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  • Date:

    Does v. The Bd. of Regents of Colo. (10th Cir. May 7, 2024)

    Opinion reversing denial of preliminary injunction. Plaintiffs, current and former employees and students at the University of Colorado Anschutz Medical Campus whose religious exemptions from the University’s COVID-19 vaccination policy were denied in-part, brought a Free Exercise challenge. The initial policy limited religious exemptions to those opposing “all” immunizations but was revised within three weeks to accord any religious belief. The district court denied two preliminary injunctions, finding the first challenge to the repealed policy moot, and the second unlikely to succeed on the merits. In denying the latter, the court found that under the amended policy (1) different personnel reviewed exemptions, (2) religious beliefs were accepted unquestioningly as sincere, and (3) individualized duties-focused review yielded remote or isolated on-campus work exemptions for multiple plaintiffs, while undue hardship was sustained for students and employees with patient-care duties. On consolidated appeal, a divided Tenth Circuit panel reversed in favor of employee plaintiffs after making novel appellate factual findings and applying strict scrutiny to the rescinded policy. It found that since officials asked “why” rather than “whether” plaintiffs sought religious exemption under the first policy that neither policy was “considered with the neutrality that the Free Exercise Clause requires” (citing Masterpiece Cakeshop v. Colorado) and bare violation of Free Exercise can demonstrate animus even absent actual hostility. The Circuit also found while not an express basis of appeal, plaintiffs were likely to succeed in showing that the initial policy impermissibly involved the University in evaluating religious doctrine under the Establishment Clause. Finally, it found the first appeal of the original policy, and all student claims under both policies moot.  

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation

  • Date:

    Bishop v. Univ. of Scranton (M.D. Pa. Apr. 26, 2024)

    Memorandum granting Defendants’ Motions to Dismiss. Plaintiff, a former tenured professor at the University of Scranton, brought contract claims against the University and a breach of duty of fair representation claim against his union after he was terminated in 2022 for refusing to sign a COVID-19 vaccination attestation as required by the University’s return-to-campus policy. The court dismissed as time-barred his contract claims against the University, finding plaintiff’s attempt to reassert his allegation of lack of due process in a second complaint filed with the union after it had previously informed him it would not pursue his grievance did not toll the statute of limitations. It dismissed his breach of fair representation claim against the union, finding insufficient factual allegations that its actions were arbitrary, discriminatory, or in bad faith. It dismissed his claim that his termination violated the University’s Faculty Handbook, noting (1) that because the Faculty Handbook also contained the union’s complaint and grievance process the claim is a “hybrid” claim under the Labor Management Relations Act and (2) his fair representation claim against the Union had failed to state a nonconclusory claim.  

    Topics:

    Campus Police, Safety, & Crisis Management | Collective Bargaining | Coronavirus | Employee Discipline & Due Process | Faculty & Staff

  • Date:

    Hogan v. S. Methodist Univ. (Texas Apr. 26, 2024)

    Opinion answering a certified question. Plaintiff, a former student at Southern Methodist University, on behalf of himself and a putative class, brought contract, conversion, and unjust enrichment claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court dismissed his claims, finding, as relevant here, recovering on his contract claim barred by the Texas Pandemic Liability Protection Act. On appeal, the Fifth Circuit certified to the Texas Supreme Court the question, “Does the application of the Pandemic Liability Protection Act to [plaintiff] breach-on-contract claim violate the retroactivity clause in article I, section 16 of the Texas Constitution?” In holding that “the answer to the certified question is No,” the Supreme Court of Texas found that plaintiff failed to “show he had a reasonable and settled expectation that he could recover money damages from SMU if the government forcibly shut down the campus and gave the school only the option of completing [his] degree program on the internet.” 

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    Corrigan v. Bos. Univ. (1st Cir. Apr. 12, 2024)

    Opinion affirming dismissal. Plaintiff, a former graduate student at Boston University, brought a disability discrimination claim against the University after she was suspended in Fall 2021 for noncompliance with the University’s mandatory COVID-19 testing protocol, which was supported by the University’s establishment of an on-campus PCR testing laboratory. Plaintiff asserted that she should be exempted due to a chronic medical condition. In October 2022, the District Court dismissed her claim as moot because the University had ended its mandatory testing program due to the then-decline of the pandemic. In affirming dismissal, the First Circuit found that there was little likelihood that the challenged conduct would repeat itself, noting no clear error in the findings that (1) the University had dismantled the infrastructure of its testing program, (2) the University ended its testing program voluntarily and was unlikely to start a similar program that would affect the plaintiff, and (3) there was no imminent and substantial risk that the alleged harm was capable of repetition.  

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity

  • Date:

    Tarquinio v. Johns Hopkins Univ. Applied Physics Lab. (D. Md. Apr. 11, 2024)

    Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, a former engineer at the Johns Hopkins University Applied Physics Lab (APL), brought failure to accommodate, employment discrimination, and prohibited examination and inquiry claims against APL after it terminated her for noncompliance with its COVID-19 vaccination and testing requirements. Plaintiff requested an exemption to the vaccination requirement, asserting an “immune dysregulation” and “excessive immune activation” related to “years of chronic Lyme Disease,” and to the testing requirement, asserting that the requirement was unreasonable. She refused repeated requests to provide recent medical documentation or to sign a medical release form to enable APL’s medical officer to consult with her medical provider. In granting summary judgment in APL’s favor on her failure to accommodate claim, the court found that it was plaintiff who refused to engage in an interactive process to find a reasonable accommodation. It also found that her termination was due to her refusal to comply with APL’s vaccination policy rather than discrimination based on her asserted disability. Finally, it dismissed her examination or inquiry claim, finding that APL’s inquiry related only to plaintiff’s request for a medical accommodation.  

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus | Disability Discrimination | Discrimination, Accommodation, & Diversity

  • Date:

    McDermott v. Ohio State Univ. (Ohio Apr. 3, 2024)

    Order reversing and remanding for further proceedings. Plaintiff, a student enrolled in the dental program at Ohio State University during Spring 2020, on behalf of herself and a putative class, brought contract and unjust enrichment claims after the University ceased in-person instruction and closed campus facilities due to the coronavirus pandemic, related to the (1) mandatory student union fee paid by all students and (2) dental clinic education support fee paid by dental students. The trial court certified plaintiff’s proposed class related to the student union fee and her proposed subclass related to the dental clinic education fee. In the instant appeal, the Supreme Court of Ohio reversed in light of its decision in Smith v. Ohio State Univ., which found that “the Court of Claims does not have jurisdiction when the state makes highly discretionary decisions pursuant to its legislative, judicial, executive, or planning function, because the state has not waived its sovereign immunity in those decisions,” and remanded for the trial court to determine whether discretionary immunity applies.  

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    Gardner v. Kutztown Univ. (E.D. Pa. Mar. 27, 2024)

    Memorandum granting-in-part and denying-in-part Plaintiff’s Motion for Partial Summary Judgment and Defendants’ Motions for Summary Judgment. Plaintiff, a tenured associate professor at Kutztown University who takes immunosuppressive medications to reduce the risk of permanent blindness from an incurable eye condition, brought discrimination and retaliation claims against the University and multiple officials after they denied her request for a remote work accommodation for Fall 2021 in favor of a blanket policy that any change to course modality would present an undue hardship to the University.  The court granted summary judgment to the plaintiff on her intentional discrimination, failure to accommodate, and interference claims, finding no evidence in the record that the University considered plaintiff’s individual circumstances in applying the preferred blanket policy. The court granted summary judgment in favor of the University on plaintiff’s retaliation claims, finding no reasonable jury could conclude that the University’s requirement that plaintiff submit additional medical documentation after she filed her suit was so severe as to dissuade an objectively reasonable employee from requesting an accommodation.   

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus | Disability Discrimination | Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation

  • Date:

    Zow v. Bd. of Governors of the Univ. of N.C. (E.D. N.C. Mar. 26, 2024)

    Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former Chief of Staff to the Chancellor and Assistant Secretary to the Board at North Carolina Central University, brought First Amendment retaliation and other claims against the University after he was terminated in October 2021 for failure to comply with a requirement that unvaccinated employees who travel domestically self-quarantine and test negative for COVID-19 before returning to work. Plaintiff alleged that his termination was in retaliation for his participation on the University’s COVID-19 Operations Continuity Committee where he opposed the mandatory vaccination policy that was eventually adopted. In dismissing his First Amendment retaliation claim, the court found that plaintiff’s opposition to the proposed policy, which included his belief that the policy would violate federal and state laws, was not protected activity because it occurred during the normal course of his ordinary duties; and moreover, plaintiff claimed that in response to his concerns his supervisor paused adoption of the policy to seek further legal review. The court dismissed his ADA retaliation claim as untimely and declined to exercise supplemental jurisdiction over his state-law claims.   

    Topics:

    Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation

  • Date:

    Adams v. The Vanderbilt Univ. (M.D. Tenn. Mar. 19, 2024)

    Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiffs, the parents of a student at Vanderbilt University who died by suicide, brought negligence, disability discrimination, and contract claims against the University, after the student made suicide attempts in Fall 2020 and Spring 2021 before his passing in Summer 2021, all in University dormitory rooms. In dismissing plaintiffs’ wrongful death claim, the court declined to find a “special relationship and resulting affirmative duty of care … where a university requires a student to live on campus, the student has reported suicidal thoughts to the university, and the student has previously attempted suicide,” noting that no Tennessee court has recognized such a duty and under an “Erie-guess” the Supreme Court of Tennessee was unlikely to do so. In dismissing their disability discrimination claims, the court noted the lack of allegation that the student had ever requested an accommodation. In dismissing their contract claim, the court found no factual allegations of an express contract or breach of an implied contract created by the student-university relationship.

    Topics:

    Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Litigation, Mediation & Arbitration | Students | Tort Litigation

  • Date:

    Bagnall v. Cal. State Univ. (E.D. Cal. Mar. 12, 2024)

    Order granting-in-part Defendants’ Motion to Dismiss. Plaintiffs, the father and estate of a deceased student at California State University who had been the respondent in a Title IX sexual misconduct investigation, brought Title IX and multiple tort claims against the University and its Title IX Coordinator after the decedent died by suicide a few days after his attorney submitted his response to the Title IX investigative report. In dismissing the Title IX claim without prejudice, the court held that (1) a conclusory assertion that the Title IX Coordinator embraced “radical feminism” was insufficient to allege background indicia of gender bias in the University’s Title IX investigations and (2) an allegation that the Title IX Coordinator “disregarded ‘the wealth of exculpatory evidence provided to [her]’” without identifying specific evidence that was disregarded was insufficient to identify procedural flaws, particularly as the investigation was still incomplete at the time of the decedent’s death. The court dismissed the tort claims without prejudice, noting that the complaint did not allege that the plaintiffs had first presented their claims to the University in compliance with the California Government Claims Act.

    Topics:

    Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Students | Title IX & Student Sexual Misconduct

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