Cases & Developments - National Association of College and University Attorneys

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Date:
7/14/2023
Denham v. Ala. State Univ. (M.D. Ala. June 28, 2023)
Opinion & Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former professor of Occupational Therapy at Alabama State University who is a White female, brought discrimination claims against the University after she was not hired for an Associate Dean position. In granting summary judgment to the University, the court first held that plaintiff’s assertion that the successful candidate was unqualified for the position did not establish pretext, noting that although he had only one year of teaching experience the University’s faculty handbook permitted it to hire a candidate with less than five years of teaching experience at the rank of Associate Professor if that individual was deemed to have sufficient experience in a relevant field. The court further held that her assertion that the Provost’s explanation that the successful candidate “brought a lot of energy” to the interview also did not establish pretext, noting that the Provost also explained that he “spoke with ‘passion,’ particularly with respect to the role he could play as Associate Dean,” while plaintiff’s answer to why she wanted the position was “why not apply?”
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Sex Discrimination | Sex Discrimination in Employment
Date:
7/14/2023
Li v. Univ. of Akron (N.D. Ohio June 22, 2023)
Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, a former tenured professor of educational philosophy at the University of Akron who identifies as Asian and or Taiwanese national origin, brought a race and national origin discrimination claim against the University after her position was eliminated in a campus-wide reduction in force (RIF). In granting summary judgment to the University, the court found that her prima facie case failed because the raw demographic data she provided showed that the percentage of Asians in the RIF was only marginally higher than that in the bargaining unit as a whole. The court also found that plaintiff failed to raise a question of pretext regarding the University’s stated reasoning that she was no longer affiliated with a program (as the Social/Philosophical Foundations of Education program had already been eliminated), her salary was among the highest in the School of Education, and she had limited versatility to teach courses required for licensure in the School’s remaining programs.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
6/23/2023
U.S. Dep.’t of Education Regulatory Agenda for Spring 2023—Shared Ancestry & Ethnicity(June 13, 2023)
U.S. Department of Education Uniform Regulatory Agenda for Spring 2023. The filing indicates that the Department of Education plans to issue a Notice of Proposed Rulemaking (NPRM) in December 2023 to amend its regulations implementing Title VI of the Civil Rights Act to address harassment and other discrimination based on shared ancestry or ethnic characteristics. The filing notes that “OCR has received complaints of harassment and assaults directed at Jewish, Muslim, Hindu, and other students based on their shared ancestry or ethnicity.”
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
6/9/2023
AlSayyad v. Regents of the Univ. of Cal. (Cal. App. June 7, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former professor at the University of California, Berkeley, brought discrimination claims against the University after he was suspended for three years for sexually harassing a graduate student. The faculty Privilege and Tenure Committee recommended a one-year suspension and sensitivity training, finding a “momentary overstep” when he touched the student’s leg. The Chancellor, however, imposed a three-year suspension, finding instead a pattern of harassment and unprofessional behavior. Affirming summary judgment in favor of the University, the California Court of Appeals held that the Chancellor presented a legitimate nondiscriminatory reason for the more severe sanction and that plaintiff presented no evidence showing that this reason was pretextual.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Faculty & Staff | Race and National Origin Discrimination | Sex Discrimination | Sexual Misconduct
Date:
5/26/2023
Ogbonna-McGruder v. Austin Peay State Univ. (M.D. Tenn. May 19, 2023)
Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiff, a professor of public management and criminal justice at Austin Peay State University, brought hostile work environment and retaliatory hostile work environment claims against the University based on a series of perceived administrative slights and a denied joint appointment to the restructured Public Management and Criminal Justice Departments. In dismissing her hostile work environment claim, the court found that most of plaintiff’s allegations concerning employment-related actions were factually insufficient to support an inference of race-based harassment. It found only three actions that were potentially harassing in nature, including two comments that were arguably insults related to her work and one instance of scolding in front of a colleague. It held, however, that these were insufficiently severe and pervasive to alter the terms and conditions of her employment or to dissuade a reasonable worker from making or supporting a charge of discrimination.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
5/26/2023
Imungi v. Va. Commonwealth Univ. (E.D. Va. May 19, 2023)
Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, an associate professor in the School of Social Work (SSW) at Virginia Commonwealth University who was born and raised in Kenya, brought discrimination and retaliation claims against the University after the SSW Dean declined to renew her one-year administrative appointment as Director of Field Education, a position that was charged with supporting the Dean’s vision for the SSW. Plaintiff’s discrimination claim failed because (1) complaints about her communications with others and clashes with the Dean over priorities confirmed that she did not meet the Dean’s legitimate performance expectations and (2) the interim Director who had never been evaluated by the Dean and who was never a permanent Director was not an adequate comparator. Her retaliation claim failed because the Dean had asked for her resignation prior to a public assembly on racism and discrimination in the SSW at which plaintiff made remarks she asserted were protected activity.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
5/26/2023
Dep.’t of Education Dear Colleague Letter on Countering Antisemitism (May 25, 2023)
U.S. Department of Education Office for Civil Rights (OCR) Dear Colleague Letter (DCL) on Countering Antisemitism. In conjunction with the release of a new U.S. National Strategy to Counter Antisemitism, OCR released this DCL to remind schools of their obligation under Title VI “to provide all students, including Jewish students, a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics.” The DCL also reviews OCR’s guidance and resources related to countering antisemitism.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
5/12/2023
Chambers v. North Carolina Dep’t of Justice (4th Cir. Apr. 17, 2023)
Opinion affirming-in-part, vacating-in-part, and remanding dismissal. Plaintiff, a former investigator in the Medicaid Investigations Division at the North Carolina Department of Justice who is African American, brought discrimination and wrongful termination claims under §1981 against the Department and two former supervisors after she was terminated. The district court dismissed plaintiff’s claim, finding her claims against the Department barred by sovereign immunity and her claims against her supervisors in their individual capacities time barred under North Carolina’s three-year limitations period for personal injury claims. The Fourth Circuit vacated and remanded as to her claims against her supervisors, noting (1) that in 1990 Congress enacted 28 U.S.C.§1658 to “establish a catchall four-year statute of limitations for federal claims ‘arising under’ any act of Congress … enacted after December 1, 1990” and (2) that in 1991, Congress “expanded §1981 to prohibit race discrimination post-contract formation, including in the termination of contract.”
Topics:
Discrimination, Accommodation, & Diversity | Litigation, Mediation & Arbitration | Race and National Origin Discrimination
Date:
5/5/2023
Marshall v. State (Wash. App. May 2, 2023)
Opinion affirming-in-part and reversing-in-part summary judgment in favor of the University. Plaintiff, a former tenure-track assistant professor at the University of Washington Tacoma, brought discrimination and retaliation claims against the University after she was denied promotion and tenure. Though plaintiff’s record of research funding and publication was strong, the University pointed to low student evaluations in some of her courses to defer her reappointment and then deny her application for promotion and tenure. The Court of Appeals of Washington reversed summary judgment on her discrimination claim, holding that inconsistencies between student evaluations and positive peer observations of her teaching, studies documenting racism on campus, comments suggesting racial animus by people involved in her review, and a lack of other efforts to retain her were sufficient to raise a material question as to whether the focus on student evaluations was pretextual. The court similarly reversed on her hostile work environment claim, finding that use of “coded language that could reflect racial animus” presented a material question as to harassment affecting the terms or conditions of her employment. It affirmed summary judgment in favor of the University on her retaliation claim, however, holding that she presented no evidence to suggest that adverse employment decisions were motivated by her reports of discrimination rather than the bias she alleged.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Race and National Origin Discrimination | Retaliation | Tenure
Date:
4/28/2023
Lan v. Univ. of Tex. at San Antonio (W.D. Tex. Apr. 24, 2023)
Report and Recommendation granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former doctoral student and research assistant at the University of Texas at San Antonio who is Chinese, proceeding pro se, brought discrimination and retaliation claims against the University after she twice failed her comprehensive exam and was terminated from her research assistantship. As a threshold matter, the court found that plaintiff sufficiently alleged at this stage of the proceedings that she was an employee of the University. The court permitted her discrimination claim to proceed, finding that although she had not identified a comparator who retained an assistantship after twice failing a comprehensive exam, she sufficiently alleged that non-Chinese research assistants were graded more leniently. It also permitted her retaliation claim related to denial of her request for reinstatement to proceed because she alleged that two professors who knew of her grade grievance participated in the decision. Her retaliation claim related to her initial termination failed, however, because that occurred months before she filed her grievance.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Students

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