Cases & Developments - National Association of College and University Attorneys

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Date:
11/10/2023
Duke-Koelfgen v. Alamo Colleges Dist. (W.D. Tex. Nov. 1, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a tenured Associate Professor of composition and literature at San Antonio College, brought First Amendment claims against the College and individual officials after she was twice disciplined for unprofessional communications related to emails she sent demanding that students be permitted to use scholarship funds to take her class even though it was outside of their degree plans and criticizing officials who had requested volunteers to cover classes for an instructor who was ill. In granting the College’s motion for summary judgment, the court found that the speech in plaintiff’s emails was not protected by the First Amendment because it occurred when she was performing duties within the scope of her job responsibilities, noting that she sent the messages to College administrators in her capacity as an Associate Professor addressing College procedures.
Topics:
Constitutional Issues | Employee Discipline & Due Process | Faculty & Staff | First Amendment & Free Speech
Date:
9/29/2023
Spectrum WT v. Wendler (N.D. Tex. Sep. 21, 2023)
Memorandum Opinion and Order granting-in-part Defendants’ Motion to Dismiss and denying Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, a student organization at West Texas A&M University (WT) dedicated to raising awareness of the LGBT+ community and two of its officers, brought First Amendment claims against WT’s President and multiple officials seeking injunctive and declaratory relief, as well as damages, after the President wrote the group to express his opposition to its plan to hold an on-campus a drag show that would be open to children accompanied by a parent to raise funds for LGBT+ suicide prevention. Though the President supported the mission of the event, he wrote that “[d]rag shows are derisive, divisive[,] and demoralizing misogyny, no matter the stated intent.” The court held that the President was entitled to qualified immunity, finding that because the proposed expression was potentially sexualized, at an event that was open to children, and not overtly political in nature, traditional campus public forum considerations did not apply and the President’s objections to the content were not objectively unreasonable. For these reasons, the court also denied plaintiff’s motion for preliminary injunction, finding they had not demonstrated a likelihood of success on the merits.
Topics:
Constitutional Issues | Event Management & Facilities Use Policies | First Amendment & Free Speech
Date:
9/22/2023
Jackson v. Wright (5th Cir. Sep. 15, 2023)
Opinion affirming denial of Defendants’ Motion to Dismiss. Plaintiff, a professor of music theory at the University of North Texas (UNT), is a leading scholar on the Austrian music theorist Heinrich Schenker. He is also director of the Center for Schenkerian Studies and founding editor of the Journal of Schenkerian Studies, both of which are housed at and supported by UNT. After plaintiff contributed an article that proved controversial to a symposium in the Journal defending Schenker against charges of racism, University officials investigated the Journal’s editorial practices, removed plaintiff as editor, and suspended the Journal’s activities pending a national search for a new editor. Plaintiff brought First Amendment retaliation claims against the UNT Regents in their individual capacities, alleging an ongoing violation of his First Amendment rights and seeking declaratory and injunctive relief. In affirming denial of the Regents’ Rule 12(b)(1) motion to dismiss, the Fifth Circuit held that plaintiff’s claim against the Regents properly sought only prospective relief and that he had sufficiently alleged an ongoing violation that was fairly traceable to the Regents.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
9/8/2023
Casper v. Tex. Woman’s Univ. (Tex. App. Aug. 31, 2023)
Memorandum Opinion affirming dismissal. Plaintiff, a tenured professor at Texas Woman’s University, brought due process and First Amendment claims against the University and multiple officials after an investigation substantiated a student complaint that plaintiff had engaged in demeaning conduct toward students and failed to provide required disability accommodations. The University permitted plaintiff to retain her tenure, salary, and benefits, but barred her indefinitely from teaching or performing other faculty duties. In affirming dismissal of her procedural due process claim, the Court of Appeals of Texas held that plaintiff failed to allege that she had a protectable property right in the performance of the specific duties the University barred her from performing. Her substantive due process claim similarly failed under the stigma-plus test because she did not allege that the University publicized the charges against her or revoked her tenure. Finally, her First Amendment claim failed because she failed to allege that comments she claimed she made about “the value of hard work” were either matters of public concern or made in the context of classroom discussions.
Topics:
Constitutional Issues | Due Process | First Amendment & Free Speech
Date:
8/25/2023
Babinski v. Sosnowsky (5th Cir. Aug. 21, 2023)
Opinion reversing and dismissing. Plaintiff, a former Ph.D. student in the theatre program at Louisiana State University, brought due process claims against multiple professors in the department based on his assertion that he was “de facto expelled” from the program without a meaningful opportunity to be heard in his own defense. Plaintiff had submitted a “performative writing” for a course term paper that expressed his disapproval of his professor’s views in a course on “Gender, Sexuality, and Performance.” The chair of the department forwarded the paper to the LSU Police Department and the LSU Office of Student Advocacy and Accountability, though neither found an actionable violation. Plaintiff alleged that his professors then conspired to refuse to teach him, serve on his dissertation panel, or administer his general examinations, thus impeding his ability to complete the doctoral program. He subsequently earned a master’s degree in the philosophy department. In reversing the district court’s denial of qualified immunity to the professors, the Fifth Circuit assumed a constitutional violation but nevertheless held that plaintiff failed to show a clearly established right, finding that he had not identified a case that was sufficiently analogous to his asserted “de facto expulsion” that “dealt with the alleged tainting of the process that a school or university provided to a student.”
Topics:
Constitutional Issues | Due Process | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
8/18/2023
Griffin v. Univ. of Me. Sys. (D. Me. Aug. 16, 2023)
Order granting-in-part and denying-in-part Defendants’ Partial Motion to Dismiss. Plaintiff, a former tenured professor at the University of Southern Maine, brought First Amendment retaliation claims against the University and its President, after she was terminated in September 2021 for challenging the University’s COVID-19 vaccination and facemask policies. The court permitted plaintiff to proceed in her claim against the President in his official capacity, finding she had sufficiently alleged her demands that the University provide evidence to counter her own assertions about the efficacy of vaccinations and masking was speech about a matter of public concern outside of the scope of her duties as a professor. It held, however, that her constitutional claims against the President in his personal capacity were barred by qualified immunity.
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
8/11/2023
Flores v. Bennett (9th Cir. Aug. 3, 2023)
Memorandum affirming preliminary injunction. Plaintiffs, three individual students at Clovis Community College and the Young Americans for Freedom at Clovis Community College (YAF), sought a preliminary injunction in their First Amendment challenge to the College’s Flyer Policy after officials permitted them to post pro-life flyers on designated “Free Speech Kiosks” but not on bulletin boards reserved for student materials. The policy permitted Student Center staff to withhold posting permission for materials that contain “inappropriate or offensive language or themes.” The Ninth Circuit affirmed on the basis of overbreadth and vagueness, finding no error in the holding (1) that “a ban on ‘inappropriate and offensive language or themes’ is likely too broad to be ‘reasonably related to legitimate pedagogically concerns’” or (2) that the policy invited arbitrary enforcement because it lacked a sufficient “degree of specificity and clarity.”
Topics:
Constitutional Issues | First Amendment & Free Speech
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
Date:
7/28/2023
Ruizhu Dai v. Le, et al. (W.D. La. July 20, 2023)
Memorandum Ruling granting Defendants’ Motion for Summary Judgment. Plaintiff, a former graduate student and graduate assistant at Louisiana Tech University, brought constitutional and contract claims against multiple University officials after she received negative feedback on a public presentation and a low grade in a related class, was terminated from her assistantship, and resigned from the program when she was unable to form a dissertation committee. After the presentation, plaintiff emailed her professors taking issue with their critique of her research methodology. She also unsuccessfully appealed both her grade and the termination of her assistantship. In granting summary judgment to the defendants, the court held that plaintiff’s First Amendment claims failed because her email addressed neither the public nor a matter of public concern. Her due process claim failed because the continuation of her assistantship was contingent upon satisfactory performance and because she was afforded sufficient process upon its termination. Finally, her contract claim failed (1) because her contract was between her and the University, rather than the individual officials, and (2) because her assistantship letter provided that unsatisfactory performance could result in termination.
Topics:
Academic Performance and Misconduct | Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation | Students
Date:
7/21/2023
Pesta v. Cleveland State Univ. (N.D. Ohio July 14, 2023)
Opinion & Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former Professor of Management at Cleveland State University, brought First Amendment retaliation claims against the University and six officials after he was terminated following a committee investigation into allegations that he had used NIH data unethically. Plaintiff alleged, however, that the investigation and termination were retaliation for his defense of the “hereditarian hypothesis” in an article entitled “Global Ancestry and Cognitive Ability.” In permitting plaintiff to proceed in his First Amendment retaliation claims, the court found, first, that in the absence of a developed record regarding the alleged misuse of NIH data plaintiff had plausibly alleged that his speech interest outweighed the University’s interest in promoting the efficiency of its public services. It further found that plaintiff’s assertion that prior to his termination the University had also removed links on its website to other controversial articles he had written was sufficient to allege causation. The court, however, dismissed plaintiff’s claims for monetary damages against the University and the individual defendants in their official capacities as barred by sovereign immunity.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation

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