A Palo Alto school has potentially violated federal disability discrimination laws. Despite having genetic markers predisposing him to Cystic Fibrosis (CF), Colman Chadam never developed the disease and lived a seemingly normal life.
That is, until Chadam’s school found out about his predisposition and inappropriately informed another parent of his DNA history. That parent demanded the school transfer Chadam to another district. According to the CFF, children with CF pose a higher threat of transferring certain germs to others with the disease.
With little investigation, the school complied and forced Chadam to leave. Chadam’s parents sued in federal court.
Which Laws Apply?
Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) prohibits federally funded programs to discriminate against people with disabilities.
Almost all schools receive federal money and, therefore, schools cannot discriminate against students with disabilities.
Who Is Protected?
A disability is any physical or mental condition that seriously limits a major life activity.
Although Chadam never had CF, he was held out to have the disease and, therefore, is covered under the federal disability laws.
“Direct Threat” Defense
Federal law provides a “direct threat” defense to disability discrimination. In short, the school would not violate the ADA if:
This is not a proper defense here. The children (that had CF) of the parents that complained had already been temporarily removed and so there was no immediate threat. The school had plenty of time to make a well-informed decision and should have evaluated whether having a genetic marker for CF posed the same risks as actually having the disease. Chadam’s doctor insists it does not.
The case is up for appeal and the Department of Education (DOE) & Department of Justice (DOJ) has weighed in. In an amicus brief to the court, the DOE and DOJ, as interested parties, are urging the court to remand the case back down to district court in order to set a precedent on whether children with specific genetic markers can be discriminated against.
Title II of the ADA states employers cannot discriminate against employees based on their genetic information, so it’s likely the courts will find genetic information cannot be a basis for discrimination in schools as well.
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law
On the evening of October 30, 2015, Edward Caban was driving for Uber and picked up Taco Bell executive Benjamin Golden. Golden was drunk and couldn’t remember where he lived. After spending a long period of time trying to find the correct location, Caban decided he had enough. He pulled over and asked Golden to leave his vehicle. But Caban had the feeling that something might happen, so he decided to turn on his phone camera to record what would happen next. The phone video recorded Golden beating Caban and Caban pepper spraying Golden.
In November, Golden was arrested and charged with misdemeanor assault and battery. Caban then filed a civil suit against Golden for assault, battery and infliction of emotional distress. The damages in his suit totaled a little more than $25,000.
About one month later, Golden responded to the lawsuit AND filed a countersuit for $5 million. How could Golden sue Caban when Caban’s video recording clearly shows Golden’s illegal conduct? The recording was taken without Golden’s permission.
What Is California's Two-Party Consent Law?
Most states and the District of Columbia have wiretap and privacy laws preventing the recording of confidential communications unless at least one party involved in the conversation grants permission. Confidential communications refers to any conversation that a reasonable person would assume should be kept confidential. Conversations in public, for example, would not usually be considered confidential.
Through this law, Golden filed his $5 million lawsuit against Caban. If someone is in violation of California Penal Code 632, part of the California Invasion of Privacy Act (CIPA), they may have to pay a fine of up to $2500 and/or go to jail for a year, and they can be sued for other civil damages. Furthermore, evidence collected in violation of this law is not admissible in court, unless the evidence is used to show that this particular law was violated.
Golden lost his job because the video went public. He also claims that the video has caused him emotional distress and has prevented him from obtaining employment.
Why Is California Still a Two-Party Consent State?
Although Golden’s recent lawsuit has given the CIPA a bad rap, the law has done a lot of good for privacy and consumer protections. California remains one of the best states for privacy protections. The intent of the legislature was to prevent eavesdropping and the invasion of privacy, given the advancement of such technologies.
Consumer rights groups have also filed several class action suits against collection agencies who had recorded debtors without their consent. The lawsuits have forced most businesses to notify the people they call that all calls are monitored, whether they are for quality assurance or other reasons.
In the case of Caban and Golden, most would consider Golden’s countersuit a mistake. Had Golden remained apologetic and accepted responsibility for his actions in court, the general public would have forgotten about the incident after a month. However, now that Golden has countersued, the trial continues and Golden’s name remains in the limelight for very negative reasons. It is doubtful whether a judge or jury would remain sympathetic with Golden’s plight. Even if Caban had violated the law, I doubt that the court would penalize him with the maximum punishment. Instead, Golden will simply remain an entitled drunk with the money to sue his battered victim.
Authored by Emily Yu, LegalMatch Legal Writer
In January 2016, Jamie Foxx rescued a man from his crashed pickup truck before it caught on fire. Brett Kyle’s truck crashed in front of Foxx’s home. Foxx and an off-duty EMT cut Kyle’s seatbelt and pulled him out of the overturned truck before the vehicle became engulfed in flames.
During Foxx’s interview with KCAL, he stated that he didn’t consider his act heroic, “I just look at it as… you just had to do something.” But did Jamie Foxx have any legal responsibility toward Brett Kyle? Did Foxx have to do anything at all?
Duty to Rescue
In general, an average person does not have a duty to rescue someone just because they encounter them. Usually, a duty to rescue only arises when a special relationship exists.
Special relationships can include employer-employee relationships, owners of property and their invitees, and carriers such as bus drivers and their passengers. Jamie Foxx didn’t have a special relationship with Brett Kyle, so he had no duty to rescue. Foxx could have ignored the accident instead without any worry of prosecution for failing to do something.
The off-duty EMT who assisted Foxx also does not have an obligation to stop and assist in the state of California. Some jurisdictions have statutes that require off-duty first responders and physicians to act if they encounter someone in danger or in need of medical assistance. California, however, does not require any off-duty first responders from acting. But, if an off-duty EMT does start a rescue, they can only perform basic medical procedures. Advanced medical procedures can only be conducted by those on-duty.
However, once Foxx and the EMT started their rescue efforts, they could be held liable from stopping their rescue if stopping would have been unreasonable. Reasonable care should always be taken during a rescue. No one expects a regular person to put themselves in harm to rescue another person. However, once a rescue is started, the rescuers are legally obligated to see the rescue through. A duty to rescue can also be created if you are the one who created the dangerous situation.
What If Foxx Was Injured During the Rescue?
Jamie Foxx is a wealthy man and probably wasn’t too worried about affording medical treatments for any number of scrapes during the rescue, but what happens to the average rescuer? Who covers his injuries?
Rescuers themselves are usually not responsible for the injuries they acquire during the rescue. Instead, the person who created the emergency is usually held responsible. This concept, called the rescue doctrine, encourages rescuers to try and do what they can by ensuring that they can potentially sue the person at fault for the emergency situation.
When someone causes an emergency situation (such as a fire), they should reasonably assume that rescuers will make reasonable attempts to save people from that situation. So, any injuries that the rescuer gets from the rescue should be something that the person at fault should expect.
The rescuer doctrine only applies to those who don’t have a special relationship or legal obligation to do the rescue in the first place. First responders who are on-duty, such as firefighters and police, cannot hold anyone liable for the injuries they receive during a rescue.
What If Kyle Was Injured By Foxx During His Rescue?
Depending on the jurisdiction, a Good Samaritan law may shield a rescuer from liability if their rescue results in injury. Good Samaritan laws usually cover most injuries unless the Good Samaritan acted negligently. In other words, if a Good Samaritan uses a reasonable amount of care that any ordinary person would use in that situation, they would be shielded from liability.
In California, where Foxx rescued Kyle, a Good Samaritan is someone who renders care at the scene of an emergency and does not take any form of compensation for their actions. So, Jamie Foxx would be considered a Good Samaritan under California law and would be protected from lawsuit if he accidentally injured Brett Kyle during his rescue.
Jamie Foxx didn’t have any duty to help Brett Kyle, but he went above and beyond expectations to rescue a man in potential danger. Although Foxx remains humble about the rescue, his act is heroic nonetheless.
Authored by Emily Yu, LegalMatch Legal Writer
That is what one woman, Tamara Fields, is claiming. She is suing Twitter for enabling an Islamic State (“ISIS”) attack which killed her husband, Lloyd “Carl” Fields, on November 9th in Jordan. Her suit contends that Twitter violated the Anti-Terrorism Act. The Act permits U.S. citizens to triple damages for injuries suffered from acts of international terrorism. The lawsuit alleges that Twitter enables ISIS and other terrorist groups to grow, recruit, and disseminate propaganda. The case is filed in the U.S. District Court for the Northern District of California and is one of the first of its kind.
While it is evident that terrorist groups are gaining far too much traction on social media, how successful will a lawsuit like this be?
Did Twitter Help Kill Fields?
Tamara Fields’ lawsuit contends that Twitter’s activity was a substantial factor in her husband’s death. It further alleges his death could have been foreseeable. Fields’ attorney states, “It was foreseeable that giving ISIS unfettered access to Twitter accounts would enable them to recruit, fundraise, and spread their propaganda and that this would lead to the deaths of innocent civilians.”
The question becomes whether Twitter knowingly or in willful ignorance allowed ISIS groups to use their platform to spread propaganda and did nothing to stop it.
Different social media platforms have different standards to stop terrorist-related propaganda. For example, Facebook shuts down any page, group or profile related to terrorist organizations or any content celebrating terrorism. Of the social media giants, it is the best at removing ISIS-related videos, newsletters and photos.
Social media outlets like Facebook, YouTube, and Twitter rely primarily on users to identify offensive content, which is reviewed and may be deleted. These companies are not legally required to report the offensive material to government agencies, but they often do if they come across content which raises serious red flags.
In the past several years, the use of Twitter has grown, especially among ISIS supporters. It began to increase suspensions to Twitter accounts after videos and images of journalist James Foley’s beheading was disseminated on social media. Although Twitter has successfully identified many terrorist groups and suspended their accounts, users whose accounts are suspended often come back with new accounts.
Even if Twitter hasn’t been altogether successful, they have teams around the world who actively identify violating conduct, investigate reports of rule violations, partner with organizations countering extremist content online, and work with law enforcement.
As with any social media platform, there is a dichotomy in allowing free speech versus restricting dangerous terrorist propaganda. Twitter, more than any other social media outlet, is known for liberally allowing freedom of expression.
Government regulation of speech in the United States is generally considered unconstitutional pursuant to the First Amendment, regardless of if the speech is offensive or hateful. Free speech activists are concerned that if government officials police certain types of speech, it will lead to censorship.
Communications Decency Act of 1996
According to Section 230 of the Communications Decency Act of 1996 (“C.D.A. Section 230”), intermediaries like Twitter and Facebook cannot be held personally liable for content posted by their subscribers. C.D.A. Section 230 protects internet service providers and interactive computer service providers, which includes practically any online service that publishes third-party content. There are exceptions for certain criminal and intellectual property-claims. However, C.D.A. Section 230 gives broad protection that permits controversial or political speech to flourish online.
It is important to note that the legal protections provided by C.D.A. Section 230 are limited to U.S. Law. Canada, Japan, European nations, and many other countries do not have similar statutes which provide such expansive protections. While other countries have high levels of internet access, most prominent online services originate in the United States.
Will Fields’ Lawsuit be Successful?
Given the First Amendment Free Speech protections, coupled with C.D.A. Section 230, it is unlikely that Tamara Fields lawsuit will go very far before being thrown out.
Authored by Erin Chan-Adams, LegalMatch Legal Writer and Attorney at Law
Soon, parents and seniors will be waiting for acceptance letters from their "dream" universities. Parents have watched their children grow through the years, knowing that their children will leave the home and begin their journey to adulthood.
A parent’s worst nightmare is for their child to be sexually assaulted while attending school. What compounds the nightmare is when the attacker is a fellow student. In the end, the university may refuse to act. Their child must attend classes with the person that hurt and damaged them beyond measure.
Do universities have a duty of care to their students? Are universities legally obligated to protect their students from sexual assault?
Campus Sexual Assault Is Not Just A Headline.
In 2015, news headlines were full of stories of young women who were raped or had an attempted rape while they were at university. Each year in the United States there are around 293,000 victims of sexual assault. Both men and women are open and susceptible to sexual assault with 4 out of 5 assaults committed by someone that the victim knows.
While campus sexual assault may also affect male students, the reality is that both genders are ignored and hushed by their schools. In 2014, a female student received no aid or understanding from her university and had to withdraw because of failing grades. In 2015, a male student was raped by a female student. She claimed he was the assailant after changing her narrative and he was expelled.
Surveys in universities across the nation report large numbers of sexual assault against male and female students. But in the end, 68% of sexual assaults are not reported to the police. 98% of rapists will never see prison or jail.
Rape and sexual assault are criminal acts. The university must protect students from other criminal acts like a violent, physical attack with a dangerous weapon, so why should rape be any different?
According To the Court of Appeal in California, Apparently Not.
At UCLA, a student attacked another student with a kitchen knife in a campus laboratory. The attacker has a known and long history of schizophrenia known to campus employees. The attacker was ejected from on campus housing in 2009 due to unwarranted aggression to his roommate. The attacker’s father warned a university employee that the attacker could “hurt other residents.”
The victim argued that the attacker’s actions were foreseeable. The university had a duty to protect the victim and any other student that may have been harmed. She was on campus for academic reasons at the time of the attack. In the end, it could have been another student and the attack could have been fatal.
UCLA argued that they took every precaution to prevent an attack from the student. They put him through intensive therapy in the university’s mental health program. They had a system of checks and monitoring. But UCLA refused to admit it had a duty to protect the victim.
But the Court ruled that the university has no duty to protect a student from other students. Universities and colleges are not like elementary or secondary schools. Adults attend their school and engage in adult activities. Since their students are adults, the university can no longer be charged to have the same duty of care as a secondary school.
The courts reason that sexual assault is not limited to a college campus. So universities cannot be held liable for a criminal wrongdoing by another student on campus grounds even if the assault was foreseeable.
Your Child Is Not Just A Student, They’re A Profit.
In the end, universities refuse to take steps to protect their students because it costs too much. Universities are there to provide higher education. In the end, they must market to students and corporations to keep their lecture halls and laboratories open. Tuition rates and textbook prices climb higher. Yet students go to universities for their dining halls, greek life, on-campus activities, and athletics.
College is no longer solely about getting an education; it's also about getting an experience. A university is now a brand. Schools come up with mascots, apparel, chants, rituals, and market themselves in the most appealing ways to get the best students on their campus. Schools spend an extraordinary amount of money to recruit the best minds and athletes in the nation. Like any good business: they spend money to make money.
It is true that sexual assault is not limited to a college campus. It is prevalent across the nation and every 107 seconds another American is sexually assaulted. But universities should not use it as an excuse to not act. Universities should realize their students are part of the school’s community. They implicitly trust their school to keep their environment safe and welcoming.
For a university to turn its back on a victim of sexual assault breaks the trust with all students.
Authored by Janice Lim, LegalMatch Legal Writer