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Latest Cases & Developments

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:
11/1/2024
Congressional Committee Report on Antisemitism on College Campuses (Oct. 31, 2024)
The U.S. House of Representatives Committee on Education and the Workforce (Committee) published a Republican Staff Report titled, “Antisemitism on College Campuses Exposed.” The Report summarizes the Committee’s yearlong investigation into allegations of antisemitism at several postsecondary institutions and sets forth its four key findings, which the Committee wrote “demonstrate an environment hostile to Jewish students likely in violation of Title VI” but also noted were “not conclusive judgments on violations.” The Report includes a 200+ page appendix of selected materials acquired by the Committee through subpoena, forewarns of future expanded investigation, and calls for a “fundamental reassessment” of federal support for postsecondary institutions “that have failed to meet their obligations to protect Jewish students, faculty, and staff, and to maintain a safe and uninterrupted learning environment for all students.”
Topics:
Discrimination, Accommodation, & Diversity | Governance | Government Relations & Community Affairs | 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:
10/18/2024
DeVore v. Univ. of Ky. Bd. of Trs. (6th Cir. Oct. 11, 2024)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former employee of the University of Kentucky, retired from the University to avoid compliance with its COVID-19 test-or-vaccinate policy. Plaintiff brought claims against the University alleging failure to accommodate religious beliefs and violation of Title VII. In granting summary judgment in favor of the University, the district court held that plaintiff failed to “show that she holds a religious belief that conflicts with an employment requirement.” In conducting a de novo review, the Sixth Circuit found plaintiff’s claims reflect her “personal moral code” rather than a sincere religious belief, specifically noting that despite over a year of litigation, plaintiff never identified what her religion was on the record. Thus, the Sixth Circuit affirmed the judgment of the district court based on plaintiff’s inability to demonstrate a connection between her religious principles and her allegations that the University’s COVID-19 policies were invasive, manipulative, or coercive.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation
Date:
10/18/2024
Deiter v. Tenn. Tech. Univ. (M.D. Tenn. Oct. 11, 2024)
Memorandum Opinion denying Defendant’s Motion for Summary Judgment. Plaintiff, a tenured Associate Professor at Tennessee Technological University brought Title VII claims alleging employment sex discrimination following denial of a promotion from Associate Professor to Full Professor. Plaintiff applied for promotion in the fall of 2020. She received a majority vote recommending her for the promotion from the English Department, as well as a recommendation from the interim chair of the department, and the Dean of the College of Arts and Sciences. The Provost recommended against plaintiff’s promotion, reasoning that “there is not adequate documented evidence to satisfy the [University] Policy criteria,” specifically in reference to plaintiff’s scholarship. Following the Provost’s recommendation, the President of the University ultimately denied her application, wrote that plaintiff’s teaching, service, and outreach category was sufficient for promotion, but that the quantity and frequency of her scholarship – two published scholarly articles and a book review over her five-year tenure at the University – was concerning. Plaintiff wrote. Plaintiff appealed to the Faculty Affairs Committee, which found procedural errors in the Provost’s review and unanimously voted to recommend the Provost’s denial be overturned and plaintiff be promoted. Notwithstanding, the President rejected the recommendation from the Faculty Affairs Committee. At the same time, plaintiff alleged two of her male colleagues with fewer achievements were promoted. The court found plaintiff sufficiently demonstrated she was qualified for promotion, citing the University’s President’s statement that her teaching, service, and outreach record was sufficient for promotion. Further, while the President and Provost seemed to rest their decision on plaintiff’s scholarship, the University policy contained no publication quota for the scholarship portion of the promotion criteria. Finally, the court found plaintiff sufficiently presented evidence to establish her male colleagues were (1) not members of the protected class due to their gender; and (2) similarly-situated to plaintiff as they sought the same promotion, during the same timeframe, within the same department, subject to the same policies and ultimate decision maker (the University President), obtained the same peer support, and were “weak in scholarship.”
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination
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:
10/4/2024
Agreement with Muhlenberg College re: Antisemitism Investigation (Sep. 30, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Muhlenberg College resolving a complaint that it responded inadequately to alleged harassment by a professor based on shared Jewish ancestry. The associated Resolution Letter noted that OCR recognizes the College’s responsiveness to notice it received regarding some incidents that could contribute to a hostile environment for students based on national origin, including shared ancestry; however, the College did not appear to have fulfilled its obligation under Title VI to address a possible hostile environment created by the Professor for students pertaining to the Professor’s social media posts and in-class discussion; additionally noting that the College appears not to have consistently fulfilled its obligation under Title VI with regard to other complaints of shared ancestry harassment, treating similar conduct differently. Through the Agreement, the College agreed to provide annual training to all employees and staff responsible for investigating complaints and other reports of discrimination, including harassment, based on shared ancestry or ethnic characteristics; conduct a survey of all staff that attend the required training to assess the effectiveness of the training; complete an investigation into whether actions by the Professor, based upon the totality of the circumstances, created a hostile environment for Jewish students on campus; administer a climate survey and create an action plan in response to any concerns raised in the survey; and provide OCR with documentation of the College’s response to any report of discrimination and/or harassment on the basis of shared ancestry during the 2024-2025 academic year.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
9/27/2024
Fox v. Fort Hays State Univ. (D. Kan. Sep. 24, 2024)
Memorandum and Order denying Defendant’s Motion to Dismiss. Plaintiff, an employee at Fort Hays State University brought claims of race discrimination under Title VII, § 1983, and § 1981 against the University. Plaintiff, who is Black, was employed at the University’s campus in China when he applied to transfer to a position on the main campus in Kansas. According to plaintiff, he was the “perfect fit” for the position, but did not receive an interview. Therefore, after the University hired a White male for the role, plaintiff brought claims alleging a race-based failure to promote and asserted that faculty members of color were overrepresented in international appointments and had been similarly denied opportunities for lateral transfer to the University’s main, domestic campus. The Court permitted plaintiff’s claims to proceed, finding that plaintiff adequately alleged he (1) is a member of a protected class due to his race; (2) applied for a position to which he was qualified; and (3) was rejected from that position in favor of a candidate of a different race. While acknowledging the broad and general nature of plaintiff’s claims, the court found that they were sufficient to state a plausible claim at this early stage but expressly noted that plaintiff must now adduce facts establishing his own credentials equaled or exceeded that of the successful candidate.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
9/27/2024
Brunson v. Benedict Coll. (D. S.C. Sep. 24, 2024)
Opinion and Order granting in part and denying in part Defendants’ Motion for Summary Judgment. Plaintiff, a former faculty member at Benedict College who is African American, brought Title VII and §1981 retaliation claims, as well as state law claims for breach of contract, wrongful termination, and defamation against the College. Following student complaints regarding plaintiff’s course instruction, including that the instruction relied almost exclusively on peer teaching, plaintiff was placed on a Performance Improvement Plan (PIP) and eventually terminated. Plaintiff avers that his placement on a PIP, termination, and other negative actions by supervisory personnel within the College were motivated by his complaints regarding purportedly problematic treatment by his White supervisor. Plaintiff’s allegations of retaliatory actions beyond his termination included alleged harassment, disrespect, supervisor demands for daily emails, refusal to fund any activity or effort associated with plaintiff’s requests for teaching materials, choir needs, and attendance at conferences, as well as “baiting his students to make false accusations against [plaintiff],” and denying his requests for leave of absence. Since the Court found that the College did not address these allegations insofar as they formed the basis for pro se plaintiff’s §1981 retaliation claim “on acts in addition to his termination,” the Court partially sustained plaintiff’s objection to the magistrate judge’s recommendation and permitted this narrow claim to proceed, but granted summary judgment in favor of the College on all other claims.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
9/27/2024
Office for Civil Rights Releases New Resources on Students with Disabilities (Sep. 24, 2024)
U.S. Department of Education, Office of Civil Rights (OCR) issued four new resource documents regarding the rights of students with anxiety, depression, bipolar disorder, and eating disorders, and the corresponding responsibilities of institutions to accommodate these potentially disabling conditions under Section 504 of the Rehabilitation Act of 1973.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity

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