Cases & Developments - National Association of College and University Attorneys

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Date:
8/9/2024
Manco v. St. Joseph’s Univ. Et, al. (E.D. Pa. Aug. 14, 2024).
Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former St. Joseph’s University professor sued the University and several students under multiple theories following termination his of employment. The University placed Plaintiff on administrative leave, investigated, and ultimately removed from his visiting faculty role for “violations of University policies” after screenshots of his anonymous tweets circulated online, were sent to the University’s Title IX Coordinator, and a student tweeted at the University “are you gonna fire [Plaintiff] who has done nothing but contribute to a hostile learning environment with his racism, sexism, and transphobia??????” Various defendant groups filed motions to dismiss, including the student who posted the tweet who argued that she was entitled to absolute privilege “as she conveyed information that commenced an investigation pursuant to federal statute or regulations.” The court declined to dismiss claims of defamation, false light, and tortious interference, reasoning that although the student’s emails and direct correspondence with the University during the pendency of the investigation were entitled to immunity, her “general tweet” towards a private institution lacked intent to commence an investigation. The court also found that her tweet was potentially defamatory as it may be read to imply that the professor is “a racist, sexist and/or is transphobic.” The Court granted the student’s request to dismiss Plaintiff’s claims of conspiracy and intentional infliction of emotional distress.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Employee Discipline & Due Process | Faculty & Staff | First Amendment & Free Speech | Retaliation | Social Media
Date:
8/9/2024
The American Association of University Professors (AAUP) Revision to Academic Boycott Policies (Aug. 12, 2024)
The American Association of University Professors (AAUP) revised its policy concerning academic boycotts, and published a letter on August 14th condemning the “Wave of Administrative Policies intended to Crack Down on Peaceful Campus Protest.” The revised policy supersedes the Association’s prior policy, which opposed academic boycotts and encouraged faculty to “seek alternative means, less inimical to the principle of academic freedom.” In its revised policy, the Association notes the many years of criticism the prior policy received. The new policy states that “academic boycotts are not themselves violations of academic freedom; rather, they can be considered legitimate tactical responses to conditions that are fundamentally incompatible with the mission of higher education.”
Topics:
Academic Freedom & Employee Speech | Faculty & Staff
Date:
8/2/2024
NLRB Final Rule on Representation—Case Procedures (Aug. 1, 2024)
National Labor Relations Board (NLRB) Final Rule on Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships. The Board’s Fair Choice-Employee Voice 2024 Final Rule rescinds and replaces April 2020 amendments concerning treatment of petitions for Board-conducted representation elections during the pendency of an unfair labor practice charge, and after an employer’s voluntary recognition of a union as an employee majority-supported collective-bargaining representative. The 2024 Final Rule, thus, “return[s] the law” regarding both blocking charge policy and the voluntary-recognition doctrine “to that which existed prior to the adoption of the April 2020 rule.” It also rescinds an amendment governing construction industry-specific petitions for a Board-conducted representation election. The Final Rule is effective September 30, 2024.
Topics:
Collective Bargaining | Faculty & Staff
Date:
8/2/2024
Butler v. Collins (5th Cir. Aug. 2, 2024)
Opinion certifying a question to the Supreme Court of Texas. Plaintiff, a former law professor at Southern Methodist University sued the University and several individual administrators claiming negligent supervision, fraud, defamation, conspiracy-to-defame, as well as Texas common-law claims for breach of contract, and several statutory claims after being denied tenure in 2016. The District Court dismissed the action for failure to state a claim. On appeal, plaintiff challenged the District Court’s judgment that the Texas Commission on Human Rights Act (TCHRA) preempts her fraud, defamation, and conspiracy-to-defame claims. In light of inconsistent precedent and unsure of whether tort claims asserted against employers can extend to harmful workplace conduct, the United States Court of Appeals for the Fifth Circuit certified the following question to the Supreme Court of Texas: “Does the Texas Commission on Human Rights Act [], Texas Labor Code § 21.001, et seq., preempt a plaintiff-employee’s common law defamation and/or fraud claims against another employee to the extent that the claims are based on the same course of conduct as discrimination and/or retaliation claims asserted against the plaintiff’s employer?” The Fifth Circuit otherwise retained the appeal, held in abeyance pending response from the Supreme Court of Texas.
Topics:
Faculty & Staff | Litigation, Mediation & Arbitration | Tenure | Tort Litigation
Date:
8/2/2024
NLRB GC Memo re: Clarifying Disclosure Obligations under the NLRA and FERPA (Aug. 6, 2024)
National Labor Relations Board (NLRB) General Counsel (GC) Memo re: Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA). The memo notes that private colleges and universities may have obligations under the NLRA to provide a collective-bargaining representative with information about student-workers, which is otherwise protected under FERPA. The memo provides guidance on the process by which institutions should respond to information requests, including to determine whether requested information is covered by FERPA, the duty to “offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution of the matter,” and to abide by any agreements reached regarding furnishing records. The memo also counsels that institutions covered by FERPA might also include a FERPA consent form “in paperwork to be completed by a student-employee upon onboarding of employment,” and provides a suggested FERPA Template Consent Form.
Topics:
Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Family Educational Rights and Privacy Act (FERPA) | Privacy & Transparency
Date:
7/19/2024
NLRB GC Memo re: Section 10(j) Injunctive Relief (July 16, 2024)
National Labor Relations Board, General Counsel Memorandum re: Section 10(j) Injunctive Relief and the Supreme Court in Starbucks Corp. v. McKinney. In the memorandum, the General Counsel wrote that “while the Supreme Court’s decision in Starbucks Corp. provides a uniform standard to be applied in all Section 10(j) injunctions nationwide, adoption of this standard will not have a significant impact on the Agency’s Section 10(j) program.” The General Counsel’s intention will remain “to aggressively seek Section 10(j) injunctions where necessary to preserve the status quo and efficacy of Board final orders.”
Topics:
Collective Bargaining | Faculty & Staff
Date:
7/12/2024
Johnson v. Nat’l Collegiate Athletic Ass’n, et al. (3rd Cir. July 11, 2024)
Opinion on interlocutory appeal affirming-in-part denial of Defendants’ Motion to Dismiss. Plaintiffs, student-athletes at several NCAA Division I member schools, on behalf of themselves and a putative class, brought FLSA and unjust enrichment claims against the NCAA and multiple member schools, seeking unpaid wages, liquidated damages, and attorneys’ fees. The district court denied defendants’ motion to dismiss, rejecting the assertion that as amateurs the athletes could not as a matter of law be classified as employees. It held that plaintiffs had pleaded sufficient facts under the multifactor balancing test from Glatt v. Fox Searchlight Pictures, Inc. (2nd Cir. 2016), which considered when unpaid interns may be entitled to compensation under the FLSA, to proceed with their claim. On interlocutory appeal, the Third Circuit affirmed denial of the motion to dismiss but vacated the application of the Glatt test in favor of a common-law economic realities analysis. In distinguishing the instant question from the internship context in Glatt, the court noted that “interscholastic athletics are not part of any academic curriculum” and “the educational and vocational benefits of college athletics cited by Appellants as alternative forms of remuneration (increased discipline, a stronger work ethic, improved strategic thinking, time management, leadership, and goal setting skills, and a greater ability to work collaboratively) are all exactly the kinds of skills one would typically acquire in a work environment.”
Topics:
Athletics & Sports | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Student Athlete Issues | Students
Date:
7/12/2024
Idaho Federation of Teachers v. Labrador (D. Idaho July 2, 2024)
Memorandum Decision and Order denying Plaintiffs’ Motion for Preliminary Injunction and granting Defendants’ Motion to Dismiss. Plaintiffs, individual university professors and teachers’ unions with members in the state of Idaho, brought free speech and vagueness challenges to Idaho’s No Public Funds for Abortion Act, which provides that no public funds may be used to “promote abortion” or “counsel in favor of abortion” and imposes criminal penalties for public employees who violate the prohibition. The Attorney General of Idaho, however, issued an opinion letter stating that academic speech does not fall under the Act and would not be prosecuted. In denying preliminary injunction and granting defendants’ motion to dismiss, the court found that without a risk of prosecution plaintiffs failed to demonstrate injury or redressability to establish standing.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech
Date:
6/14/2024
Starbucks Corp. v. McKinney (U.S. June 13, 2024)
Opinion vacating and remanding. In 2022, following an investigation, Starbucks terminated several employees who invited local news media into a Memphis Tennessee store after hours and without store managers’ knowledge to discuss their unionization efforts. The union filed charges with the National Labor Relations Board, and the Board issued a complaint and sought a preliminary injunction to reinstate the terminated employees. The district court granted the injunction, applying the Sixth Circuit’s “reasonable cause” standard for injunctive relief under Section 10(j) of the National Labor Relations Act, which permits temporary relief when the district court finds it “just and proper,” and the Sixth Circuit affirmed. The Supreme Court vacated and remanded, holding that the proper standard for a preliminary injunction under section 10(j) is the traditional four-part test articulated in Winter v. Natural Resources Defense Council (U.S. 2008). While the Court noted that Congress may alter the plaintiff’s burden for securing injunctive relief, it held that “because nothing in §10(j)’s text overcomes the presumption that traditional equitable principles govern, district courts considering the Board’s request for a preliminary injunction must apply the Winter framework, which embodies those traditional principles.”
Topics:
Collective Bargaining | Faculty & Staff
Date:
6/7/2024
State v. Conn. State Univ. Org. of Admin. Faculty. (Conn. June 4, 2024)
Opinion reversing vacatur of the arbitration award. In 2018, the former director of student conduct at Central Connecticut State University was arrested following an alleged domestic violence incident at his home. The University terminated him after its internal investigation, based largely on the police incident report, found his off-duty behavior made him unsuitable to discharge his on-campus responsibilities. Criminal charges were later dismissed, and a finding of neglect was reversed. The Union contested the termination, and an arbitrator found that the University’s investigation did not establish the grievant’s guilt by clear and convincing evidence and ordered his reinstatement and other remedies. The trial court denied the Union’s motion to confirm the award and granted the University’s motion to vacate. Applying its own precedent for evaluating when “an arbitration award reinstating a terminated employee violates public policy,” the Supreme Court of Connecticut reversed, finding that (1) no explicit public policy prohibits grievant’s reinstatement; (2) though his position was one of public trust, other University employees had been arrested and not terminated; (3) the arbitrator’s factual findings did not establish that the off-duty conduct was so egregious as to require termination; and (4) the arbitrator’s findings similarly did not indicate a substantial risk that the grievant would engage in the same behavior in the future.
Topics:
Employee Discipline & Due Process | Faculty & Staff | Litigation, Mediation & Arbitration

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