Published: Michael Varrige

We are proud to announce that 3L and Form and Accuracy Editor Michael Varrige will be published this spring! His Note will appear in Syracuse Law Review.


Publication: Syracuse Law Review, Volume 69, Book 3

Note: Why the FDA’s Policy Deferring Men Who Have Sex with Men from Donating Blood Is Unconstitutional & a Poor Policy Choice


Michael is a third-year student at Syracuse University College of Law and a Master of Forensic Science candidate at the Forensic & National Security Sciences Institute at Syracuse University. He completed his undergraduate studies at the University of Wisconsin-Madison, where he obtained a B.S. in Genetics and Legal Studies with a Criminal Justice Certificate. 

Michael currently serves as Form & Accuracy Editor for the Syracuse Law Review, a legal extern for the Honorable David E. Peebles, Chief Magistrate Judge for the United States District Court for the Northern District of New York, and an Academic Success Fellow at the College of Law.

Michael has previous experience working at the Wisconsin State Crime Laboratory, the National LGBT Bar Association, the Burton Blatt Institute at Syracuse University, DLA Piper, and the Special Narcotics Prosecutor for the City of New York. Michael is excited to begin work this fall at the Appellate Division of the New York State Supreme Court, Fourth Judicial Department as an Assistant Appellate Court Attorney.

Universities & Parents Face Civil Suits as College Admissions Scandal Continues to Unfold

Written by Jeffrey Fasoldt

 

Federal prosecutors charged 50 peopleincluding 33 parentswith colluding to buy spots at selective universities last week in the largest college admissions scandal the country has ever seen. The charges have stirred up a discussion in the national mediapartly due to the wealthy business-persons and celebrities involved, and partly due to the economic and social issues intertwined in the overall discussion. Collectively, the parents paid millions of dollars to secure admission for their kids. Now, as the criminal charges against the parents play out, several current students, as well as students that had been denied from the universities involved, are filing civil lawsuits claiming these schools were negligent in failing to oversee the admissions process, and their own academic and future success potentially suffered from the incident.

The Initial Indictment

According to the indictment filed in United States District Court for the District of Massachusetts, William “Rick” Singer founded The Edge College & Career Network, as a “college counseling and preparation business” in 2007, as well as the Key Worldwide Foundation, a non-profit. Using these two companies, Singer allegedly used illegal and fraudulent techniques to help children gain admission to selective universities, while avoiding federal income taxes.

The indictment states that Singer (1) “facilitated cheating on the ACT and SAT exams in exchange for bribes,” and (2) designated “applicants as purported recruits for competitive college teams, without regard for the applicants’ athletic abilities.”

Singer allegedly used donations from parents to bribe standardized test officials who sometimes allowed another person to take the test in place of the applicant. Parents also allegedly paid Singer approximately $25 million from 2011 to 2019 to bribe college athletics coaches to designate their children as recruited athletes in order to increase chances of admission by the admissions committee at several schools.

Singer, as well as the other defendants named in the indictment face potential prison time for their involvement in the alleged conspiracy. At this point, no colleges have been named in any criminal indictment, and neither have any of the children involved. Some of the colleges have begun their own investigations into the matter.

The Response

In addition to the criminal charges, some parents, as well as a few of the colleges involved, are now facing class-action civil lawsuits. Erica Olsen and Kalea Woods, two current Stanford students, allege being denied admission from Yale and U.S.C. respectively, despite both having near-perfect ACT and SAT test scores. In addition, the students also claim that their degrees have been “devalued” since they both attend Stanfordone of the schools linked to the scandal.

Analysis

Olsen and Wood’s first claim is that the universities involved were negligent in their admissions process. The complaint states “[e]ach of these students had a right to know that their application was going to be part of a review process corrupted by rampant fraud and back-door bribery.”

In North v. West Virginia Board of Regents, the West Virginia court stated “[a]s long as the conduct of educators is not high-handed, arbitrary or capricious,” educators should be left alone to do their job without interference from those of us in the judiciary who have neither the expertise nor the insight to evaluate their decisions. However, the facts of that case involved a medical student challenging the administrative procedures the school took prior to expelling him for falsifying his application to get into medical school.

Still, in Ross v. Creighton University, Ross alleged the school was negligent for accepting him. Ross was an athlete, but the college should have known he was not prepared academically. The United States Court of Appeals for the Seventh Circuit court rejected this argument, stating “determining who is a ‘reasonably qualified student’ necessarily requires subjective assessments of such things as the nature and quality of the defendant institution and the intelligence and educability of the plaintiff. Such decisions are not open to ready determination in the judicial process.”

As for the second claimthat the scandal devalues their degreesin Gomez-Jimenez v. New York Law School, plaintiffs, graduates of New York Law School alleged that “the disclosures of post-graduate employment and salary data by defendant New York Law School to prospective students” caused “them to enroll in school to obtain, at a very high price, a law degree that proved less valuable in the market-place than they were led to expect.” The students asserted claims of fraudulent and negligent misrepresentation as well as a claim for deceptive acts in violation of New York’s General Business Law.

The appellate court was “sympathetic” to the plaintiff’s claim, but ultimately upheld the law school’s motion to dismiss for failure to state a claim.

Conclusion

Because this is the largest college admissions scandal in school history, there are going to be a few issues that courts may have not dealt with before. However, based on the law that exists, as well as the reluctance of the judiciary to get involved in the educational admissions process, it will likely be an uphill battle for the civil plaintiffs.


Sources

Brief for Plaintiff, Olsen v. Singer, No. 19-CV-01351 (D. Cal. filed Mar. 13, 2019).

Brief for U.S., U.S. v. Ernst, No. 19-CR-10081 (D. Mass. filed Mar. 5, 2019).

Elie Mystal, Current Standford Students File Class-Action Because Scammers ‘Devalued’ Their Degree, ABOVE THE LAW (Mar. 14, 2019, 1:13 PM).

Gomez-Jimenez v. New York L. Sch., 956 N.Y.S.2d 54, 57 (App. Div. 2012).

Hannah Fry, College admissions scandal fallout: Stanford students sue UCLA, USC and Yale, L.A. TIMES (Mar. 14, 2019, 9:10 AM).

Jennifer Medina, Katie Benner, & Kate Taylor, Actresses, Business Leaders and Other Wealthy Parents Charged in U.S. College Entry Fraud, N.Y. TIMES (Mar. 12, 2019).

North v. W. Virginia Bd. of Regents, 332 S.E.2d 141, 146–47 (W. Va. 1985).

Ross v. Creighton U., 957 F.2d 410, 415 (7th Cir. 1992).

Photo courtesy of Hollywood Reporter.

Supreme Court to Rule on Establishment Clause Challenge to the Bladensburg Peace Cross Memorial

Written By Gaity Hashimi

 

Background

The Supreme Court recently heard arguments regarding the constitutionality of the display and maintenance of a 40-foot tall cross in Bladensburg, Maryland which was erected in 1919 to honor veterans. Maryland-National Capital Park and Planning Commission purchased both the cross and the land in 1961, and has since spent a significant amount of money to maintain and repair the cross. The American Humanist Association, a non-profit organization which advocates for the separation of church and state, brought suit against the Commission, claiming that their activities violate the Establishment Clause of the First Amendment. The American Legion, a U.S. war veterans organization, is also involved in the suit.

History of the Establishment Clause

The First Amendment’s Establishment Clause states that “Congress shall make no law respecting an establishment of religion”. In Lemon v. Kurtzman, the Supreme Court created the Lemon test to decide whether a statute which provided state funding for private, non-secular schools violated the Establishment Clause. The Court articulated that the statute must (1) have a secular legislative purpose, (2) its principal or primary effects must be one that neither promotes nor inhibits religion, and (3) it must not foster “excessive government entanglement with religion.”

Since Lemon, the Supreme Court has resolved Establishment Clause challenges in a variety of ways. For example, in Stone v. Graham, the Supreme Court held that a Kentucky statute requiring posting of a copy of the Ten Commandments on the walls of each public classroom violated the Establishment Clause because the statute had a clear, non-secular purpose. On the other hand, in Van Orden v. Perry, the Supreme Court did not rely on the Lemon test and instead, relying on the nature of the monument and the Nation’s history, held that the display of a monument inscribed with the Ten Commandments on the grounds of Texas State Capitol was constitutional.

District Court Ruling

In American Humanist Association v. Maryland-National Capital Park, the District Court applied the Lemon test and held that the monument had a secular purpose, that “within the context of its long history . . . a reasonable observer would not view the Monument as having the effect of impermissibly endorsing religion, and that the display did not create excessive government entanglement with religion because “the Monument itself [was] not a governmental endorsement of religion.” The Court also held that it was constitutional under the context and history test in Van Orden, since the Monument had been “used almost exclusively as a site to commemorate veterans on secular patriotic holidays for its entire history.”

Fourth Circuit Ruling

The Fourth Circuit reversed the District Court’s decision and held that the display was unconstitutional under the Lemon test. Although the Court found that the Commission’s maintenance of a significant war memorial had a legitimate secular purpose, it found that the meaning and history of the cross had the primary effect of endorsing Christianity to a reasonable observer. Furthermore, the Court found that there was excessive government entanglement because the Commission owns and maintains the cross on government property, set aside a significant amount of money for its restoration and it was “displaying the hallmark symbol of Christianity in a manner that dominates its surroundings and not only overwhelms all other monuments at the park, but also excludes all other religious tenets.” Therefore, the Court held that the display and maintenance of the Cross was an unconstitutional violation of the Establishment Clause.

Supreme Court Grants Certiorari

The Supreme Court granted certiorari and heard arguments on February 27, 2019. The American Humanist Association argued that the public display should be viewed in context, and that the giant Latin cross was clearly Christian. The Commission argued that the cross was constitutional because its purpose was primarily secular and that it was a symbol marking the deceased in World War I, giving the cross a dual meaning.

The other petitioner, The American Legion, argued for the application of the “coercion test,” which would hold a display unconstitutional if a religious minority was “tangibly hurt.” Essentially, it would allow public religious displays, unless they coerce religious minorities into believing something against their principles.

Possible Outcome

If the Supreme Court agrees with American Legion and adopts the “coercion test,” prior cases adopting the Lemon test would be overruled, and the landscape of the First Amendment Law would change entirely. There potentially would be no limit on the power of the government to erect religious monuments and symbols on government property, since it would likely be hard to prove that a certain religious display proselytized or tangibly hurt a religious minority.

There is a high possibility that this conservative Supreme Court will declare the monument constitutional, as the conservative view generally leans toward accommodating religion. The Court could agree with the District Court and the Commission and rule that under the Lemon test, the monument had a secular purpose, did not primarily endorse religion, and that there was no excessive government entanglement with religion. The Court could also elect to adopt the Van Orden reasoning and rule that the Monument’s rich history warrants a finding that it is constitutional. The effect of this outcome will likely mean that other similar monuments will be allowed to stand. This outcome may be viewed by a part of society as the government aligning itself with a single religion, as the Latin cross is a symbol of Christianity.

If the Supreme Court agrees with the Fourth Circuit, and declare the monument unconstitutional, it could mean that similar monuments of the Peace Cross may have to be taken down. Furthermore, expenditures of tax revenues on government speech that has a religious aspect, such as expenditures for cross-shaped military medals, would potentially be declared unconstitutional.

The Supreme Court is expected to reach a decision by June, 2019.


Sources

Am. Humanist Ass’n v. Maryland-Nat’l Capital Park, 147 F. Supp. 3d 373 (D. Md. 2015), rev’d sub nom. Am. Humanist Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195 (4th Cir. 2017).

Am. Humanist Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 874 F.3d 195 (4th Cir. 2017), cert. granted sub nom. The Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 451 (2018), and cert. granted, 139 S. Ct. 451 (2018).

Erwin Chemerinsky, Chemerinsky: Do religious symbols on government property infringe on First Amendment?, ABA Journal (Feb. 26, 2019).

Jimmy Hoover, Up Next At High Court: Opinions, Orders And 1st Amendment, Law360 (Feb, 22, 2019).

Lemon v. Kurtzman, 403 U.S. 602 (1971).

Nina Totenburg, Cross Clash Could Change Rules for Separation of Church And State, NPR Law (Feb, 25, 2019).

Nina Totenburg, Supreme Court Appears Ready to Let Cross Stand But Struggles With Church-State Test, NPR Law (Feb, 27, 2019).

Photo courtesy of Snopes.

Published: Alex Grzebyk

We are proud to announce that 3L and Associate Member Alex Grzebyk will be published this spring! Her Note will appear in Syracuse Law Review.


Publication: Syracuse Law Review, Volume 69, Book 2

Note: The Unconstitutionality of Privatizing Air Traffic Control


Alex is a third-year student at Syracuse University College of Law and a Master of Arts in International Relations candidate at the Maxwell School of Citizenship and Public Affairs. She attended Binghamton University for her undergraduate degree.

Alex serves as an Associate Member for the Syracuse Law Review and a research assistant for Professor True-Frost.

Alex was a legal intern at Americans for Democracy and Human Rights in Bahrain, an NGO dealing with human rights law, in Washington, D.C. during the summer of 2018.

The Kardashian-Jenner Family, Jordyn Woods, and the Law: How Non-Disclosure Agreements Operate

Written by Kendra Peterson

 

Introduction: The Scandal That Started It All

For those that keep up with the Kardashians, it came as a shock when the news broke about Jordyn Woods’ cheating scandal. Jordyn Woods is the best friend of the world’s youngest billionaire and pop culture icon, Kylie Jenner. Allegedly, Jordyn Woods got a little too close with Khloe Kardashian’s boyfriend and father of her child, NBA player Tristan Thompson. Almost immediately after the news broke, rumors flew about Kylie Jenner removing Jordyn Woods from her house and cutting ties altogether. While Kylie Jenner is reportedly heartbroken over the betrayal of her best friend, one thing stands true: the Kardashians put family first and stand as a united front against anyone who crosses them.

While the versions of what really happened flooded the internet, Jordyn Woods agreed to talk about the incident on Red Table Talk, a show hosted by Jada Pinkett Smith that airs on Facebook. People were undoubtedly on the edge of their seats waiting to hear Jordyn Woods tell her side of the story, but it begged the question: there must be an NDA, right?

What is a Non-Disclosure Agreement?

An NDA is short for a Non-Disclosure Agreement. It is a contract that both parties sign which requires them to keep certain information in the contract confidential for a defined period of time. Non-disclosure agreements are used for a wide range of reasons, from protecting non-public business information, to protecting trade secrets, to ensuring people around celebrities do not spill all the secrets of the high-life. Here, the alleged non-disclosure agreement likely included language to keep the private affairs of the Kardashian family confidential.

However, non-disclosure agreements are contracts and can be held unenforceable by a judge. For example, if the contract is too broad or general, the court can refuse to enforce the contract, effectively making the non-disclosure agreement non-existent. Also, contract law is governed by state law, meaning each state has different laws regarding the enforceability of non-disclosure agreements. As the Kardashian-Jenners are residents of Calabasas, it is likely that the non-disclosure agreement in question will be governed by California law. While California generally does not recognize non-competes and customer non-solicits, it does have a reputation to enforce non-disclosure agreements. There are many cases interpreting non-disclosure agreements, giving lawyers guidance of what will be enforced. Good drafting is key to ensure a non-disclosure can be enforced in court. Given that Kylie Jenner is a billionaire, she likely had competent lawyers draft her non-disclosure agreements, making them as ironclad as can be. So, what happens when one party violates a non-disclosure agreement?

Breach of a Non-Disclosure Agreement

A suit for violation of a non-disclosure is a breach of contract claim and can only be brought by the non-breaching party. Because this is a civil rather than criminal act, the non-breaching party will likely seek monetary damages. Yet sometimes absolutely nothing happens when someone violates a non-disclosure agreement. Suing someone for breaching a contract costs a significant amount of money, including attorney’s fees and court costs, and can take up a substantial amount of time. While this may not be a worry for the rich and famous, there are also non-tangible costs in suing someone for breaching a non-disclosure agreement. Case in point, Kylie Jenner would be suing her former best friend of over a decade, which carries with it some potential emotional consequences. The non-breaching party will likely take all these considerations into mind before making the decision to sue.

Conclusion

Regardless of the potential consequences of breaching the allegedly “ironclad NDA,” Jordyn Woods spoke candidly with Jada Pinkett-Smith on Red Table Talk, which was posted on March 1, 2019. Now the (basket)ball is in Kylie Jenner’s court (pun intended). If a non-disclosure does exist, and Jordyn Woods breached it, it is now up to the non-breaching party (Kylie Jenner) to enforce it by means of a lawsuit.


Sources

Gary D. Knopf, Risky Business: The Dangers of Overbroad Confidentiality Agreements, Troutman Sanders (last visited March 10, 2019).

Katherine Gillespie, Jordyn Woods Might Violate Her NDA on ‘Red Table Talk’, PAPER MAGAZINE (last visited March 10, 2019).

Katherine J. Igeo, What Happens If You Break an NDA? Jordyn Woods Is Reportedly About to Find Out, MARIE CLAIRE (last visited March 10, 2019).

Natalie Robehmed, At 21, Kylie Jenner Becomes The Youngest Self-Made Billionaire Ever, Forbes (last visited March 10, 2019).

Todd Spangler, Jordyn Woods Interview With Jada Pinkett Smith on ‘Red Table Talk’ Sets Facebook Viewing Record, VARIETY (last visited March 10, 2019).

Photo courtesy of Pop Sugar.

Published: Katie Hyma

We are proud to announce that 3L and Associate Member Katie Hyma will be published this spring! Her Note will be published in Book 1 of Syracuse Law Review.


Publication: Syracuse Law Review, Volume 69, Book 1

Note: Legislative Ballast: The Case for Repealing 35 U.S.C. § 271(f)


Katie is a third-year student at Syracuse University College of Law.  She earned a B.S. and an M.S. in Microbiology and Molecular Genetics from Michigan State University.  She also earned a Ph.D. in Evolution, Ecology, and Population Biology from Washington University in St. Louis MO.  Prior to joining the legal profession, Katie worked as a scientist at Cornell University’s Institute for Biotechnology.

During the spring semester of her third year, Katie will serve as a Pro Bono Scholar with Volunteer Legal Services Project of Monroe County in Rochester, NY.

Katie currently works at Pepper Hamilton, LLP, in Rochester, NY, as a registered Patent Agent.  She will continue with Pepper Hamilton as an associate upon admission to the New York bar.

 

Federal Court Judge Declares the Male-Only Draft Unconstitutional

written by thomas clifford

 

Nearly four decades after the United States Supreme Court upheld the Military Selective Service Act (MSSA), a federal District Court judge declared that the act’s male-only draft violates the Equal Protection Clause. U.S. District Court Judge Gary Miller relied on new developments in the military and recent sex-discrimination cases in issuing the ruling.

Background

The MSSA requires all American men––but not women––to register for the draft when they turn 18. They remain draft-eligible through the age of 25. Although no one has been conscripted into the United States military in over 40 years, failure to comply with the draft can result in fines, jail time, or denied federal services.

In 1981, the Supreme Court in Rostker v. Goldberg upheld a challenge to the male-only draft. The Court held that the Act did not violate the Fifth Amendment’s Equal Protection Clause because Congress did not arbitrarily treat men and women differently in passing the act. Specifically, Justice William Rehnquist’s majority opinion argued that men and women were not “similarly situated” because women could not participate in military combat at the time. Therefore, because the purpose of the draft was to prepare troops for combat, the Court concluded that the male-only draft did not violate equal protection principles.

In 2013, however, the Department of Defense ended the ban on women’s participation in combat. Then, two years later, the Department of Defense eliminated all other gender-based restrictions.

District Court Ruling

Following the integration of women into all military service roles––including combat positions––two male plaintiffs renewed a decades-old constitutional question: does the male-only draft violate the Equal Protection Clause? In National Coalition for Men v. Selective Service Systems, a district court held that it does.

At the outset of the opinion, Judge Miller noted that classifications based on sex require proponents of the legislation to show that the “classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” After analyzing the governmental objectives, the court yielded to Congress’s broad authority over the military, and held that the male-only draft serves important governmental objectives.

The court, however, ruled that the male-only draft is not “substantially related” to the achievement of the governmental objectives. Judge Miller rejected the Selective Service System’s argument that Congress preserved a male-only draft because of concerns about a perceived female physical inability to participate in combat. Any reference by Congress to this notion, according to Judge Miller, was not rooted in statistical data, but rather “assumptions and overly broad stereotypes about women and their ability to fulfill combat roles.” Judge Miller appealed to United States v. Virginia to bolster the rejection of the defendant’s argument, noting that the Supreme Court held that justifications of sexual classifications “must not rely on overbroad generalizations about the talents, capacities, or preferences of males over females.”

Moreover, Judge Miller distinguished National Coalition from Rostker based on the factual differences between the two cases. He contended that the dispositive fact in Rostker was that women were not similarly situated because they were not combat eligible. Thus, now that women are combat eligible, Judge Miller reasoned that they now are similarly situated as men. Accordingly, Judge Miller found that the MSSA’s male-only draft now violates the Fifth Amendment’s Equal Protection Clause.

Importantly, however, Judge Miller did not order the government to make immediate changes to the selective service.

Looking Ahead

The National Coalition ruling comes as Congress is set to release a report next year from an 11-member commission regarding the male-only draft. Nevada Representative Joe Heck, chairman of the commission, insisted that the District Court’s ruling will neither expedite nor influence their report.

Even if the National Coalition ruling does not influence Congress in issuing the report, when the case is inevitably appealed to the Court of Appeals––and perhaps the Supreme Court after that––Congress may need to completely overhaul the MSSA’s male-only draft. Specifically, if the District Court’s decision is affirmed, Congress would have three options: (1) integrate women into the Selective Service when they turn 18; (2) make registration in the Selective Service voluntary, but withhold certain benefits for those that don’t register; or (3) abolish the Selective Service completely. But if National Coalition is overturned, then Congress would not be required to do anything.

Ultimately, the future of the Selective Service is unclear, but significant changes may take effect in the near future.


Sources

Gregory Korte, Q&A: A judge has ruled the male-only military draft unconstitutional. What happens now?, USA TODAY (Feb. 25, 2019).

Matthew Schwartz, Judge Rules Male-Only Draft Violates Constitution, NPR (Feb. 25, 2019).

Nat’l Coal. for Men v. Selective Serv. Sys., No. H-16-3362, 2019 U.S. Dist. LEXIS 28851 (S.D. Tex. Feb. 22, 2019).

Paul J. Weber, Federal Judge Rules Against Male-Only Draft, but no Changes Imminent, PBS (Feb. 26, 2019).

Rostker v. Goldberg, 453 U.S. 57 (1981).

Tyler Pager, Drafting Only Men for the Military is Unconstitutional, Judge Rules, NY TIMES (Feb. 24, 2019).

United States v. Virginia, 518 U.S. 515 (1996).

Photo courtesy of Air Force Times.