Cases & Developments - National Association of College and University Attorneys

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Date:
8/18/2025
Jackson Fed’n of Teachers v. Eitch (S.D. Miss. Aug. 18, 2025)
Order Granting Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, several individuals and organizations impacted by Mississippi House Bill 1193 (HB 1193), challenged the constitutionality of the law. The state law prohibits public schools and universities from teaching, promoting, or requiring participation in diversity, equity, and inclusion programs. HB 1193 bans educational engagement with “divisive concepts,” though it does not clearly define what concepts are prohibited. Defendants maintained that the law is not a violation of the First Amendment because it “seeks to regulate only government speech, and the speech of public employees (such as educators) in their official capacity.” The court previously granted a temporary restraining order (TRO) on the implementation of the law on July 22, 2025. The court granted a preliminary injunction, finding that plaintiffs sufficiently demonstrated the potential for irreparable harm. The court noted the “dearth of evidence” from defendants on the issue of irreparable harm and agreed with plaintiffs that HB 1193 is “unconstitutionally vague, fails to treat speech in a viewpoint-neutral manner, and carries [] serious risks of terrible consequences with respect to the chilling of expression and academic freedom.”
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Due Process | Enforcement of Non-Discrimination Laws | First Amendment & Free Speech
Date:
8/14/2025
American Federation of Teachers v. Department of Education (D. Md. Aug. 14, 2025)
Memorandum Opinion Granting in Part and Denying in Part Plaintiffs’ Motion for Summary Judgment. Plaintiffs, the American Federation of Teachers (AFT), AFT Maryland Chapter, the American Sociological Association (ASA), and the Eugene, Oregon School District 4J brought suit against the federal government in February 2025 alleging that the Department of Education’s (the Department) February 14 Dear Colleague Letter (DCL) on Diversity, Equity, and Inclusion (DEI) principles and the associated certification requirement are procedurally and substantively improper under the Administrative Procedure Act (APA), First Amendment, and Fifth Amendment. Upon seeking leave to amend their complaint, plaintiffs now allege that the DCL and the certification requirement encompass limitations that are “unclear and highly suggestive”, forcing plaintiffs to “choose between chilling their constitutionally protected speech and association or risk losing federal funds and being subject to prosecution.” The court found that the government did not follow notice and comment procedures in issuing the DCL and did not comply with the Paperwork Reduction Act. The court reasoned that because both the DCL and the certification requirement “fail[ed] to account for facts, law, baseline conditions, or reliance interests” they acted in an arbitrary and capricious manner in violation of the APA. The Department maintains that the DCL was a reminder for schools that discrimination is illegal, however, the court disagreed, finding instead that the guidance “initiated a sea change in how the Department of Education regulates educational practices and classroom conduct, causing millions of educators to reasonably fear that their lawful, and even beneficial, speech might cause them or their schools to be punished.” Regarding the certification requirement, the court agreed with plaintiffs that it violated the Fifth Amendment’s Due Process protections against unreasonably vague laws because the requirement “attach[ed] serious consequences to compliance with standardless terms.” Finally, the court denied plaintiffs’ motion in part related to their claim that the certification requirement is facially overbroad, finding that it does not unambiguously punish protected speech, because it has limiting factors, though the court noted that the factors were not clear. As such, the court held that the DCL and the certification requirement are both unlawful and vacated, pursuant to the APA.
Topics:
Admissions | Constitutional Issues | Discrimination, Accommodation, & Diversity | Diversity in Employment | Due Process | Faculty & Staff | Financial Aid, Scholarships, & Student Loans | First Amendment & Free Speech | Race and National Origin Discrimination | Students
Date:
8/13/2025
Simon v. Ivey (N.D. Ala. Aug. 13, 2025)
Memorandum Opinion Denying Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, several professors at the University of Alabama, students from the University of Alabama at Birmingham, and the Alabama State Conference of the National Association for the Advancement of Colored People, Inc. filed a motion to enjoin defendants, the Board of Trustees of the University of Alabama and the Governor of Alabama from enforcing Alabama Senate Bill 129 (hereinafter referred to as SB 129). Plaintiffs alleged that SB 129 is unconstitutional under the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. SB 129 “prohibits public schools from finding or sponsoring ‘any diversity, equity, and inclusion programs . . . [and] prohibits teachers from requiring students in public schools, including colleges and universities, to assent to eight “divisive concepts.”’ In denying plaintiffs’ motion, the court found that plaintiffs’ free speech claims failed and reasoned that “our Circuit’s precedent [strongly suggests] that the Professors’ in-classroom instruction constitutes government speech” and that “that balancing weighs in favor of the interests of [defendant] the Board. The Board clearly has an interest in regulating the type of classroom indoctrination forbidden by SB 129.” While plaintiffs alleged that SB 129 chilled their speech as they made changes to their course curriculum, the court noted that plaintiffs’ changes in course materials were made “due to [] fear, rather than any discipline, direction from a University administrator, or requirement of the Board.” While plaintiffs alleged SB 129 is vague and challenged the bill based on a lack of explicit standards and minimum guidelines, the court was not convinced, reasoning that SB 129 “includes objective terms about what is prohibited (such as requiring student assent to a divisive concept), and noting that there is a scienter requirement (which is frequently upheld in civil and criminal laws) and a safe harbor that permits teaching about these concepts in an objective manner and in a historically accurate context.”
Topics:
Academic Performance and Misconduct | Constitutional Issues | Due Process | First Amendment & Free Speech | Students
Date:
7/29/2025
U.S. Department of Justice Notice of Findings Regarding the University of California, Los Angeles (Jul. 29, 2025)
The Department of Justice’s (DOJ) Civil Rights Division determined that the University of California, Los Angeles (the University) violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 by failing to adequately address antisemitic harassment during and after a protest encampment on campus in spring 2024. The DOJ’s Notice of Violation outlined three key findings. First, the notice claimed that Jewish and Israeli students were subject to severe, pervasive, and objectively offensive harassment, including assaults, verbal abuse, and physical exclusion from campus spaces, on the basis of their race, religion, or national origin. Second, notice claimed that the University had actual notice of this hostile environment, having received at least eleven formal complaints and issued public statements acknowledging Jewish students’ fears and physical exclusion. Third, the notice claimed that the University responded with deliberate indifference, taking no meaningful action to eliminate the hostile environment for nearly a week, despite having both legal and policy authority to dismantle the encampment earlier. The DOJ concluded that the University’s free speech concerns were misplaced because the conduct in question included physical assaults, intimidation, and denial of access, which are not protected by the First Amendment. DOJ officials condemned the inaction and warned that legal action will follow if the University does not enter into a voluntary resolution agreement by August 5, 2025.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Enforcement of Non-Discrimination Laws | Equal Protection | External Counsel | First Amendment & Free Speech | General Counsel | Race and National Origin Discrimination
Date:
7/28/2025
Campos v. Arizona Board of Regents (D. Ariz. Jul. 28, 2025)
Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss. Plaintiffs, a group of Arizona State University students, brought suit against the Arizona Board of Regents, the University’s President Michael Crow, several University officials, and law enforcement officers, alleging First Amendment retaliation under 42 U.S.C. § 1983 and violation of Arizona’s campus free speech statute following plaintiffs’ arrest and suspension for participation in a pro-Palestinian protest on campus. Plaintiffs alleged that the University coordinated with law enforcement to suppress anti-Israel speech and then preemptively suspended student protestors while sparing other students present at the demonstration. In response to the lawsuit, two motions to dismiss were filed: one from the University’s Board of Regents and several other University-affiliated individuals, and the other from the current Maricopa County Sheriff. The court dismissed all claims against the County Sheriff and nearly all individual University officials, citing a lack of specific factual allegations to support a legal claim. However, the court allowed claims to proceed against the University Board of Regents and University President. The court found that plaintiffs plausibly alleged the University’s President retaliated against them based on their political speech, based on the claim that (1) the University President was urged by the Anti-Defamation League to “impose consequences on students protesting Zionism,” and (2) spread misinformation about the protest to justify the University’s actions. The court further found that Arizona had waived sovereign immunity for the state-law claim and declined to apply qualified immunity or issue preclusion due to unresolved factual disputes and outstanding questions in the case
Topics:
Constitutional Issues | First Amendment & Free Speech | Student Speech & Campus Unrest | Students
Date:
7/22/2025
Mississippi Association of Educators v. Board of Trustees of State Institutions of Higher Learning (S.D. Miss. Jul. 22, 2025)
Order Granting Plaintiffs’ Motion for Temporary Restraining Order. Plaintiffs, a group of educators, students, parents, the Mississippi Association of Educators, and other civil rights organizations, challenged the constitutionality of Mississippi HB 1993, a state law prohibiting public schools and universities from teaching, promoting, or requiring participation in diversity, equity, and inclusion programs. Plaintiffs alleged that the law violates the First and Fourteenth Amendments by imposing both content and viewpoint-based restrictions on protected speech, infringed students’ right to receive information, and was unconstitutionally vague. Plaintiffs sought both a temporary restraining order (TRO) and a preliminary injunction to enjoin HB 1193 from being enforced. The law at issue, HB 1193, bans educational engagement with “divisive concepts” and prohibits mandatory DEI-related training or programming. Plaintiffs alleged that the law’s vague and broad language fosters an environment where administrators censor their speech out of fear of punishment or canceled programming and claimed that the sweeping language makes it impossible for institutions to ascertain what conduct is permissible. The court granted the temporary restraining order, finding that plaintiffs are likely to succeed on the merits. The court further concluded that HB 1193 violated the Due Process Clause by failing to clearly define what concepts are prohibited and also failed strict scrutiny by restricting protected speech without a compelling or narrowly tailored justification. The court’s reasoning turned on the law’s vagueness, the demonstrated chilling effect on constitutionally protected expression, and the risk of arbitrary enforcement. The TRO will remain in effect through August 17, 2025, pending a ruling on plaintiffs’ motion for preliminary injunction.
Topics:
Constitutional Issues | Due Process | First Amendment & Free Speech
Date:
7/17/2025
Black Emergency Response Team v. Drummond (Okla. Sup. Ct. Jun 17, 2025) (unpub.)
Order Responding to Certified Questions. Petitioners, a coalition of civil rights organizations and university affiliates, challenged 71 O.S. § 24-157, enacted through Oklahoma House Bill 1775, which “prohibits mandatory gender and sexual diversity training . . . [i]n relation to public colleges or universities, the law states: No enrolled student of an institution of higher education within The Oklahoma State System of Higher Education shall be required to engage in any form of mandatory gender or sexual diversity training or counseling; provided, voluntary counseling shall not be prohibited. Any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex shall be prohibited.” Petitioners argued that the law violated the First and Fourteenth Amendments by restricting classroom speech and access to ideas related to race and gender. The district court, after issuing a preliminary injunction enjoining enforcement of key portions of the statute on vagueness grounds, certified six questions of state law to the Oklahoma Supreme Court. The court responded to the first three questions: (1) whether the Oklahoma law overstepped the Legislature’s authority to control the internal operations of public universities; (2) defining the term “requirement” in the context of the ban on mandatory content involving race or sex stereotyping; and (3) defining the term “present” as it relates to teaching on race or sex stereotyping and whether it includes all references, discussions or portrayals. The court stated “[w]e answer the first three certified questions by determining that the term ‘requirement’ in § 24-157(A)(1) pertains only to orientation requirements and does not apply to classes, courses, or curricular speech.” After the court concluded that the narrowed scope of the definition does not implicate curricular speech and thus does not infringe upon principles of academic freedom, the court stated that it “has no reason to answer the remaining certified questions” and determined that plaintiffs lacked standing to challenge the law. The court declined to answer the remaining certified questions related to § 24-157(B)(1), finding that interpretation of those provisions would not avoid the federal constitutional issues raised and would risk rendering an advisory opinion. The court also made note that the federal questions raised could be impacted or rendered moot by Executive order 14190 “Ending Radical Indoctrination in K-12 Schooling” and declined to make that determination.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech
Date:
7/1/2025
Krasno v. Mnookin (7th Cir. Aug. 1, 2025)
Opinion Reversing and Remanding. Plaintiff, a former student at the University of Wisconsin-Madison brought First Amendment claims against the University after it had hidden several of her comments online. Plaintiff, while a student at the University, worked as a primate caretaker through the University’s research center and went on to become an animal rights advocate, using social media to highlight her experiences as a researcher. In 2020, plaintiff began commenting on the University’s social media posts, writing things such as “stop exploiting animals. Get with the future and the future is consistent anti-oppression. Shut down the labs and eat plants!” Plaintiff also responded to other comments, explaining that she used to work in one of the University’s labs. The University restricted plaintiff’s Instagram account, which hid all of her comments on the University’s posts and explained that it had noticed “a consistent pattern of off-topic comments.” The restriction was later removed, though her hidden comments were never unhidden. In 2021, the district court denied summary judgment for plaintiff and found in favor of the University, “finding nonpublic and limited public forums substantively equivalent . . . [and] the comment threads attached to the University’s posts were nonpublic forums, such that any restrictions to speech were required to be reasonable and viewpoint neutral.” On appeal, the Seventh Circuit agreed with the district court that the interactive comment threads attached to the University’s posts are limited public forums but disagreed that the University’s reasoning for hiding plaintiff’s comments was reasonable. The Court concluded that the comments made by plaintiff were private speech and “the University’s minimal involvement in shaping the comments on its comment threads weighs against finding that the comments constitute the University’s speech.” Further, the Court found that “the University’s ill-defined off-topic comment rule is neither reasonable nor viewpoint neutral” and found it to be unconstitutional under the First Amendment.
Topics:
Constitutional Issues | First Amendment & Free Speech | Social Media
Date:
6/27/2025
Doc Society v. Rubio (D.C.C. Jun. 27, 2025)
Memorandum Opinion Reversing the District Court’s Determination of Standing. Plaintiffs, Doc Society and International Documentary Association, filed suit against Secretary of State Marco Rubio and the State Department in 2023 to challenge the State Department’s 2019 policy imposing social media vetting for visa applicants. Plaintiffs asserted that the policy exceeded the Secretary’s statutory authority, was arbitrary and capricious under the Administrative Procedure Act (APA), and violated First Amendment rights to speech and association. The district court dismissed the complaint with prejudice for failure to state a claim under the First Amendment or APA, but found that plaintiffs sufficiently alleged organizational standing. Plaintiffs’ standing claim relied on hypothetical scenarios in which third parties may be deterred from using social media or traveling to the United States due to the policy. However, upon appeal, the court found plaintiffs’ standing argument fell short of demonstrating the concrete and redressable harm that is necessary to sustain a First Amendment claim in this context, and reversed the district court’s ruling. The court reasoned that plaintiffs’ claims did not establish a strong enough “logical inference from traceability to establish redressability” to maintain organizational or associational standing. The court further noted that plaintiffs would need to provide more specific allegations to show that “a favorable outcome would redress their claimed injuries.” The case has been remanded for further proceedings, including a determination of whether plaintiffs should be allowed to amend their complaint.
Topics:
Constitutional Issues | First Amendment & Free Speech | Immigration | International Students
Date:
6/23/2025
Wax v. University of Pennsylvania (E.D. Pa June 23, 2025)
Memorandum Opinion Denying Plaintiff’s Motion for Preliminary Injunction. Plaintiff Amy Wax, a tenured professor at the University of Pennsylvania Carey Law School, brought claims against the University alleging breach of contract, racial discrimination, and false light invasion of privacy. Plaintiff brought this suit after undergoing the University’s disciplinary process where it found that she had engaged in “flagrant unprofessional conduct” and was sanctioned to a one-year suspension, removal of her chair title, a public reprimand, and a limited decrease in salary. Plaintiff alleged that the University failed to adhere to its own disciplinary process and sought to enjoin the University from enforcing the proscribed disciplinary sanctions. The sanctions stem from a series of public remarks concerning race, gender and sexuality that the University determined violated professional expectations and norms, further noting that “she was in dereliction of her scholarly responsibilities, violated privacy policies, and had not treated students with equitable due respect.” Plaintiff alleged that the sanctions cause irreparable reputational and professional harm and have a “chilling” effect on her right to free speech. However, the court found that plaintiff’s First Amendment arguments are ill-fit for the case at hand, as she alleged claims for breach of contract, not First Amendment claims. Further finding that plaintiff failed to demonstrate imminent, irreparable non-monetary harm, and her example of a cancelled scheduled radio appearance as unconvincing, the court denied plaintiff’s motion for a preliminary injunction, calling her claimed harm “speculative” and stating that “an injunction will not erase [her] record.”
Topics:
Constitutional Issues | Faculty & Staff | First Amendment & Free Speech

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