Cases & Developments - National Association of College and University Attorneys

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Date:
10/20/2023
Lewis v. Bd. of Supervisors of La. State Univ. (M.D. La. Oct. 17, 2023)
Order denying Plaintiff’s motion to reconsider the scope of a protective order regarding attorney-client privileged redactions in external investigations. Plaintiff, a Louisiana State University (LSU) Athletic Department employee, brought Title VII, Title IX, §1981, §1983, and RICO claims against the LSU Board of Supervisors and individual defendants based on conduct related to the conduct of former head football coach, Les Miles (Miles). In denying Plaintiff’s motion, the court reasoned that absent evidence of a prima facie case that defendants committed one of the three crimes alleged by plaintiff, the crime-fraud exception remained unavailable to pierce the veil of attorney-client privilege attendant to the redacted sections of a student complaint memo (Memo) detailing LSU’s review of allegations made by a student-employee against Miles, and outside counsel’s billing records. Specifically, the court ruled that outsourcing LSU’s investigatory obligations under Title IX to external counsel, did not convert an internal inquiry into allegations of Miles’ alleged conduct to an “official proceeding” pursuant to 18 U.S.C. §1512 (witness tampering). The court also found that under Louisiana state law (1) settling a student’s related civil claim was not public bribery, and (2) communication between counsel for LSU and Miles about the breadth of details in the Memo did not add up to factually false statements in public records, nor did the legal conclusion that Miles did not violate Title IX.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | External Counsel | General Counsel | Litigation, Mediation & Arbitration | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
10/20/2023
Garey v. Anderson, (E.D. Wash. Oct. 18, 2023)
Order granting summary judgment in favor of the University. Plaintiff, a Washington State University (WSU) student, brought Title IX pre-assault and individual private cause of action claims for deliberate indifference and a trio of state law claims against WSU, after she was sexually assaulted in her dormitory by her former partner, Anderson. During their relationship, Anderson assailed plaintiff in his fraternity house blocking her egress from his room, grabbing her arm, throwing a trashcan at her, and pushing her into a metal door. Neither incident was reported. Plaintiff also alleged that Anderson sexually assaulted her, including twice in her dorm room. Plaintiff disclosed both sexual assaults to her counselor and to WSU’s Title IX Office. Anderson – who was previously investigated but found not responsible for another alleged assault – withdrew from WSU, and later pled guilty to domestic violence charges. In granting summary judgment to WSU, the court distinguished Ninth Circuit pre-assault Title IX precedent and found a single prior investigation, which concluded more than a year before plaintiff was assaulted that followed policy and resulted in a finding of non-responsibility against Anderson did not establish deliberate indifference by WSU as to plaintiff. The court also dismissed plaintiff’s individual private cause of action claim for want of deliberate indifference, relying on the fact that WSU officials met with plaintiff right away, were responsive in e-mail correspondence with her, made interim accommodations, increased security patrols near her dorm, and trespassed Anderson from campus all within forty-eight hours of their first meeting with plaintiff. The court applied the Eleventh Amendment to dismiss the three state-law claims.
Topics:
Litigation, Mediation & Arbitration | Student Organizations | Students | Title IX & Student Sexual Misconduct | Tort Litigation
Date:
10/13/2023
Lozier v. Holzgrafe (C.D. Ill. Oct. 6, 2023)
Opinion and Order granting Counter-Plaintiff’s Partial Motion for Summary Judgment. Counter-plaintiff, a coach at Quincy University, brought Title IX retaliation, defamation per se, and other tort claims against plaintiff, a former student-athlete who had made unfounded statements to his mother and girlfriend that the coach had a sexual relationship with a female student-athlete. After plaintiff’s mother reported the rumors to the University’s Dean of Students, an investigation followed. Plaintiff’s own Title IX retaliation and state law claims were all dismissed on prior motions. In granting the coach’s motion for summary judgment on liability as to his defamation per se claim, the court found that plaintiff knew at the time he made the statements to his mother and girlfriend that the statements were false, that the coach was married, and that the statements could ruin the coach’s career.
Topics:
Litigation, Mediation & Arbitration | Tort Litigation
Date:
10/6/2023
Gonzales v. Hushen (Colo. App. Sep. 28, 2023)
Opinion affirming-in-part, reversing-in-part, and remanding on Defendants’ Anti-SLAPP Motion to Dismiss. Plaintiff, a former high school student in the Jefferson County School District (JCSD), brought defamation and intentional infliction of emotional distress claims against two fellow students and their mothers after he was expelled for sexual misconduct but later readmitted after he was tried as a juvenile and acquitted on related criminal charges. Defendants moved to dismiss under Colorado’s Anti-SLAPP law, asserting absolute privilege for statements made in a quasi-judicial proceeding. The trial court granted the motion as to some, but not all, of the communications at issue. In partially affirming and partially reversing, the Colorado Court of Appeals remanded for plaintiff’s claims to proceed as to all of the communications, holding that JCSD’s Title IX procedures were not quasi-judicial for purposes of applying absolute immunity because they did not provide for a hearing with contemporaneous cross-examination, ability to call witnesses, or the right to be represented by counsel.
Topics:
Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation
Date:
10/6/2023
Doe v. New Coll. of Fla. (M.D. Fla. Sep. 28, 2023)
Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student at the New College of Florida, brought Title IX and negligence claims against the College after she was sexually assaulted following her participation in the “Tour de Franzia,” a student-run tradition that involved an end-of-semester bicycle tour on and around campus in which small groups of participants were each given a box of wine to consume. In denying summary judgment on plaintiff’s Title IX claims, the court found issues of material fact regarding whether plaintiff informed the Dean of Student Affairs of the assault one week before her assailant’s scheduled graduation and if the Dean replied there was nothing that could be done beyond a no-contact order. The court permitted her negligence claim to proceed with respect to her assertion that Resident Assistants and Teaching Assistants who were obligated to report alcohol use actually supplied alcohol for the Tour, but it dismissed her negligence claim with respect to the design of the College’s policies as barred by state immunity for discretionary functions.
Topics:
Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation
Date:
10/6/2023
Wu v. Ma (D. Mass. Sep. 28, 2023)
Memorandum and Order granting Defendant’s Motion to Dismiss. Plaintiff, a former Ph.D. student from China at Worcester Polytechnic Institute (WPI) who had been diagnosed with Major Depressive Disorder, brought disability discrimination, tort, and contract claims against WPI after it processed an administrative withdrawal and terminated her student visa. While enrolled, plaintiff was hospitalized first for a serious suicide attempt and, two months later, again following expressions of suicidal thoughts. Plaintiff also alleged that a fellow Ph.D. student subjected her to emotional manipulation and spread rumors about her among peers and research supervisors. In granting WPI’s motion to dismiss her disability discrimination claims, the court found her allegation that WPI was inflexible with its leave of absence policy was vague, noting that plaintiff also alleged she had declined an offer of a reduced academic load after her first hospitalization. Turning to her claim that WPI was negligent in not protecting her from her fellow student’s conduct, the court declined to find such a duty, noting that (1) plaintiff was a graduate student and an adult “in all respects under the law,” and (2) WPI did not have notice of the alleged conduct to trigger a special duty until immediately prior to her second hospitalization. In similarly dismissing her claim that WPI breached its contractual obligations by not enforcing its Code of Conduct to protect her from the fellow student, the court noted that she only pointed to aspirational expectations in the Code rather than a specific promise.
Topics:
Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Litigation, Mediation & Arbitration | Sexual Misconduct | Students | Tort Litigation
Date:
9/29/2023
Patel v. Long Island Univ. (E.D. N.Y. Sep. 25, 2023)
Memorandum & Order granting Defendant’s Motion to Compel Settlement. Plaintiff, a former tenure-track instructor at Long Island University, brought discrimination and retaliation claims against the University after he was denied reappointment. During a settlement conference with the Magistrate Judge, the parties reached a settlement on all claims. When plaintiff asserted that the settlement was no longer acceptable, the University moved to compel. In holding that the settlement is binding and enforceable, the court noted the lack of an express reservation requiring a written agreement, partial performance through cessation of litigation, oral agreement on all material terms, and that the relatively simple agreement was memorialized by a minute entry following the settlement conference.
Topics:
Litigation, Mediation & Arbitration
Date:
9/29/2023
Howell v. Yale Univ. (D. Conn. Sep. 26, 2023)
Ruling granting-in-part and denying-in-part Defendant’s Partial Motion to Dismiss. Plaintiff, a small-business owner and principal in a minority owned LLC that contracted with Yale University to provide snow and ice removal services, brought contract, discrimination, and intentional infliction of emotional distress claims against the University after a supervisor of landscaping and maintenance services directed racially derogatory statements at him and refused to honor the contract. The court dismissed plaintiff’s discrimination claim under §1981, finding he had not plausibly alleged that the University was a state actor or providing a public function. It permitted his IIED claim to proceed, finding that the supervisor’s taunts and hurtful comments, together with the repudiation of the contract, were sufficient to allege intent and extreme and outrageous conduct.
Topics:
Discrimination, Accommodation, & Diversity | Litigation, Mediation & Arbitration | Race and National Origin Discrimination | Tort Litigation
Date:
9/29/2023
Rezac v. Navarro Coll. (Tex. App. Sep. 21, 2023)
Opinion affirming dismissal. Plaintiff, a former student in the fire academy at Navarro College, brought negligence claims against the College after an employee sprayed him with water from a fire hose as he and other students posed for a photograph by a fire truck following a family night demonstration of firefighting techniques. The force of the water ruptured his eardrum and caused concussion-like symptoms. In affirming the College’s plea to the jurisdiction, the Court of Appeals of Texas found that the plaintiff could not establish a waiver of the College’s governmental immunity under the Texas Tort Claims Act through the motor-vehicle exception, noting that although the fire truck was a motor vehicle, at the time of the injury it was parked and connected to a fire hydrant rather than functioning as a motor-driven vehicle.
Topics:
Litigation, Mediation & Arbitration | Tort Litigation
Date:
9/29/2023
Wren v. Midwestern State Univ. (Tex. App. Sep. 20, 2023)
Memorandum Opinion affirming dismissal. Plaintiff, a former student in the Family Nurse Practitioner (FNP) program at Midwestern State University (MSU), brought contract and state-law discrimination claims against the University after she was dismissed for failure to enroll in required classes. Plaintiff had failed a clinical practicum exam and was required to enroll in a special topics course in order to continue in the program, but she declined to do so due to financial concerns. The Court of Appeals of Texas affirmed the University’s plea to the jurisdiction, finding that plaintiff failed to include exhibits to establish the creation of a contract. It affirmed dismissal of her state-law discrimination claims, noting that she withdrew from the program on her own accord citing financial hardship.
Topics:
Litigation, Mediation & Arbitration | Tort Litigation

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