Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
8/18/2023
Griffin v. Univ. of Me. Sys. (D. Me. Aug. 16, 2023)
Order granting-in-part and denying-in-part Defendants’ Partial Motion to Dismiss. Plaintiff, a former tenured professor at the University of Southern Maine, brought First Amendment retaliation claims against the University and its President, after she was terminated in September 2021 for challenging the University’s COVID-19 vaccination and facemask policies. The court permitted plaintiff to proceed in her claim against the President in his official capacity, finding she had sufficiently alleged her demands that the University provide evidence to counter her own assertions about the efficacy of vaccinations and masking was speech about a matter of public concern outside of the scope of her duties as a professor. It held, however, that her constitutional claims against the President in his personal capacity were barred by qualified immunity.
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
8/11/2023
Edwards v. Cal. Univ. of Pa. (W.D. Pa. Aug. 4, 2023)
Opinion granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, the administrator of the estate of a football player at California University of Pennsylvania who died of COVID-19 in September 2020, brought substantive due process and state-law claims against the University, alleging that it took insufficient measures “to prevent or mitigate the spread of COVID-19” when it permitted student-athletes to return to campus for Fall 2020. In dismissing plaintiff’s substantive due process claims with prejudice, the court held that plaintiff failed to allege conduct that shocks the conscience, noted the numerous mitigation actions taken by the University mentioned in plaintiff’s factual allegations. The court deferred a decision on exercising supplemental jurisdiction over plaintiff’s state-law claims pending consideration of claims against one defendant who did not appear in this action.
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus | Due Process | Litigation, Mediation & Arbitration | Tort Litigation
Date:
8/11/2023
Flores v. Bennett (9th Cir. Aug. 3, 2023)
Memorandum affirming preliminary injunction. Plaintiffs, three individual students at Clovis Community College and the Young Americans for Freedom at Clovis Community College (YAF), sought a preliminary injunction in their First Amendment challenge to the College’s Flyer Policy after officials permitted them to post pro-life flyers on designated “Free Speech Kiosks” but not on bulletin boards reserved for student materials. The policy permitted Student Center staff to withhold posting permission for materials that contain “inappropriate or offensive language or themes.” The Ninth Circuit affirmed on the basis of overbreadth and vagueness, finding no error in the holding (1) that “a ban on ‘inappropriate and offensive language or themes’ is likely too broad to be ‘reasonably related to legitimate pedagogically concerns’” or (2) that the policy invited arbitrary enforcement because it lacked a sufficient “degree of specificity and clarity.”
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
8/4/2023
Parents Defending Educ. v. Olentangy Local Sch. Dist. Bd. of Educ. (S.D. Ohio July 28, 2023)
Opinion & Order denying Preliminary Injunction. Plaintiff, a nationwide membership organization including parents and students attending the Olentangy Local School District, brought First Amendment claims against the District, challenging its policies on bullying and discriminatory harassment on the grounds that requiring students to use pronouns corresponding to a transgender student’s identity would “require the students to affirm the idea that gender is fluid, contrary to their deeply-held religious beliefs.” In denying preliminary injunction, the court held that plaintiff was unlikely to succeed on the merits under Tinker because the District’s policies “prohibit only that subset of discriminatory speech that creates a threat of physical harm, interferes with students’ educational opportunities, substantially disrupts the operation of schools, or causes or contributes to a hostile environment.”
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Gender Identity & Sexual Orientation Discrimination
Date:
8/4/2023
Boermeester v. Carry (Cal. July 31, 2023)
Opinion reversing and remanding. Plaintiff, a former student at the University of Southern California, sued the University and its Vice President of Student Affairs, seeking a writ of administrative mandate after he was expelled for intimate partner violence. The University had conducted separate and individual evidentiary hearings for both plaintiff and the complainant. The trial court denied the writ, but the Court of Appeals reversed on the grounds that plaintiff did not have the opportunity for a live hearing with cross-examination. The California Supreme Court reversed again, holding under section 1094.5 of the California Code of Civil Procedure that “though universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students with the opportunity to directly or indirectly cross-examine the accuse and other witnesses at a live hearing with the accused student in attendance, either in person or virtually.”
Topics:
Constitutional Issues | Due Process | Students | Title IX & Student Sexual Misconduct
Date:
8/4/2023
Wallace v. Owens (C.D. Ill. July 31, 2023)
Opinion granting Defendants’ Motion to Dismiss. Plaintiff, a former sworn law enforcement officer at the University of Illinois Springfield, brought Equal Protection claims against her former supervisors after she was terminated because of actions she took during a traffic stop. The court dismissed her claims (1) as barred by sovereign immunity and (2) because her allegation that she “was disciplined more harshly than male co-workers who engaged in comparable violations of policy” was insufficient to “meet the low threshold required of a plaintiff who alleges a Fourteenth Amendment gender discrimination claim.”
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Employee Discipline & Due Process | Equal Protection | Faculty & Staff
Date:
7/28/2023
Ruizhu Dai v. Le, et al. (W.D. La. July 20, 2023)
Memorandum Ruling granting Defendants’ Motion for Summary Judgment. Plaintiff, a former graduate student and graduate assistant at Louisiana Tech University, brought constitutional and contract claims against multiple University officials after she received negative feedback on a public presentation and a low grade in a related class, was terminated from her assistantship, and resigned from the program when she was unable to form a dissertation committee. After the presentation, plaintiff emailed her professors taking issue with their critique of her research methodology. She also unsuccessfully appealed both her grade and the termination of her assistantship. In granting summary judgment to the defendants, the court held that plaintiff’s First Amendment claims failed because her email addressed neither the public nor a matter of public concern. Her due process claim failed because the continuation of her assistantship was contingent upon satisfactory performance and because she was afforded sufficient process upon its termination. Finally, her contract claim failed (1) because her contract was between her and the University, rather than the individual officials, and (2) because her assistantship letter provided that unsatisfactory performance could result in termination.
Topics:
Academic Performance and Misconduct | Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation | Students
Date:
7/28/2023
Wade v. Univ. of Mich. (Mich. App. July 20, 2023)
Opinion affirming summary judgment in favor of the University. In 2015, plaintiff sued the University of Michigan after it denied his request for a waiver to its ordinance prohibiting the possession of firearms on campus. In 2022, the Michigan Supreme Court remanded his Second Amendment challenge for consideration in light of the U.S. Supreme Court’s decision in NY State Rifle & Pistol Ass’n, Inc. v. Bruen. On remand, the Court of Appeals of Michigan affirmed summary judgment, holding that although plaintiff’s proposed conduct is presumptively protected by the Second Amendment, the University is a “school” and, accordingly, a “sensitive place” where carrying arms may nevertheless be prohibited consistent with the Second Amendment.
Topics:
Constitutional Issues | Second Amendment & Guns on Campus
Date:
7/21/2023
Pesta v. Cleveland State Univ. (N.D. Ohio July 14, 2023)
Opinion & Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former Professor of Management at Cleveland State University, brought First Amendment retaliation claims against the University and six officials after he was terminated following a committee investigation into allegations that he had used NIH data unethically. Plaintiff alleged, however, that the investigation and termination were retaliation for his defense of the “hereditarian hypothesis” in an article entitled “Global Ancestry and Cognitive Ability.” In permitting plaintiff to proceed in his First Amendment retaliation claims, the court found, first, that in the absence of a developed record regarding the alleged misuse of NIH data plaintiff had plausibly alleged that his speech interest outweighed the University’s interest in promoting the efficiency of its public services. It further found that plaintiff’s assertion that prior to his termination the University had also removed links on its website to other controversial articles he had written was sufficient to allege causation. The court, however, dismissed plaintiff’s claims for monetary damages against the University and the individual defendants in their official capacities as barred by sovereign immunity.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
7/21/2023
Norris, et al. v. Stanley (6th Cir. July 13, 2023)
Opinion affirming dismissal. Plaintiffs, three employees of Michigan State University, brought substantive due process, unconstitutional conditions, and preemption challenges to the MSU’s COVID-19 vaccination policy after they were denied exemptions to the policy based on their natural immunity from prior infection. One plaintiff was terminated, one was placed on unpaid leave, and one received a religious exemption. In affirming dismissal of their substantive due process challenge, the Sixth Circuit held that plaintiffs failed to show that there was no rational relation between the MSU’s legitimate public health interest and the vaccine policy, even if the vaccine was of lesser benefit to those who are naturally immune. The court further held that because plaintiffs failed to show the policy violated a fundamental right, plaintiffs’ unconstitutional conditions claim failed. Finally, the court rejected plaintiffs’ claim that MSU’s policy was preempted by the federal Emergency Use Authorization statute, finding the statute’s consent provisions do not apply to interactions between an employer and an employee.
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus

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