Thursday, May 31, 2007

School does not have to be effective in stopping peer-on-peer sexual harrassment

Yesterday, in Porto v. Town of Tewksbury, __ F. 2d __ (CA1, Nos. 06-1994, 06-2139) the First Circuit, U.S. Court of Appeals, overturned a jury verdict from the U.S. District Court for Massachusetts that had awarded the plaintiffs $250,000 plus attorneys fees for not effectively stopping (special ed) peer-on-(special ed) peer sexual activity.

The First Circuit agreed with the Town that the plaintiffs had not proven that Tewksbury’s Wynn Middle School’s failure to predict continuing acts on the plaintiffs’ child by the peer constituted "deliberate indifference" to the "sexual harrassment".

The court ruled:

Under Title IX of the Education Amendments of 1972, a recipient of
funding from the United States Department of Education may be liable for damages
if "its deliberate indifference [to peer-on-peer sexual harassment] 'subjects'
its students to harassment." Davis v. Monroe County Bd. of Educ., 526 U.S. 629,
644 (1999). A funding recipient is deliberately indifferent to
student-on-student harassment when "the recipient's response to the harassment
or lack thereof is clearly unreasonable in light of the known circumstances."
Id. at 648. [T]he deliberate indifference must, at a minimum, 'cause [students]
to undergo' harassment or 'make them liable or vulnerable' to it." Id. at 645
(alteration in original) (quoting Random House Dictionary of the English
Language 1415 (1966)). In addition, the acts of sexual harassment must be
"known" to the funding recipient. Id. at 647. Finally, the harassment must be
"so severe, pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits provided by
the school." Id. at 650.

Further citing Davis, the decision went on to say that the legal standard "does not require funding recipients to remedy peer harassment. Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct. All that Davis requires is that the school not act clearly unreasonably in response to known instances of harassment."

The whole opinion is available on the First Circuit’s website:

Monday, May 28, 2007

A "Lite Brite" moment

On March 31, 2007, the enhanced punishment provisions of "An Act Further Regulating Driver Education and Junior Operator’s Licenses" (signed January 3, 2007) went into effect. (See

"State officials" said, "The new law is meant to create a zero-tolerance environment for speeding or other unsafe driving by teenagers." ("Young drivers face stiffer penalties starting today," Boston Globe, 3/31/07;

On Saturday night, while discussing the absurdity of a law that sends a polite, teen who was only going 7 miles an hour over the limit to "Road Rage" classes; WTTK's Michael Graham referred to it as "a Lite Brite moment".

Meanwhile, last night, Peter "Zebbler" Berdovsky and Sean Stevens were on Fox News Channel's "Geraldo at Large;" still apologetic for the inconvenience the ATHF Mooninites caused in the Boston area. Zebbler urged us to have open discussions about the causes of the fear that led to an L.E.D. cartoon causing roads, waterways and public transportation to be closed. Stevens suggested that we need to consider whether we want more love or more fear.

I have found that often the administration of zero tolerance policies result in actions with zero intelligence. I hope we can add some intelligence to the Junior Operator’s Licence policy and the justice system overall by looking to Restorative Justice principles (as the AG mentioned in her nolle prosequi documents in the Charlestown District Court and at her May 11, 2007 press conference). Restorative Justice and other diversion programs examine the specific needs of offenders like the teen whom Graham was discussing.

It would serve our society better if we were to explore opportunities for expanding justice, tolerance and education. We need to shift the emphasis from fear and punishment toward "a better way" of dealing with danger and harm. (See "Your View: Another way to handle hazing," Robert E. Heskett, New Bedford Standard-Times, May 22, 2007,

Saturday, May 26, 2007

It's not KidLaw but I couldn't resist

After seeing this post from my friend and colleague Atty. Marie Saccoccio on the MassPrivateCounsel yahoogroup (for criminal and other defenders), I couldn't resist posting it here. (Sorry I don't know Marie's original source, so I can't cite it right now.)

Los Angeles County, California v. Rettele, 550 U.S. ___ (#06-605 , decided May 21, 2007)

"When the Court gets jittery, it reaches for its equivalent of a nicotine patch to calm its nerves: a good old per curiam summary reversal of the Ninth Circuit. Everyone on First Street is a little calmer after Monday.

"The plaintiffs in this case, who are white, sued under § 1983 after officers mistakenly searched their home looking for 4 black suspects. Turns out the plaintiffs had bought the home from the suspects shortly before the police got their search warrant.

"Just as it only rains when you forget your umbrella, going to sleep naked more or less guarantees that the cops will arrive that night. And so it was here. The officers rousted the plaintiffs out of the bed and forced them to make like Greek statues for 3 minutes (but probably minus the placid expressions on their faces), while police searched the rest of the house.

"The CA9 found that this treatment unnecessarily denuded the plaintiffs of their dignity and therefore their Fourth Amendment rights. Proving that turnabout is fair play, the CA9 stripped the officers of their qualified immunity. The court of appeals reasoned that once the officers saw the white occupants of the house, they should have known they had the wrong house and stopped the search.

"It took the Court 7 pages to set the law aright. Police may reasonably detain a house’s occupants during a search, to protect officer safety and the integrity of the search. Here, they did not have to abandon their search simply because they encountered persons of a different race than the suspects—“the presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well.”

"This was the rare case in which the CA9 was not politically correct enough, for the Court had to instruct that “it is not uncommon in our society for people of different races to live and work together”, or for that matter, to commit crimes together.

"Finally, the plaintiffs’ brief au naturel detention was reasonable because the suspects were believed to be armed and could have been hiding a gun under the bed covers. There was no allegation that the police left plaintiffs unclothed any longer than necessary to secure the room.

"JPS (+RBG) penned a two-page concurrence in the judgment, blasting the CA9 for issuing a hotly contested 2-1 decision as an unpublished opinion (a well-known CA9 tactic for hiding summary reversal candidates). He also restated his long-held view that the Court should not decide the constitutional merits of a case when it can more easily be resolved on qualified immunity grounds, as this one could. "

Thursday, May 24, 2007

What's in store for DSS?

Sean P. Murphy wrote in his article "New DSS chief emerged from his own troubled youth" in today's Boston Globe that Angelo McClain, the newly appointed Commissioner of the Massachusetts Department of Social Services, said in a telephone interview, "If we can build a system that allows the dedicated and talented people on the front lines to do their work, then children and families can reach their potential". (

I agree that there are many "dedicated and talented people on the front lines," but; I wonder if "a system that allows [them] to do their work" implies further extensions of the laissez faire holdings of the 1995 Supreme Judicial Court cases of Care and Protection of Isaac and Care and Protection of Jeremy which essentially preclude judges from effective oversight of the care of children in the custody of DSS.

Wednesday, May 23, 2007

Shake up coming at DSS

According to today's Boston Globe, it is expected that Governor Patrick will replace Department of Social Services Commissioner Harry Spence. The article (linked below) says that Spence will be replaced by "Angelo McClain, executive director of Value Options New Jersey, the private entity that handles the state's behavioral health services for children.

"In the 1990s, McClain worked in Massachusetts as vice president of the Massachusetts Behavioral Health Partnership ... ."

Not to say that Spence has been good (or bad) for DSS, but my recollection is that it was in the 1990s, when the behavioral health partnership began, that services for children with behavioral health issues became harder to obtain and harder for advocates and juvenile court judges to effectively intervene to get effective treatment for them.

I don't remember McClain from when he was in Massachusetts before. We'll have to wait to see if the "shake up" is for the benefit of the children and families of the Commonwealth.

Monday, May 21, 2007

Your opinions sought

Yesterday morning on Fox & Friends, Peter "Zebbler" Berdovsky and a legal analyst from NYC were asked if "the punishment fit the crime".

Since there was NO crime and NO punishment, I won't ask that question; but, rather whether, considering what happened (as summarized below), you think the resolution was fair:

- You remember the traffic delays and concern when the media called what was going on in and around Boston on January 31, 2007, a "bomb scare" or "terror alert".

- Berdovsky and Sean Stevens were arrested that night, charged with a felony and a misdemeanor, held overnight and released from Charlestown District Court on bail the following morning.

- Their families were required to tie up $5000 bail for 2 1/2 months while the defendants' charges were pending.

- The costs of the public safety operations were estimated at $1.2 million.

- Turner Broadcasting (parent company of the Cartoon Network, which hired Interference Inc., which in turn hired Berdovsky & Stevens) apologized and paid $2 million to the Cities of Boston, Cambridge, Somerville & Charlestown and to the MBTA Police.

- Since Berdovsky and Stevens did not have "intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons" ( and since there was a recognized, legitimate purpose, protected by the First Amendment, in the actions they took, they should not have been able to be found guilty of the charges brought.

- Berdovsky performed 80 hours of community service and Stevens performed 60 hours at the Spaulding Rehabilitation Hospital (with excellent reports from SRH of their work and commitment there).

- They both apologized for the fear, confusion and inconvenience that the ad campaign caused here but that they did not foresee and could not have anticipated.

- On May 11, 2007, the Attorney General nolle prosequied the charges, ending the case.

- She asserted that the resolution was better for all involved than would have been the result if they had proceeded to trial rather than the "Restorative Justice" (see disposition that was agreed upon.

So, was it a fair resolution?

Or, in Restorative Justice terms: Did it return the injured parties, the actors and the community to their positions before the harm and restore them to right relationship with each other?

[In future blog posts I will be relating the facts of children's and family law cases (mine and others) and seeking your opinions about the fairness of those resolutions.]

Saturday, May 19, 2007

For Artists in Ad Scare, Life Goes On

Peter Berdovsky (left) and Sean Stevens, at the center of the Cartoon Network scare, told their side of the story yesterday. Peter Berdovsky (left) and Sean Stevens, at the center of the Cartoon Network scare, told their side of the story yesterday. (PAT GREENHOUSE/GLOBE STAFF)

By Michael Levenson, Globe Staff, May 19, 2007

CAMBRIDGE -- Their star power, they realize, is fading. Rain-soaked and picking at a plate of french fries, they said they are broke. Thursday, they were already through security at Logan International Airport, on their way to Rockefeller Center in Manhattan, when they were dumped by the "Today Show."

Three-and-a-half months after they scared the city by installing electronic advertisements on highways and bridges, Sean Stevens and Peter Berdovsky are crash-landing back to reality, to their old lives as penniless artists and aspiring musicians, sharing an apartment and studio in Charlestown.

The adjustment has not been easy for the wise-cracking duo, who gained notoriety for holding a press conference after their arraignment in which they refused to talk about anything but hair. But now Attorney General Martha Coakley has dropped criminal charges, which could have put them behind bars for five years. Late-night comedians have abandoned riffs about terrorism and the Cartoon Network.

And Berdovsky and Stevens said yesterday they like it that way. Notoriety, they discovered, was a real bummer.

"It became this extreme stress, to a point where I think both of us had these months where we just didn't want to deal with anything, and we just wanted to curl up into a ball and sleep somewhere for days and days and days," said Berdovsky, sipping a Sam Adams at the Middle East Restaurant in Central Square.

In their first extended interview, Berdovsky, 27, and Stevens, 28, lashed out at the news media, railed against authorities, and expressed some remorse for their actions. "A lot of people were under the impression that we didn't care about the people of Boston, and that's furthest away from the truth," Berdovsky said.

"We are the people of Boston," said Stevens, chiming in. "I've lived here for my whole life. Peter's been here for 10 years."

Berdovsky, with his long dread locks, and Stevens, with his shaggy page-boy cut, have been friends for four years, since they were the last guests dancing at a party. They share a penchant for at-times rambling soliloquies.

"Everybody at some point dies, and we need to focus on making our lives as good as possible and maximizing the most art-joy-filled world that we possibly can, for the people who come after us," said Stevens, expounding on his world view, as Berdovsky listened intently. "That's what life is. And that's what we've pretty successfully done for the last several hundred thousand years."

In January, they put up the lighted electronic ads for a show called "Aqua Teen Hunger Force." They wanted to make $300 each and thought the ads would make people happy, they said.

But the ads were mistaken for possible bombs on Jan. 31, and police shut down roads and subway stations. At first, Berdovsky took his video camera and filmed the police in Charlestown. He said he did not know the signs were causing the scare. When he realized they were , he said, he called Interference. Inc, the marketing firm that hired him, and they told him to sit tight.

Within hours, he and Sevens were arrested. Coakley charged them with placing a hoax device in a way that causes panic, which carries a maximum sentence of five years in prison, and a misdemeanor count of disorderly conduct. She and other officials denounced them as irresponsible hoaxers who had terrified the city.

"It's depressing, because for me I know I'm all about peace and love, truly, and to have me be in jail for something that I would never, ever, ever do, is just painful," Berdovsky said.

"It felt like a slap in the face," Stevens added.

After their arraignment, they said they chose to talk about hair to thwart what they called a fear-mongering media. The stunt angered many who said Stevens and Berdovsky appeared callous. But it was broadcast nationwide and picked up by comedians. Stevens and Berdovsky said they were deluged by thousands of e-mails and well-wishers.

"Ninety percent of them said: 'You are my hero. I worship you,' " Berdovsky said. "I'm not kidding. That's what it was, and I didn't mean to put myself in this position, but in all honesty it was very refreshing after seeing myself portrayed as a villain on national TV."

Last week, Coakley dropped the charges after Berdovsky performed 80 hours and Stevens 60 hours of community service at Spaulding Rehabilitation Hospital. They designed a mural and helped maintain the hospital's docks on the Charles River. Now, Berdovsky and Stevens said they want to return to their old routines, making music and art.

"Our attitude toward everybody is just one of love," Berdovsky said. "We want to be loved, and we want to love other people."

Michael Levenson can be reached at

Wednesday, May 16, 2007

Boston Mooninite Charges Dropped

Berdovsky and Stevens (pictured at left) were arrested on the day of the incident (1/31/07) and charged with placing a hoax device to incite panic, a felony charge that carries a five-year maximum sentence, and one count of disorderly conduct, a misdemeanor.[17] At their arraignment on 2/1/07 Both pleaded not guilty to the two charges and were later released on a $2,500 cash bond.[2]

At the arraignment Assistant Attorney General John Grossman claimed that the two were trying to "get attention by causing fear and unrest that there was a bomb in that location."[20] Michael Rich, the lawyer representing both men at the time, disputed Grossman's claim, asserting that even a VCR could be found to fit the description of a bomb-like device.[20] Judge Leary said that it will be necessary for the prosecution to demonstrate an intent on the part of the suspects to cause a panic. The judge continued "It appears the suspects had no such intent, …but the question should be discussed in a later hearing." [20]

A small crowd of supporters gathered outside of the courthouse that day to protest the perceived overreaction by authorities. At a press conference held outside of the courthouse following their release on bail, Berdovsky, Rich and Stevens refused to comment on the case. Berdovsky and Stevens instead insisted on discussing only hairstyles of the 1970s, prompting annoyed comments and accusations of apathy from the press.[8]

Rich and Berdovsky had Attorney Walter Prince and his associate Attorney Jeffrey Pyle of Prince, Lobel, Glovsky & Tye join the defense team on behalf of Berdovsky and negotiations ensued with the Massachusetts Attorney General's office. Between subsequent court appearances on March 7 and 30, 2007, Rich introduced the concept of Restorative Justice (see to the negotiations. Bersdovsky and Stevens voluntarily performed data entry, clean up, graphic design and video editing work for Spaulding Rehabilitation Hospital between March 30th and May 10th.

On May 11, 2007, the prosecutors dropped the charges after the men completed 60 and 80 hours of community service and read apologies in court. (See and [22]

The infamous "Hair Styles of the 70s" Press Conference

The two defendants, Sean Stevens and Peter Berdovsky, staged a "press conference" with the media after their plea of NOT GUILTY. Defending Attorney Michael Rich had advised his clients NOT to discuss the case with anyone until the case was resolved. Although the event was covered by all major media channels, by refusing to answer questions about anything other than hairstyles of the seventies the two defendents succeeded in keeping the details of their case confidential and emphasized the absurdity of the media response.

Rich Defends the Boston ATHF Team at Arraignment

See what CNN reported about the case of the Boston area "Aqua Teen Hunger Force Bomb Scare". The Cartoon Network's inventive marketing campaign was mistaken for a bomb scare that shut down the city of Boston for hours. Attorney Michael L. Rich was the defense attorney for the two men who were arrested for installing the graphic devices on location.


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Michael Rich is an experienced Massachusetts lawyer concentrating in Children's and Family Law; especially accusations of abuse or neglect of a child or children.

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