Cases & Developments - National Association of College and University Attorneys

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Date:
12/6/2024
Students For Fair Admissions v. The United States Naval Acad. (D. Md. Dec. 6, 2024)
Judgment in favor of Defendants. Plaintiff, a membership association created to challenge the use of race in admissions, challenged the U.S. Naval Academy’s race-conscious admissions practices, alleging violation of Fifth Amendment equal protection principles. After a two-week bench trial, the Court upheld the Academy’s race-conscious admissions policies, finding the government has a compelling interest in a diverse Officer Corps, and the Academy, serves as a vital pipeline to the Officer Corps. It also found that the Academy has made a serious, good faith effort to consider race-neutral alternatives, and that plaintiffs failed to prove any racial balancing or racial quotas conducted by the Academy.
Topics:
Admissions | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Students
Date:
11/29/2024
Kuligowski v. Univ. of Toledo (N.D. Ohio Nov. 26, 2024)
Memorandum Opinion and Order granting in part and denying in part individual human resources Defendant’s Motion to Dismiss. Plaintiff, who is white, over the age of forty, and a former football coach for the University of Toledo, brought procedural due process and equal protection claims under Title VII, Title VI, and the Age Discrimination Employment Act against the University following termination of his employment. Plaintiff alleges the University discriminated against him when it replaced him with a younger, Black employee. Plaintiff asserts that prior to his termination, the University’s Athletic Director announced an intention to hire more coaches who were “representative” of current student-athletes, “meaning younger and black.” A few months later, plaintiff was accused of sexual harassment, which he contends was frivolous, false, and uncorroborated by an investigation. Subsequently, plaintiff told the proponent of the sexual harassment claim that “if my wife knew you were near me, she’d kill you” which led the coworker to file a claim of retaliation. When he was interviewed by human resources personnel, plaintiff asserted that his comment was a “joke” rather than a real threat. Notwithstanding his view that the remark did not constitute retaliation under the University’s policy and purported assurances by other University personnel that he was “definitely not getting fired or anything,” plaintiff was found responsible and terminated from his role. Plaintiff alleged that his termination by human resources staff was in service of “the University’s practice of replacing older, white employees with younger, black employees.” Plaintiff also averred that the failure to conduct a hearing prior to firing him violated the University’s Title IX policy. The court found that plaintiff plausibly pled a §1983 race discrimination claim based upon his allegations that the AD wanted to hire more representative coaching staff, and the University had replaced older, white males with younger, black employees in the AD, assistant AD, and General Counsel roles. The court also permitted his claims for declaratory and injunctive relief to proceed under Ex parte Young, reasoning that a newspaper article attributing a quote to plaintiff’s letter of separation that he “‘committed a significant and/or intentional violation’ of [the University’s] non-retaliation and standards of conduct policies” served as potential pretext for the alleged discrimination. But the court dismissed plaintiff’s due process claims, finding that he failed to plead a promise of continued employment, and noting that the Sixth Circuit has held that “repeated contract renewals do not, by themselves, create a reasonable expectation of permanent employment.”
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
11/29/2024
Ortiz v. Univ. of Conn. (D. Conn. Nov. 22, 2024)
Order denying Defendant’s Motion to Dismiss. Plaintiff, a 58-year-old Puerto Rican woman employed as an Administrative Program Support at the University of Connecticut brought claims of race discrimination in violation of Title VII and the Connecticut Fair Employment Practices Act (CFEPA) after she learned her salary was significantly less compared to her colleagues. Plaintiff also initiated but later abandoned a claim for age discrimination. As to the race discrimination claims, plaintiff pled that her colleagues are all white and hold similar job descriptions to hers, though she purports to carry an appreciably larger workload and has worked at the University for twice as long as some of her peers. Upon learning that she earned less than her coworkers, plaintiff reported the alleged discrepancy to the University’s Office of Integrity and contends that the Office told her that her position did not warrant the same level of pay despite an analogous job description. Subsequently, plaintiff filed a charge with the EEOC, which was dual filed with the Commission on Human Rights and Opportunities (CHRO). The court allowed plaintiff’s claims to proceed finding she exhausted her administrative remedies via her reports to the University and filings with the EEOC and CHRO; noting that “even if administrative exhaustion is not ‘futile’ the instant case may nonetheless constitute an extraordinary circumstance that would permit [her] to bypass administrative remedies.” The court further found that plaintiff alleged sufficient facts to substantiate potential discriminatory intent on part of the University as she demonstrated she was similarly situated to her less qualified white colleagues who were paid more than her but performed the same work.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
11/29/2024
OCR Resolution Agreement with Temple University re Title VI Compliance (Dec. 2, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Temple University resolving a complaint that the latter responded inadequately to alleged discrimination based on shared Jewish ancestry. The associated Resolution Letter noted that OCR considered reports concerning alleged harassment and/or discrimination based on shared Jewish ancestry related to October 12, 2023, off-campus and October 25, 2023, on-campus protests along with “50 incidents of alleged harassment … during the 2023-2024 school year.” The Letter “recognize[d] the University’s responsiveness to notice it received regarding some incidents that could contribute to a hostile environment” while identifying “concerns” pertaining to potential gaps “in steps [to] consistently to assess whether the incidents about which it had notice individually or cumulatively created a hostile environment” for campus constituents. The Agreement sets forth the University’s commitment to (1) provide training to investigators, staff, and students, (2) conduct a climate assessment, (3) engage in file reviews, and (4) report out regarding the training, assessment, and reviews.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
11/22/2024
U.S. Dep’t of Education Office for Civil Rights Releases Guidance for Avoiding Discriminatory Use of Artificial Intelligence (Nov. 19, 2024)
The U.S. Department of Education (the Department) published guidance for avoiding discriminatory use of artificial intelligence. The resource was published in response to Executive Order 14110: Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, and provides information on the legal analyses the Office for Civil Rights (OCR) uses to determine whether discrimination exists and various examples of conduct that could constitute discrimination. The resource explores the role of AI in race, color, or national origin discrimination, sex discrimination, disability discrimination, and multiple bases of discrimination.
Topics:
Accreditation, Authorizations, & Higher Education Act | Disability Discrimination | Discrimination, Accommodation, & Diversity | Higher Education Act (HEA) | Race and National Origin Discrimination | Sex Discrimination
Date:
11/22/2024
Frowner v. Fayetteville State Univ (E.D. N.C. Nov. 19, 2024)
Order denying Defendant’s Motion to Dismiss. Plaintiff, an African American woman and former librarian for the Fayetteville State University brought Title VII retaliation claims against the University following her termination. Plaintiff alleged that her white male supervisor wrote inaccurate performance evaluations about her, and that after she filed a complaint about the supervisor with the University’s Human Resources Department, he further retaliated against her by drafting a second negative evaluation, placing her on a three-day suspension amidst a mediation between the two, and then subsequently terminated plaintiff following her filing a complaint with the Equal Employment Opportunity Commission (EEOC). The court found the claim was sufficient to survive a motion to dismiss given the alleged temporal proximity between plaintiff’s filing of a retaliation complaint with the EEOC and her suspension from work, which fell within the three-month window recognized by the Fourth Circuit. It reasoned that plaintiff adequately pled that her supervisor was aware of her protected activity of filing an EEOC complaint at the time of her termination, and the “closeness in temporal proximity” was enough to infer causation, sending the case to discovery.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
11/8/2024
The Louis D. Brandeis Ctr. for Human Rights Under Law v. President & Fellows of Harvard Coll. (D. Mass. Nov. 5, 2024)
Memorandum and Order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiffs, the Louis D. Brandeis Center, Inc., a Jewish legal advocacy non-profit, and Jewish Americans for Fairness in Education, (JAFE) brought a putative class action against Harvard College alleging it allowed Jewish and Israeli students to be “subjected to cruel antisemitic bullying, harassment, and discrimination.” Plaintiffs brought claims of direct discrimination; hostile educational environment; and retaliation under Title VI, and allege numerous examples of purportedly Antisemitic behavior, including that a professor required students to abandon a project based on their Israeli and Jewish identity and compared their use of the words “Jewish State” to advocating for America to become a country of “White supremacy.” An external investigation found the professor’s treatment of plaintiffs “ran counter to the College’s free speech and anti-bias policies, and that the professor created a hostile learning environment and subjected students to bias. Following this finding, plaintiffs claim the College failed to take remedial action. Plaintiffs further allege that this differed from when pro-Palestinian protestors shoved a keffiyeh in a Jewish student’s face while he was filming a protest and told him to “get out” and that after he refused other protestors joined in and pushed him, resulting in criminal charges for assault and battery. In that instance, plaintiffs claim the College declined to take further action citing the charged criminal action, choosing to rely upon the criminal charges as sufficient. Finally, a JAFE member allegedly emailed the College seeking help getting to her lab due to fear of protesters who they claimed were “celebrating the terrorist attack and referring to it as an act of ‘justified resistance.’” but received no response from the College, and when she tried to file a formal complaint, it would not let her proceed anonymously so she dropped her complaint in fear. The court dismissed the direct discrimination claim, finding plaintiffs failed to sufficiently establish evidence beyond a reasonable inference of bias that the College treated non-Jewish and non-Israeli comparators similarly. In allowing plaintiffs’ deliberate indifference claim to proceed, the court was persuaded by the allegation that the College failed to commence an investigation for a prolonged period of several months. The court dismissed the retaliation claims absent allegations that the College took any material adverse action against plaintiffs.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
11/1/2024
Students for Justice in Palestine, at the University of Houston v. Gregg Abbott (W.D. Tex. Oct. 28, 2024)
Order granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiffs, student groups from the University of Texas at Austin, the University of Houston, and the University of Texas at Dallas alleged violations of their First Amendment rights and assert claims of viewpoint discrimination and chilled speech, against their respective institutions, boards, and personnel, as well as Texas Governor Greg Abbott, based on implementation of Executive Order GA-44 “relating to addressing acts of antisemitism in institutions of higher education.” The Order required Texas public postsecondary institutions to “establish appropriate punishments” for antisemitism as that term is defined in Texas Code, which relies in part on the International Holocaust Remembrance Alliance’s “Working Definition of Antisemitism” (adopted May 26, 2016). Plaintiffs claimed that inclusion of that definition of antisemitism in institutional policy would proscribe their ability to criticize Israel, and that the Order chilled their free speech and violated the First Amendment. In initially permitting the claims to proceed, the court found plaintiffs’ intended future speech would be proscribed by the policy and that under Speech First, Inc. v. Fenves (5th Cir. 2020), “in the pre-enforcement context, [] chilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” However, the court denied the request for a preliminary injunction as overly overboard, and dismissed the claims against Governor Abbott, the University of Houston and UT Austin and their respective boards as barred by sovereign immunity.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Race and National Origin Discrimination | Religious Discrimination & Accommodation | Student Speech & Campus Unrest | Students
Date:
11/1/2024
Congressional Committee Report on Antisemitism on College Campuses (Oct. 31, 2024)
The U.S. House of Representatives Committee on Education and the Workforce (Committee) published a Republican Staff Report titled, “Antisemitism on College Campuses Exposed.” The Report summarizes the Committee’s yearlong investigation into allegations of antisemitism at several postsecondary institutions and sets forth its four key findings, which the Committee wrote “demonstrate an environment hostile to Jewish students likely in violation of Title VI” but also noted were “not conclusive judgments on violations.” The Report includes a 200+ page appendix of selected materials acquired by the Committee through subpoena, forewarns of future expanded investigation, and calls for a “fundamental reassessment” of federal support for postsecondary institutions “that have failed to meet their obligations to protect Jewish students, faculty, and staff, and to maintain a safe and uninterrupted learning environment for all students.”
Topics:
Discrimination, Accommodation, & Diversity | Governance | Government Relations & Community Affairs | Race and National Origin Discrimination | Religious Discrimination & Accommodation | Student Speech & Campus Unrest | Students
Date:
10/4/2024
Agreement with Muhlenberg College re: Antisemitism Investigation (Sep. 30, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Muhlenberg College resolving a complaint that it responded inadequately to alleged harassment by a professor based on shared Jewish ancestry. The associated Resolution Letter noted that OCR recognizes the College’s responsiveness to notice it received regarding some incidents that could contribute to a hostile environment for students based on national origin, including shared ancestry; however, the College did not appear to have fulfilled its obligation under Title VI to address a possible hostile environment created by the Professor for students pertaining to the Professor’s social media posts and in-class discussion; additionally noting that the College appears not to have consistently fulfilled its obligation under Title VI with regard to other complaints of shared ancestry harassment, treating similar conduct differently. Through the Agreement, the College agreed to provide annual training to all employees and staff responsible for investigating complaints and other reports of discrimination, including harassment, based on shared ancestry or ethnic characteristics; conduct a survey of all staff that attend the required training to assess the effectiveness of the training; complete an investigation into whether actions by the Professor, based upon the totality of the circumstances, created a hostile environment for Jewish students on campus; administer a climate survey and create an action plan in response to any concerns raised in the survey; and provide OCR with documentation of the College’s response to any report of discrimination and/or harassment on the basis of shared ancestry during the 2024-2025 academic year.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation

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