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Latest Cases & Developments
Date:
Jackson v. Duff (5th Cir. Dec. 10, 2025)
Opinion Affirming Denial of Defendants’ Motion to Dismiss. Plaintiff, the vice president of Jackson State University, sued members of the Mississippi Board of Trustees of State Institutions of Higher Learning in their individual capacities, alleging violations of the Fourteenth Amendment’s Equal Protection Clause under § 1983 and sex discrimination and retaliation under Title VII after the board failed to hire her for an interim president role, and subsequently denied her an interview and failed to hire her for the presidency. The district court denied the individual defendants’ motion to dismiss plaintiff’s § 1983 claims based on qualified immunity. On appeal, the Fifth Circuit affirmed the district court’s ruling, finding (1) that each board member, by way of voting to appoint a male candidate and denying plaintiff an interview, could be construed as the proximate cause of plaintiff’s alleged constitutional injury, and (2) because the plaintiff had adequately pled a violation of clearly established law,” a qualified immunity defense was foreclosed at this stage of the proceeding.
Topics:
Discrimination, Accommodation, & Diversity | Governance | Governing Boards & Administrators | Retaliation | Sex DiscriminationDate:
Dep’t of Educ. v. Massey (Pa. Commw. Ct. Oct. 20, 2025)
Opinion Affirming Office of Open Records Final Determinations. Petitioners, the Department of Education and Pennsylvania State University, in a set of consolidated cases, appealed the Pennsylvania Office of Open Records’s (OOR) final determinations granting a journalist from Spotlight PA access to several records regarding the Board of Trustees. OOR partially granted respondent’s Right-to-Know Law (RTKL) request in which he sought copies of electronic documents that were created by the university and sent via an electronic system to the Departments of Education and Agriculture. The court upheld OOR’s determination, reasoning that the records requested are public records under RTKL that were received by the Departments and were therefore within the “possession, custody, or control of the Departments”, and that they are not “confidential proprietary information” as argued by petitioners.
Topics:
Electronic Discovery & Electronically Stored Information | Governance | Governing Boards & Administrators | Litigation, Mediation & Arbitration | TechnologyDate:
Association of Governing Boards of Universities and Colleges Community Letter Call to Action (May 1, 2025)
The Association of Governing Boards of Universities and Colleges (AGB) published a community letter reaffirming the independence of higher education governance. The letter states that the independence of governing boards faces renewed and expanding challenges, including efforts to condition public funding on political compliance or ideological conformity, as well as attempts to control fundamental institutional decisions such as determining whom to admit, whom to hire, and how to fulfill an institution’s mission in service to its students and communities. The 200+ college and university presidents, board chairs, sector association leaders, and heads of accrediting agencies who signed the letter agreed that (1) governing boards must retain independent authority to fulfill their fiduciary duties without political interference; (2) higher education’s strength lies in its diversity of thought, freedom of inquiry, and insulation from political orthodoxy; and (3) preserving institutional autonomy is essential for the vitality of American democracy, economic innovation, and global leadership. Finally, the letter calls on leaders in the field to (1) defend the independence of college and university governing boards as a cornerstone of constitutional freedoms; (2) reject political interference that undermines academic excellence and fiduciary stewardship; and (3) reaffirm the principles of charter sanctity and institutional autonomy articulated in Dartmouth College v. Woodward “as vital protections for our nation’s future.”
Topics:
Governance | Governing Boards & Administrators | Government Relations & Community AffairsDate:
Fenchak v. The Penn. State Univ. Board of Trustees (Ct. Com. Pl. Centre Cnty. Ct. Oct. 9, 2024)
Opinion and Order granting Plaintiff’s Emergency Motion for Preliminary Injunction. Plaintiff, a current alumni-elected member of The Pennsylvania State University Board of Trustees, filed suit seeking to compel the University to disclose certain investment and financial documents, as well as a copy of an athletic events vendor contract that he alleges are needed to fulfill his fiduciary duty as a member of the Board. Three days after filing suit, plaintiff attended a Board meeting wherein he was gifted a hat, which he told a trio of University employees made him resemble a “penis with a hat on.” Thereafter, the University launched an investigation that led to a recommendation to remove plaintiff from the Board for violating the Trustee Code of Conduct. Plaintiff then sought a preliminary injunction from the court to prohibit the Board from voting on the removal recommendation, which he claims is in retaliation for his filing suit rather than animated by his comments to University staff. The court ruled an injunction was necessary to prevent plaintiff’s removal from the Board, which would inhibit his ability to prosecute the underlying documents case. It reasoned that although it “does not condone” plaintiff’s behavior towards University personnel, the “offending remark was an approximate quote” from the 1992 movie, “A League of their Own.” Litigation on the merits proceeds.
Topics:
Governance | Governing Boards & AdministratorsDate:
Swender v. Garden City Cmty. Coll. (D. Kan. Mar. 29, 2024)
Memorandum and Order granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, a former president of Garden City Community College, brought contract and tort claims against the College and its outside counsel after a controversy involving a student protest at a Board of Trustees’ meeting led to the end of plaintiff’s formal employment relationship with the College. Following the Board meeting, on the advice of the College and outside counsel, plaintiff issued the students a No Trespass Order that was lifted when the students sued. After plaintiff and the College entered into a Separation Agreement, the College categorized him as an independent consultant in order to satisfy the “Continued Employment” clause of his original Employment Contract, which provided that he should still receive his full salary and benefits for the full term of his contract even if he ceased to be president. As an independent consultant, however, he was no longer eligible for certain retirement benefits. In permitting plaintiff’s contract claim to proceed against the College, the court found he had sufficiently alleged that the Separation Agreement incorporated the terms of the Employment Contract by reference, including its “Continued Employment” clause. It rejected the College’s Release Clause affirmative defense, finding that the clause released the College from claims arising from actions taken up to the time of the Settlement Agreement and that the alleged miscategorization occurred afterwards. The court found plaintiff’s malpractice claims against the College and its outside counsel related to their advice to issue the No Trespass Order were time-barred.
Topics:
Contracts | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Governance | Governing Boards & AdministratorsDate:
Perkins v. New Eng. Coll. (D. Vt. Jan. 3, 2024)
Opinion and Order granting Defendants’ Motion to Stay. Plaintiff, a former Chancellor of New England College who was also a member of its Board of Trustees, brought sex discrimination and intentional infliction of emotional distress claims against the College and its President after it terminated her employment the day after her Employment Agreement expired and removed her from its Board prior the end of her three-year term. Defendants moved to stay and to compel arbitration pursuant to the Employment Agreement. In granting the stay and compelling arbitration on plaintiff’s discrimination and IIED claims, the court held that even though her termination took place after the Employment Agreement’s expiration, the facts giving rise to her claims occurred within its duration. Turning to her claims related to her removal from the Board, the court held that although her Board appointment was not governed by the Employment Agreement “the interests of economy for both the Court and the parties will be served by a complete stay.”
Topics:
Discrimination, Accommodation, & Diversity | Governance | Governing Boards & Administrators | Litigation, Mediation & Arbitration | Sex Discrimination | Sex Discrimination in EmploymentDate:
Jenkins v. Howard Univ. (D. D.C. June 12, 2023)
Memorandum Opinion granting Defendants’ Motion to Dismiss. Plaintiffs, alumni of Howard University, brought contract and breach of fiduciary duty claims against the University after its Board of Trustees amended its bylaws to permit representatives of affiliate groups, including the alumni association, to serve on Board committees, but otherwise excluded those representatives from membership as Trustees on the Board. Plaintiffs’ contract claim failed because neither a conclusory reference to a 1923-24 agreement with alumni to permit nomination of trustees, nor a 1926 amendment to the bylaws permitting their election was sufficiently definite to allege an enforceable contract. In dismissing plaintiffs’ breach of fiduciary duty claim, and without deciding whether Congress intended to establish the University as a charitable trust, the court held that plaintiffs lacked standing to sue to enforce the alleged trust because they constitute an unlimited class, rather than a limited class with a special interest in the continued performance of the alleged trust.
Topics:
Governance | Governing Boards & AdministratorsDate:
Hastings Coll. Conservation Comm. V. Faigman (Cal. App. June 5, 2023)
Opinion affirming denial of anti-SLAPP motion. In September 2022, the Governor of California signed into law AB 1936 designating the school formally known as the “Hastings College of Law” as the “College of Law, San Francisco.” The legislation also eliminated a seat on the College’s Board for descendants of S.C. Hastings. Plaintiffs, a group of alumni of the school and descendants of S.C. Hastings, sued, alleging, among other claims, that AB 1936 violates the contracts clauses of the California and United States Constitutions. Plaintiffs also seek to enjoin the College’s Directors and Dean (College Defendants) from implementing the changes. The College Defendants moved to strike under the California anti-SLAPP statute, arguing that the acts plaintiffs seek to enjoin are inseparable from their speech referring to the College by its new name, which is protected activity authorized by AB 1936. In affirming denial of the motion, the California Court of Appeals held that “even assuming that AB 1936 is a speech-related measure, it is the State’s speech, not the College Defendants’, and the alleged wrongfulness of [their] implementation of the law is not legally distinct from the alleged wrongfulness of the law itself.” Accordingly, plaintiffs’ claims did not arise from the protected activity.
Topics:
Endowments & Gifts | Governance | Governing Boards & Administrators | Taxes & Finances
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