Cases & Developments - National Association of College and University Attorneys

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Date:
1/31/2025
Memo: Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs (Jan. 27, 2025)
Memorandum for Heads of Executive Departments and Agencies. The Office of Management and Budget (OMB) published M-25-13, requiring Federal agencies to identify and review all Federal financial assistance programs and supporting activities consistent with the President’s policies and requirements. Agencies are required to complete a comprehensive analysis of all of their Federal financial assistance programs that may be implicated by any of the President’s executive orders. Further, the Memorandum ordered a temporary pause of all activities related to obligation or disbursement of all Federal financial aid and other relevant agency activities that may be implicated by the executive orders. The temporary pause was set to go into effect January 28, 2025, at 5 p.m. and required agencies to submit their comprehensive analysis of their use of funds no later than February 10, 2025. OMB also published an FAQ and Instructions for Federal Financial Assistance Program Analysis to help agencies abide by the Memorandum. Following an administrative stay on the Memorandum granted on January 28, 2025, the Memorandum was subsequently rescinded on January 29, 2025.
Topics:
Contracts | Governance | Government Relations & Community Affairs | Grants, Contracts, & Sponsored Research
Date:
9/20/2024
Public Health Service Policies on Research Misconduct (Sep. 17, 2024)
The U.S. Department of Health and Human Services Office of Research Integrity (ORI) published a Final Rule revising the regulations governing Public Health Service Policies on Research Misconduct. The purpose of the Rule is to implement policy changes and respond to technological changes that occurred over the past several years applicable to research misconduct. The Rule establishes requirements for addressing research misconduct in Public Health Services (PHS) funded research, further clarifies ORI’s regulatory oversight responsibility, and outlines the role of PHS-funded organizations in establishing research integrity. The Rule goes into effect January 1, 2025, and all regulatory requirements are applicable beginning on or after January 1, 2026.
Topics:
Contracts | Grants, Contracts, & Sponsored Research | Research | Research Misconduct
Date:
8/2/2024
Kestenbaum v. President & Fellows of Harvard Coll. (D. Mass. Aug. 6, 2024)
Memorandum and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiffs, a recent Harvard graduate and Students Against Antisemitism, Inc., an association “founded to defend the rights of individuals ‘to be free from antisemitism in higher education,’” brought Title VI and contract claims against Harvard University, alleging that it responded inadequately to protests and other incidents in the wake of the October 7, 2023, Hamas attack on Israel. In permitting their Title VI deliberate indifference claim to proceed, the court found plaintiffs had sufficiently alleged multiple incidents in which the University’s response was “indecisive, vacillating, and at times internally contradictory,” as well as other incidents to which it did not respond. It held that the record was insufficient at this stage to rule on the University’s assertion that it had acted to avoid infringing on protected First Amendment activity. It dismissed plaintiffs’ direct discrimination claim for lack of an adequate comparator. Turning to their contract claims, the court ruled that two instances in which the University did not notify complainants of a decision to close or accept a complaint were sufficient to allege breach of a contract entailed in its complaint-handling procedures. It also held that assertion of “several instances in which students were penalized for violating various Harvard policies, but the students allegedly engaged in antisemitic conduct have not faced discipline,” though “insufficient to state a Title VI claim,” were sufficient to “sketch a claim that Harvard breached the implied covenant by failing to evenhandedly administer its policies.”
Topics:
Contracts | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
8/2/2024
Doe v. Emory Univ. (11th Cir. Aug. 1, 2024)
Opinion partially affirming dismissal and partially reversing. Plaintiff, a former student at Emory University who was suspended for one semester after being found responsible for alleged sexual misconduct that took place in April of 2019, brought a Title IX claim against the University, alleging “(1) that the university’s investigation was plagued by procedural and evidentiary irregularities, (2) that members of the disciplinary panel that decided his case made statements indicating anti-male bias, and (3) that the university faced-and caved to-overwhelming public pressure to credit female accusers over male suspects.” The district court dismissed the claim on the ground that his allegations reflected “pro-complainant bias,” and did not “plausibly” allege “pro-female bias.” While the district court dismissed Plaintiff’s contract-based claims on the ground that he failed to allege the parties agreed to terms, the Circuit reversed finding he “explicitly alleged mutual assent” through his matriculation to the University and being bound by the “Policy 8.2 Sexual Misconduct document.” The Circuit affirmed dismissal of the Title IX discrimination claim. The court relied heavily on Doe v. Samford Univ., 29 F.4th 675 (11th Cir. Mar. 24, 2022), in coming to their conclusion, citing substantial similarities between the two cases and reiterating the need for plaintiffs’ allegations to cross the line from “possibility” to “plausibility.”
Topics:
Contracts | Students | Title IX & Student Sexual Misconduct
Date:
6/7/2024
Pearson Foundation v. The Univ. of Chi. (N.D. Okla. June 5, 2024)
Memorandum and Order granting Defendant’s Supplemental Motion for Partial Summary Judgment. Plaintiff, the Thomas L. Pearson and Pearson Family Foundation, brought contract and breach of duty of good faith and fair dealing claims against the University of Chicago, alleging that the University had not fulfilled its obligations in staffing an institute the Foundation had committed $100 million to create. The University counterclaimed for failure to make a $13 million installment when due. The Foundation objected, in particular, to the University’s designation of current faculty for two of three endowed chairs, asserting they were unqualified. The court previously partially denied summary judgment without prejudice, holding that the Foundation could pursue the contract claim on the grounds that the hires did not fulfill the institute’s mission, even though the Grant Agreement included no specific qualifications for the appointments and provided that the Foundation no role in the selection process or in setting the institute’s research agenda. In a surreply to the University’s supplemental motion for partial summary judgment, the Foundation objected that discovery suggested that the University departed from its normal faculty hiring procedures. In granting the motion, the court held that the Foundation had abandoned its express contract claim in its briefing but may still proceed on its good faith and fair dealing claim as to the hiring process.
Topics:
Contracts | Endowments & Gifts | Taxes & Finances
Date:
6/7/2024
Croce v. Ohio State Univ. Bd. of Trs. (Ohio App. June 4, 2024)
Opinion affirming-in-part and reversing-in-part Judgment on the Pleadings. Plaintiff, a biomedical researcher at The Ohio State University, brought contract claims against the University after an investigation, allegedly sparked by a defamatory newspaper article, cleared him of research misconduct allegations. The Dean of the College of Medicine nevertheless took non-disciplinary actions against him, including removing him from an endowed chair. Plaintiff alleged that the University departed from (1) federal standards for addressing research misconduct, (2) its own internal policy to rehabilitate the reputation of researchers who are cleared of research misconduct allegations, and (3) its faculty rules. The court below granted judgment on the pleadings, finding that (1) the claims based on federal standards were preempted and (2) the remaining claims failed because the University policies leave rehabilitation measures to the discretion of the Vice President of Research and the remaining measures to the discretion of the Dean. The Court of Appeals of Ohio affirmed that plaintiff’s claims based on federal standards were preempted. It reversed on the remaining contract claims, noting that the rehabilitation policy stated that the University will “work with” the respondent on such measures and finding that the trial court erred in holding that no set of facts would entitle plaintiff to relief.
Topics:
Contracts | Research | Research Misconduct
Date:
5/17/2024
Contreras v. Heritage Univ. (9th Cir. May 10, 2024) (unpub.)
Memorandum Opinion reversing summary judgment in favor of the University and remanding. Appellants, four former students in the physician assistant program at Heritage University, brought consumer protection, contract, fraudulent and negligent misrepresentation, and unjust enrichment claims against the University after the program lost accreditation five months into their two-year program, alleging that they had enrolled in the program in reliance on false statements that loss of accreditation would not adversely affect their education. The district court granted summary judgment in favor of the University. In reversing and remanding on their Washington Consumer Protection Act (CPA) claim, the Ninth Circuit found the consistency with which the University communicated that loss of accreditation would not interrupt their education or force them to transfer to a new program sufficient to show conduct affecting the public interest within the meaning of the CPA. Although appellants were aware of the program’s probationary status, the court also reversed and remanded on their contract and related claims, finding a genuine dispute as to whether it was reasonable for them to rely on the University’s statements regarding the potential consequences of a loss of accreditation.
Topics:
Accreditation | Accreditation, Authorizations, & Higher Education Act | Contracts
Date:
4/26/2024
FTC Final Rule on Non-Compete Clauses (Apr. 23, 2024)
Federal Trade Commission (FTC) Final Rule on Non-Complete Clauses. The Non-Compete Clause Rule provides that it is an unfair method of competition under the Federal Trade Commission Act to enter into non-compete clauses with workers after the rule’s effective date. The rule provides that current non-competes may remain in force for senior executives but that non-competes with other workers are not enforceable after the effective date. The Final Rule will be effective 120 days after publication in the Federal Register.
Topics:
Contracts | Faculty & Staff
Date:
4/12/2024
Atl. Coast Conference v. Bd. of Trs. of Fla. State Univ. (N.C. Super. Ct. Apr. 4, 2024)
Order and Opinion granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, the Atlantic Coast Conference (ACC), sued the Board of Florida State University, alleging breaches related to the Board’s efforts to secure a larger share of revenue under the ACC’s Media Rights Agreements with ESPN, Inc., including by discussing withdrawing from the ACC, holding an emergency meeting to authorize a lawsuit against the ACC, and discussing confidential information from the Media Rights Agreements during that public meeting. The court found the ACC’s assertions regarding the Board’s effort to bring the lawsuit sufficient to allege breaches of both the irrevocable Grant of Rights Agreement that was required to enter into the Media Rights Agreement with ESPN and the duty of good faith and fair dealing implied in the ACC’s Constitution and Bylaws. It further found assertions that the Board discussed details of the Media Rights Agreement in its public meeting and included details in a Florida lawsuit against the ACC sufficient to allege violation of the confidentiality agreements the ACC required parties to enter before viewing the Media Rights Agreements in the ACC’s North Carolina headquarters. The court dismissed the ACC’s breach of fiduciary duty claim, noting that because the ACC is an unincorporated nonprofit association there is no de jure fiduciary duty and that the ACC had pled insufficient facts to establish either a de facto fiduciary relationship arising out of an arrangement in which one side “hold[s] all the cards” or a contractual obligation arising from the ACC Constitution not to defeat or destroy its common purpose.
Topics:
Athletics & Sports | Athletics Operations | Contracts
Date:
4/5/2024
Puentes v. Union Coll. (N.D. N.Y. Mar. 28, 2024)
Memorandum-Decision and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former student at Union College, brought discrimination, contract, and multiple tort claims against the College after she was unenrolled for noncompliance with its policy that all students must receive a booster dose of a COVID-19 vaccination. Plaintiff requested an exemption, citing her “biblical beliefs,” an alleged severe reaction to her second dose of a COVID-19 vaccine, and immunity from a prior infection. When local media reported that plaintiff had been expelled, the College denied it was an expulsion and declined to discuss more than its general policy. Plaintiff alleged, however, that members of the Board of Trustees questioned the truthfulness of her account. The court dismissed her discrimination claims, finding only broad and cursory allegations. It dismissed her contract and promissory estoppel claims as time-barred under New York’s four-month statute of limitations for challenging determinations of public bodies and administrative agencies. In dismissing her negligence claim, the court declined to find that the College assumed a special duty not to subject her to a risk of a reaction to a vaccine by virtue of its supervision of her health through her visits to the College health clinic, citing the limited scope of duties for universities and New York’s prior rejection of the in loco parentis doctrine. It dismissed her libel and slander claims, finding no allegation of special damages or per se actionability. Finally, although dismissal of the breach of contract, promissory estoppel, and negligence per se claims was with prejudice as defendants sought, the court – while expressing skepticism re the likelihood of success – allowed that plaintiff might replead her other claims.
Topics:
Contracts | Discrimination, Accommodation, & Diversity | Litigation, Mediation & Arbitration | Tort Litigation

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