Cases & Developments - National Association of College and University Attorneys

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Date:
10/27/2023
Florance v. Barnett (7th Cir. Oct. 25, 2023)
Order affirming dismissal. Plaintiff, a former Indiana University School of Medicine student, brought due process claims against multiple University officials related to student loan collections. Plaintiff took a student loan through a program administered by the U.S. Department of Health and Human Services (HHS). Later, the Department of Veterans Affairs (VA), rated him as having a permanent and total disability. As he appeared to be gainfully employed and did not meet the statutory requirements for cancelation, the University declined to recommend cancelation of the loan and initiated collections proceedings against him. After plaintiff disputed HHS’s initial denial of his request for cancelation, HHS canceled his loan, and the University dismissed the collections case. In affirming dismissal of plaintiff’s claims, the Seventh Circuit held that he did not have a protected interest in loan cancellation since under the HHS loan program whether a borrower qualifies for cancelation due to a disability is a discretionary determination left to HHS, not an entitlement determined by the VA’s disability rating.
Topics:
Constitutional Issues | Disability Discrimination | Discrimination, Accommodation, & Diversity | Due Process | Financial Aid, Scholarships, & Student Loans | Students
Date:
10/27/2023
Medina v. Univ. of Utah (10th Cir. Oct. 19, 2023)
Order and Judgment affirming dismissal. Plaintiff, the director of BioKids, the University of Utah School of Biological Sciences (SBS) childcare center, brought procedural due process, contract, and state-law retaliation claims against the SBS Director and the University after her employment was (1) terminated through a Reduction in Force (RIF) when the School transferred management of BioKids to the University’s Center for Child & Family Resources as operational needs changed during the coronavirus pandemic, and then (2) reinstated when the arrangement expired. In affirming summary judgment in favor of the University, the Tenth Circuit held that plaintiff waived her procedural due process claim by not exercising her appeal rights under the University’s RIF policy. Her breach of contract claim failed because the RIF policy under which she was terminated was itself a part of her employment contract with the University. Her state-law retaliation claim failed because (1) rather than expressing concern that a planned expansion in BioKids’ capacity would violate state licensing requirements she succeeded in securing a variance from the Utah Department of Health to maintain the center’s compliance, and (2) she pointed to no evidence suggesting that she made a good faith report to the University that she anticipated any regulatory violation.
Topics:
Constitutional Issues | Contracts | Due Process | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff
Date:
9/29/2023
Spectrum WT v. Wendler (N.D. Tex. Sep. 21, 2023)
Memorandum Opinion and Order granting-in-part Defendants’ Motion to Dismiss and denying Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, a student organization at West Texas A&M University (WT) dedicated to raising awareness of the LGBT+ community and two of its officers, brought First Amendment claims against WT’s President and multiple officials seeking injunctive and declaratory relief, as well as damages, after the President wrote the group to express his opposition to its plan to hold an on-campus a drag show that would be open to children accompanied by a parent to raise funds for LGBT+ suicide prevention. Though the President supported the mission of the event, he wrote that “[d]rag shows are derisive, divisive[,] and demoralizing misogyny, no matter the stated intent.” The court held that the President was entitled to qualified immunity, finding that because the proposed expression was potentially sexualized, at an event that was open to children, and not overtly political in nature, traditional campus public forum considerations did not apply and the President’s objections to the content were not objectively unreasonable. For these reasons, the court also denied plaintiff’s motion for preliminary injunction, finding they had not demonstrated a likelihood of success on the merits.
Topics:
Constitutional Issues | Event Management & Facilities Use Policies | First Amendment & Free Speech
Date:
9/22/2023
Helmig v. Univ. of Colo. Bd. of Regents (D. Colo. Sep.12, 2023)
Order granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, a former researcher on a limited appointment at the University of Colorado-Boulder’s Institute of Arctic and Alpine Research who also had an independent consulting business, brought due process and contract claims against the Board of Regents, Institute Officials, and various University compliance and audit officials after he was terminated when an investigation found violations of the University’s conflicts of interest policy. Plaintiff alleged that the investigative report contained inaccurate and misleading statements that damaged his professional opportunities. In permitting plaintiff to proceed on (1) his due process claims against various Institute and compliance and audit officials, and (2) his contract claims against the Board, the court found he had sufficiently alleged a property interest in his continued employment based on his limited appointment and University policies about termination of faculty members for cause. It dismissed his due process claims against the various officials for alleged inaccuracies in the investigated report on grounds of qualified immunity. It also dismissed his claims against the Regents in their individual capacities for want of factual allegations demonstrating their personal involvement.
Topics:
Conflict of Interest | Constitutional Issues | Contracts | Due Process | Research
Date:
9/22/2023
Doe v. Univ. of Iowa (8th Cir. Sep. 14, 2023)
Opinion affirming summary judgment. Plaintiff, a former graduate student and lab manager at the University of Iowa, brought Title IX and due process claims against the University and multiple officials after he was expelled for sexual misconduct related to two female undergraduates he supervised in the lab. In affirming summary judgment in favor of the University on his Title IX claim, the Eighth Circuit held that (1) plaintiff’s disagreements with the hearing officer’s findings of fact and credibility determinations were insufficient to show an erroneous outcome; (2) neither the hearing officer’s use of the word “fantasy” to describe his account of one of the sexual encounters nor the University’s application of its definition of consent were sufficient to raise questions of gender bias; and (3) neither other litigation nor the University’s efforts to prevent sexual misconduct, which “included ‘expanding programming on healthy masculinity,’” were sufficient to suggest external pressures on the decision-makers in his case. In affirming the disposition of his due process claims, the court held that even though the hearing officer did not ask all the impeachment questions he submitted, the University afforded him a sufficient opportunity to be heard, noting that he had the opportunity to submit additional information after the conclusion of the hearing. It also found that consideration of his leadership role in the lab during the disciplinary process addressed only factual circumstances and did not amount to holding him to a heightened standard without notice.
Topics:
Constitutional Issues | Due Process | Students | Title IX & Student Sexual Misconduct
Date:
9/22/2023
Jackson v. Wright (5th Cir. Sep. 15, 2023)
Opinion affirming denial of Defendants’ Motion to Dismiss. Plaintiff, a professor of music theory at the University of North Texas (UNT), is a leading scholar on the Austrian music theorist Heinrich Schenker. He is also director of the Center for Schenkerian Studies and founding editor of the Journal of Schenkerian Studies, both of which are housed at and supported by UNT. After plaintiff contributed an article that proved controversial to a symposium in the Journal defending Schenker against charges of racism, University officials investigated the Journal’s editorial practices, removed plaintiff as editor, and suspended the Journal’s activities pending a national search for a new editor. Plaintiff brought First Amendment retaliation claims against the UNT Regents in their individual capacities, alleging an ongoing violation of his First Amendment rights and seeking declaratory and injunctive relief. In affirming denial of the Regents’ Rule 12(b)(1) motion to dismiss, the Fifth Circuit held that plaintiff’s claim against the Regents properly sought only prospective relief and that he had sufficiently alleged an ongoing violation that was fairly traceable to the Regents.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
9/8/2023
Casper v. Tex. Woman’s Univ. (Tex. App. Aug. 31, 2023)
Memorandum Opinion affirming dismissal. Plaintiff, a tenured professor at Texas Woman’s University, brought due process and First Amendment claims against the University and multiple officials after an investigation substantiated a student complaint that plaintiff had engaged in demeaning conduct toward students and failed to provide required disability accommodations. The University permitted plaintiff to retain her tenure, salary, and benefits, but barred her indefinitely from teaching or performing other faculty duties. In affirming dismissal of her procedural due process claim, the Court of Appeals of Texas held that plaintiff failed to allege that she had a protectable property right in the performance of the specific duties the University barred her from performing. Her substantive due process claim similarly failed under the stigma-plus test because she did not allege that the University publicized the charges against her or revoked her tenure. Finally, her First Amendment claim failed because she failed to allege that comments she claimed she made about “the value of hard work” were either matters of public concern or made in the context of classroom discussions.
Topics:
Constitutional Issues | Due Process | First Amendment & Free Speech
Date:
8/25/2023
Doe v. Univ. of Mich. (6th Cir. Aug. 21, 2023)
Opinion vacating an award of attorney fees and remanding for recalculation. Plaintiff is a former student at the University of Michigan who was accused of sexual assault in March 2018. Before the University completed its investigation, plaintiff sued, alleging the University’s procedures violated his due process rights. The district court granted a preliminary injunction. The Sixth Circuit remanded for reconsideration in light of its then recent decision in Doe v. Baum. The district court ultimately granted summary judgment to plaintiff on his assertions that the University withheld his transcript without due process and that the University’s proposed disciplinary process did not afford him a live hearing with cross-examination. The complainant subsequently decided not to participate further in the process. In reviewing the district court’s award of attorney fees, the Sixth Circuit held that plaintiff had standing and was the prevailing party regarding the withheld transcript, but held that the district court lacked jurisdiction over his claim regarding the hearing procedures because those claims were either unripe or moot. Accordingly, it vacated and remanded for recalculation of the award of attorney fees.
Topics:
Constitutional Issues | Due Process | Sexual Misconduct | Title IX & Student Sexual Misconduct
Date:
8/25/2023
Babinski v. Sosnowsky (5th Cir. Aug. 21, 2023)
Opinion reversing and dismissing. Plaintiff, a former Ph.D. student in the theatre program at Louisiana State University, brought due process claims against multiple professors in the department based on his assertion that he was “de facto expelled” from the program without a meaningful opportunity to be heard in his own defense. Plaintiff had submitted a “performative writing” for a course term paper that expressed his disapproval of his professor’s views in a course on “Gender, Sexuality, and Performance.” The chair of the department forwarded the paper to the LSU Police Department and the LSU Office of Student Advocacy and Accountability, though neither found an actionable violation. Plaintiff alleged that his professors then conspired to refuse to teach him, serve on his dissertation panel, or administer his general examinations, thus impeding his ability to complete the doctoral program. He subsequently earned a master’s degree in the philosophy department. In reversing the district court’s denial of qualified immunity to the professors, the Fifth Circuit assumed a constitutional violation but nevertheless held that plaintiff failed to show a clearly established right, finding that he had not identified a case that was sufficiently analogous to his asserted “de facto expulsion” that “dealt with the alleged tainting of the process that a school or university provided to a student.”
Topics:
Constitutional Issues | Due Process | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
8/18/2023
R.W. v. Columbia Basin Coll. (9th Cir. Aug. 14, 2023)
Opinion affirming-in-part and dismissing-in-part on Defendants’ interlocutory appeal. Plaintiff, a former nursing student at Columbia Basin College (CBC), brought constitutional claims against CBC and multiple officials after they learned he had sought medical treatment for homicidal thoughts about three instructors, terminated him from the program, barred him from campus, and entered failing grades for his coursework then in progress. The district court permitted plaintiff to proceed against the officials under Ex parte Young for injunctive relief for reinstatement in the nursing program and expungement of his failing grades. In affirming on interlocutory appeal, the Ninth Circuit held plaintiff had sufficiently alleged an ongoing violation of federal law to be permitted to proceed because CBC’s letter imposing the sanctions did not specify a time limit and because there was a possibility that CBC could reinstate the sanctions even though it had changed its internal procedures for issuing sanctions. It dismissed several other issues, however, as improper for resolution on interlocutory appeal.
Topics:
Constitutional Issues | Due Process | Student Conduct | Students

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