Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
1/24/2025
Young Americans for Freedom v. U.S. Department of Education (E.D.N.D. Dec. 31, 2024)
Order denying Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, two organizations, the Young America’s Foundation and Young Americans for Freedom, along with two individual students sought an injunction (1) prohibiting the U.S. Department of Education (the Department) “from enforcing or otherwise implementing the racial and ethnic classifications in [the Ronald E. McNair Postbaccalaureate Achievement Program (the Program)]” and (2) requiring the Department to notify universities participating in the Program that they cannot impose or rely on racial and ethnic classifications. Plaintiffs allege the Department’s underrepresented race criteria for the Program is unlawful under the Equal Protection Clause and such racial eligibility requirement “is a harm to [their] personal dignity.” While individual Plaintiffs both wished to apply to the Program, they ultimately chose not to because of their race (white) and lack of low-income or first-generation college student status. In finding that plaintiffs lack standing, the Court determined that plaintiffs’ alleged injury for “the denial of equal treatment” in the application and admission process will not be redressed by any injunction against the Department because the higher education institutions are also part of the administration of the Program. The Department awards institutions five-year grants to administer the Program on their campuses, and once funding is distributed, it is up to the institutions – not the Department – to select applicants. Because “there is nothing in the record that indicates the Department has any control over the grants once allocated to the institutions” and since institutions would not be bound by the Court’s order, the Court denied Plaintiffs’ motion for Preliminary Injunction and dismissed the case without prejudice for lack of subject matter jurisdiction.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Equal Protection | Financial Aid, Scholarships, & Student Loans | Race and National Origin Discrimination | Students
Date:
1/17/2025
Ohio Telecom Association v. Federal Communications Commission (6th Cir. Jan. 2, 2025)
Opinion granting petitions for review and setting aside Safeguarding Order. Plaintiff, a statewide trade association that represents the common interests of telecommunication companies in Ohio, challenged the Federal Communications Commission’s
(FCC) statutory authority under Title II of the Communications Act to impose net-neutrality principles via its issuance of the Safeguarding and Securing the Open Internet Order (the Order). The Order defined mobile broadband and private mobile
services as telecommunications services, which are subject to Title II common carrier restrictions, rather than as information services. Relying on Loper Bright Enterprises v. Raimondo, the Sixth Circuit overruled prior decisions granting Chevron
deference to FCC opinions and found that “mobile broadband does not qualify as ‘commercial mobile service’ … and therefore may not be regulated as a common carrier.
In issuing its decision to set aside the Order – which effectively ends the FCC’s authority to impose net neutrality restrictions on internet service providers – the Sixth Circuit reasoned that “[f]or almost 20 years after
Congress enacted the Telecommunications Act, the FCC’s position was that companies providing access to the Internet offered information—not telecommunications—services.”
Topics:
Constitutional Issues | First Amendment & Free Speech | Social Media | Technology | Technology Accessibility
Date:
1/17/2025
Department of Education Releases: Protecting Civil Rights: Highlights of Activities, Office for Civil Rights 2021-25 (Jan. 16, 2025)
The U.S. Department of Education, Office for Civil Rights (OCR) released a record of OCR’s enforcement records during the Biden-Harris Administration titled “Protecting Civil Rights: Highlights of Activities, Office for Civil Rights 2021-25.” The record details OCR’s accomplishments in the past four years, specifying achievements in the highest number of resolutions in OCR’s history; 114 resolved complaints; publication of Civil Rights Data; and publication of 64 policy resources, comprising what OCR describes as the most productive four years in its history.
Topics:
Accreditation, Authorizations, & Higher Education Act | Constitutional Issues | Equal Protection | Higher Education Act (HEA)
Date:
1/3/2025
Jill Hines v. Alex Stamos (W.D. La. Dec. 18, 2024)
Memorandum Order denying without prejudice Defendants’ Motions to Dismiss. Plaintiffs, social media users with significant followings, brought a putative class action lawsuit on behalf of themselves and others similarly situated, alleging the Aspen Institute, the Board of Trustees of the Leland Stanford Junior University, the Leland Stanford Junior University, the Stanford Internet Observatory, the Atlantic Counsel, the Atlantic Counsel’s Digital Forensic Research Lab, and several individuals (the Defendants) caused plaintiffs’ “disfavored” viewpoints (namely, their speech concerning COVID-19 and elections) to be censored, and remain engaged in ongoing censorship. Plaintiffs allege Defendants were “active participants, if not architects, of a vast censorship scheme, and—in collaboration with government officials—actively monitored, targeted, and ultimately induced social media platforms to censor [their] speech (among many others).” The District Court initially decided the issue of arbitrability in a manner adverse to Defendants, Defendants appealed, and the Fifth Circuit held that the lower court must first determine personal and subject matter jurisdiction before considering arbitrability. On remand, the District declined to grant dismissal finding that plaintiffs were entitled to limited discovery pertaining to both jurisdiction and standing. First, the Court reasoned that plaintiffs’ claim that Defendants’ engaged in censorship in Louisiana by “assigning analyst[s] specifically to Louisiana, determining whether speech originated in Louisiana, tracking the speech’s spread from Louisiana, and communicating with state officials in Louisiana about supposed disinformation” was a sufficient preliminary showing of jurisdiction suggestive of “the possible existence of the requisite [minimum] contacts” with the State to oblige Defendants to bear the burdens of jurisdictional discovery, and thus, denied the motion to dismiss. Next, as to standing, it distinguished Murthy v. Missouri, 144 S. Ct. 1972 (2024), reasoning that absent a request for preliminary injunction and its corresponding heighted burden plaintiffs need not aver “that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic,” therefore, plaintiffs’ mere allegation that Defendants, “participation in the Election Integrity Project and Virality Project, caused plaintiffs to be censored on social media platforms” was adequate to access preliminary discovery.
Topics:
Constitutional Issues | First Amendment & Free Speech | Litigation, Mediation & Arbitration | Social Media
Date:
11/1/2024
Students for Justice in Palestine, at the University of Houston v. Gregg Abbott (W.D. Tex. Oct. 28, 2024)
Order granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiffs, student groups from the University of Texas at Austin, the University of Houston, and the University of Texas at Dallas alleged violations of their First Amendment rights and assert claims of viewpoint discrimination and chilled speech, against their respective institutions, boards, and personnel, as well as Texas Governor Greg Abbott, based on implementation of Executive Order GA-44 “relating to addressing acts of antisemitism in institutions of higher education.” The Order required Texas public postsecondary institutions to “establish appropriate punishments” for antisemitism as that term is defined in Texas Code, which relies in part on the International Holocaust Remembrance Alliance’s “Working Definition of Antisemitism” (adopted May 26, 2016). Plaintiffs claimed that inclusion of that definition of antisemitism in institutional policy would proscribe their ability to criticize Israel, and that the Order chilled their free speech and violated the First Amendment. In initially permitting the claims to proceed, the court found plaintiffs’ intended future speech would be proscribed by the policy and that under Speech First, Inc. v. Fenves (5th Cir. 2020), “in the pre-enforcement context, [] chilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” However, the court denied the request for a preliminary injunction as overly overboard, and dismissed the claims against Governor Abbott, the University of Houston and UT Austin and their respective boards as barred by sovereign immunity.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Race and National Origin Discrimination | Religious Discrimination & Accommodation | Student Speech & Campus Unrest | Students
Date:
10/25/2024
Saavedra v. Lehigh Carbon Cmty. Coll. (E.D. Pa. Oct. 23, 2024)
Opinion denying Defendant’s Amended Motion to Dismiss. Plaintiff, a former student at Lehigh Carbon Community College who identifies as a person with Autism, brought disability discrimination, equal protection, retaliation, and denial of due process claims against the College. Plaintiff alleged the College denied his accommodations, including extended time on exams and reduced distraction environment, and also “intimidat[ed]” him into forgoing a right to a hearing following a charge of an academic integrity violation. Although he received accommodations during the spring semester, plaintiff alleged that the College failed to implement corresponding accommodations for the summer term, which prompted him to have his mother scribe his summer course midterm exam scratchwork for him after he became fatigued while taking the test. Afterwards, plaintiff was charged with an academic integrity violation, for which he sought a hearing and retained counsel but claims that he was “threatened” when the dean of the college stated “most of the cases like yours ending in a hearing will finish with bad outcomes, and there is no need to go through the whole process,” which prompted plaintiff to forfeit the hearing and permit the violation to stand. The court permitted the disability discrimination claim to proceed, finding that plaintiff’s allegation that the College refused to implement any accommodation “in it of itself” sufficed to state a claim, and that the College’s defense targeted the academic dishonesty violation but failed to take into account plaintiff’s claim that the institution had knowledge that his rights were “substantially likely to be violated” in light of plaintiff’s prior accommodations, and requests for similar accommodations for the summer semester. The court also allowed the retaliation claim to move forward, finding the dean’s alleged statement to plaintiff was an adverse action sufficient to deter a person from exercising their rights, when considering plaintiff’s Autism and the vulnerability the disability exposed him to. Finally, the court found that the College’s motion did not address plaintiff’s equal protection claim and rejected the defense that the charge of academic dishonesty did not give rise to a claim for substantive due process absent either suspension or expulsion.
Topics:
Constitutional Issues | Disability Discrimination | Discrimination, Accommodation, & Diversity | Equal Protection
Date:
10/4/2024
Univ. of Md. Students for Justice in Palestine v. Bd. of Regents (D. Md. Oct. 1, 2024)
Memorandum Opinion granting Plaintiff’s Motion for Preliminary Injunction. Plaintiff, a registered student organization, brought claims alleging violation of free speech against the University of Maryland, College Park (UMCP), its Board of Regents, and UMCP’s President following the revocation of their October 7, 2024, event registration. Congruent with UMCP campus use policy, plaintiff sought and was approved to host what it referred to as an “interfaith vigil … to mourn lives lost in Israel’s purported ‘genocide’ in Gaza.” Following “passionate opposition to the event,” including a petition that received nearly 28,000 signatures and asserted that putative references during the event to Israel “as an apartheid state” or accusations that the country was “committing genocide” would be tantamount to “an antisemitic attack” and must be curtailed; UMCP first met with organizers and then, revoked approval for the event and banned all on-campus student organization events for that day. After a hearing, the court issued an injunction permitting the event to proceed, finding plaintiff is likely to prevail on the merits of its free speech claims since although it “picked a particularly controversial date to hold an event to commemorate Gaza War dead, to decry what it terms Israeli ‘genocide,’ and to promote … Palestinian life and culture,” the ideas underlying the event were “expressive … however vile they may seem to some” and thus, must be accorded “protection as speech when … used in the forum of a public university.” The court recognized UMCP’s compelling interest in maintaining a safe campus but found that cancellation of the event was neither viewpoint neutral nor narrowly tailored and relied upon evidence that (1) over the past year plaintiff held more than 70 events on campus “without significant disruption or conflict,” (2) the event reservation form contained no indication “that Jewish students will be threatened or harassed, or otherwise impeded from attending classes, or that any buildings will be occupied, an encampment established, or property destruction contemplated,” and also found that UMCP has reasonable alternatives to banning all expressive speech including employment of additional security personnel, reliance upon assistance from local and state police, and installation of temporary metal detectors and fencing for crowd control.
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
10/4/2024
Thiry v. Bd. of Regents of Univ. of Mich. (E.D. Mich. Sep. 27, 2024)
Opinion & Order granting in part and denying in part Defendants’ Motion for Summary Judgment. Plaintiff, a former employee of the University of Michigan with a substance-use disorder brought claims of discrimination and retaliation under Section 504 of the Rehabilitation Act (Rehab Act) and unlawful restrictions of protected activity and retaliation under the First Amendment against the University and three of its employees. Plaintiff sought in-patient treatment for substance-use disorder and alleged that upon his return to work his supervisor created a hostile work environment by making derogatory comments about his disorder, publicly berating him, and disclosing confidential information about his treatment. Plaintiff sent a series of communications to his supervisor, including some texts and emails outside of working hours, and the University held an internal mediation between the parties in which plaintiff was admonished to constrain future communications to work related topics sent during working hours. The communications continued and plaintiff received a two-day disciplinary layoff for “Negligent Careless Work Performance” about which he filed a grievance. Plaintiff was placed on paid suspension pending an investigation into his conduct, the University held a Disciplinary Review Conference (DRC), and plaintiff was terminated. Thereafter, plaintiff sought and was granted the opportunity to retire in lieu of termination, and signed a Settlement Agreement and Release of Liability stating among other things that he would forgo “further claims, demands, or actions related to the DRC” and his grievance about the two-day layoff. Despite signing the Agreement, plaintiff filed suit. The court granted summary judgment in favor of all defendants on plaintiff’s claim for emotional distress damages related to the Rehab Act claim, as well as the Rehab Act claims against the individual defendants, and for the University on plaintiff’s Section 1983 claims for money damages, but denied the motion as to individual defendants, reasoning that “official-capacity claims are not barred by the Eleventh Amendment where a plaintiff seeks only prospective equitable relief.” The court found that while the plain language of the Agreement precluded claims pertaining to the DRC and suspension, a material factual dispute remained regarding whether the Agreement prohibited plaintiff’s broader claims related to discrimination under the Rehab Act, as well as Section 1983 claims for money damages from individual defendants, and for declaratory and injunctive relief.
Topics:
Constitutional Issues | Disability Discrimination | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation
Date:
9/20/2024
Diei v. Boyd (6th Cir. Sep. 17, 2024)
Opinion partially reversing dismissal and remanding. Plaintiff, a former pharmacy student at the University of Tennessee Health Science Center College of Pharmacy brought claims asserting violation of the First Amendment against the University President, members of the University Board of Trustees, and the Dean of the College of Pharmacy after she was twice investigated for alleged violation of the College’s professional standards due to anonymous complaints about posts to her pseudonymous social media accounts. After the second investigation deemed her posts “sexual,” “crude,” and “vulgar” in violation of the College’s “Standards for Student Professionalism Conduct” – and although the Dean reversed the Committee’s decision to dismiss plaintiff from her studies – plaintiff sought declaratory relief and an injunction blocking the continued application of the College’s Professionalism Policies, which she alleged are vague and overly broad, as well as damages. The University sought dismissal and attached documents to their motion. While those motions were pending, plaintiff graduated from the College, and the University sought to dismiss her nonmonetary claims as moot. The district granted both motions, and in doing so relied upon the attachments to the first motion to dismiss. The Sixth Circuit reversed in part, and conducted a de novo review of the remaining monetary damages claims, disregarding the “inappropriate attachments” considered by the district court in its ruling on the first motion pursuant to Fed. R. Civ. P. 12(b)(6). The Sixth Circuit distinguished Yoder v. Univ. of Louisville, wherein a nursing student was expelled for inappropriate blog posts that both identified her as a student and violated the confidentiality of her patients, reasoning that in the instant case, plaintiff’s pseudonymous “speech did not identify her with the college, had no connection to her studies, and did not lead to disruption” and therefore, absent “a genuine educational purpose for regulating plaintiff’s speech [on sexuality, fashion, and song lyrics], her communications fell safely within the confines of the First Amendment protection.” Allowing that postsecondary institutions maintain legitimate pedagogical “interest[s] in teaching students to comply” with professional standards, the Court ruled that the University’s potentially applicable policies were not properly before them or the lower court since they were beyond the four corners of the complaint. The Court also found that plaintiff plausibly alleged that the University’s multiple investigations into her speech, vote to expel her, and implication that continued speech could compromise her professional studies were sufficiently chilling to survive dismissal, and thus, remanded plaintiff’s First Amendment damage claims.
Topics:
Constitutional Issues | First Amendment & Free Speech | Social Media
Date:
8/9/2024
Carr, et, al. v. Tr. of Purdue Univ.; Tr. of Indiana Univ. (S.D. Ind. Aug. 14, 2024)
Order granting Defendants’ Motions to Dismiss and denying Plaintiffs’ Motion for a Preliminary Injunction. Plaintiffs, all tenured professors at Indiana public postsecondary institutions, sought a preliminary injunction to enjoin enforcement of Senate Enrolled Act 202 (SEA 202) against the Trustees of Purdue University, the Trustees of Indiana University (collectively “Boards”) and Intervenor, the State of Indiana. Plaintiffs alleged that SEA 202, which directs Boards to “adopt new policies aimed at ensuring that faculty members’ pedagogies align with the principles of free inquiry, free expression, and intellectual diversity” violates the First and Fourteenth Amendments. Plaintiffs assert that SEA 202 had a “chilling effect” on their employment because they “felt compelled to make changes to their syllabi” to abide by the policy and such efforts have been burdensome to university faculty members. Defendants argue “any injury that plaintiffs could potentially face would be attributable to the presently non-existent university polices, rather than to SEA 202 itself.” Because the court concluded Plaintiffs’ claims were “premature” requiring an “attenuated chain of inferences” and their injuries were “inchoate” due to the lack of institutional policies implementing SEA 202, it denied the request for preliminary injunction, granted Defendants’ motions to dismiss based on lack of jurisdiction, and dismissed the case without prejudice noting that it “express[ed] no view as to the merits of the[] constitutional claims, which must await further factual development.”
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech | Tenure

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