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Date:
11/15/2024
ACE Letter on Veteran Affairs Proposed Data Collection Related to the 35% Exemption from 85/15 Reporting Requirements (Nov. 12, 2024)
The American Council on Education (ACE) sent a letter to the U.S. Department of Veteran Affairs (VA) expressing strong concerns with the Department’s approach proposed in the VA Agency Information Collection Activity: 35% Exemption Request From 85/15 Reporting Requirement. The letter reviews how the proposed revision would create a new requirement that institutions compile, retain, and submit 85/15 data to the VA, regardless of whether the institution qualifies for the 35% exemption. In addition, the letter concludes that the proposed data collection is not allowed under law and must be amended to clarify that institutions qualifying for the 35% exemption are under no obligation to compile, retain, or submit 85/15 data to the VA.
Topics:
Faculty & Staff | Veterans & Uniformed Services Employment and Reemployment Rights Act (USERRA)
Date:
11/1/2024
Porter v. F. Tyler Sergent (6th Cir. Oct. 29, 2024) (unpub.).
Opinion affirming-in-part and reversing-in-part Judgment on the Pleadings. Plaintiff, a former tenured professor of psychology at Berea College, brought discrimination, retaliation, and contract claims against the College after it terminated him for publishing a survey about a series of “hypothetical” scenarios mirroring a recent Title IX investigation that found his department chair responsible for creating a hostile work environment for three female colleagues. Plaintiff also brought defamation, false light, and retaliation claims against the faculty advisor to the Student Government Association (SGA), after the advisor warned student leaders to stay out of the controversy and to forego awarding plaintiff a student service award. The district court granted summary judgment to the College on all claims, and specific to the defamation claim, held that the advisor was shielded by qualified common interest privilege in his role as an SGA advisor who provided relevant information to student leaders. The Sixth Circuit conducted a de novo review and affirmed the district court’s judgment on all claims except the defamation claim. In reaching a different conclusion on the latter claim, the Circuit found the district court erred as the claimed privilege is “not an absolute defense” and may be negated if the speaker either “abused” the privilege or acted with “malevolence or ill will,” which are questions for a jury to consider. It also noted that the alleged statements could be viewed as abusive and that the comments might be animated by interests beyond the role as an advisor, insofar as one of the three female colleagues in the underlying Title IX conflict was allegedly the advisor’s wife. Accordingly, the Court remanded for further proceedings on the defamation claim.
Topics:
Employee Discipline & Due Process | Faculty & Staff
Date:
10/11/2024
National Labor Relations Board General Counsel Memo re: Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act (Oct. 7, 2024)
National Labor Relations Board (NLRB) General Counsel (GC) Memo re: Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act (NLRA). The memo, which was issued to all field offices, expands upon the GC’s May 2023 memo and reaffirms the position that overbroad non-compete agreements are unlawful because they chill employees from exercising their rights under Section 7 of the NLRA, which protects employees’ rights to take collective action to improve their working conditions. The second part of the GC’s memo sets forth the proposed framework for assessing the lawfulness of “TRAP” provisions that limit employee mobility, the remedies that will be sought in enforcement actions before the Board, and the circumstances under which the GC may decline to issue a complaint against preexisting “stay-or-pay” arrangements.
Topics:
Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
10/11/2024
American Association of University Professors New Statement on DEI Criteria and Faculty Evaluation (Oct. 9, 2024)
The American Association of University Professors (AAUP) New Statement on Diversity, Equity, and Inclusion (DEI) Criteria and Faculty Evaluation. The AAUP released a new statement titled Diversity, Equity, and Inclusion Criteria for Faculty Evaluation, which holds that, when appropriately designed and implemented, DEI criteria for faculty appointment, reappointment, tenure, and promotion are compatible with academic freedom and may serve as an important means of fostering a diverse and inclusive academic environment. It encourages colleges and universities to recruit and retain diverse student and scholarly bodies. The statement was approved by the AAUP’s Committee A on Academic Freedom and Tenure.
Topics:
Diversity in Employment | Faculty & Staff
Date:
9/20/2024
Whetstone v. Howard Univ. (D. D.C. Sep. 12, 2024)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former employee at Howard University brought claims under the Employee Retirement Income Security Act alleging violations of the joint and survivor annuity (JSA) actuarial equivalence requirement and the definitely determinable rules requirement, as well as breach of fiduciary duty against the University and the University’s Retirement Plan Committee. Plaintiff asserted that the University violated the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 by using outdated formulas to calculate benefits paid out to eligible University retirees. Plaintiff alleged that the University’s retirement Plan used “antiquated actuarial assumptions” while reliance upon “reasonable actuarial assumptions” in the form of the Treasury Department’s preferred numbers to make a horizontal conversion would increase his monthly payout by $17.99 (about 3%). The court permitted plaintiff’s claims for violation of JSA actuarial equivalence requirements to proceed, finding a narrow challenge to the horizontal conversion from a straight life annuity (SLA) to a JSA sufficient to allege financial harm. In allowing plaintiff’s breach of fiduciary duty requirements to proceed, the court found “a violation of one of ERISA’s substantive requirements-like the actuarial equivalence standard-can constitute a breach of fiduciary duty.” The court dismissed plaintiff’s claim for violation of the definitely determinable rules requirement under ERISA as time barred.
Topics:
Employee Benefits | Employee Retirement Income Security Act (ERISA) | Faculty & Staff
Date:
9/20/2024
Vengalattore v. Cornell Univ. (N.D. N.Y. Sep. 10, 2024)
Decision and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former tenure-track Assistant Professor at Cornell University, brought Title IX, Title VI (national origin), and defamation claims against the University based on alleged flaws in an investigation that resulted in a finding that the plaintiff had violated the University’s Policy on Romantic and Sexual Relations Between Students and Staff. In allowing plaintiff’s Title IX claims to proceed, the court categorized plaintiff’s claim as one for “erroneous outcome” finding that there were disputes of material fact regarding if the University departed from proper procedure in application of timelines within its investigatory process; if the failure to interview additional witnesses identified by plaintiff rose to the level of evidentiary infirmities in the University’s findings; and in maintenance of confidentiality between the misconduct and tenure review processes. The court allowed plaintiff’s gender bias claims to proceed given the evidence alleged an “atmosphere of public pressure” and suggested that a reasonable jury could infer anti-male gender bias from the combined alleged procedural irregularities and external pressure to correct perceived tolerance of sexual misconduct. The court dismissed plaintiff’s defamation claim finding that he himself published the alleged defamatory content when he publicly filed a petition seeking review of his denial of tenure under New York’s Article 78.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Faculty & Staff | Sex Discrimination | Students | Tenure | Title IX & Student Sexual Misconduct
Date:
9/13/2024
Josephson v. Ganzel (6th Cir. Sep. 10, 2024)
Memorandum Opinion affirming the district court’s denial of Defendants’ Motion for Summary Judgment. Plaintiff, a former professor of psychiatry and Division Chief at the University of Louisville School of Medicine (the Medical School) brought claims alleging retaliation in violation of his First Amendment rights against multiple administrators at the Medical School. In 2017, after plaintiff shared his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank, which led to dissention amongst faculty, the Medical School first demoted him and then, did not renew his employment contract. The Sixth Circuit affirmed the district court’s rejection of the Medical School’s immunity defenses, finding that Plaintiff’s request for reinstatement as a faculty member and expungement of any reference to nonrenewal from him personnel file, are prospective in nature, and thus, not barred by Eleventh Amendment. The Circuit also found the Medical School was not entitled to qualified immunity since protections for Plaintiff’s speech were clearly established at the relevant time, and that a reasonable jury could find retaliation occurred where (1) Plaintiff participated in the off campus, privately funded panel in his individual rather than official capacity, which a moderator specifically advised attendees about prior to Plaintiff voicing his own views regarding treatment of children with gender dysphoria, which is a matter of public concern; (2) limited evidence supported that Plaintiff’s remarks yielded disharmony amongst his colleagues, including when he stormed out of a contentious faculty meeting, but that the Medical School produced no evidence that the remarks otherwise impacted either patient care or recruitment of other personnel and thus no “significant disruption” occurred; and (3) genuine factual disputes remained regarding whether Plaintiff’s demotion and subsequent termination was due to poor performance or his protected speech.
Topics:
Academic Freedom & Employee Speech | Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation
Date:
9/13/2024
Santa Maria v. Loyola Univ. of Chi. Stritch Sch. of Med. (N.D. Ill. Sep. 9, 2024)
Opinion and Order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiff, a former medical student at Loyola University of Chicago Stritch School of Medicine, who suffers from depression, anxiety, and ADHD brought claims of disability discrimination, retaliation, breach of implied contract, IIED, and negligence against the University and The National Board of Medical Examiners (NBME), after she failed a required exam three times, and was dismissed from the program. After a successful administrative appeal, Plaintiff was reinstated at the University with conditions to ensure she passed the exam during a subsequent attempt. Prior to retaking the exam, Plaintiff sought and received accommodations from NBME, about which she notified the University. Plaintiff alleges that as part of her reinstatement the University agreed to set up an eight-week study period and monthly meetings with the Dean to help her prepare to retake the exam, but that these supports were either only partially provided or were not provided in a timely manner, which meant that she could not utilize the NBME’s accommodation allowing her to space the two modules of the exam out by 14 days, causing her to fail the exam, and leading to a second dismissal for failure to complete the terms of her readmission. The court declined to dismiss the discrimination claims, reasoning that based upon the language of the reenrollment letter, the University recognized Plaintiff as a well-performing student except for when her disabilities presented challenges, and that if Plaintiff had no disability, she would not have failed her exams, and the University would not have offered reenrollment on specified terms. The court permitted Plaintiff’s contract claim to proceed, stating that the University “cannot use [the provision requiring plaintiff to pass the exam on her first attempt] to argue that [plaintiff] failed to perform an obligation it could not require her to fulfill.” The court dismissed Plaintiff’s negligence claim as duplicative of her claim for breach of contract, and her IIED claim reasoning that she failed to demonstrate that the University’s actions were “extreme and outrageous.”
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation
Date:
9/13/2024
Garcia v. AMTC-1, Inc. (M.D. Pa. Sep. 9, 2024)
Memorandum Opinion Denying Defendant’s Motion to Dismiss. Plaintiff, a former phlebotomy student at Fortis Institute (the Institute), which is a for-profit institution, brought Title VI claims of race-based harassment, discrimination, retaliation, and breach of contract, as well as claims for nonpayment of wages against both the Institute and her former externship placement site. After completing her coursework, Plaintiff was assigned to an externship, where she claims she experienced racially discriminatory harassment from one of the site’s paid employees, which she reported to the externship site’s coordinator. Subsequently, Plaintiff allegedly received a threatening message from the employee via social media, and then, the next day the Institute’s program director notified Plaintiff that the site had dismissed her from her externship placement. The court permitted her Title VI claim to proceed reasoning that Plaintiff sufficiently alleged a prima facie case via both direct and indirect evidence by asserting that she is a Person of Color, who met the qualifications to be enrolled in the Institute’s phlebotomy program and was dismissed from her externship after reporting experiencing discrimination at the site placement, and that although the Institute “had the authority to take remedial measures … [it] choose not to do so.” The court found that discovery was required to parse the nuance of the relationships between the Plaintiff on the one hand, and the Institute and site placement on the other, to evaluate her claims that she enjoyed employee status and was entitled to wages for her externship hours under the FLSA, and therefore, declined to dismiss those claims.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Race and National Origin Discrimination | Retaliation
Date:
8/9/2024
Carr, et, al. v. Tr. of Purdue Univ.; Tr. of Indiana Univ. (S.D. Ind. Aug. 14, 2024)
Order granting Defendants’ Motions to Dismiss and denying Plaintiffs’ Motion for a Preliminary Injunction. Plaintiffs, all tenured professors at Indiana public postsecondary institutions, sought a preliminary injunction to enjoin enforcement of Senate Enrolled Act 202 (SEA 202) against the Trustees of Purdue University, the Trustees of Indiana University (collectively “Boards”) and Intervenor, the State of Indiana. Plaintiffs alleged that SEA 202, which directs Boards to “adopt new policies aimed at ensuring that faculty members’ pedagogies align with the principles of free inquiry, free expression, and intellectual diversity” violates the First and Fourteenth Amendments. Plaintiffs assert that SEA 202 had a “chilling effect” on their employment because they “felt compelled to make changes to their syllabi” to abide by the policy and such efforts have been burdensome to university faculty members. Defendants argue “any injury that plaintiffs could potentially face would be attributable to the presently non-existent university polices, rather than to SEA 202 itself.” Because the court concluded Plaintiffs’ claims were “premature” requiring an “attenuated chain of inferences” and their injuries were “inchoate” due to the lack of institutional policies implementing SEA 202, it denied the request for preliminary injunction, granted Defendants’ motions to dismiss based on lack of jurisdiction, and dismissed the case without prejudice noting that it “express[ed] no view as to the merits of the[] constitutional claims, which must await further factual development.”
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech | Tenure

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