Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
1/5/2024
Grisgorescu v. Bd. of Trs. of San Mateo Cnty. Cmty. Coll. Dist. (N.D. Cal. Jan. 2, 2024)
Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former lab technician and adjunct professor at the College of San Mateo, brought First Amendment retaliation claims against the San Mateo Community College District and its Vice Chancellor for Human Resources (VCHR), who also served as legal counsel for the College, alleging that they harassed and ultimately terminated her in retaliation for her participation in community organizing and litigation opposing the College’s plan to replace a garden with a parking lot. Although plaintiff was ultimately terminated for abusing sick time to teach at another institution, an earlier termination decision based on her mischaracterization of her academic qualifications was reversed on appeal. Plaintiff also asserted that decisions not to permit her to participate in a mentorship program or to substitute for full-time professors were retaliatory harassment. The court granted summary judgment in favor of the VCHR with respect to plaintiff’s ultimate termination, finding that the Board of Trustees, as a state agency, functioned in a sufficiently judicial capacity in her termination appeal hearing to bar her retaliation claim under both claim and issue preclusion. It permitted her claims to proceed, however, with respect to the first termination process and alleged harassment, finding (1) sufficient temporal proximity to the VCHR’s representation of the College and the District in plaintiff’s prior litigation, and (2) his opposition to her protected activity by virtue of that representation.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation
Date:
12/29/2023
Vlaming v. W. Point Sch. Bd. (Va. Dec. 14, 2023)
Opinion reversing dismissal of plaintiff’s claims and remanding for further proceedings. Plaintiff, a former French teacher at West Point High School, brought First Amendment, statutory, and contract claims against the West Point School Board after it terminated him when he referred to a transgender male student by the student’s preferred name but avoided use of masculine third-person pronouns with respect to the student. In reversing dismissal and remanding for further proceedings on his First Amendment compelled speech claim, the Supreme Court of Virginia held that because he had not insisted on referring to the student by feminine pronouns the school’s concern for orderly administration played “no role as a counterbalance to a teacher’s right not to be compelled to give a verbal salute to an ideological view that violates his conscious and has nothing to do with the specific curricular topic being taught.” Because it held that he had sufficiently alleged a First Amendment violation, the court also permitted plaintiff’s contract and statutory claims to proceed, noting that his contract was not terminable at will and statute protected him from termination without just cause.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Gender Identity & Sexual Orientation Discrimination
Date:
12/8/2023
Cohen v. Bd. of Trs. of Univ. of Dist. of Columbia (D. D.C. Dec. 5, 2023)
Memorandum Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a former professor at the University of the District of Columbia, brought a due process claim against University officials after he was terminated for failing to submit a required cumulative evaluation portfolio. Under the collective bargaining agreement, after an appeal to the University President plaintiff was permitted to file a grievance with the Union, though the Union was not obligated to arbitrate the case. Plaintiff, however, did not file a grievance after his appeal was denied. In granting summary judgment in favor of the University defendants on plaintiff’s due process claim, the court found that the procedures outlined in the collective bargaining agreement provided an adequate post-deprivation opportunity to be heard and that plaintiff had not otherwise identified any necessary additional procedural safeguards.
Topics:
Collective Bargaining | Constitutional Issues | Due Process | Faculty & Staff
Date:
12/8/2023
Peyton v. Kuhn (W.D. Va. Dec. 1, 2023)
Memorandum Opinion denying Defendant’s Motion to Dismiss. Plaintiff, a former baseball player at Radford University, brought a First Amendment retaliation claim against the University’s baseball coach after the coach did not play him in any games during the 2020-2021 season and then cut him from the team causing him to lose his scholarship and subsequently to transfer from the University. Plaintiff alleged that these actions were in retaliation for complaints he, his parents, and a group of student-athletes made about the coach’s treatment of plaintiff and other players. In denying the defendant’s motion to dismiss, the court found that cutting plaintiff from the team was an adverse action and that the temporal proximity between the complaints and plaintiff’s removal from the team was sufficient to plead a causal relationship.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation | Student Athlete Issues | Students
Date:
11/24/2023
Hershey v. Jasinski (8th Cir. Nov. 21, 2023)
Opinion vacating and remanding for entry of judgment in favor of the University. Plaintiff, an activist who earned money by distributing materials advocating veganism on college campuses, brought First Amendment claims under §1983 against Northwest Missouri State University officials after he was issued a trespass warning for distributing leaflets on campus without first notifying the University. The University’s policy required that non-University publications may be distributed on campus only if prior notice is given to the University, distribution is limited to areas deemed appropriate, and the publication is not defamatory, obscene, or likely to incite violence. The district court found the policy unconstitutionally overbroad. In vacating and remanding for judgment in favor of the University, the Eighth Circuit held that the advance notice requirement for non-University publications is content neutral; that the policy does not function as a prior restraint because its language provided that distribution will be unrestricted with advance notice; and that the policy is on its face unlikely to restrict a substantial number of applications.
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
11/17/2023
Johnson v. Watkin (E.D. Cal. Nov. 13, 2023)
Findings and Recommendation that Plaintiff’s Motion for Preliminary Injunction be granted in-part, and that Defendants’ Motion to Dismiss be denied. Plaintiff, a full-time professor at Bakersfield College was an outspoken free speech advocate and critic of colleagues who he perceived to champion diversity, equity, inclusion, and accessibility at the expense of free speech. After the College adopted a new policy requiring employees, among other things, to “promote and incorporate culturally affirming DEIA and anti-racist principles to nurture and create a respectful, inclusive, and equitable learning and work environment,” plaintiff sought declaratory and injunctive relief, alleging that the policy violated First Amendment prohibitions on viewpoint discrimination and compelled speech and was otherwise unconstitutionally vague. In recommending that the request for preliminary injunction be granted in-part, the magistrate judge found that plaintiff was likely to succeed on the merits of his First Amendment challenge with respect to his personal speech, teaching, and academic writing, but not regarding his participation in faculty search committees or in the College’s Equal Opportunity & Diversity Advisory Committee where the College’s interest in the efficiency of its services outweighs his free speech interest under Pickering. The magistrate judge also found that the prohibition on “verbal forms of aggression” in the College’s Code of Ethics is unconstitutionally vague.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech
Date:
11/10/2023
Phillips v. Collin Cmty. Coll. Dist. (E.D. Tex. Nov. 4, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Partial Motion for Summary Judgment. Plaintiff, a former professor at Collin College, brought First Amendment claims against the College and multiple officials, alleging that his contract was not renewed because of various statements he made in the press, on social media, or in the classroom about removal of Confederate monuments, the 2019 El Paso shooter, and the College’s response to the coronavirus pandemic, including its recommendation that faculty not discuss masking. The court granted the College’s motion for summary judgment finding that the College’s policy on Professional Ethics, which required employees to “act in public affairs in such a manner as to bring credit to the College District,” and its policy on Employee Expression, which required disagreements with policies to be channeled through existing committees, were not facially prior restraints on expression, and created neither an outright ban on speech nor a deterrent to a broad category of expression by a large number of potential speakers. In denying summary judgment on plaintiff’s as-applied prior restraint and overbreadth claims, the court reserved the issues until factual questions were resolved.
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
11/10/2023
Kilborn v. Amiridis, et al. (N.D. Ill. Nov. 1, 2023)
Opinion and Order granting-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor of law at the University of Illinois, brought multiple claims, including First Amendment retaliation and tort claims, against multiple officials after he was sanctioned for harassment and creating fear of retaliation in response to student criticisms of his use of derogatory slurs in his employment law final exam hypothetical. The court dismissed plaintiff’s First Amendment retaliation claim for failure to allege speech on a matter of public concern, finding that (1) the use of epithets in the exam hypo added little to public discourse since “a student’s response to a written exam question remains limited to the professor grading the exam,” (2) conversations with individual students over email and Zoom about the hypo were nonpublic and reflected only his personal feeling of grievance over the controversy, and (3) transcripts of in-class discussions in which he used other language at issue in the investigation revealed that the language was used in discussions of topics unrelated to matters of public concern. The court declined to exercise supplemental jurisdiction over plaintiff’s state law claims, thus, terminating the federal case.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation
Date:
11/10/2023
Duke-Koelfgen v. Alamo Colleges Dist. (W.D. Tex. Nov. 1, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a tenured Associate Professor of composition and literature at San Antonio College, brought First Amendment claims against the College and individual officials after she was twice disciplined for unprofessional communications related to emails she sent demanding that students be permitted to use scholarship funds to take her class even though it was outside of their degree plans and criticizing officials who had requested volunteers to cover classes for an instructor who was ill. In granting the College’s motion for summary judgment, the court found that the speech in plaintiff’s emails was not protected by the First Amendment because it occurred when she was performing duties within the scope of her job responsibilities, noting that she sent the messages to College administrators in her capacity as an Associate Professor addressing College procedures.
Topics:
Constitutional Issues | Employee Discipline & Due Process | Faculty & Staff | First Amendment & Free Speech
Date:
10/27/2023
Khan v. Yale Univ. (2nd Cir. Oct. 25, 2023)
Opinion affirming-in-part and vacating-in-part dismissal and remanding. In 2015, Jane Doe, a student at Yale University, accused plaintiff, also a student at Yale, of sexual assault. In 2018, after he was found not guilty in a state criminal trial, the University conducted a disciplinary hearing and expelled him for violating its Sexual Misconduct Policy. Plaintiff subsequently sued Doe and Yale for defamation and tortious interference with a contract. The district court dismissed plaintiff’s claims, finding that Doe enjoyed an absolute quasi-judicial immunity for her statements to the 2018 disciplinary hearing and that plaintiff’s claims as to Doe’s 2015 statements were time-barred. After the Connecticut Supreme Court opined in response to questions certified to it that Yale’s disciplinary procedure lacked necessary procedural safeguards—such as an oath requirement, cross-examination, the ability to call witnesses, meaningful assistance of counsel, and an adequate record for appeal—to constitute a quasi-judicial proceeding to support Doe’s assertion of immunity, the Second Circuit vacated dismissal of plaintiff’s claims as to statements made during the 2018 disciplinary hearing that resulted in his expulsion. It affirmed that his claims as to Doe’s 2015 statements were time-barred.
Topics:
Constitutional Issues | Due Process | Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation

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