Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
7/21/2023
Hudgins v. Bd. of Educ. (N.D. Ill. June 30, 2023)
Memorandum Opinion and Order granting-in-part Defendants’ Motions to Dismiss. Plaintiffs, two former Chicago Public Schools students, sued the Chicago Board of Education, the David Lynch Foundation (DLF), and the University of Chicago, asserting that a “Quiet Time” program allegedly incorporating elements of Hindu religion and Transcendental Meditation violated the Establishment and Free Exercise Clauses of the First Amendment. The program was administered by DLF pursuant to a services contract and evaluated by the University pursuant to a “Master Services Agreement” for research and evaluation of various projects involving students. Plaintiffs allege that they felt pressured to engage in prayer and meditation practices that were inconsistent with their own religious beliefs. The court permitted plaintiffs to proceed against both the Board and DLF, finding the assertion of the services contract between the Board and DLF sufficiently alleged a policy or practice as required to establish Monell liability under §1983. It dismissed their claims against the University, however, finding that its “Master Services Agreement” for evaluation of educational programs did not sufficiently allege involvement in such a policy or practice.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation
Date:
7/14/2023
Young Conservatives of Tex. Found. v. Smatresk (5th Cir. July 10, 2023)
Opinion reversing and vacating injunction. Plaintiff, on behalf of its members who attend or have attended the University of North Texas and who are United States citizens from states other than Texas, sought a permanent injunction barring the University from carrying out a provision of the Texas Education Code permitting undocumented immigrants to establish residency and qualify for in-state tuition rates. The district court granted the injunction, finding that the Texas Code was preempted by a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) that says that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State … for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit … without regard to whether the citizen or national is such a resident.” 8 U.S.C. § 1623(a). In reversing and vacating, the Fifth Circuit held that the IIRIRA provision expresses only the condition precedent that U.S. citizens must be eligible for a benefit before illegal aliens are made eligible and that this does not expressly preempt the Texas Code provision setting tuition rates for those who satisfy residency requirements. It similarly held that the Texas Code provisions did not conflict with the objectives of the IIRIRA because it only imposes nonresident tuition rates on those who do not establish Texas residency, whether they are aliens or citizens.
Topics:
Constitutional Issues | Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff
Date:
7/14/2023
Porter v. Bd. of Trs. of N.C. State Univ. (4th Cir. July 6, 2023)
Opinion affirming dismissal. Plaintiff, a tenured professor in the College of Education at North Carolina State University, brought First Amendment retaliation claims against the University, University officials, and multiple colleagues after he was removed from a student advising role in the program and assigned an additional course to teach due to his lack of collegiality in criticizing efforts to promote diversity, equity, and inclusion in the School and the field. In affirming dismissal, the Fourth Circuit held that plaintiff’s comments to his colleagues about department operations were unprotected speech. Plaintiff had also written a personal blog post characterizing a professional association as “woke” that was mentioned during the keynote address at the association’s conference. Though the court assumed the post was protected speech, it nevertheless held that plaintiff failed to establish it as the but-for cause of his removal because the blog post lacked temporal proximity and he did not address his colleagues’ frustration that he had not proactively addressed student and faculty concerns about the controversy.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation
Date:
7/14/2023
303 Creative LLC v. Elenis (U.S. June 30, 2023)
Opinion reversing the judgment of the Tenth Circuit. Lorie Smith offers website and graphic design and related services through her business 303 Creative LLC, of which she is the sole member-owner. When she decided to expand her business to offer websites celebrating weddings, she sued seeking injunction to prevent Colorado from requiring her under the Colorado Anti-Discrimination Act (CADA) to produce websites to celebrate same-sex marriages, which she asserted would contradict her sincerely held religious convictions. The district court denied the injunction, and the Tenth Circuit affirmed. In reversing, the Supreme Court held that the First Amendment prohibits Colorado from “seek[ing] to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
7/14/2023
Counterman v. Colorado (U.S. June 27, 2023)
Opinion and Order and vacating the judgment of the Colorado Court of Appeals and remanding. Billy Raymond Counterman was convicted of stalking leading to serious emotional distress and sentenced to four-and-a-half years in prison related to numerous social media messages he sent to a musician whom he had never met. Counterman, who suffers from mental illness and believed he was having a conversation with the musician. contended that his messages were not true threats and were, accordingly, protected by the First Amendment. The Colorado Court of Appeals affirmed his conviction, noting that Colorado used an objective standard that looks to whether the recipient would reasonably perceive the statements as expressing an intent to commit an unlawful act of violence. In vacating and remanding, the Supreme Court adopted a recklessness standard, holding that “[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
7/14/2023
Khan v. Yale Univ. (Conn. June 27, 2023)
Opinion answering questions certified by the Second Circuit. 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 expelled him for violating its Sexual Misconduct Policy. Plaintiff subsequently sued Doe and Yale for defamation and tortious interference with a contract. Finding insufficient relevant precedent under Connecticut law, the Second Circuit certified to the Supreme Court of Connecticut regarding immunity for statements made in judicial or quasi-judicial proceedings. In response, the Supreme Court of Connecticut held (1) that “a quasi-judicial proceeding is an adjudicative one, in which the proceeding is specifically authorized by law, the entity conducting the proceeding applies the law to the facts within a framework that contains procedural safeguards, and there is a sound public policy justification for affording proceeding participants absolute immunity;” (2) that the University’s “proceeding was not quasi-judicial because it lacked important procedural safeguards;” and (3) that a qualified privilege is available to alleged victims of sexual assault who report their abuse to proper authorities at institutions of higher education, but, at this stage of the proceedings, the allegations of malice in [plaintiff’s] complaint are sufficient to defeat Doe’s entitlement to qualified immunity as a matter of law.”
Topics:
Constitutional Issues | Due Process | Students | Title IX & Student Sexual Misconduct
Date:
7/14/2023
Doe v. Univ. of N. Tex. Health Sci. Ctr. (N.D. Tex. June 23, 2023)
Order and Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a former medical student at the University of North Texas Health Science Center who was permitted to take a one-year medical leave of absence, brought due process and equal protection claims against multiple officials in their individual capacities after he was dismissed from the program for failure to meet the conditions for his return, even after multiple requests from the officials. The court granted summary judgment in favor of the defendants on his due process claim, finding that though he claimed not to have received a hand-delivered letter outlining the conditions for his return, two email notices informing him that he faced dismissal and one informing him of his dismissal and opportunity for appeal provided sufficient notice and opportunity to be heard. The court similarly held that plaintiff’s equal protection claim failed because he did not identify a similarly situated non-disabled person who was treated differently after taking medical leave, failing to satisfy the conditions for return, and failing to respond to multiple notices in the dismissal process.
Topics:
Constitutional Issues | Disability Discrimination | Discrimination, Accommodation, & Diversity | Due Process
Date:
7/14/2023
Caldwell v. Univ. of N.M. Bd. of Regents, et al. (D. N.M. June 23, 2023)
Memorandum Opinion granting Defendant’s Motion for Judgment on the Pleadings. Plaintiff is a former student and varsity basketball player at the University of New Mexico (UNM) who was placed on interim suspension and banned from campus and from basketball team activities after he was accused of battery. Plaintiff alleged that the Dean of Students violated his due process rights when she banned him temporarily from campus and University housing. In granting the Dean’s motion for judgment on the pleadings, the court held although plaintiff had sufficiently alleged a property right in continued enrollment, the University’s procedures provided due process. It also held that even if he had a property right in his University-provided housing and meals, the two eviction notices and four hearings provided him with adequate notice and process. It held, however, that he had not sufficiently alleged a property right in his ability to play basketball. Finally, the court also held that the Dean was also entitled to qualified immunity because the alleged property rights were not clearly established.
Topics:
Constitutional Issues | Due Process | Student Athlete Issues | Student Conduct | Students
Date:
7/14/2023
Martin v. Chancellor for the Bd. of Regents of the Univ. Sys. of Ga. (11th Cir. June 22, 2023)
Opinion affirming dismissal. Plaintiff, a journalist and filmmaker, brought First and Fourteenth Amendment claims under §1983 against multiple officials of Georgia Southern University after the University declined to hire her as a keynote speaker for a conference due to plaintiff’s refusal to sign a clause required by state law promising not to participate in boycotts of Israel. In affirming dismissal, the Eleventh Circuit found that plaintiff failed to show that including the anti-boycott clause in the contract was a clearly established constitutional violation.
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
6/23/2023
Sch. Of the Ozarks, Inc. v. Biden (U.S. June 20, 2023)
Order denying petition for certiorari. Petitioner, the College of the Ozarks, sought declaratory and injunctive relief to block implementation of a U.S. Department of Housing and Urban Development (HUD) memo interpreting the agency’s enforcement obligations in light of Bostock. The College argued that HUD’s enforcement priorities frustrated its ability to maintain single-sex residence halls, with room assignments made in accordance with sex assigned at birth, regardless of gender identity. The Eighth Circuit affirmed dismissal for lack of Article III standing. The College petitioned for certiorari, presenting the questions (1) “Whether a notice-and-comment violation, on its own, can establish Article III standing for a regulated entity within the applicable zone of interests, as the Fifth, Sixth, Ninth, D.C. and Federal Circuits have held, or whether an additional injury is required, as the Eighth Circuit held here[;]” and (2) “Whether a regulated entity has Article III standing to challenge an illegal regulation where the entity (a) arguably falls with the rule’s plain scope, and (b) there is a risk of enforcement.” The Court’s Order List denied certiorari without comment.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Gender Identity & Sexual Orientation Discrimination | Religious Discrimination & Accommodation

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