Cases & Developments - National Association of College and University Attorneys

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Date:
6/23/2023
Harmon v. Tex. S. Univ. (Tex. App. June 15, 2023)
Opinion reversing dismissal and remanding. Plaintiff, a former nontenured English instructor at Texas Southern University (TSU) who had symptoms of osteoarthritis in her knee and was planning FMLA leave for knee surgery, brought a state law disability discrimination claim against TSU after it terminated her employment contract for failure to attend a mandatory meeting with her Department Chair and Dean concerning her professionalism. The trial court granted TSU’s plea to the jurisdiction. In reversing and remanding, the Court of Appeals of Texas found that she sufficiently alleged that her knee condition was a disability; that the Chair was likely aware of her need for a medical accommodation from her use of a cane, use of a “knee sleeve,” and references to doctors’ appointments; and that the Chair declined her requests to change the time of the mandatory meeting with her Chair and Dean.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
6/23/2023
U.S. Dep.’t of Education Regulatory Agenda for Spring 2023—Section 504 (June 13, 2023)
U.S. Department of Education Uniform Regulatory Agenda for Spring 2023. The filing indicates that the Department of Education plans to issue a Notice of Proposed Rulemaking (NPRM) in August 2023 to amend its regulations implementing Section 504 of the Rehabilitation Act of 1973.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
6/23/2023
U.S. Dep.’t of Education Regulatory Agenda for Spring 2023—Shared Ancestry & Ethnicity(June 13, 2023)
U.S. Department of Education Uniform Regulatory Agenda for Spring 2023. The filing indicates that the Department of Education plans to issue a Notice of Proposed Rulemaking (NPRM) in December 2023 to amend its regulations implementing Title VI of the Civil Rights Act to address harassment and other discrimination based on shared ancestry or ethnic characteristics. The filing notes that “OCR has received complaints of harassment and assaults directed at Jewish, Muslim, Hindu, and other students based on their shared ancestry or ethnicity.”
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
6/16/2023
Grabowski v. Ariz. Bd. of Regents (9th Cir. Jun 13, 2023)
Opinion affirming-in-part, vacating-in-part, reversing-in-part, and remanding dismissal. Plaintiff, a former member of the track team at the University of Arizona, brought Title IX deliberate indifference and retaliation claims against the University and §1983 claims against two coaches, alleging that he experienced homophobic bullying from other team members and that when he reported it, the University cancelled his scholarship and removed him from the team. The Ninth Circuit relied on Bostock to hold that Title IX prohibits discrimination based on perceived sexual orientation. It then affirmed dismissal of plaintiff’s Title IX claim, finding the pleadings insufficient to support a claim that the bullying denied him access to educational opportunities, when instead, the pleadings specified that his grades and relationships with students outside the running program remained exemplary. It reversed dismissal of his retaliation claim, finding that the timeline of events, coupled with additional allegations that his coaches directed antagonistic comments and actions towards him, was sufficient to allege causation. It affirmed dismissal of plaintiff’s §1983 claim against the coaches, holding that caselaw does not clearly establish a property right in an athletic scholarship.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Sexual Misconduct | Title IX & Student Sexual Misconduct
Date:
6/16/2023
Oldham v. Univ. of N.C. (M.D. N.C. June 13, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff is a former volunteer assistant fencing coach at the University of North Carolina (UNC). In December 2017, she was sexually assaulted on a commercial flight by a fencing coach from another university. A SafeSport investigation found him responsible, which resulted in his suspension by USA Fencing and his termination from his coaching job. In April 2019, plaintiff applied for a position as head fencing coach at UNC, but she was not hired. When she learned from the SafeSport investigative report that coaches at both UNC and the other university had made disparaging remarks about her during the investigation, she brought Title IX discrimination and retaliation claims against UNC, alleging that UNC declined to hire her either because of impermissible sex discrimination or because of protected conduct related to the underlying sexual assault investigation. The court dismissed most of plaintiff’s claims as time-barred, noting that the claims accrued when she discovered the injury, rather than when she discovered the elements of the claim. It permitted her to proceed, however, on the limited basis of retaliatory events that might have taken place within the three-year limitations period.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
6/16/2023
Binney v. The Pa. State Univ. (M.D. Pa. June 9, 2023)
Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, a part-time adjunct instructor at Penn State University, brought age discrimination claims against the University after it hired younger candidates, including graduate students, for multiple courses and independent studies, for an internship coordinator position, and for a full-time contract lecturer position. The court held that most of plaintiff’s claims failed for lack of pretextual evidence. In particular, plaintiff presented nothing beyond his own subjective beliefs to support allegations that the University preferred the successful candidates for unlawful reasons, as opposed to their superior qualifications. In granting summary judgment to the University on his claims regarding course assignments in independent studies, the court found that plaintiff could not have been “replaced” by younger instructors because the students, rather than the University, initiated their own projects.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity
Date:
6/9/2023
AlSayyad v. Regents of the Univ. of Cal. (Cal. App. June 7, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former professor at the University of California, Berkeley, brought discrimination claims against the University after he was suspended for three years for sexually harassing a graduate student. The faculty Privilege and Tenure Committee recommended a one-year suspension and sensitivity training, finding a “momentary overstep” when he touched the student’s leg. The Chancellor, however, imposed a three-year suspension, finding instead a pattern of harassment and unprofessional behavior. Affirming summary judgment in favor of the University, the California Court of Appeals held that the Chancellor presented a legitimate nondiscriminatory reason for the more severe sanction and that plaintiff presented no evidence showing that this reason was pretextual.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Faculty & Staff | Race and National Origin Discrimination | Sex Discrimination | Sexual Misconduct
Date:
6/9/2023
Semelka v. The Univ. of N.C. (N.C. App. June 6, 2023)
Opinion reversing denial of Defendants’ Motion to Dismiss. Plaintiff, a former tenured professor of radiology at the University of North Carolina at Chapel Hill, brought retaliation claims against the University and multiple officials under the North Carolina Whistleblower Act after he was terminated for false representations in reimbursement requests. In 2016, plaintiff complained that, among other things, his Department Chair ignored safety concerns. When a University investigation found no wrongdoing, plaintiff hired counsel to prepare for litigation. He then requested his Department reimburse him for $30,000 in legal fees. An audit determined that the legal services at issue were primarily personal in nature, as were nine trips he previously claimed as business travel. In prior litigation, a court held that plaintiff’s termination for misconduct was supported by substantial evidence and that the decision was properly made under the University’s tenure policy. Because the prior case found that the University’s audit was motivated by the unusual nature of plaintiff’s reimbursement request, the Court of Appeals of North Carolina held that plaintiff is precluded here from relitigating the issue of the alleged causal connection between his safety reports and his subsequent termination.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation
Date:
6/9/2023
Pogorzelska v. VanderCook Coll. of Music (N.D. Ill. June 5, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student at VanderCook College of Music, brought Title IX claims against the College, alleging that it exhibited deliberate indifference to her reports of off-campus sexual assault and subsequent on-campus harassment and that it retaliated against her for making the reports. The court permitted plaintiff to proceed on her deliberate indifference claim as to the assault, finding that a jury could conclude from email correspondence and disputed statements in the record that College investigators believed the respondent had committed the assault but unreasonably imposed limited sanctions in hopes of promoting a “healing process.” It also permitted her to proceed on her deliberate indifference claim as to the subsequent harassment, finding triable issues of fact as to (1) whether two incidents constituted harassment and (2) whether the College’s decision not to adjust or further enforce its no-contact order was clearly unreasonable. It granted summary judgment to the College, however, on plaintiff’s retaliation claims, finding insufficient evidence of materially adverse actions that were caused by plaintiff’s reports.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sexual Misconduct | Students | Title IX & Student Sexual Misconduct
Date:
6/9/2023
Foley v. Drexel Univ. (E.D. Pa. June 1, 2023)
Memorandum granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor of philosophy at Drexel University, brought hostile work environment and retaliation claims against the University and the chair of the Department of English and Philosophy alleging “a plethora of acts that she contends show discrimination based on sex and retaliation for the majority of her time at Drexel, between 2009 and 2022.” The court deemed some of plaintiff’s claims time-barred, to the extent that they were discrete and actionable events that occurred outside of the limitations period. It permitted plaintiff to proceed under the theory of continuing violation, however, as to allegations that “do not appear to be actionable, discrete discriminatory acts,” such as “sabotage” of dinners with visiting scholars, a requirement that she seek permission from a male adjunct professor to teach a course, and disagreements about administrative matters.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment

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