Cases & Developments - National Association of College and University Attorneys

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Date:
9/1/2023
R.W. v. Columbia Basin Coll. (E.D. Wash. Aug. 30, 2023)
Order denying Plaintiff’s Motion for Judgment as a Matter of Law. Plaintiff, a former nursing student at Columbia Basin College (CBC) who had accommodations for epilepsy and back pain, was hospitalized for four days in 2017 after he reported graphic, intrusive homicidal ideation about three of his instructors. CBC found him responsible for violating its policy on Abusive Conduct, sanctioned him, and imposed parameters on his return, including monthly sessions with an independent mental health counselor and consent to permit a CBC conduct official to speak with the counselor. Plaintiff brought disability discrimination claims against CBC and multiple officials. After a jury found for defendants, plaintiff renewed his motion for judgment as a matter of law. In denying the motion, the court found evidence presented at trial from which the jury could have concluded that (1) plaintiff’s expressions of homicidal ideation resulted not from depression, but from frustration with low grades, and (2) he was not a qualified individual because his reported ideation was specific enough that his primary physician and a state-certified Designated Crisis Responder thought he might have begun active planning. The court further rejected his claim that the requirement of independent counseling was an impermissible surcharge, finding no evidence that CBC permitted other students with similar conduct violations to reenroll without incurring such an expense.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Student Conduct | Students
Date:
9/1/2023
Rakhshandeh v. Tex. Tech Univ. (5th Cir. Aug. 30, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenure-track assistant professor at Texas Tech University, brought discrimination claims after he withdrew his tenure application when it became clear that it would be denied. In affirming summary judgment in favor of the University, the Fifth Circuit held his prima facie case failed because his voluntary withdrawal of his tenure application was not an adverse employment action. It declined to consider his claim that encouragement from his department chair to withdraw the application amounted to constructive discharge because it was not properly presented to the court below.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Race and National Origin Discrimination | Tenure
Date:
8/25/2023
U.S. Dep.’t of Education Dear Colleague Letter on Race and School Programming (Aug. 24, 2023)
U.S. Department of Education, Office for Civil Rights (OCR) Dear Colleague Letter (DCL) on Race and School Programming. In response to “recent increases in the number of complaints and requests for technical assistance,” the DCL aims “to clarify the circumstances under which recipients of federal financial assistance … can—consistent with Title VI of the Civil Rights Act of 1964 (Title VI) and its implementing regulations—develop curricula or engage in activities that promote racially inclusive school communities.” The DCL notes, “As the Supreme Court recently confirmed [in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College], Title VI prohibits racial classifications that would violate the Equal Protection Clause of the Constitution.” The DCL summarizes ways in which schools may run afoul of Title VI by acting or failing to act and gives examples of how violations might arise within the context of schools’ curricula and programming.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
8/25/2023
Sagers v. Arizona State Univ. (D. Ariz. Aug. 14, 2023)
Order granting Defendants’ Motion for Summary Judgment. Plaintiff is a tenured professor and former vice president of research at Arizona State University who was hired in the administrative role to increase research funding. She brought discrimination and retaliation claims against the University and her former supervisor after her administrative contract was not renewed due to a downturn in funding proposals and complaints that she had a negative management style. Plaintiff alleged that she raised concerns that her supervisor created a culture of fear and intimidation among female employees and engaged in gender discrimination. Plaintiff’s discrimination claims failed because (1) vague assertions that her supervisor also had complaints about his management style that did not result in his demotion did not establish him as an adequate comparator, and (2) criticisms of the performance metrics the University used in evaluating her development of funding proposals did not show that the use of those metrics was pretextual. Finally, the court rejected her retaliation claim since it found that while her opposition to alleged gender discrimination was protected activity, she failed to identify evidence that her supervisor was aware of that activity.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
8/25/2023
Hecox v. Little (9th Cir. Aug. 17, 2023)
Opinion affirming preliminary injunction. In March 2020, Idaho enacted the “Fairness in Women’s Sports Act” banning transgender females from participating on female sports teams from primary school through college and providing for a “sex dispute verification process whereby any individual can ‘dispute’ the sex of any female student athlete … and require her to undergo intrusive medical procedures to verify her sex.” Plaintiff, a transgender woman who wanted to try out for the track and cross-country teams at Boise State University and who feared her sex would be “disputed,” sought declaratory judgment that the Act violated Title IX and the Equal Protection Clause and injunctive relief barring its enforcement. In affirming the district court’s preliminary injunction on Equal Protection grounds, the Ninth Circuit held that the categorical exclusion of transgender student athletes is unnecessary and overbroad with respect to the Act’s asserted objective of promoting sex equality in sports. It further held that plaintiff was also likely to succeed on the merits of her challenge to the sex dispute verification provision because the Act subjected “only young women and girls to the humiliating and intrusive burden of the sex verification process.”
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination
Date:
8/25/2023
Wang v. Univ. of Pittsburgh (W.D. Pa. Aug. 22, 2023)
Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion to Dismiss Plaintiff’s Fourth Amended Complaint. Plaintiff, a cardiologist at the University of Pittsburgh Medical School and the University of Pittsburgh Medical Center (UPMC) and a former director of the joint clinical cardiac electrophysiology fellowship program of the University and UPMC, alleged under Title VII that the University, UPMC, and three officials retaliated against him by removing him as director of the fellowship program and barring him from interacting with fellows and residents after he published an article critical of the use of race and ethnic factors in admissions in medical schools, residency programs, and fellowship programs. The court dismissed plaintiff’s assertion that the March 2020 publication of his article was protected activity under Title VII, finding that it was a general complaint about the industry and did not specifically address practices at the University or UPMC. It permitted him to proceed, however, regarding statements he made in a July 2020 meeting with University and UPMC officials in which he raised his concerns that their admissions practices might be contrary to law.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
8/23/2023
Gage v. Midwestern Univ. (D. Ariz. Aug. 7, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Pathology Case Coordinator at the Diagnostic Pathology Center at Midwestern University, brought disability discrimination claims against the University after he provided a doctor’s note that he should not work with formaldehyde because he had experienced symptoms of chemical sensitivity. After the Ninth Circuit vacated summary judgment to the University on the grounds that an impairment need not be permanent to show a disability and that duration is only one factor to be considered, the district court again granted summary judgment in favor of the University, finding also that plaintiff failed to show that his symptoms amounted to an impairment that substantially limits a major life activity or that the University regarded him as having such an impairment.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
8/18/2023
Homer v. The Pa. State Univ. (W.D. Pa. Aug. 10, 2023)
Memorandum Opinion granting Defendants’ Partial Motion to Dismiss. Plaintiff, a former employee of Penn State University, sued the University after it terminated him for noncompliance with its COVID-19 vaccination policy requiring employees to show proof of vaccination or submit to testing and mask while on campus. Plaintiff alleged that his supervisors were critical of his religious beliefs during his termination process. The court dismissed his Due Process claim, finding that he had insufficiently alleged either publication of a substantial and materially false statement or possible loss of future employment opportunities to meet a stigma-plus test for deprivation of a liberty interest. It dismissed his Fourth Amendment unreasonable search claim regarding the testing requirement, finding he had not shown that the University’s legitimate public health interests during a pandemic were outweighed by his reasonable expectation of privacy. It dismissed his Genetic Information Nondiscrimination Act (GINA) claim, finding he failed to allege that the University’s testing process was used for anything other than to detect COVID-19 or that he was classified in any way based on his genetic information.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation
Date:
8/18/2023
Daly v. Kalamazoo College (W.D. Mich. Aug. 11, 2023)
Opinion denying Plaintiff’s Motion for Temporary Restraining Order. Plaintiff, an incoming student at Kalamazoo College where he will be a member of the soccer team, sought a Temporary Restraining Order to prevent the College from enforcing its mandatory vaccination policy, objecting on religious grounds to vaccines developed with the use of fetal cell-line tissue. In denying the TRO, the court held he was unlikely to succeed in his claims under Title II of the Civil Rights Act and Michigan Elliott-Larsen Civil Rights Act because the College is not a place of public accommodation as defined under either Act.
Topics:
Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation | Student Athlete Issues | Students
Date:
8/18/2023
DOJ NPRM on Accessibility of Web Information and Services of State and Local Government Entities (Aug. 4, 2023)
U.S. Department of Justice, Civil Rights Division Notice of Proposed Rulemaking (NPRM) on Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities. With this NPRM, the DOJ proposes to revise the regulations implementing Title II of the Americans with Disabilities Act (ADA) “to establish specific requirements, including the adoption of specific technical standards, for making accessible the services, programs, and activities offered by State and local Government entities to the public through the web and mobile apps.” The NPRM also proposes seven “exceptions with some limitations,” including “course content on a public entity’s password-protected or otherwise secured website for admitted students enrolled in a specific course offered by a public postsecondary institution.” Comments are due on or before October 3, 2023.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Technology | Technology Accessibility

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