After Goodridge: the Potential of Equal Protection Challenges Under the Massachusetts Constitution Involving Non-Economic, Personal Interests

by Steven E. Gurdin and Kelly A. Schwartz

Legal Analysis

Massachusetts courts apply an enhanced version of rational basis review where regulations infringe on non-economic, personal interests.[1] In light of Goodridge v. Department of Public Health, 440 Mass. 309 (2003), this analysis has the potential to support constitutional challenges on equal protection grounds to two existing Massachusetts statutes related to families. They are: (1) M.G.L. c. 119, § 39D, the grandparent visitation statute; and (2) M.G.L. c. 209C, § 10, custody of children born out of wedlock.

Equal Protection and Enhanced Rational Basis Review in Massachusetts

Equal protection requires “that all persons in the same category and in the same circumstances be treated alike.”  Opinion of the Justices, 332 Mass. 769, 779-80 (1955). The standard of review in Massachusetts for equal protection claims that do not involve a fundamental right or suspect class is rational basis review.  See Tobin’s Case, 424 Mass. 250, 252-53 (1997).

The Massachusetts Constitution requires that a regulation be “rationally related to the furtherance of a legitimate State interest.” Mass. Fed’n of Teachers, AFT, AFL-CIO v. Bd. of Educ., 436 Mass. 763, 777 (2002) (quoting Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm’n, 429 Mass. 721, 722 (1999)).  However, the Supreme Judicial Court (SJC) has determined that in cases involving non-economic regulations, Massachusetts’s Constitution “may guard more jealously against the exercise of the State’s police power” than the Federal Constitution.[2] That is, the SJC has applied an enhanced version of rational basis review where classifications affect personal, non-economic interests that are not considered fundamental.  See Friedman, supra note 2.

The most prominent example of this analysis is Goodridge.[3]  There, same-sex couples alleged that the denial of their access to marriage licenses and the status of civil marriage violated the Massachusetts Constitution. The Court held that this exclusion violated equal protection. The Court concluded that “[t]he marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason,” noting that “[t]he absence of any reasonable relationship between” the exclusion of same-sex couples from marriage and the protection of the general welfare.  Goodridge, 440 Mass. at 341 (emphasis added).

As exemplified by Goodridge, enhanced rational basis review under the Massachusetts Constitution requires that there be an actual, rather than merely a conceivable, connection between the government’s legitimate regulatory interest and the imposed regulation, and that the connection be reasonable.  See Friedman, supra note 2 at 418.  Moreover, Massachusetts’s rational basis review for equal protection claims, “requires that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.”  Goodridge, 440 Mass. at 330 (emphasis added) (internal quotations omitted) (quoting English v. New England Med. Ctr., Inc., 405 Mass. 423, 429 (1989)).

Grandparent Visitation  

Under this enhanced rational basis review, Massachusetts’s grandparent visitation statute, as-applied, arguably violates equal protection under the Massachusetts Constitution.

M.G.L. c. 119, § 39D states in relevant part:

If the parents of an unmarried minor child are divorced, married but living apart, under a temporary order or judgment of separate support, or if either or both parents are deceased, or if said unmarried minor child was born out of wedlock whose paternity has been adjudicated by a court of competent jurisdiction or whose father has signed an acknowledgement of paternity, and the parents do not reside together, the grandparents of such minor child may be granted reasonable visitation rights . . . upon a written finding that such visitation rights would be in the best interest of the said minor child . . . .

(Emphasis added.)

The statute, as interpreted by Blixt v. Blixt, 437 Mass. 649 (2002), essentially imposes two conditions for grandparents to seek visitation: that the parents are separated or divorced; and that the grandparents have either a significant preexisting relationship with the grandchildren, or that the grandchildren will suffer significant harm absent visitation with the grandparents. Under Blixt, the second condition amounts to a heightened pleading requirement that grandparents must meet in order to seek visitation.

As-applied, the law discriminates against grandparents of grandchildren whose parents are not divorced or separated with respect to their ability to seek visitation when it is in the grandchildren’s best interest.  The statute creates two classes of grandparents: (1) those who can seek visitation because the parents are divorced or separated; and (2) those who cannot because the parents are not divorced or separated.  The classes are similarly situated because both sets of grandparents would presumably seek visitation regardless of the parents’ marital or living status on the grounds that it would be in the best interests of their grandchildren.

Applying enhanced rational basis review, the statutorily-created classifications of grandparents do not rationally serve a legitimate public purpose that transcends the harm in denying the opportunity for grandparents of parents who are not separated or divorced from seeking visitation when it is in the grandchildren’s best interest.  Three potential rationales for the discrimination are: preserving judicial resources; preventing infringement of parental rights; and safeguarding the welfare of children and giving deference to Blixt’s rationale “that the burden of the traumatic loss of a grandparent’s significant presence may fall most heavily on the child whose unmarried parents live apart” in using parental status to distinguish between classes of grandparents.  437 Mass. at 664; see Goodridge, 440 Mass. at 331.  Each of these rationales likely fails enhanced rational basis scrutiny.

First, the requirements for visitation would continue to preserve judicial resources even if grandparents of parents who are not separated or divorced petitioned for visitation because the heightened pleading requirements would serve as a gatekeeping mechanism. Second, the heightened pleading requirements would protect the rights of parents to make child-rearing decisions because only grandparents who can demonstrate that there was a significant preexisting relationship with the grandchildren, or that the grandchildren will be significantly harmed, could seek visitation.[4]  Finally, denying certain grandparents the right to seek visitation when it is in the grandchildren’s best interests would not safeguard children’s interests, especially when Blixt acknowledges that there may be children whose parents are not divorced or separated who would be harmed without visitation with their grandparents.  See 437 Mass. at 664. It is precisely these factual circumstances that would serve as the basis for an as-applied challenge to the statute, where a court can reconsider the law in the context of an actual dispute.  See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50, 457-58 (2008).

Custody of Children Born Out of Wedlock

Similarly, Massachusetts’s statute pertaining to custody of children born out of wedlock arguably violates equal protection under the Massachusetts Constitution pursuant to enhanced rational basis review analysis.

M.G.L. c. 209C, § 10(a)-(b) provides in relevant part:

(a) Upon or after an adjudication or voluntary acknowledgment of paternity, the court may award custody to the mother or the father or to them jointly . . . as may be appropriate in the best interests of the child . . . . In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to section eleven or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests.

(b) Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock.  In the absence of an order or judgment of a probate and family court relative to custody, the mother shall continue to have custody of a child after an adjudication of paternity or voluntary acknowledgment of parentage.

(Emphasis added.)

As-applied, the law denies unwed fathers not cohabitating with the mother,[5] the right to equal protection by discriminating against these fathers as compared to divorcing fathers when joint legal custody is in the child’s best interest.[6]  Pursuant to M.G.L. c. 208, § 31, divorcing fathers are presumed to have joint legal custody of a child until otherwise ordered and need only prove that it is in the child’s best interest for it to be awarded.  Whereas, pursuant to M.G.L. c. 209C, § 10(a)-(b), unwed fathers not cohabitating with the mother are not presumed to have joint legal custody and must meet additional and burdensome requirements to have it awarded.[7]  The fathers are similarly situated because both groups are men whose parentage has either been assumed due to their marital status or established by adjudication or acknowledgment, and whose children would presumably benefit from their involvement in their life.[8]

To be awarded joint legal custody absent an agreement with the mother, in addition to satisfying the best interest standard, an unwed father not cohabitating with the mother is required to prove that he and the mother “have successfully exercised joint responsibility for the child prior to the commencement of proceedings;” and he and the mother have “the ability to communicate and plan with each other concerning the child’s best interests.”  M.G.L. c. 209C, § 10(a).  A divorcing father, however, enjoys “temporary shared legal custody of any minor child of the marriage” and he need only ultimately prove that an award of joint custody is in the child’s best interest.  M.G.L. c. 208, § 31.

Under an enhanced rational basis review analysis, the different treatment of unwed fathers not cohabitating with the mother and divorcing fathers pursuant to M.G.L. c. 209C, § 10(a)-(b) likely does not rationally serve a legitimate public purpose that transcends the harm in requiring that unwed fathers meet more onerous requirements.[9] Potential public purposes that may be advanced to justify the discrimination are: preserving judicial resources; and safeguarding the wellbeing of children.[10]

First, judicial resources would not be further expended if both classes of fathers were afforded the same presumption and held to the same standard to be awarded joint legal custody.  In fact, judicial resources may be conserved if all fathers were afforded the presumption and only the child’s best interest governed.  Second, the wellbeing of children is not enhanced by requiring that unwed fathers not cohabitating with the mother meet more burdensome requirements or be denied a presumption of joint legal custody because an analysis of the child’s best interest should afford all children the same protection, especially where there are divorcing fathers who do not have a history of successfully exercising joint responsibility for the child and cannot communicate or cooperate with the mother. If children of unwed fathers not cohabitating with the mother are afforded greater protections than children of divorcing fathers, this likely violates “the Commonwealth’s strong public policy to abolish legal distinctions between marital and nonmarital children in providing for the support and care of minors.” Goodridge, 440 Mass. at 325 (citations omitted); see M.G.L. c. 209C, § 1 (“Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children.”).  Further, these additional and burdensome requirements may discourage fathers whose children would benefit from their participation in important decisions from pursuing these rights.  See Cuadra, supra note 6 at 634-35.

Conclusion

Looking to Goodridge as a roadmap for an enhanced rational basis review analysis, some Massachusetts statutes impacting personal interests, like a grandparent’s ability to pursue visitation or an unwed father’s ability to participate in important child rearing decisions, may well be vulnerable to challenges on equal protection grounds. This kind of judicial review recognizes that there may be instances in which legislative classifications draw lines that infringe on personal interests without adequate justification.  This review does not mean every statute that differentiates among significant personal interests will fail—just that the Commonwealth must be able to articulate a reason for the discrimination that has a basis in fact. On the right facts, an enhanced rational basis review analysis has the potential to push the legal landscape to better serve families by pushing the Commonwealth either to justify the discrimination or abandon distinctions that no longer make sense.

Steven E. Gurdin is a partner at Fitch Law Partners LLP, concentrating his practice in and frequently presenting on family law and probate litigation matters.  He represents clients in all aspects of family law including, divorce proceedings, paternity actions, child removal actions, modification and contempt actions, grandparent visitation cases, and alimony and child support issues.

Kelly A. Schwartz is an associate at Fitch Law Partners LLP.  Her practice is in family law, which includes matters involving divorce, child custody, alimony, child support, and asset division.

[1] Special thanks to Lawrence Friedman, Professor of Law at New England Law, for his input and support.

[2] See Blue Hills Cemetery, Inc. v. Bd. of Reg. in Embalming & Funeral Directing, 379 Mass. 368, 373 n.8 (1979); Coffee-Rich, Inc. v. Comm’r of Pub. Health, 348 Mass. 414, 421-22 (1965); Lawrence Friedman, Ordinary and Enhanced Rational Basis Review in the Massachusetts Supreme Judicial Court: A Preliminary Investigation, 69 Albany L. Rev. 415 (2006) (discussing history of Massachusetts cases in which courts applied less deferential rational basis review under the Massachusetts Constitution); see also Goodridge, 440 Mass. at 328 (“The Massachusetts Constitution protects matters of personal liberty against government incursion as zealously, and often more so, than does the Federal Constitution, even where both Constitutions employ essentially the same language.”), n.18 (“We have recognized that our Constitution may more extensively protect individual rights than the Federal Constitution in widely different contexts.”).

[3] See Friedman, supra note 2 at 419-22, 440.

[4] Of note, Massachusetts House Bill No. 1534, which was submitted in the current session on January 18, 2019, provides that any grandparent may file an original action for visitation rights if it is in the child’s best interest and if, among other conditions, “the child is living with biological parents, who are still married to each other, whether or not there is a broken relationship between either or both parents of the minor and the grandparent and either or both parents have used their prenatal authority to prohibit a relationship between the child and the grandparent.”

[5] See Dep’t of Revenue v. C.M.J., 432 Mass. 69, 77 (2000) (determining that under M.G.L. c. 209C, § 10(b), an unwed father cohabitating with the mother and providing support to his children was presumed a custodial parent even absent a court order regarding custody); Trial Court Judgment of Dismissal and Memorandum of Decision (Gibson, J. Nov. 5, 2013); see also Com. v. Gonzalez, 462 Mass. 459, 464 & n.12 (2012); 14B Mass. Prac., Summary of Basic Law, § 8:264 (5th ed. 2019) (“[I]f the father is living with the mother and the child or children born out of wedlock, the mother’s custody is not sole custody, but joint custody with the father.”) & nn.4-5.

[6] See Bernardo Cuadra, Family Law–Maternal and Joint Custody Presumptions for Unmarried Parents:  Constitutional and Policy Considerations in Massachusetts and Beyond, 32 W. New Eng. L. Rev. 599, 620-22 (2010) (footnote notation omitted) (discussing the difference in Massachusetts between divorcing parents and unmarried parents with regard to the presumption of joint legal custody).

[7] Department of Revenue v. C.M.J. did not, however, address whether unwed fathers cohabitating with the mother must also meet the additional requirements outlined in M.G.L. 209C, § 10(a) to be awarded joint legal custody.

[8] See Cuadra, supra note 6 at 633-34 (“Joint legal custody has been shown in the context of divorce to increase a father’s involvement with his child, including parenting time and overnights.  Subsequent research suggests the same outcome for unwed fathers.”).

[9] See Goodridge, 440 Mass. at 330; see also Cuadra, supra note 6 at 639 (suggesting that Massachusetts’s different treatment of divorcing and unwed fathers should be examined pursuant to a rational basis review where the statute would “be scrutinized with something greater than sweeping deference.”) & n.251 (citing and quoting Goodridge).

[10] See Goodridge, 440 Mass. at 331; Blixt, 437 Mass. at 663; Trial Court Judgment, supra note 5.


Reid v. City of Boston: Extending the Massachusetts Tort Claims Act’s Interpretive Complexity

by Andrew Gambaccini

Case Focus

The Legislature enacted the Massachusetts Tort Claims Act (“MTCA”), G.L. c. 258, §§ 1 et seq., to replace a crazy quilt of judicially created exceptions to governmental immunity and provide a “comprehensive and uniform regime of tort liability for public employers.” Lafayette Place Associates v. Boston Redevelopment Auth., 427 Mass. 509, 534 (1998). Since its initial enactment, what has developed is a further set of immunity principles, exceptions to those principles, and exceptions to the exceptions to the principles that has led to uncertainty for courts and practitioners, which continues with the decision in Reid v. City of Boston, 95 Mass. App. Ct. 591, rev. denied, 483 Mass. 1102 (2019).

The Evolution of Governmental Immunity in Massachusetts

Historically, the Commonwealth and its political subdivisions enjoyed broad governmental immunity protections based upon common law principles. See Cormier v. City of Lynn, 479 Mass. 35, 37-38 (2018) (citations omitted). Over time, a convoluted landscape of judicial exceptions to governmental immunity developed, triggering a 1973 request from the SJC that the Legislature create a statutory scheme authoritatively detailing the contours of governmental immunity. See Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-21 (1973). After a few years of legislative inaction, in 1977 the SJC made its intentions clear:  it would abrogate governmental immunity following the 1978 legislative session if the Legislature did not take definitive action. See Whitney v. Worcester, 373 Mass. 208, 210 (1977).

The MTCA followed, allowing for limited governmental tort liability as well as setting out the procedures through which claims were to be presented and pursued. The statutory scheme provides generally that public employers are liable for the negligent or wrongful acts or omissions of public employees acting within their scope of employment, while public employees are shielded from personal liability for negligent conduct. G.L. c. 258, § 2. At the same time, several statutory exceptions to the general waiver of governmental immunity were created. See G.L. c. 258, § 10.

It was not long before case nuances again created interpretive difficulties. In 1982, the SJC applied the “public duty rule” to protect governmental units from liability unless a plaintiff demonstrated that a duty breached was owed to that plaintiff, and not simply to the public at large. See Dinsky v. Framingham, 386 Mass. 801 (1982). Within a short time, the SJC endorsed a “special relationship” exception to the public duty rule, permitting governmental liability where a governmental actor reasonably could foresee both an expectation to act to protect a plaintiff and the injury caused by failing to do so. See Irwin v. Ware, 392 Mass. 745 (1984). When subsequent judicial gloss through the “public duty-special relationship dichotomy” failed to produce “a rule of predictable application[,]” the SJC announced its intention to abolish the public duty rule altogether. Jean W. v. Commonwealth, 414 Mass. 496, 499 (1993) (Liacos, C.J. concurring); see also 414 Mass. at 514-15 (Wilkins, Abrams, J. concurring) and 523-25 (Greaney, J. concurring). The Legislature responded by amending the MTCA, most notably by adding six new § 10 exceptions, (e) through (j), to the general waiver of governmental immunity,modification that has done little to diminish the vexing complexities of governmental liability and immunity.

Reid v. City of Boston

Reid features the latest judicial foray into two of the knottiest statutory exceptions concerning governmental immunity, §§ 10 (h) and 10 (j). Plaintiff Reid received a call from her sister, during which the sister was heard asking someone to stop following her and why that person’s hands were behind his back. Knowing her sister had a troubled relationship with her boyfriend, Reid drove to her sister’s home, where she saw her sister’s boyfriend, Cummings. Reid engaged him in a conversation that was neither heated nor worrisome for Reid. As they spoke, Reid’s sister called 911 and reported that Cummings had threatened to kill her.

Three Boston police officers responded and came upon Reid and Cummings. The officers perceived the two to be speaking calmly, noted no injuries and saw no indication of either being armed, something both Reid and Cummings denied. As the inquiry continued, one officer  approached Cummings from behind, suddenly grabbed him and reached for his waist, intending to frisk Cummings for weapons. Cummings pushed the officer away, drew a firearm from his waistband and opened fire. The officers returned fire. Cummings was killed, one officer was shot in the leg and Reid also was shot in the leg by Cummings.

Reid sued the officers and the City. The Superior Court dismissed the claims against the officers, but the negligence claim against City proceeded to trial. Reid claimed that the attempt to frisk Cummings created a harm that otherwise did not exist, escalating a controlled encounter into a shootout, and that such negligence caused her injury. By special verdict form, the jury found the City liable, concluding the police pre-shooting negligence was a substantial contributing factor in causing Reid’s injury. The City filed a motion for judgment notwithstanding the verdict, arguing that it was immune pursuant both to G.L. c. 258, § 10 (h), which, among other things, immunizes municipalities from claims based upon failure to provide police protection, and § 10 (j), which, in part, forecloses claims against a governmental agency based upon a failure to prevent violence by a third party not originally caused by a government actor. The Superior Court denied the motion and the City appealed.

The Appeals Court affirmed the denial of the motion, turning away both of the City’s § 10 arguments. As to immunity for failure to provide police protection under § 10 (h), the tip of the City’s spear was Ariel v. Kingston, 69 Mass. App. Ct. 290 (2007). Ariel involved a plaintiff who was a passenger in a motor vehicle approaching an intersection where police officers were directing traffic in the vicinity of an accident. Proceeding with a green light, the driver of the plaintiff’s vehicle entered the intersection while contemporaneously an officer waved, against a red light, another vehicle into the intersection, leading to a collision. The Ariel Court determined that the town was immune pursuant to § 10 (h) because controlling traffic was a form of police protection to the public.

Analyzing the § 10 (h) exception in Reid, the Appeals Court stated that, while § 10 (h) “shields municipalities from claims where police officers negligently failed to prevent harm posed by third parties[,]” Reid’s “successful theory of liability was not that the police officers failed to protect her from a threat, but rather that the officer’s affirmative conduct created a danger that did not previously exist.” Reid distinguished Ariel by noting the officers directing traffic were providing police assistance to mitigate a dangerous condition while, in Reid, the officers encountered a calm situation and it only was police action that created the danger.

Concerning immunity for the failure to prevent violence by third parties not originally caused by government actors under § 10 (j), Reid avoided the intensely problematic determination of whether the officers’ actions “originally caused” Reid’s injury, instead drawing on a statutory exception to this immunity. Specifically, the Appeals Court found that subsection § 10 (j) (2)’s exception to immunity applied because the officer’s intervention had “place[d] the victim in a worse position than [s]he was in before the intervention[.]” In broad stroke, Reid concluded that the City could be liable because its officer had engaged in an “affirmative act” that contributed materially to create the danger from which the plaintiff sustained injury.

It long has been difficult to chart a predictable course through the statutory and judicial landscape of governmental immunity. Reid’s interpretation of § 10 (h) adds another layer of complexity to this area of law. While Ariel involved an officer engaging in the affirmative act of waving a car into a police-controlled intersection, there was no municipal liability in that case because the circumstance was “dangerous” however municipal liability existed in Reid because a police response to a 911 call featuring an allegation of domestic assault somehow took place in “calm” conditions. Further, because Reid passed on its opportunity to clarify §10 (j), including, for example, a discussion of factors relevant to determining whether the officers’ actions were the original cause of injury, §10 (j) remains a morass of cascading exceptions to the MTCA’s general waiver of immunity.

Cummings was armed and prepared to shoot. If he had fired before any attempt at a frisk, there seems little doubt that the City could not have been found liable. That Cummings made his choice to shoot after an officer tried to frisk him for purposes of weapon detection and disarmament rendered the City liable for Cummings’ shooting of Reid. In the last analysis, Reid’s interpretation of §§ 10 (h) and 10 (j) leaves the principles of governmental immunity as it found them – a complex, nuanced and often confusing “process of defining the limits of governmental immunity through case by case adjudication.” Whitney, 373 Mass. at 209-10.

Andrew Gambaccini is an associate at Reardon, Joyce & Akerson, P.C., where he focuses his practice in civil rights and the defense of law enforcement officers.


Massachusetts Wage and Hour Laws Apply to Au Pairs

by Andrea Peraner-Sweet and Lauren D. Song

Heads Up

On December 2, 2019, in Capron v. Attorney General of Massachusetts, 944 F.3d 9 (2019) (“Capron”), the First Circuit Court of Appeals held that federal laws regulating the J-1 Visa Exchange Visitor Program for au pairs (“Au Pair Program”) do not preempt Massachusetts wage and hour laws applicable to domestic worker arrangements: Massachusetts Domestic Workers Bill of Rights Act  (“DWBRA”), G.L. c. 149, §§ 190191, and the Massachusetts’ Fair Wage Law, G.L. c. 151, § 1. This means that host families in the Commonwealth are obligated to pay au pairs at least the state minimum wage ($12.75/hour effective January 1, 2020) and overtime, higher compensation than the federal $7.25 hourly rate currently required under the Au Pair Program. It also means that host families–as employers of domestic workers–must become familiar with the DWBRA’s requirements because failure to comply with Massachusetts wage and hour laws can expose host families to substantial damages, including treble damages, attorneys’ fees and costs. See Andrea Peraner-Sweet, How to Hire a Domestic Worker and Stay Out of Trouble, 62 Boston Bar J. (Summer 2018).

The Au Pair Program And Its Compensation

As described in Capron, the Au Pair Program is a cultural exchange program regulated by the United States Department of State (“DOS”) through which foreign individuals can obtain J-1 Visas and be matched with United States host families to provide up to 45 hours a week of child care services while pursuing a post-secondary education. 22 C.F.R. § 62.31. The DOS administers the Au Pair Program through private placement agencies it designates to conduct DOS-approved exchange programs (“Sponsors). The Sponsors select and match participants with host families. 22. C.F.R. § 62.10.

The Au Pair Program regulations require Sponsors to ensure that au pairs are compensated “at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the [FLSA] as interpreted and implemented by the [Department of Labor (DOL)].” 22 C.F.R. § 62.31(j)(1). The DOL has determined that Au Pair Program participants are “employees” within the meaning of FLSA and, thus, entitled to federal minimum wage. 29 U.S.C. § 206(a). The FLSA, however, exempts live-in domestic workers from overtime payment. 29 U.S.C. § 213(b)(21). DOL regulations also permit deductions for the costs of room and board:  either a fixed credit amount that is tied to a percentage of the federal minimum wage, or  the actual, itemized costs, provided the itemized deductions are supported by adequate records. 29 C.F.R. § 552.100(c)(d). Importantly, as the First Circuit notes, the FLSA contains a savings clause that “[n]o provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter.” 944 F.3d at 18 (quoting 29 U.S.C. § 218(a)).

Massachusetts Au Pair Compensation

The DWBRA defines au pairs as “employees” and “domestic workers” and their host families as “employers.” G.L. c.  149, § 190(a). Under the DWBRA and Fair Wage Law, au pairs are entitled to the state minimum wage and overtime pay at 1.5 times the hourly rate for “working time” over 40 hours per week. G.L. c. 151, § 1; 940 C.M.R. 32.03(3). An au pair’s “working time” includes all hours that the au pair is required to be on duty including meal, rest and sleep periods unless during those periods the au pair is free to leave the host family’s premises, use the time for their sole benefit and is relieved of all duties during these time periods. Id., 32.02. Host families are required to keep records of an au pair’s hours worked. Id., 32.04(2). The DWBRA also permits deductions for lodging and food, if agreed to in advance and in writing by the domestic worker, which are at a fixed credit amount of $35 per week for a single-occupancy room and $1.25 for breakfast, $2.25 for lunch, and $2.25 for dinner. Id., 32.03(5)(b)-(c).

Additionally, au pairs are entitled to at least 24 consecutive hours of rest when working 40 hours per week, workers’ compensation, sick time, and notice of why and when the host family may enter their living space.

The Litigation

In 2016, in response to enactment of the DWBRA, Cultural Care, Inc., a Sponsor au pair placement agency and two former Massachusetts hosts (“Plaintiffs”), sought declaratory and injunctive relief from the United States District Court claiming that the federal laws governing the Au Pair Program impliedly preempted Massachusetts wage and hour laws with respect to au pairs. The District Court found no preemption and dismissed the action, and Plaintiffs appealed.

The Plaintiffs claimed that the Au Pair Program preempted Massachusetts wage and hour laws under “field preemption” and/or “obstacle preemption.” Under “field preemption,”  Plaintiffs argued that the detailed regulatory scheme governing the Au Pair Program together with the federal interest in regulating immigration and managing foreign relations evidenced the federal government’s intent to “occupy the field” of regulation of au pairs, thereby preempting state laws and regulations that might otherwise apply to au pairs. 944 F. 3d at 22. Under “obstacle preemption,” Plaintiffs argued that compliance with Massachusetts wage and hour laws would create an obstacle to achieving the underlying purposes and objectives of the Au Pair Program by frustrating the federal intent to “set a uniform, nationwide ceiling” on compensation obligations and  recordkeeping and administrative burdens. Id. at 26-27.

The First Circuit rejected Plaintiffs’ arguments, concluding that Plaintiffs failed to sustain their burden of proving either field or obstacle preemption. The Court determined that Plaintiffs’ reliance on the DOS’s comprehensive and detailed regulations was insufficient to demonstrate a federal intent to oust a whole field of state employment measures, a “quintessentially local area of regulation.” Id. at 22.  Rather, the Court opined: “It is hardly evident that a federal foreign affairs interest in creating a ‘friendly’ and ‘cooperative’ spirit with other nations is advanced by a program of cultural exchange that, by design, would authorize foreign nationals to be paid less than Americans performing the same work.” Id. at 26.

The Court also rejected Plaintiffs’ obstacle preemption claim that enforcement of Massachusetts’ employment laws would frustrate a federal objective of establishing a nationally uniform compensation scheme for au pair participants. Noting that “the text of the au pair exchange regulations…does not supply the requisite affirmative evidence that the state law measures would pose an obstacle to the accomplishment of the purposes and objectives of the Au Pair Program,” the First Circuit concluded, “[i]n fact, the text of the regulations reflects the DOS’s intention to ensure that the regulations would accommodate the DOL’s [Department of Labor] determination that au pair participants are employees who are entitled to be protected by an independent wage and hour law that is not itself preemptive….[and] that the DOS contemplated that state employment laws would protect exchange visitor program participants from their employers.” Id. at 32-33 (underline in original).

What do host families need to know now?

It is not yet clear whether Capron will apply retroactively or whether Massachusetts host families will be liable for back wages for au pairs who were not compensated in accordance with state wage and hour laws. The Attorney General’s office has indicated that, “at this time,” its focus is on ensuring that au pair agencies bring their programs into compliance with Massachusetts laws and it does not intend to enforce the DWBRA or other wage and hour laws against host families.  The Attorney General’s office does note, however, that it has no control over private litigation.  As of the time of this writing, at least three putative class action suits and one other action, all by private individuals, have been filed in Middlesex Superior Court against several Sponsor au pair agencies.  No action has yet to be filed against any host families.

Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP.  Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.  Andrea is a  current member of the Boston Bar Journal.

Lauren D. Song is a Senior Attorney at Greater Boston Legal Services where her practice focuses on affordable housing preservation and development through public-private partnerships.  Lauren is a current member of the Boston Bar Journal.


Student Disciplinary Proceedings Revisited: A Responding Party is Not Entitled to “Quasi-Cross-Examination” in Private School Disciplinary Proceedings

by R. Victoria Fuller

Case Focus

Until recently, a key procedural issue in disciplinary proceedings administered by educational institutions—whether the responding party was entitled to conduct cross-examination—remained unclear in Massachusetts and the First Circuit.  A pair of recent First Circuit decisions provide some clarity for Massachusetts public and private institutions, respectively.  First, in Haidak v. University of Massachusetts-Amherst, 933 F.3d 56 (1st Cir. 2019), discussed in the Fall issue of the Boston Bar Journal, the First Circuit Court of Appeals addressed the obligations imposed by the Due Process Clause of the Fourteenth Amendment on public educational institutions in disciplinary proceedings.  There, the Court held that the responding party did not have a right to cross-examine the reporting party or other adverse witnesses in such proceedings, even where credibility was at issue, and that a public educational institution could implement a non-adversarial, “inquisitorial” system without violating the federal Due Process Clause so long as the educational institution adequately questioned the reporting party.

Most recently, in John Doe v. Trustees of Boston College, 942 F.3d 527 (1st Cir. 2019), the First Circuit addressed the same issue, but in relation to disciplinary proceedings in private educational institutions.  As discussed below, the responding party argued that he was entitled to real-time examination of the reporting party and adverse witnesses through a neutral—or as the First Circuit called it, “quasi-cross-examination.”  The Court rejected that argument.  It held that private school proceedings are governed by state law, not the federal Due Process Clause, and that applicable Massachusetts contract law did not recognize a right of cross-examination.

The Complaint and Disciplinary Proceedings

In John Doe, the disciplinary proceeding was triggered by a complaint by a female student that a male student—the responding party—had sexually assaulted her.  The complaint was governed by the university’s Student Sexual Misconduct Policy (the “Policy”), which established the university’s procedure for the adjudicating sexual misconduct complaints. Under the Policy, sexual misconduct complaints were to be investigated by one (or more) internal or external investigators.  The Policy did not permit either party to cross-examine the other party or adverse witnesses.

In the case of John Doe, once the investigators completed the investigation, they prepared a written report.  Applying a preponderance of the evidence standard, the investigators found that several of the responding party’s statements lacked credibility, or failed to support his defense that the sexual contact at issue was consensual, and concluded that the responding party had violated the Policy. Based on the investigators’ findings and conclusions, the university imposed an immediate one-year suspension on the responding party.

After exhausting his appeals at the university, the responding party sued in the District of Massachusetts, seeking an injunction staying his suspension. The responding party argued that he was entitled to a form of real-time examination, including:

  • Contemporaneous questioning by a “neutral” (who may be a hearing officer or an investigator) of both the reporting party and the responding party (though not necessarily in the same room);
  • Disclosure of the exact statements of the adverse party in real time; and
  • The opportunity to submit questions to the neutral, either orally or in writing, to be put to the other party.

The District Court agreed, and granted the requested injunction, thus staying the responding party’s suspension.  The university appealed.

Private School Disciplinary Proceedings Are Governed by State Law

The First Circuit disagreed and vacated the injunction. The Court held that Massachusetts private schools are not obligated to provide any form of cross-examination, let alone the “real-time examination” sought by the responding party (and which the First Circuit referred to as “quasi-cross-examination”).

The Court explained that Massachusetts private school disciplinary proceedings are not governed by the federal Due Process Clause, but instead by applicable Massachusetts contract law.  See 942 F.3d at 529.  In Massachusetts, courts use two analyses to determine whether a private institution has breached its contract with a student: (1) whether the reasonable expectations of the parties have been met; and (2) whether the procedures implemented by the school were conducted with “basic fairness.”  Id. at 533-34.[1]  First, the Court rejected the responding party’s argument that he reasonably expected he would be afforded the opportunity to conduct a form of quasi-cross-examination.  Nothing in the Policy’s detailed procedures provided any basis for such an expectation.

Second, the Court stated that Massachusetts concept of “basic fairness” does not require quasi-cross-examination.  “Basic fairness” requires only that a public institution act in good faith and on reasonable grounds, and that its decision must not be arbitrary and capricious.  See Coveney v. President & Trs. of The Coll. of The Holy Cross, 388 Mass. 16, 19 (1983); Driscoll v. Bd. of Trs. of Milton Acad., 70 Mass. App. Ct. 285, 295 (2007).  The Court also clarified that its recent decision in Haidak v. University of Massachusetts-Amherst was inapplicable: Boston College was neither a public university nor a government actor, and therefore was not subject to the federal Due Process Clause.  The Court also noted that the Massachusetts Supreme Judicial Court had specifically held in Schaer v. Brandeis University, 432 Mass. 474 (2000) that the obligations imposed by basic fairness on private institutions were not equivalent to those imposed by the federal Due Process Clause on public institutions, and Massachusetts state courts had not recognized quasi-cross-examination as an obligation imposed by the basic fairness requirement.

Perhaps anticipating that its decision in John Doe would not be the final word on the matter, the First Circuit concluded that “whether Massachusetts in the future will wish to redefine the requirements of contractual basic fairness in college and university discipline matters poses important policy choices for the Supreme Judicial Court and/or state legislature to make.”  Id. at 536.

Conclusion

With its decision in John Doe, the First Circuit clarified the distinction between the obligations imposed on public educational institutions by the federal Due Process Clause, and those imposed by Massachusetts contract law on private schools.

Importantly, the First Circuit also noted that “[f]ederal courts are not free to extend the reach of state law.”  942 F.3d at 535.  While no previous Massachusetts case has held that “basic fairness” includes a right to cross-examination in private school disciplinary proceedings, the right of cross-examination in both public and private school disciplinary proceedings has become a hot topic across the country.  Indeed, the law is rapidly evolving, and not always cohesively.  Compare Haidak v. University of Massachusetts-Amherst, 933 F.3d 56 (2019) (holding no absolute right to cross-examination in public institution disciplinary proceedings) with Doe v. Baum, 903 F.3d 575, 582-3 (6th Cir. 2018) (recognizing a right to cross-examination in public institution disciplinary proceedings).

Perhaps not surprisingly, then, after the case was remanded by the First Circuit, lawyers for John Doe requested that the District of Massachusetts certify to the Massachusetts Supreme Judicial Court the question:

[W]hether basic fairness, implied in the contract between a student and a college or university, requires an opportunity for parties in a college or university disciplinary process, to have their questions put to each other and witnesses in real time, even if only through a neutral person, particularly in matters that involve credibility determination, such as the Title IX investigatory setting.

See Civ. A. No. 1:19-cv-11626-DPW, Dkt. 73. The District of Massachusetts has postponed any potential certification until after summary judgment practice. One way or the other, given the recent changes and clarifications in this area of the law, we can expect unsatisfied responding parties in private school disciplinary proceedings to continue to raise the issue in Massachusetts courts until the Supreme Judicial Court directly addresses it.

Victoria Fuller is an attorney at White and Williams LLP. Her practice focuses on insurance law, employment law, and general commercial litigation.

[1] “Basic fairness” applies not only to colleges and universities, but to all private educational institutions.  See, e.g., Discol v. Bd. of Trs., 70 Mass. App. Ct. 285, 295 (2007) (applying “basic fairness” standard to disciplinary proceedings in private school that admitted students from kindergarten through grade twelve).


Fair Housing Enforcement in the Age of Digital Advertising: A Closer Look at Facebook’s Marketing Algorithms

by Nadiyah Humber and James Matthews

Legal Analysis

Introduction

The increasing use of social media platforms to advertise rental opportunities creates new challenges for fair housing enforcement.  The Fair Housing Act, 42 U.S.C. §§ 3601-19 (“FHA”) makes it unlawful to discriminate in the sale or rental of housing on the basis of race, color, religion, sex, familial status, national origin, and disability (“protected classes”).  The FHA also prohibits discriminatory advertising, including distributing advertisements in a way that denies people information about housing opportunities based on their membership in a protected class.  Accordingly, advertisers and digital platforms that intentionally or unintentionally cause housing advertisements to be delivered to users based on their membership in a protected class may be liable for violating the FHA.

In March 2018, in response to what they perceived to be discriminatory advertising on Facebook, the National Fair Housing Alliance (“NFHA”) and several housing organizations filed suit in federal court in New York City.[1]  The lawsuit alleged that Facebook’s advertising platform enabled landlords and real estate brokers to prevent protected classes from receiving housing ads.  Facebook settled the suit on March 19, 2019.[2]  As part of the settlement, Facebook agreed to make a number of changes to its advertising portal so that housing advertisers can no longer choose to target users based on protected characteristics such as age, sex, race, or zip code.  Facebook also committed to allow experts to study its advertising platform for algorithmic bias.  It remains to be seen whether this agreement goes far enough in curtailing discriminatory advertising practices, as Facebook is confronting further enforcement action from a government watchdog in respect to similar issues.  Moreover, a recent research study found that Facebook’s digital advertising platform may still lead to discriminatory outcomes despite changes already made.

On August 13, 2018, the Assistant Secretary for Fair Housing and Equal Opportunity filed a complaint with the Department of Housing and Urban Development (“HUD”) alleging that Facebook is in violation of the FHA.  The Office of Fair Housing and Equal Opportunity determined in March, 2019 (the same time as the settlement agreement with NFHA) that reasonable cause exists and issued an official Charge against Facebook.[3]

Notwithstanding these suits and administrative actions, it remains that, for fair housing claims to survive in court against media giants like Facebook, HUD and future plaintiffs must first successfully argue that Facebook is not protected by the Communications Decency Act (“CDA”).[4]

Communications Decency Act

Congress enacted the CDA, in part, to prohibit obscene or indecent material from reaching children on the internet, and also to safeguard internet ingenuity.[5]  What was meant as a protectionist measure for the young, impressionable, and inventive, however, evolved into a powerful defense tool used by web applications, like Facebook.  Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties.  To overcome the CDA hurdle, litigants have to demonstrate that Facebook “materially contributes” to the management of content on their platform.  Fair Hous. Counsel of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1163 (9th Cir. 2008).  While many online service providers have successfully used Section 230 in their defense, the protections offered to internet service providers are not absolute.

The CDA contains requirements that restrict the application of Section 230.[6]  The language in Section 230 prevents a “provider or user of an interactive computer service” from being “treated as the publisher or speaker of any information” that is exclusively “provided by another content provider.”[7]  The U.S Court of Appeals for the Ninth Circuit concluded that publishing amounts to “reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009).  The idea is that website operators would no longer be liable for deciding to edit or remove offending third-party content.

Based on this reading, the law immunizes only “certain internet-based actors from certain kinds of lawsuits.”[8] The statute, as discussed in Roommates.com, LLC, 521 F.3d at 1162, provides no protection to online content that was created by a website operator or developed – in whole or in part – by the website operator.  Courts have reaffirmed the CDA’s limited scope to protect self-policing service providers that act as “publishers” of third-party content, as opposed to liability against all categories of third-party claims (i.e. violations of civil rights laws at issue in this article).  Barnes, 570 F.3d at 1105; Accord Doe v. Internet Brands, Inc., 824 F.3d 846, 852-53 (9th Cir. 2016).  These limitations are crucial.  If a plaintiff can show that Facebook developed the content on its platform in whole or in part or, content aside, that Facebook produces discriminatory outcomes via mechanisms on its platform developed by Facebook, it may be excluded from Section 230 immunity.

Optimization Discrimination Study

In a recent study by researchers at Northeastern University, [9] evidence of Facebook’s control over ad dissemination demonstrates how Facebook manages output of information based on headlines, content, and images, using “optimization.”[10]  In short, the Study set out to determine how advertising platforms themselves play a role in creating discriminatory outcomes.  The Study highlighted the mechanisms behind, and impact of, ad delivery, which is a process distinct from ad creation and targeting.  For example, the Study found that inserting musical content stereotypically associated with Black individuals was delivered to over 85% Black users, while musical content stereotypically associated with White people was delivered to over 80% White users.  The researchers concluded that “ad delivery process can significantly alter the audience the ad is delivered to compared to the one intended by the advertiser based on the content of the ad itself.”  The study also simulated marketing campaigns and found that Facebook’s algorithms “skewed [ad] delivery along racial and gender lines,” which are protected categories under the FHA.  These results suggest that, even if a housing advertiser can no longer choose to explicitly target ads based on attributes like age, gender, and zip code, a housing advertiser could still use Facebook’s marketing platform to steer ads away from protected segments of users by manipulating the content of the ad itself.  Moreover, the platform may cause such discriminatory outcomes regardless of whether or not the advertiser intended such results.

Case Law Interpreting CDA

The Study’s findings set the foundation for evaluating Facebook’s control over the manipulation of content and ad distribution on their platform.  Two seminal cases, Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) and Roommates.com, LLC, 521 F.3d 1152 (2008), outline tests to determine when online platforms are considered content managers versus content providers.[11]  The Study makes a strong case for why Facebook is a content manager, eliminating immunity under Section 230.  Litigants can also persuasively distinguish their arguments against Facebook from a recent decision interpreting Section 230 liability.  In Herrick v. Grindr, LLC, 306 F. Supp.3d 579 (2018), the U.S. Court of Appeals for the Second Circuit ruled in favor of Grindr (a same-sex dating application) on all but one of the plaintiff’s claims.  The plaintiff had argued that Grindr failed to monitor and remove content created by the plaintiff’s ex-partner, and the court concluded that Section 230 barred several of his claims because they were “inextricably related” to Grindr’s role in editing or removing offending content (which is protected conduct under the CDA).  Herrick v. Grindr, LLC, 306 F. Supp.3d 529, 588.  The Supreme Court denied Herrick’s petition to review on October 7, 2019.[12]

A major distinguishing feature between the facts in Herrick and the Study’s findings against Facebook is how the two websites handle third-party content.  In Herrick, the claim against Grindr was based on Grindr’s failure to remove content generated by a third-person.  The issue with Facebook exists in the use of optimization algorithms.  The point is that discriminatory outcomes are ultimately a result of Facebook’s manipulation of ad delivery for the purpose of reaching certain groups at the exclusion of others in protected categories.  Facebook’s tools go well beyond the function of “neutral assistance,” because its platform directs advertisements to sectors of people using discriminatory preferences created by Facebook, not third-parties.[13]

Intentional Discrimination

If it can be successfully argued that Facebook is not immune from suit under the CDA, housing advertisers and digital platforms that intentionally or unintentionally target ads to certain groups of users based on their membership in a protected class may be sued for violating the FHA.  As described above, the Facebook Study determined that housing advertisers may still be able to use Facebook’s marketing platform to steer housing ads away from protected classes of tenants by manipulating the content of the ad.  In such circumstances, the housing advertiser who uses the ad’s content as a covert method of discriminatory distribution may be violating the FHA.  The digital platform may also be liable either because they are actively involved in facilitating the selective distribution of ads, or as an agent vicariously liable for the advertiser’s conduct.

Disparate Impact

Even if it cannot be shown that a housing advertiser intended to discriminate, if the ad delivery mechanism has the effect of distributing housing ads in a discriminatory way, the advertiser and platform may still be liable for violating the FHA under a theory of disparate impact.  Disparate impact discrimination occurs when a neutral policy or practice has a discriminatory effect on members of a protected class.  See Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2523 (2015); see also 24 C.F.R. § 100.500.  A three-part burden shifting framework is used to evaluate liability.  Id.  Protected class members have the initial burden of establishing that a practice has a disproportionate adverse effect on a protected class.  To meet this initial burden, a plaintiff must “allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection” between the policy and the disparate impact.  Inclusive Communities, 135 S. Ct. 2507, 2523 (2015).

If a protected class member makes out a prima facie claim of disparate impact, the burden then shifts to the accused party to show that the practice is necessary to achieve a valid interest.  See Robert G. Schwemm, Calvin Bradford, Proving Disparate Impact in Fair Housing Cases After Inclusive Communities, 19 N.Y.U.J. Legis. & Pub. Pol’y 685, 696-697 (2016).  The protected class members then have an opportunity to show that the interest could be achieved through less discriminatory means.  Id.

In the digital advertising context, protected class members would have the initial burden of showing that they were denied equal access to information about a housing opportunity as a result of a housing advertiser’s marketing campaign.

Statistical Evidence

While the Facebook Study was able to demonstrate the potential for “skewed” ad delivery based on protected characteristics, further research is needed to determine how a plaintiff might marshal statistical evidence to support a particular claim.  As the Facebook Study notes, without access to a platform’s “data and mechanisms” it may be difficult to assess whether or not a particular advertising campaign has led to discriminatory outcomes.[14]  Therefore, it may be challenging for adversely affected users to develop the necessary data at the pleading stage to make out a prima facie claim of disparate impact.  This might explain why HUD is continuing to pursue its legal challenge against Facebook despite the remedial measures it has already agreed to undertake, including allowing research experts to study its advertising platform for algorithmic bias.[15]  In other words, HUD’s intent may be to better understand how Facebook’s ad delivery algorithm works now so it can limit its discriminatory impact.

Causal Connection

Because digital advertising companies play an active role in the ad delivery process, it follows that a discriminatory distribution of ads could be attributed to the platform.  While there are limited case decisions involving FHA liability and algorithmic decision-making programs, the court in Connecticut Fair Hous. Ctr. v. Corelogic Rental Prop. Sols, LLC, 369 F. Supp. 3d 362 (D. Conn. 2019), found that plaintiffs had pled sufficient facts to establish a causal connection between a tenant screening company’s alleged activity and unlawful housing denials to support a claim of disparate impact based on race.  Id. at 378-379.  The court found that the defendant had created and provided the automated screening process, suggested the categories by which the housing provider could screen potential tenants, made eligibility determinations, and sent out letters to potential tenants notifying them of these decisions.  Id.

Digital advertising companies similarly create the marketing platform for housing advertisers to use, provide criteria from which to choose the users, and design and maintain the algorithms that decide to whom the ads will be delivered.  Therefore, a sufficient nexus should exist between the advertising platform’s activity and the selective distribution of ads to support a disparate impact claim.

Valid Interest

Housing providers and digital advertising platforms arguably have a “valid interest” in being able to effectively market their housing services, and ad delivery algorithms are an efficient way to reach relevant users.  However, given the abundance of print and online advertising options available for housing advertisers that do not rely solely on ad delivery algorithms, such as Craigslist, Zillow, Trulia, and Apartments.com etc., less discriminatory means exist by which housing advertisers can successfully market their services.

HUD recently proposed a new disparate impact rule that would raise the bar even higher for plaintiffs bringing disparate impact claims and provide housing advertisers with a defense if a digital advertising platform’s algorithmic model was the cause of a discriminatory outcome.[16]  A number of tenant advocacy groups and other stakeholders, such as Harvard Law School’s Cyberlaw Clinic, have submitted comments opposing the proposed rule, arguing, among other concerns, that it would perpetuate discrimination by “significantly reduc[ing] incentives for algorithm users and vendors to test their tools for bias” contrary to the purpose of the FHA.[17]

Conclusion

The FHA was designed to provide all home-seekers, who have the resources, with equal access to housing stock and opportunity.  It seems clear that online platforms in the business of designing and maintaining their algorithms have an impact on large segments of protected populations.  The tension between the need for more information to combat discriminatory algorithms and propriety interests remain.  However, one important way to move forward is to balance these interests by staying within the bounds of the FHA, including incentives for platforms to evaluate their ad delivery tools for distribution bias, and ensure a more inclusive participation in the housing market for all social media users.

Nadiyah J. Humber is the Assistant Clinical Professor of Law and Director of the Corporate Counsel, Government, and Prosecution Clinical Externship Programs at Roger Williams University School of Law (“RWU”). RWU students earn academic credit externing for in-house legal offices of corporations, offices of prosecution, and government agencies in Rhode Island and beyond. Professor Humber teaches related seminars for each program on the role of one client entities and professional development through practice.  

James Matthews is a Clinical Fellow in Suffolk Law School’s Accelerator Practice and Housing Discrimination Testing Program (HDTP) where he supervises law students in housing discrimination, landlord-tenant, and other consumer protection matters related to housing. Attorney Matthews also has significant teaching and professional presenting experience. He helps conduct fair housing trainings and presentations as part of HDTP’s community education and outreach. He also teaches an upper-level landlord-tenant course he developed which includes instruction on state and federal fair housing law.   

[1] Nat’l Fair Housing Alliance, et al v. Facebook, Inc., No. 18 Civ. 2689, Complaint (detailing allegations), available at https://nationalfairhousing.org/wp-content/uploads/2018/03/NFHA-v.-Facebook.-Complaint-w-Exhibits-March-27-Final-pdf.pdf (last visited Jan. 13, 2020).

[2] National Fair Housing Alliance, Facebook Settlement, available at https://nationalfairhousing.org/facebook-settlement/ (last visited Jan. 20, 2020).

[3]Assistant Sec’y of Fair Hous. & Equal Opportunity v. Facebook, Inc., No 01-18-0323-8, 1, Charge of Discrimination (detailing procedural history), available at https://www.hud.gov/sites/dfiles/Main/documents/HUD_v_Facebook.pdf  (last visited Dec. 8, 2019).

[4] 47 U.S.C. § 230(c) (2019).

[5] Brief of Internet, Business, and Local Government Law Professors as Amici Curiae Supporting the Respondents at 7 Homeaway.com & Airbnb, Inc. v. City of Santa Monica, Nos. 2:16-cv-06641-ODW, 2:16-cv-06645-ODW (9th Cir. May 23, 2018). See generally 47 U.S.C. §§ 230(b) (detailing policy goals for freedom on the internet).

[6] Brief of Internet, Business, and Local Government Law Professors as Amici Curiae Supporting the Respondents at 9, Homeaway.com & Airbnb, Inc. v. City of Santa Monica, Nos. 2:16-cv-06641-ODW, 2:16-cv-06645-ODW (9th Cir. May 23, 2018).

[7] 47 U.S.C. §§ 230(c)(1), (f)(3) (2019).

[8] Brief of Internet, Business, and Local Government Law Professors as Amici Curiae Supporting the Respondents at 4, Homeaway.com & Airbnb, Inc. v. City of Santa Monica, Nos. 2:16-cv-06641-ODW, 2:16-cv-06645-ODW (9th Cir. May 23, 2018).

[9] Ali, Muhammad, et. al, Discrimination through Optimization: How Facebook’s Ad Delivery Can Lead to Skewed Outcomes, available at https://www.ccs.neu.edu/home/amislove/publications/FacebookDelivery-CSCW.pdf (last visited Dec. 6, 2019).

[10] Id. at 7 (explaining optimization on Facebook).

[11] See Nadiyah J. Humber, In West Philadelphia Born and Raised or Moving to Bel-Air? Racial Steering as a Consequence of Using Race Data on Real Estate Websites, 17 Hastings Race & Poverty L.J. 129, 153-155 (2020) (analyzing pertinent case law precedent for Section 230 immunity). There is a difference between online services that manage content (content provider) on their sites versus those that act more as a store house of information (service provider). Id.

[11] 47 U.S.C. § 230(c) (2019).

[12] Bloomberg Law available at https://news.bloomberglaw.com/tech-and-telecom-law/grindr-harassment-case-wont-get-supreme-court-review

[13] 47 U.S.C. § 230(c) (2019) (citing language from the act). Distinguishing O’Kroley v. Fastcase Inc., No. 3-13-0780, 2014 WL 2881526, at *1–2 (M.D. Tenn. June 25, 2014) (finding that providing search returns based on automated algorithms and user inputs does not constitute creating content).

[14] Muhammad, supra note 9.

[15] See supra note 2.

[16] See HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 84 Fed. Reg. 42853 (proposed Aug. 19, 2019) (for example, providing a defense where a “(2) plaintiff alleges that the cause of a discriminatory effect is a model, such as a risk assessment algorithm, and the defendant . . . (ii) Shows that the challenged model is produced, maintained, or distributed by a recognized third party that determines industry standards, the inputs and methods within the model are not determined by the defendant, and the defendant is using the model as intended by the third party . . .”)

[17] See Cathy O’Neil, Comment Regarding Docket No. FR-6111-P-02, http://clinic.cyber.harvard.edu/files/2019/10/HUD-Rule-Comment-ONEIL-10-18-2019-FINAL.pdf (last visited Jan. 20, 2020).