Employee Handbooks - JD Supra

Is it unconstitutional to ban books from a school library? Picodidn't provide an easy answer, but the ACLU and a couple of Missouri students aresuing arguing that the removal of booksfrom theWentzville R-IV district is a violation of their First Amendment rights.

A little more than 40 years ago, a school board in New York banned nine books, including novels and memoirs that addressed topics like racism, drug addiction, and anti-Semitism.

The board alleged that the books were anti-American, anti-Christian, and just plain filthy, and that the bans were part of their duty and obligation to protect the children in the school district from moral danger.

In response, a high school student named Steven Pico joined other students in suing the school board over the book ban. In 1982, the case Board of Education, Island Trees School District v. Pico made its way to the U.S. Supreme Court, which, for the first time, ruled on the constitutionality of book bans in school libraries.

Essentially, the Supreme Courts judgment was that the school board could not prevail in the case without a full trial at the lower court level, and that under the First Amendment school boards could not remove books from the library based merely on official suppression of ideas.

Since then, Pico has come to stand for the general proposition that the U.S. Constitution protects the right to receive information and ideas, which is especially salient in a school library. As a result, there are some constitutional limits on the power of local school boards to remove books from school libraries, especially when book removals are based on narrow or partisan grounds.

Fast-forward four decades to February of this year when the American Civil Liberties Union filed a lawsuit against a Missouri school district on behalf of two unnamed students. Wentzville R-IV district was sued for banning eight books, including memoirs and novels addressing race, gender, and sexual identity.

In a release announcing the lawsuit, Anthony Rothert, legal director at ACLU of Missouri, said, school boards cannot ban books because the books and their characters illustrate viewpoints different of those of the school board; especially when they target books presenting the viewpoints of racial and sexual minorities, as they have done in Wentzville.

The Missouri lawsuit comes amid a rise in book bans in the United States. School boards across the country are attempting to remove a range of titles, often in the wake of fierce complaints and well-organized campaigns from parents and groups using excerpts from books to create a fervor in like-minded community members.

The American Library Associations (ALA) Office of Intellectual Freedom (OIF) received an unprecedented volume of challenges in the fall of 2021, according to OIFs director.

Some of the banned titles have been considered longtime classics such as To Kill a Mockingbird by Harper Lee and Of Mice and Men by John Steinbeck. Newer titles addressing issues ranging from race, gender, and sexuality to family, social justice, and feminism have also been pulled from school libraries, including Gender Queer by Maia Kobabe and Stamped: Racism, Antiracism, and You by Jason Reynolds and Ibram X. Kendi.

In any caseand as was true 40 years ago in the Pico controversybook bans present sometimes murky legal questions about free speech and students rights to access information and ideas in public schools.

Wentzville R-IV is a suburban St. Louis public school district that serves more than 17,000 students. The district has policies governing selection, retention, and reconsideration of books for its school libraries. Those policies describe school libraries as a point of access to information and ideas for students as they acquire critical thinking and problem-solving skills.

Additionally, the districts libraries reportedly embrace ALAs Library Bill of Rights, which supports maximum student accessibility to materials that encourage knowledge, growth, and cultural appreciation and development.

In Wentzvilles schools, books can be weeded from libraries when they are damaged beyond repair or no longer useful, or when they are found to be age-inappropriate or to contain unreliable information. The school board may also consider formal written challenges regarding removal of certain titles.

In 2021, a parent member of the St. Charles County Parents Association formally challenged Toni Morrisons novel The Bluest Eye because of explicit descriptions of violence, rape, sex, and incest contained in the book.

Initially, the Wentzville school board voted to retain the book, in part because The Bluest Eye was not an assigned reading or part of the district curriculum. Additionally, the committee reviewing the challenge thought that removing the title would infringe on the rights of parents and students to decide for themselves whether they wanted to read the book.

But later, the board approved removal of The Bluest Eye. Other books that were subject to formal challenges in the district around that same time were also pulled from library shelves in what the ACLU describes as a campaign to suppress viewpoints about race and sexuality.

All in all, the Wentzville school board removed All Boys Arent Blue by George M. Johnson; Fun Home: A Family Tragicomic by Alison Bechdel; Gabi, a Girl in Pieces by Isabel Quintero; and Heavy: An American Memoir by Kiese Laymon.

The board also removed Invisible Girl: A Novel by Lisa Jewell; Lawn Boy by Jonathan Evison; and Modern Romance: An Investigation by Aziz Ansari and Eric Klinenberg.

In its legal complaint, the ACLU contends that the board removed the books because school officials disliked the ideas contained in them, and that they did so with the intent and purpose to prescribe what is generally or traditionally accepted as right or true in matters of opinion.

Essentially, the ACLU says that the district failed to use established and unbiased procedures for book removal and that the banned books were removed on an arbitrary basis and not in a viewpoint neutral manner.

The ACLU further contends that the Wentzville book bans violate student rights under the First and Fourteenth Amendments to the U.S. Constitution. The class-action lawsuit asks the court to reinstate the banned books into school library circulation.

Not long after the ACLU filed the lawsuit, the Wentzville school board reversed its decision regarding The Bluest Eye. Rothert welcomed the reversal in a statement issued in late February, but said that the ACLUs case is still active.

The fact remains that six books are still banned. And Wentzvilles policies still make it easy for any community member to force any book from the shelves even when they shamelessly target books by and about communities of color, LGBTQ people, and other marginalized groups, Rothert said.

The Wentzville case begs a question of how the Supreme Courts narrow 5-4 decision in Picoi.e., that there are some constitutional limits on the power of school officials to remove books from school librariesapplies in todays highly charged book banning environment.

When Pico was decided, then-Justice William Brennan wrote the plurality opinion, which was joined either in full or in part by four other justices.

In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodoxin politics, nationalism, religion, or other matters of opinion, Justice Brennan wrote.

Another four justices dissented from that opinion. Some did not believe that the case implicated the First Amendment.

Consequently, aside from the principal opinion, Pico produced six different opinions from the various justices, each of whom presented potentially thorny legal questions underlying book banning in public schools. Those issues ranged from considering the underlying motivation for removing books, to examining the fundamental right to receive information under the law, to questioning whether school boards should be given broad judicial deference to manage school library collections.

The divergent viewpoints from the Supreme Court in the Pico case make it difficult to pinpoint a definitive legal test for determining whether a particular school boards book removal runs afoul of the Constitution. As a result, book banning proponents may continue to push the issue until their state legislators clearly define school board authority to pull books from library shelves. And at this time, more than 13 states are reportedly proposing or considering bills that would make it easier for local school boards to remove books from school libraries.

Although the Wentzville board has thus far reinstated one of the banned books, the ACLU as of March appeared poised to continue pursuing the case in the courts.

The First Amendment to the U.S. Constitution protects the right to share ideas, including the right of people to receive information and knowledge, Rothert said in a statement, adding, We must protect this right, including educators and students rights to talk and learn about race and gender in schools.

Kelley R. Taylor is a writer, journalist, and lawyer.

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Taking Book Banners to Court: A Look at a Student Lawsuit in Missouri and Impact of the 1982 - School Library Journal

FIRE commends University of Northern Iowa for quickly affirming to resident assistants that the university will respect their First Amendment rights.(Photo courtesy University of Northern Iowa)

by Sabrina Conza

The University of Northern Iowa has made clear to resident assistants that they may speak with the media as private citizens after FIRE raised concerns about UNI requiring pre-approval of RAs communications.

In February, The Northern Iowan student newspaper sent RAs an anonymous survey asking about their experiences on campus, but a UNI official quickly told RAs that university media relations officials must approve all RA-themed media responses to the press. On March 17, FIRE wrote UNI explaining that government employees, including RAs at public institutions, have the right to speak to the media in their individual capacities on matters of public concern.

On March 23, UNI responded to FIRE, affirming that the school strongly values the First Amendment rights of [UNI] students and employees and pledging not to restrict RAs right to speak with the media. And on March 29, UNI told its RAs that they may speak with the media (including on-campus newspapers) in their capacity as a private citizen without seeking prior approval from UNI Housing & Dining.

UNI told FIRE, We continue to value opportunities to assure Resident Assistants as with all UNI students and employees understand the protections afforded under the First Amendment.

As much as FIRE will readily criticize universities unconstitutional policies and practices, we much prefer commending universities when they do the right thing.

FIRE commends UNI for quickly affirming to RAs that the university will respect their First Amendment rights.

We have seen this scenario play out many times before, with mixed results. In just the last couple of years, after FIREs intervention, University of North Carolina, University of Missouri, and University of Virginia changed their policies which limited RAs ability to speak with the media, bringing them into compliance with the First Amendment. Louisiana State University and Frostburg State University, on the other hand, both refused to fully respect RAs First Amendment rights.

Other institutions with restrictive practices of silencing students and employees speech or suppressing the student press should take note as much as FIRE will readily criticize universities unconstitutional policies and practices, we much prefer commending universities when they do the right thing.

If youre a student or faculty member facing censorship or prior review from your university, or a student journalist facing restrictions on communicating with sources, reach out to FIRE. We may be able to help.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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VICTORY: After FIRE letter, University of Northern Iowa clarifies resident assistants may speak with media - Foundation for Individual Rights in...

A federal court yesterday ruled that a Florida voter suppression law enacted last year infringes on the right to free speech by forcing voter registration groups to make false claims to potential voters when trying to register them.

The case HTFF v. Laurel Lee was brought by Harriet Tubman Freedom Fighters (HTFF), a group represented by the Southern Poverty Law Center, Fair Elections Centerand Baker McKenzie.

Ruling in three cases consolidated with HTFF v. Lee, U.S. District Judge Mark E. Walker mandated that for the next 10 years Florida must seek preclearance from the court before changing voting laws that would restrict voting drop boxes, voting by mail, third-party voter registration organizations or assistance to voters.

We applaud the decision of the court to strike down forced speech provisions, enshrine voting rights and to establish protections for voting rights in Florida under preclearance, said Caren Short, senior supervising attorney for the SPLCs Voting Rights Practice Group. We have been proud to work alongside allies like the League of Women Voters, the Florida State Conference of the NAACP and Florida Rising in challenging barriers to voting, and we will continue standing with them and Florida communities against barriers to voting.

Harriet Tubman Freedom Fighters Corp. is a nonprofit, nonpartisan organization that focuses voter registration efforts on new voters, particularly youth, communities of color and people released from prison after completing their sentences.

The Florida law, SB 90, compelled HTFF and similar organizations to communicate a false, state-sponsored message to potential voters that the organizations might not submit their applications on time.

Fair Elections Center and the SPLC filed suit on behalf of HTFF on June 14, 2021, alleging that the new law is void for vagueness under the due process clause of the 14th Amendment, that it compelled speech in violation of the First Amendment and that it prevents organizations from exercising their First Amendment rights of expression and association.

We founded HTFF to defend the voice of our community, so we are proud that our right to make our voices heard through organizing and free speech has been affirmed by todays ruling, said HTTF President and Co-founder Rosemary McCoy. However, organizations like HTFF are still needed to defend our communities right to vote, and we plan to redouble our efforts to empower our community to vote.

SB 90, enacted by politicians weaponizing misinformation about the 2020 presidential election, created a series of barriers to voting. In addition to the restriction on voter registration organizations, it required voters to provide a state ID number or the last four digits of their Social Security number to obtain a mail ballot, providing no alternative if a voter has neither identification number.

It also shortened the period during which a voter can remain on the states vote-by-mail list, which entitles them to receive a mail ballot automatically. It modified rules for observers in ways that could disrupt election administration, and it restricted private individuals and entities from providing rides, chairs, umbrellas, food and water to voters waiting in line to cast a ballot.

The court has delivered a victory for voting rights organizations over new barriers to community voter registration drives created last year by Governor Ron DeSantis and Florida state legislators, said Michelle Kanter Cohen, policy director and senior counsel with Fair Elections Center. This decision vindicates the critical role of building community trust in voting and political participation that our client and other organizations fill. The ruling has established SB 90 violates our clients freedom of speech, and we call on Floridas Legislature and governor to stop enacting barriers to Floridians making their voices heard in our democracy.

Added Debra Dandeneau, partner at Baker McKenzie, We were proud to lend our pro bono time, energy and talent to this victory for voting rights organizations and their freedom of speech.

The case was consolidated for trial with these others:

League of Women Voters of Florida, Inc. et al. v. Lee et al.The plaintiffs argue that SB 90s drop box restrictions, mail-in ballot repeat request requirement, volunteer assistance ban, deceptive registration warning and food and water ban violate the First and 14th Amendments.

Florida State Conference of Branches and Youth Units of NAACP et al. v. Lee et al.The plaintiffs argue that SB 90 creates unnecessary barriers and burdens that disproportionately impact Black and Latinx voters and voters with disabilities, violating Section 2 of the Voting Rights Act, the First, 14th and 15th Amendments, and Title II of the Americans with Disabilities Act.

Florida Rising Together et al. v. Lee et al.The plaintiffs challenge SB 90s limitations of the availability of drop boxes, the addition of identification requirements to request a vote-by-mail ballot, the prohibition of assistance to voters waiting in long lines and the imposition of new restrictions on third-party voter registration organizations.

Photo at top: The Florida State Capitol in Tallahassee. (Credit: iStock)

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'Victory for Voting Rights': Federal judge overturns Florida requirement that voter registration groups give misleading information - Southern Poverty...

It is no stretch to suggest that the upcoming midterm elections will be a hotbed of political activity across all spectrums. Each election cycle presents exciting opportunities for institutions of higher education (IHEs) and their students to become more civically engaged at the local, state, and federal levels. Whether by providing access to candidates and encouraging students to learn about their policy positions, or allowing students to organize voter registration drives, the college campus often provides a stage for election activity. Similarly, employees often seize upon the politically charged climate to make political statements, support candidates, or publish formal or informal writings. It can be difficult to detangle the web of laws and regulations that apply to political activity on campus. The following are some general rules that IHEs should keep in mind when addressing political activity on campus.

It is important for educational institutions to be aware of and comply with the various tax and campaign finance laws that regulate the electoral space. For example, nonprofit IHEs exempt from taxation under Section 501(c)(3) must be careful to ensure their activities are done in a way that is consistent with the requirements of their tax-exempt status. In particular, 501(c)(3) organizations are prohibited from supporting or opposing candidates for elective office and may not engage in so-called campaign intervention; they also cannot make contributions to political campaigns, run ads that support or oppose candidates, or participate in any biased activity.

Candidate debates and forums, which are routinely held on IHE campuses, are often some of the most high-profile events of each election cycle. However, these events must be carefully organized to ensure compliance with the 501(c)(3) restrictions on campaign intervention.

The IRS has provided guidance clarifying that candidate forums and debates hosted by 501(c)(3) organizations, such as IHEs, are permitted as long as they are fair and impartial and do not favor one candidate over another. In the context of candidate debates and forums, the IRS will consider a number of factors in determining whether a hosting institution has engaged in impermissible campaign intervention, including whether candidate questions are presented in a fair and nonbiased way, whether forum or debate topics cover a broad range of public issues, and whether candidates are given equal time or opportunity to present their views.

Indeed, it is imperative that IHEs treat all candidates and issues fairly and impartially during forums and debates, and that the goal of hosting these events is to educate and inform voters.

The IRS has also provided some additional guardrails for hosting candidates on IHE campuses beyond the context of debates and forums. When a candidate is invited to speak, the IHE should ensure that such appearances are organized in a way to avoid even the appearance of campaign intervention. For example, once an IHE invites one candidate to speak, all candidates in a particular race should be given an equal opportunity to speak. The IHE should also take care not to make any comments that imply endorsement of a candidate or group of candidates and should be especially careful to avoid hosting fundraising events for candidates.

College students play a significant role in voter registration efforts nationwide, and these efforts often center around the campuses the students call home. Organizers, including student organizations or the IHE itself, should make sure they understand a few key considerations of state laws that regulate voter registration to make sure they are prepared to put on a successful voter registration drive, such as:

And, as in other on-campus candidate events, it is important that student voter registration drives are done in a nonpartisan and nonbiased way that would not impact or jeopardize an IHE's tax-exempt status.

Employees at public IHEs who engage in political speech during this midterm season may be protected by the First Amendment. Specifically, in a benchmark ruling, Pickering v. Bd of Ed. of Tp. High Sch. Dist. 205, Will County, Illinois, 391 U.S. 563 (1968), the United States Supreme Court stated that a public employee's speech is protected where (i) the employee speaks as a member of the general public, outside of the employment context; (ii) the employee speaks on a matter of public concern; (iii) the employee's speech does not constitute defamation; and (iv) the employee's speech does not interfere with their job performance.

While this test provides broad protections for public employees, public IHEs can implement some guidelines to ensure that employees do not, in fact, appear to be speaking within the scope of their employment. For example, public IHEs can limit employees' ability to use official letterhead, don the IHE's insignia, use their school email, or reference their official university titles when engaging in political speech. Similarly, in some states, public IHEs can prohibit the donning by employees of political buttons or clothing during their work-related activities.

While the First Amendment does not provide the same coverage for private employees, other federal laws may apply. Employeesunionized or notmay be covered by the National Labor Relations Act (NLRA) if they engage in certain protected "concerted activities" executed for the purpose of "mutual aid or protection." Put simply, as long as the speech or activity relates to the terms and conditions of employment of the employee and is made or acted upon to evoke the involvement of others, it may be protected by the NLRA. Speech that is purely political in nature and without a nexus to working conditions, however, is not protected under the NLRA. Additionally, "concerted activity" will not be protected under the NLRA where such activity is egregiously offensive, knowingly and maliciously false, discriminatory, or otherwise illegal.

The NLRA not only covers the content of employees' speech and activity, but also how and when employees may engage in same. Should an employee's concerted activity involve solicitation in support of a candidate or cause, the employer can prohibit that activity during working hours only. Likewise, should an employee's protected activity involve distribution of campaign materials, the employer may prohibit that activity during working hours and in working areas, regardless of whether this is done during working hours or not. "Working areas" are considered all areas where work is actually performed, and does not include cafeterias, restrooms, etc.

On the state and local levels, many states and localities have adopted similar protections that may impact a private IHE's ability to regulate the political speech of its employees. For example, Connecticut General Statutes 31-51q adopts the free speech protections of the First Amendment and applies them to private employees who speak on issues of public concern, where the political speech does not substantially or materially interfere with the employee's job performance or relationship with their employer. This statute has been interpreted to generally apply to speech regarding any matter of political, social, or other concern to the community. New York Labor Law 201-D prohibits employers from discriminating against employees for any "political activities" performed outside of working hours, off of the employer's premises, and without use of the employer's equipment or other property, provided such activities are otherwise legal. However, the statute narrowly defines "political activities" to mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party, or political advocacy group. Notably, it does not cover all political speech.

In addition to the aforementioned legal considerations, IHEs must also consider how their employee policies apply to employees' political speech and activity. Some IHEs may want to encourage employees' active political engagement, but they should be mindful that there are likely many employee conduct policies that may be implicated by such activities, including, but not limited to, policies on anti-harassment and anti-discrimination, use of electronic media, attendance/leaves of absence, conflicts of interest, and use of IHE property.

As midterm elections near, campaign and political activity will undoubtedly increase on campus. In anticipation of this heightened activity, IHEs should prepare by refamiliarizing themselves with applicable federal, state, and local laws, and reexamine any applicable collective bargaining agreements to ensure that they are aware of how to comply with any bargained-for obligations. Additionally, IHEs should review any employee handbooks or official policies and retrain their employees on their rights and the IHE's rights as the employer. IHEs may want to consider establishing policies that govern political activity on campus, to clearly lay out the ground rules for students and employees alike. These policies should clearly define (i) the individuals to whom they apply; (ii) the type of political activity and political speech covered; and (iii) what conduct is or is not acceptable.

* The authors of this article thank Alex Clementi, law clerk, for his assistance in its preparation.

Originally posted here:
Time to Rock the Vote? How Institutions of Higher Education Should Prepare for Supercharged Midterm Elections - JD Supra