Cases & Developments - National Association of College and University Attorneys

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Date:
5/26/2023
Dep.’t of Education Dear Colleague Letter on Countering Antisemitism (May 25, 2023)
U.S. Department of Education Office for Civil Rights (OCR) Dear Colleague Letter (DCL) on Countering Antisemitism. In conjunction with the release of a new U.S. National Strategy to Counter Antisemitism, OCR released this DCL to remind schools of their obligation under Title VI “to provide all students, including Jewish students, a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics.” The DCL also reviews OCR’s guidance and resources related to countering antisemitism.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
5/26/2023
Joint OCR and DOJ Dear Colleague Letter on Online Accessibility (May 19, 2023)
Joint Dear Colleague Letter (DCL) from the Department of Education Office for Civil Rights and the Department of Justice on Postsecondary Online Accessibility. This DCL notes that online content provided through websites and third-party online platforms is a “service, program, or activity of the college, university, or other postsecondary institution” that is subject to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The DCL also reviews the legal framework, recent enforcement actions, and applicable guidance and regulations.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Technology | Technology Accessibility
Date:
5/19/2023
Countryman-Roswurm v. Muma (10th Cir. May 15, 2023)
Order and Judgment reversing denial of Defendant’s Motion to Dismiss and remanding. Plaintiff, a tenured professor of social work at Wichita State University and Executive Director of the University’s Center for Combating Human Trafficking, faced harassment from a colleague who allegedly spread rumors that she had secured her dual appointment through sexual favors. Among other claims, she alleged Equal Protection violations under §1983 against the University’s Provost, asserting that after responding inadequately to her initial complaint, he terminated her contract with the Center when she reported continued harassment. The district court denied the Provost’s Motion to Dismiss, finding that precedent forbids a supervisor’s acquiescence in sexual harassment. The Tenth Circuit reversed, holding that because the University had already launched an investigation, its precedents did not clearly establish that the Provost’s response amounted to acquiescence.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Equal Protection | Sex Discrimination | Sex Discrimination in Employment
Date:
5/19/2023
Ireland v. Rochester Inst. of Tech. (W.D. N.Y. May 11, 2023)
Decision and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Director of Donor Stewardship in the Development and Alumni Relations Division at Rochester Institute of Technology (RIT), brought a retaliation claim against the University after it reorganized the Division in a way that allegedly meant fewer opportunities for promotion and professional growth. Plaintiff alleged that the changes were made in retaliation for her complaints that a supervisor had made inappropriate, sexually suggestive comments. In granting summary judgment to RIT, the court held that plaintiff was unable to establish pretext because she presented no evidence that RIT’s changes to the Division were unnecessary and implemented only to harm her.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
Date:
5/12/2023
Wegmann v. Trs. of John A. Logan Coll. (S.D. Ill. May 10, 2023)
Memorandum Opinion and Order denying Defendants’ Motion to Dismiss. Plaintiff, a former student in the Cardiac Sonography Program at John A. Logan College, brought religious discrimination claims against the College, alleging that he was forced to withdraw from the program because it would not assist him in obtaining a religious exemption to the COVID-19 vaccine requirement at his clinical rotation site. Site officials informed him that they do not give exemptions to students, but that they would accept an exemption provided by the College. The College’s clinical site coordinator, however, allegedly declined to assist, citing that the College did not have a vaccination requirement and could not provide an exemption for the clinical site’s requirement. The College moved to dismiss the action based on standing. Denying the motion, the court held that plaintiff alleged a sufficient nexus between his injury of not being able to complete the clinical rotation and the College’s conduct and informal policies.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Internships, Externships, & Clinical Work | Religious Discrimination & Accommodation | Students
Date:
5/12/2023
Esparza v. The Univ. of Tex. at El Paso (Tex. App. May 8, 2023)
Opinion affirming dismissal. Plaintiff, a former Construction Supervisor at the University of Texas at El Paso (UTEP), brought retaliation claims against UTEP after the University terminated her for performance issues, documented over a period of years through a progressive discipline process. At various points, plaintiff filed both EEOC complaints and lawsuits alleging discrimination. The Court of Appeals of Texas found that plaintiff failed to establish causation between her protected activities and her termination, noting that the only protected activity with temporal proximity to her termination was an appeal filed related to a separate dismissal and that she had presented no evidence that UTEP officials were aware of that appeal.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
Date:
5/12/2023
Holmstrom v. Univ. of Tulsa (N.D. Okla. May 8, 2023)
Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a former student at the University of Tulsa, brought Title IX discrimination and retaliation claims against the University after he was expelled for sexual misconduct. Plaintiff asserted that he “was treated as guilty” and did not have the same chance as the complainant to prepare for the hearing or have friends present character statements. The court dismissed his discrimination claim, holding that these allegations showed at most pro-victim or anti-respondent bias. The court likewise found that plaintiff’s assertion that the University felt pressure to “render a speedy decision” before new Title IX regulations took effect did not support an inference of sex discrimination. In dismissing his retaliation claim, the court held that plaintiff failed to allege that he had engaged in protected activity, noting that his assertion that he had to defend himself against an allegation of sexual assault is insufficient to allege that he opposed sex discrimination.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Students | Title IX & Student Sexual Misconduct
Date:
5/12/2023
Zarza v. Bd. of Regents of the Univ. of Mich. (6th Cir. May 5, 2023)
Opinion reversing summary judgment in favor of the University. Plaintiff, a former custodial supervisor at the University of Michigan, brought a retaliation claim against the University after she was terminated when a disciplinary panel determined she had created a “hostile work environment of fear, intimidation, and harassment.” Plaintiff asserted that her termination was retaliation to punish her support of disability discrimination claim asserted by a former supervisee. The Sixth Circuit reversed summary judgment in favor of the University, finding that temporal proximity, testimony about reactions to her support for the discrimination claim, and various comments in email correspondence discussing her discipline and termination were sufficient to raise material questions as to causation and pretext.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
Date:
5/12/2023
Bartoszek v. Delta Coll. (E.D. Mich. May 5, 2023)
Opinion and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a former adjunct instructor in dentistry, nursing, and biology at Delta College, brought an age discrimination claim against the College after he was not hired for a tenure-track biology instructor position. Plaintiff was 68 at the time, and the successful candidate was 38. The College asserted that it did not grant plaintiff an interview because his letter focused on his accomplishments as a dentist rather than pedagogy. At various points, however, members of the search committee cited other reasons, including that plaintiff noted that his transcripts were already on file rather than submitting additional copies for the committee’s consideration. In denying the College’s Motion for Summary Judgment, the court held that the differing reasons cited for not granting plaintiff an interview were sufficient to cast doubt on the College’s stated motivation for not hiring him.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity
Date:
5/12/2023
Loecker v. Bd. of Trustees for Colo. Mesa Univ. (D. Colo. May 1, 2023)
Order granting Defendant’s Motion to Strike and Exclude. Plaintiff, the former head coach of women’s lacrosse at Colorado Mesa University, brought sex discrimination claims against the University after she was terminated following complaints from players and parents that she “created a negative culture.” Plaintiff disclosed as an expert witness a professor of sports management whose report discussed gender bias, stereotypes, and leadership expectations in sports, and how these may affect evaluations of female coaches. The court first held that the testimony is admissible under Rule 702 on expert testimony, even though the expert’s report addressed only general principles, rather than the facts of the instant case. However, the court granted the University’s Motion to Strike and Exclude under Rule 403 on relevance, finding that this was a topic within a layperson’s common knowledge and that “its minimal probative value is substantially outweighed by its prejudicial effect.”
Topics:
Athletics & Sports | Athletics Operations | Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment | Tax Implication of Campus Political Activity | Taxes & Finances

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