Cases & Developments - National Association of College and University Attorneys

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Date:
8/18/2023
Joint OCR and DOJ Dear College Letter on the U.S. Supreme Court’s SFFA Decision (Aug. 14, 2023)
Joint Dear Colleague Letter (DCL) from the Department of Education Office for Civil Rights and the Department of Justice on the U.S. Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina. In the joint DCL, the Departments “reaffirm [their] commitment to ensuring that educational institutions remain open to all, regardless of race.” The Departments also released a related Questions and Answers Regarding the Supreme Court’s Decision in Students For Fair Admissions, Inc. v. Harvard College and University of North Carolina with information about the Court’s decision, ways in which institutions of higher education may and may not consider an applicant’s race in admissions, and other steps an institution may take to achieve student body diversity.
Topics:
Admissions | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Students
Date:
8/18/2023
Pfang v. Lamar Inst. of Tech. (E.D. Tex. Aug. 5, 2023)
Memorandum and Order denying Defendant’s Partial Motion to Dismiss. Plaintiff, a former Associate Vice President at Lamar Institute of Technology who is of Chinese descent, brought discrimination, hostile work environment, and retaliation claims against the Institute after he was terminated for not following protocols in responding to an accident in the Institute’s truck driver training program. Plaintiff alleged that he experienced various forms of retaliation after he attempted to discipline one of his direct reports for alleged crude and unprofessional behavior. He also alleged that he requested that the “matter be referred to the Chancellor’s Office to be investigated fairly, without racial prejudice,” noting that both his supervisors and his direct report were “of the same race.” The court permitted his disparate treatment claim to proceed, finding that he had sufficiently alleged that he was treated differently from other members of the President’s Executive Team who were not Asian. It also permitted his hostile work environment claim to proceed, finding he had sufficiently alleged a coordinated effort to call meetings in order to criticize him in front of other members of the Executive Team.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
8/18/2023
Reiss v. Tex. A&M Univ. (S.D. Tex. Aug. 9, 2023)
Memorandum and Recommendation granting Defendants’ Motion for Summary Judgment. Plaintiff, a former student in the Doctor of Veterinary Medicine program at Texas A&M University who received accommodations for scoliosis, brought discrimination and failure to accommodate claims against the University after she failed her small animal general surgery rotation and was dismissed from the program. After she was dismissed from the program, plaintiff took a medical deferral rather than appealing her failing grade. The University denied her request to return to active status without first successfully appealing the grade. In recommending summary judgment in favor of the University on her discrimination claim, the Magistrate Judge held that plaintiff failed to identify any evidence indicating her disability was a motivating factor in her dismissal. Her failure to accommodate claim similarly failed because she was unable to show that she was qualified to continue in the program or that her readmission to the program after her failing grade was a reasonable accommodation.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
8/18/2023
Williamson v. Univ. of Louisville (W.D. Ky. Aug. 9, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former student at the University of Louisville who was approved for 1.5x time for assignments as an accommodation for a learning disability, brought discrimination and retaliation claims against the University after he failed to complete assignments for a summer online course with no time limits other than the end of the term. Less than four hours before that deadline, he emailed the professor that he was having trouble with his auto-reader. When she required him to document this issue with technical support, he accused her of refusing to provide the accommodation and eventually filed a grievance. When the fall term began, he dropped two of his four courses to “focus” on the grievance process, which resulted in ineligibility for his Pell Grant, a balance due, and a block on future registration. In granting summary judgment to the University, the court held that plaintiff’s discrimination claim failed for lack of evidence that the University held animus toward the disabled or that it treated comparable non-disabled students differently. Though the court found plaintiff had satisfied his prima facie case of retaliation because his Pell Grant was revoked shortly after he filed his grievance, it held he failed to show that his loss of eligibility due to his shift to a part-time schedule was pretextual.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation
Date:
8/18/2023
Turner v. Bd. of Supervisors of the Univ. of La. Sys. (5th Cir. Aug. 9, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenured English professor at Nicholls State University, brought a federal Family and Medical Leave Act (FMLA) interference claim and state-law disability discrimination and retaliation claims against the University and multiple officials, alleging that following her diagnosis with irritable bowel syndrome and approval for intermittent FMLA leave, the University nevertheless required her to submit doctor’s notes for each absence and reassigned her to the Writing Lab allegedly as a way to force her to retire. In affirming summary judgment in favor of the University, the Fifth Circuit found that her interference claim failed because the University had required the documentation only for plaintiff to collect paid sick leave for her otherwise unpaid FMLA leave. Her retaliation claim failed because she had not identified any protected activity in her opening brief, and her discrimination claim failed because she admitted that her request to teach all of her classes online would have required the University to reassign adjunct professors already scheduled to teach the classes.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Faculty & Staff | Family and Medical Leave Act (FMLA) | Retaliation
Date:
8/11/2023
Doe 1, et al. v. The Univ. of S.F., et al. (N.D. Cal. Aug. 2, 2023)
Order granting-in-part Defendants’ Motion to Dismiss. Plaintiffs, 14 former baseball players at the University of San Francisco, on behalf of themselves and a putative class, brought discrimination, retaliation, and contract claims against the University and two former coaches, alleging that the coaches created a sexualized and abusive environment and that the University permitted the behavior to persist. Does 1-3 played on the team beginning in 2020, and Does 4-14 played between 1999 and 2018. The court permitted all plaintiffs to proceed in their Title IX and state-law discrimination claims. The court found that Does 4-14 had sufficiently alleged a University coverup that was a cause of their Title IX injury and held that whether the alleged coverup tolled the statute of limitations under the discovery rule is better addressed at the summary judgment phase. The court also permitted Does 1-3 to proceed on their retaliation claims, but it dismissed the retaliation claims of Does 4-14 as time barred, noting that the alleged retaliatory conduct was overt and experienced as abuse at the time. The court dismissed plaintiffs’ contract claims because they attached the wrong document to their complaint. It also dismissed plaintiffs’ claim based on the agreement between the University and the NCAA requiring the University to abide by the NCAA Division Manual, finding that even though student-athletes benefit from NCAA principles, the principles fall short of expressing a clear intent to establish the student-athletes as third-party beneficiaries.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination
Date:
8/11/2023
Kluge v. Brownsburg Cmty. Sch. Corp. (7th Cir. July 20, 2023)
Order vacating the court’s opinion and judgment and remanding to the district court. Plaintiff, a former high school music teacher with the Brownsburg Community School Corporation who asserted that his sincerely held religious beliefs prevented him from engaging in any action to “promote gender dysphoria,” brought discrimination and retaliation claims against Brownsburg after he was forced to resign rather than comply with the school’s Name Policy requiring teachers to call students by their first names as listed in the school’s database. The school initially permitted him to refer to all students by their last names only, but it withdrew the accommodation, asserting that it was harming students and disrupting the learning environment. The district court granted summary judgment in favor of Brownsburg. Initially, the Seventh Circuit affirmed, finding the school had sufficiently demonstrated that continuing the accommodation posed an undue burden on its mission of educating students according to its established theory and practice. However, “[i]n light of the Supreme Court’s clarification in Groff v. DeJoy … of the standard to be applied in Title VII cases for religious accommodation,” the Seventh Circuit vacated its Opinion and Judgment and “remanded for the district court to apply the clarified standard to the religious accommodation claim in the first instance.”
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Religious Discrimination & Accommodation | Retaliation
Date:
8/11/2023
EEOC NPRM on Pregnant Workers Fairness Act (Aug. 11, 2023)
Equal Employment Opportunity Commission (EEOC) Notice of Proposed Rulemaking (NPRM) to implement the Pregnant Workers Fairness Act (PWFA). The NPRM contains an overview of the PWFA, the proposed implementing regulations, and an appendix with interpretive guidance that will become a part of the Code of Federal Regulations when the rule is finalized. The EEOC has also established a website, called What You Should Know About the Pregnant Workers Fairness Act, with information and resources in FAQ format. Comments are due on or before October 10, 2023.
Topics:
Discrimination, Accommodation, & Diversity | Pregnancy Discrimination | Sex Discrimination
Date:
8/4/2023
Steshenko v. Foothill-De Anza Cmty. Coll. Dist. (Cal. App. July 26, 2023)
Opinion affirming summary judgment in favor of the College. Plaintiff, a former student in the medical laboratory technician (MLT) program at De Anza College who is over 50, brought age discrimination, contract, and intentional infliction of emotional distress claims against the College after he was unable to secure a clinical externship as required for graduation and licensure. Three sites declined to hire him, and he refused to consider sites he deemed to require a prohibitive commute. In affirming summary judgment in favor of the College on his state-law age discrimination claim, the California Court of Appeals held that the MLT program was an educational program to prepare plaintiff for employment rather than a training program leading to employment. His contract claim failed because he failed to show either (1) the College’s contracts with its clinical placement sites were included in his contract, or (2) the College breached its contractual relation with him. His IIED claim failed because, while he alleged the College could have done more to assist him in securing an externship with one of his preferred sites, he presented no evidence that the College acted in an extreme or outrageous manner.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity | Internships, Externships, & Clinical Work | Students
Date:
8/4/2023
Parents Defending Educ. v. Olentangy Local Sch. Dist. Bd. of Educ. (S.D. Ohio July 28, 2023)
Opinion & Order denying Preliminary Injunction. Plaintiff, a nationwide membership organization including parents and students attending the Olentangy Local School District, brought First Amendment claims against the District, challenging its policies on bullying and discriminatory harassment on the grounds that requiring students to use pronouns corresponding to a transgender student’s identity would “require the students to affirm the idea that gender is fluid, contrary to their deeply-held religious beliefs.” In denying preliminary injunction, the court held that plaintiff was unlikely to succeed on the merits under Tinker because the District’s policies “prohibit only that subset of discriminatory speech that creates a threat of physical harm, interferes with students’ educational opportunities, substantially disrupts the operation of schools, or causes or contributes to a hostile environment.”
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Gender Identity & Sexual Orientation Discrimination

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