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  • Date:

    U.S. Dep’t of Education Dear Colleague Letter on the Obligation to Address Discrimination (Mar. 14, 2024)

    U.S. Department of Education, Office for Civil Rights (OCR) Dear Colleague Letter (DCL) on the obligation to address discrimination, including harassment, against Muslim, Arab, Sikh, South Asian, Hindu, and Palestinian Students. The DCL reminds schools of their obligation under Title VI “to address discrimination against students, including Muslim, Arab, Sikh, South Asian, Hindu, and Palestinian students, when the discrimination: involves racial, ethnic, or ancestral slurs or stereotypes; is based on a student’s skin color, physical features, or style of dress that reflects both ethnic and religious traditions; or is based on the country or region where a student is from or is perceived to have come from, including, for example, discrimination based on a student’s accent or name, a student’s limited English proficiency, or a student speaking a language other than English.” The DCL also reiterates that harassment need not be direct at a particular individual to create a hostile environment.   

    Topics:

    Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination

  • Date:

    Ware v. The Univ. of Vt. & State Agric. Coll. (D. Vt. Mar. 7, 2024)

    Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiffs, four current and former students at the University of Vermont brought Title IX, due process, contract, and negligence claims against the University and multiple officials, alleging both pre-assault and post-assault deliberate indifference. The court permitted plaintiffs to proceed in their campus-wide pre-assault deliberate indifference claim, finding they had sufficiently alleged that the University improperly relied on informal procedures, was insufficiently transparent, and regularly saw delays in case resolution. Though it dismissed their pre-assault claims related to specific team and club sports, Greek life in general, and repeat offenders, it found allegations that the University did not adequately supervise or deter students from attending parties hosted by derecognized fraternities sufficient for plaintiffs to proceed on deliberate indifference, negligence, and negligent infliction of emotional distress claims. Turning to their post-assault claims, the court found various allegations of inadequate responses to reports of sexual assault, including assertions that (1) a mandatory reporter did not report an alleged assault to the Title IX office and (2) officials coordinated to encourage a complainant to choose an informal resolution process, were sufficient for plaintiffs to proceed on their post-assault deliberate indifference, due process, and contract claims. The court also found that assertions of pressure to forego a formal investigation, criticism in the athletics community, and withheld references and professional support were sufficient to allege Title IX retaliation.   

    Topics:

    Constitutional Issues | Contracts | Discrimination, Accommodation, & Diversity | Due Process | Retaliation | Student Organizations | Students | Title IX & Student Sexual Misconduct

  • Date:

    Bagnall v. Cal. State Univ. (E.D. Cal. Mar. 12, 2024)

    Order granting-in-part Defendants’ Motion to Dismiss. Plaintiffs, the father and estate of a deceased student at California State University who had been the respondent in a Title IX sexual misconduct investigation, brought Title IX and multiple tort claims against the University and its Title IX Coordinator after the decedent died by suicide a few days after his attorney submitted his response to the Title IX investigative report. In dismissing the Title IX claim without prejudice, the court held that (1) a conclusory assertion that the Title IX Coordinator embraced “radical feminism” was insufficient to allege background indicia of gender bias in the University’s Title IX investigations and (2) an allegation that the Title IX Coordinator “disregarded ‘the wealth of exculpatory evidence provided to [her]’” without identifying specific evidence that was disregarded was insufficient to identify procedural flaws, particularly as the investigation was still incomplete at the time of the decedent’s death. The court dismissed the tort claims without prejudice, noting that the complaint did not allege that the plaintiffs had first presented their claims to the University in compliance with the California Government Claims Act.

    Topics:

    Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Students | Title IX & Student Sexual Misconduct

  • Date:

    Griswold v. Drexel Univ. (E.D. Pa. Mar. 1, 2024)

    Memorandum Opinion granting-in-part and denying-in-part Defendants’ Motion for Partial Summary Judgment. Plaintiff, a former associate professor at Drexel University College of Medicine who provided clinical instruction and care at the now-closed Hahnemann University Hospital (60%) and was the Director of a graduate program in medical and healthcare simulation (40%), brought discrimination and retaliation claims against the University after her position was eliminated following closure of the hospital. Plaintiff was placed on administrative leave and barred from campus while the Public Safety Department investigated an incident that occurred a month after she filed complaints of gender discrimination, with the result that she was unable to secure another faculty role as required for her to retain her program director position. In granting summary judgment in favor of the University on her discriminatory termination claim, the court found plaintiff’s proposed comparators with dual roles who were permitted to stay were not similarly situated because one position was a deanship and the other was funded contractually by a different hospital. The court permitted plaintiff’s retaliation claim to proceed, noting that her ban from campus, which contributed to her discharge, was in close temporal proximity to her protected activity. The court also permitted her hostile environment claim to proceed, finding the survival of her retaliation claim sufficient to raise a question about intentional discrimination. Plaintiff’s claims regarding other alleged adverse employment actions were not at issue in the instant motion.   

    Topics:

    Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Dawit v. Meharry Med. Coll. (M.D. Tenn. Mar. 1, 2024)

    Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student at Meharry Medical College who was granted testing accommodations for internal Meharry exams related to Obsessive Compulsive Disorder and General Anxiety Disorder, brought failure to accommodate, contract, and negligent misrepresentation claims against the College after it dismissed him following three failed attempts at Step 1 of the United States Medical Licensing Examination. Plaintiff did not request testing accommodations from the National Board of Medical Examiners (NBME) for his first attempt, and he withdrew his requests for his second when he did not allow NBME sufficient processing time and for his third attempt when NBME informed him he needed more recent medical documentation. In permitting his discrimination and contract claims to proceed, the court found the fact that the School had previously permitted other students to attempt the exam a fourth time sufficient to state a prima facie case of discrimination and to raise a question of pretext. In granting summary judgment in favor of the School on his negligent misrepresentation claim, the court held that the alleged misrepresentations were at most statements of the School’s intention to provide reasonable accommodations and its plans to apply a subsequently adopted policy to plaintiff in the future, rather than statements of present or past facts.     

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity

  • Date:

    Cooper v. Yale Univ. (D. Conn. Feb. 29, 2024)

    Ruling granting Defendant’s Motion for Summary Judgment. Plaintiff, a former administrator in the Department of Laboratory Medicine at Yale University who is African American, brought discrimination and retaliation claims against the University after a series of negative audit findings and performance issues led successively to a demotion, a Performance Improvement Plan (PIP), which she failed, a phased retirement agreement, and her termination when her attorney wrote the University claiming the agreement was void. In granting summary judgment in favor of the University on her discrimination claims, the court held that plaintiff failed to raise a question as to pretext, noting that of the five comparators she suggested only one had the same title, supervisor, and similar functions, but that comparator lacked plaintiff’s extensive history of unfavorable audits and unsatisfactory performance evaluations. Turning to her retaliation claim, the court found that even though plaintiff’s PIP was implemented a month after she expressed that she felt increased oversight of her work was discriminatory, she was unable to demonstrate pretext given that the long-standing concerns about her performance predated this complaint.   

    Topics:

    Age Discrimination | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation

  • Date:

    Bhattacharya v. Murray (4th Cir. Feb. 26, 2024)

    Opinion affirming summary judgment in favor of the Defendants. Plaintiff, a former medical student at the University of Virginia who was diagnosed with bipolar disorder with psychosis, brought First Amendment retaliation and due process claims against the University after he was suspended for failures of professionalism and then issued a four-year no trespass order (NTO) for online harassment and threats against faculty members. In Fall 2018, a faculty member submitted a Professionalism Concern Card regarding a series of questions plaintiff posed to an American Medical Women’s Association panel on microaggressions. Plaintiff was then involuntarily hospitalized, first, for concerning behavior on the afternoon he received notice of the professionalism concern and, two days later, for threatening behavior directed against his mother. Subsequently, he posted pictures of members of the school’s Academic Standards and Achievement Committee online along with harassing messages. In affirming summary judgment in favor of the University on plaintiff’s First Amendment retaliation claim, a divided panel of the Fourth Circuit found that the evidence overwhelmingly pointed to his confrontational and threatening behavior, rather than his protected academic speech on microaggressions, as the basis of his suspension and disqualification as a medical student. The court also affirmed dismissal of plaintiff’s due process claims, noting that professionalism is an academic rather than disciplinary standard for the medical school and that plaintiff himself did not timely appeal the NTO.   

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | Due Process | First Amendment & Free Speech | Retaliation

  • Date:

    Gimby v. Or. Health & Sci. Univ. Sch. of Dentistry (D. Or. Feb. 25, 2024)

    Opinion and Order granting Defendant’s Motion to Dismiss. Plaintiff, a former nursing student at the Oregon Health and Science University who worked in clinical rotations in Summer 2021, brought a discrimination claim under Title VII against the University after it denied her request for a religious exemption to the University’s COVID-19 vaccine mandate. In granting the University’s motion to dismiss, the court found that plaintiff failed to allege sufficient facts that she was employee to whom the protections of Title VII are applicable since she neither received a substantial benefit from her alleged “employment” as a nursing student nor had otherwise established agency under the common law test, though it found these pleading defects could be cured and granted plaintiff leave to amend. Turning to her request for a religious exemption, the court found that plaintiff’s assertions that her “faith and trust that God knows the direction that my journey is supposed to take” and that she “cannot receive vaccines as they unnaturally interrupt my journey in this natural world as set up by God” were sufficient to state a bona fide religious belief conflicting with an employment duty, insofar as she might establish an employment relationship through an amended pleading.   

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation

  • Date:

    Abreu v. Howard Univ. (D.C. Cir. Feb. 23, 2024)

    Opinion affirming-in-part and reversing-in-part dismissal and remanding for further proceedings. Plaintiff, a former medical student at Howard University with ADHD and situational phobia related to test-taking anxiety, brought disability discrimination and contract claims against the University after it dismissed him from its medical school for repeatedly failing a required examination. The D.C. Circuit reversed the district court’s dismissal of plaintiff’s failure to accommodate claim, noting that it had subsequently decided in Stafford v. George Washington University that the three-year statute of limitations for personal injuries under D.C. law, rather than a one-year limit, applied to claims under Title VI, in which Congress was similarly silent as to a limitations period. It affirmed dismissal of plaintiff’s contract claim, noting that (1) references to compliance with the Rehabilitation Act and the ADA in the University’s Policies and Procedures Manual were insufficient to obligate the University to do something that was not already otherwise required, and (2) plaintiff had not been expelled prematurely under the terms of the medical school’s Policies & Procedures Manual.   

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity

  • Date:

    U.S. Dep.’t of Educ. New Resources on Students with Disabilities (Feb. 20, 2024)

    U.S. Department of Education, Office for Civil Rights (OCR) New Resources on Students with Disabilities. In a press release, OCR announced four new resources with information for students and institutions to understand their respective rights and obligations regarding common medical conditions that can be disabilities under Section 504 of the Rehabilitation Act. The four conditions include asthma, diabetes, food allergies, and GERD (gastroesophageal reflux disease). The Department also highlighted a compilation of Fast Facts on Students with Disabilities compiled by the National Center for Education Statistics addressing the number of students in postsecondary education who have a disabling condition.   

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity

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