Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
7/12/2024
Whipper v. Green (D. Conn. July 1, 2024)
Order denying Defendants’ Motions to Dismiss. Plaintiff, an inmate and student in the Wesleyan University Center for Prison Education (CPE) Program at Cheshire Correctional Institution, represented by court-appointed pro bono counsel, brought First Amendment retaliation claims against Department of Correction (DOC) officials and conspiracy to commit First Amendment retaliation claims against DOC officials and the University’s administrator for the CPE Program after he was removed from the program for refusing to sign a form related to rules of conduct for inmates. He alleged that the form was a way to implement “punitive practices against inmates in response to restrictions placed on DOC personnel by the passage of the Connecticut Protect Act” and that University volunteers disapproved of the requirement. Plaintiff also alleged that his transfer to a different facility for security concerns was pretextual to avoid a possible injunction. In permitting the First Amendment retaliation claim to proceed against the DOC defendants, the court found that (1) refusal to sign the form may be protected expressive activity and (2) plaintiff had also sufficiently alleged adverse actions and causal connection. In permitting the conspiracy claim to proceed against the University’s program administrator, it held that allegations that the administrator was aware of the plan to pressure inmates to sign the form and subsequently participated in removing plaintiff from the program were sufficient to allege that he had agreed to act in concert with the DOC Defendants, notwithstanding the University’s MOU granting the DOC unilateral authority to remove inmates from the program.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation
Date:
7/12/2024
OCR Resolution Agreement with Brown University re: Title VI Compliance (July 8, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Brown University of Rhode Island resolving a complaint that it responded inadequately to alleged harassment based on shared Jewish ancestry. The associated Resolution Letter noted (1) additional incidents of alleged harassment based on shared Palestinian, Arab, and/or Muslim ancestry and (2) that the University had “begun implementing changes to its Title VI organizational structures, reporting processes, and resources” in support of newly adopted “key priorities.” Through the Agreement, the University agreed to make additional updates to its policies and procedures; provide training to all employees and students; engage in detailed record keeping, review, and reporting on its responses to complaints; and engage in continued analysis and action pursuant to a climate assessment it had already begun.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
7/12/2024
U.S. Dep’t of Education Fact Sheet re: Harassment Based on Race, Color or National Origin (July 2, 2024)
U.S. Department of Education, Office for Civil Rights (OCR) Fact Sheet on Harassment Based on Race, Color, or National Origin on School Campuses. Noting that “OCR’s enforcement activities have demonstrated that discriminatory harassment of students based on their race, color, or national origin continues to be a concern on school campuses,” the Fact Sheet describes prohibited harassment, including harassment that creates a hostile environment, under Title VI and outlines schools’ response obligations. The Fact Sheet provides several hypothetical examples of factual allegations OCR might investigate to determine whether a hostile environment exists and whether a school has responded adequately to such information, as well as a list of additional related resources.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
6/21/2024
Tennessee v. Cardona (E.D. Ky. June 17, 2024)
Memorandum Opinion and Order granting Plaintiffs’ Motion for Preliminary Injunction. Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia sought to enjoin the new Title IX Final Rule, asserting that because it extends nondiscrimination protections to prohibit discrimination on the basis of gender identity it contravenes Title IX, violates government employees’ First Amendment rights, and is arbitrary and capricious under the Administrative Procedure Act (APA). The Christian Educators Association International and a fifteen-year-old girl, A.C., were permitted to join the States as intervenors. In granting the injunction, the court found plaintiffs and intervenors were likely to succeed on the merits of their claims, among others, that (1) the Final Rule’s requirements regarding gender identity are inconsistent with the unambiguous meaning of “sex” in Title IX and its expectation that students should receive separate treatment based on biological sex; (2) given “the ‘pervasive’ nature of pronoun usage in everyday life, educators likely would be required to use students’ preferred pronouns regardless of whether doing so conflicts with the educator’s religious or moral beliefs;” and (3) the Department did not “provide a reasoned explanation for departing from its longstanding interpretations regarding the meaning of sex and provided virtually no answers to many of the difficult questions that arose during the public comment phase.” The court found that it lacks jurisdiction to review the proposed Title IX athletics rule because it is not yet final agency action. The injunction is limited to the plaintiff States and intervenors. (N.B.: A.C., a track and field athlete from West Virginia, complains that she was asked to use the same locker room in middle school with B.P.J, the plaintiff in B.P.J. v. Bd. of Educ. (4th Cir. Apr. 16, 2024), and expects to face the same situation next year when B.P.J. starts high school.)
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
6/21/2024
Louisiana v. Equal Emp’t Opportunity Comm’n (W.D. La. June 17, 2024)
Memorandum Order granting-in-part and denying-in-part Plaintiffs’ Motions for Preliminary Injunction. Plaintiffs, Louisiana, Mississippi, and four Catholic organizations, sued the EEOC and sought to enjoin the EEOC’s Pregnant Workers Fairness Act (PWFA) Final Rule, alleging that it violated the Administrative Procedure Act and Constitution when it included abortion as a “pregnancy related condition” requiring workplace accommodations and objecting, in particular, to accommodations for purely elective abortions. The court found that the States had standing based on “harm in the form of regulatory burden, increased costs to implement the abortion accommodation mandate, and damage to their sovereignty” and that Catholic organizations had standing based on the conflict with their religious beliefs. It then found the EEOC likely exceeded its statutory authority, noting (1) it categorized “abortion” as a “condition” rather than a “procedure” and (2) the Supreme Court in Dobbs permitted states to regulate abortion. It also found the mandatory accommodation likely interferes with state sovereignty to enforce abortion laws and violates the States’ First Amendment right to control their own messaging on abortion. Similarly, the Catholic organizations were likely to succeed in their assertion that the Final Rule’s narrow religious exemption will unconstitutionally burden them with protracted investigations on a case-by-case basis. The injunction applies to the plaintiff States, all employees of covered entities whose primary duty station is in Louisiana or Mississippi, and the Catholic organization plaintiffs.
Topics:
Discrimination, Accommodation, & Diversity | Pregnancy Discrimination | Sex Discrimination
Date:
6/21/2024
Tennessee v. Dep’t of Education (6th Cir. June 14, 2024)
Opinion affirming preliminary injunction. In June 2021, the Department of Education issued a Notice of Interpretation, Dear Educator Letter, and Fact Sheet (the “Documents”), citing the Supreme Court’s decision in Bostock v. Clayton County and extending the nondiscrimination protections of Title IX to prohibit discrimination on the basis of gender identity and sexual orientation. Plaintiffs, twenty states with policies treating students differently based on biological sex, sued and sought preliminary injunction, alleging that the Documents are unlawful under the Administrative Procedure Act (APA), Title IX, and the U.S. Constitution. The district court granted the injunction as to the plaintiff States. In affirming, the Sixth Circuit first found that the States were likely to establish standing by showing injury to their (1) proprietary interest as operators of educational institutions that must now address new forms of discrimination or risk loss of federal funds if they continue to enforce current policies; (2) sovereign interest in enforcement of their own laws that will not be preempted; and (3) procedural rights to attempt to influence the Department through notice and comment rulemaking. In holding that the States are likely to succeed on the merits on their claim that the Documents are legislative rules requiring notice and comment rulemaking, the court found that the Documents carry out an express delegation of authority of Congress, impose new duties on the States, and the Fact Sheet indicates a change in the Department’s position about providing different facilities for students based on their biological sex.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
6/21/2024
Tennessee v. Equal Emp’t Opportunity Comm’n (E.D. Ark. June 14, 2024)
Memorandum Opinion and Order denying Plaintiffs’ Motion for Preliminary Injunction as moot and dismissing for lack of standing. Plaintiffs, seventeen states where almost all abortions are illegal, sued the EEOC and sought a nationwide injunction to stay the new Final Rule implementing the Pregnant Workers Fairness Act (PWFA) of 2022 while the case proceeds. The PWFA provides, among other things, that covered employers must provide reasonable accommodations for “known limitations” related to pregnancy or “related medical conditions.” The Final Rule and Interpretive Guidance include abortion among the “related medical conditions.” The States challenge that inclusion as it might require accommodations for elective abortion and claim that (1) the EEOC exceeded the statutory authority, (2) the inclusion offends the Constitution, and (3) it violated the Administrative Procedure Act. In dismissing the complaint, the court found the States lacked standing. It found that their assertion of sovereign harm failed because (1) the threat of an enforcement action is not imminent and (2) the injury is not redressable, as an aggrieved employee could still sue under the PWFA even if the Final Rule were enjoined. Their economic harm theory failed because (1) the alleged compliance costs related specifically to illegal, elective abortions are neither concrete nor particularized and (2) the alleged compliance costs are not fairly traceable to a threat of enforcement. The court also noted that the States, as a threshold matter, failed to show that any alleged injury was irreparable. It did not decide the likelihood of success on the merits.
Topics:
Discrimination, Accommodation, & Diversity | Pregnancy Discrimination | Sex Discrimination
Date:
6/21/2024
OCR Resolution Agreement with Lafayette College re: Title VI Compliance (June 20, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Lafayette College resolving a complaint that the College discriminated against students on the basis of national origin (shared Jewish ancestry) by not responding adequately to incidents of alleged harassment in October 2023. Through the Agreement, the University agreed to review its policies related to assessing when alleged discrimination or harassment creates a hostile environment; provide annual training to all staff responsible for investigating complaints and to all staff and students on discrimination based on race, color, and national origin, including harassment based on shared ancestry and ethnic characteristics; and review its response to past complaints to ensure that a determination regarding hostile environment was made regarding every complaint of discrimination or harassment. A related Resolution Letter summarized the findings of OCR’s investigation.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
6/21/2024
OCR Resolution Agreement with Univ. of Michigan re: Title VI Compliance (June 14, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and the University of Michigan resolving complaints that on multiple occasions during the 2023-2024 school year the University discriminated against students on the basis of national origin (shared Jewish ancestry/Israeli) by not responding adequately to incidents of discrimination or harassment. Through the Agreement, the University agreed to review its policies and procedures to ensure they adequately address Title VI’s prohibitions on discrimination, including to ensure that they require the University to assess whether reported discrimination or harassment has created a hostile environment; to develop and conduct annual training for students and employees, which may be web-based; to develop and administer a climate assessment on the extent to which students and employees have experienced or witnessed discrimination prohibited by Title VI; and, based on a review of its files and to the extent that it has not already, to offer services and support to those affected by a hostile environment resulting from such incidents. It also agreed to extensive reporting requirements related to each of these items. A related Resolution Letter summarized the findings of OCR’s investigation.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
6/21/2024
OCR Resolution Agreement with City Univ. of N.Y. re: Title VI Compliance (June 10, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and the City University of New York resolving multiple complaints of discrimination based on national origin, including shared Jewish, Israeli, Palestinian, Arab, Muslim, and/or South Asian ancestry by the University or its constituent schools and colleges. Through the Agreement, the University agreed to complete comprehensive reviews already underway of its policies and procedures for its 25 constituent colleges and schools; conduct new-hire and annual refresher training for diversity and compliance employees and campus peace officers; conduct an audit of its responses to all complaints of discrimination or harassment based on national origin; conduct a climate assessment and analysis for all constituent colleges and schools; issue a statement from the Chancellor within 30 days that the University does not tolerate discrimination or harassment based on national origin, including shared ancestry and ethnic characteristics, encouraging students and employees to report incidents of such discrimination or harassment, and provide outlined individualized remedies. The University also agreed to ongoing monitoring until OCR determines it has demonstrated compliance with all the provisions of the Agreement. A related Resolution Letter summarized the findings of OCR’s investigation.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation

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