Cases & Developments - National Association of College and University Attorneys

FILTERS

Latest Cases & Developments

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:
10/18/2024
DeVore v. Univ. of Ky. Bd. of Trs. (6th Cir. Oct. 11, 2024)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former employee of the University of Kentucky, retired from the University to avoid compliance with its COVID-19 test-or-vaccinate policy. Plaintiff brought claims against the University alleging failure to accommodate religious beliefs and violation of Title VII. In granting summary judgment in favor of the University, the district court held that plaintiff failed to “show that she holds a religious belief that conflicts with an employment requirement.” In conducting a de novo review, the Sixth Circuit found plaintiff’s claims reflect her “personal moral code” rather than a sincere religious belief, specifically noting that despite over a year of litigation, plaintiff never identified what her religion was on the record. Thus, the Sixth Circuit affirmed the judgment of the district court based on plaintiff’s inability to demonstrate a connection between her religious principles and her allegations that the University’s COVID-19 policies were invasive, manipulative, or coercive.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation
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
Date:
9/6/2024
Agreement with University of Illinois Urbana-Champaign re: Title VI Compliance (Sep. 3, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights
(OCR) and the University of Illinois Urbana-Champaign resolving a complaint that it responded inadequately to alleged discrimination based on shared Jewish ancestry. The associated Resolution Letter noted that although 139 incidents of alleged Antisemitic or Islamophobic discrimination were processed by the University between March 2015 and December 2023, the “the [] files associated with the [] incidents contained no information demonstrating that the University considered whether a hostile environment potentially existed.” Through the Agreement, the University agreed to review and revise its policies and procedures; provide improved training to University law enforcement personnel and provide training to all faculty, staff, and students; conduct a review of the University’s response to complaints and reports of any Antisemitic and other shared ancestry discrimination during the 2023-2024 academic year; 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 University’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
Date:
8/2/2024
OCR Resolution Agreement with Drexel University re: Title VI Compliance (July 31, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Drexel University resolving a complaint that it responded inadequately to alleged discrimination based on shared Jewish ancestry. The associated Resolution Letter noted (1) thirty-five reports/complaints concerning alleged harassment and/or discrimination based on shared Jewish ancestry from October 2022 through January 2024 and (2) that “OCR recognizes that the University took important steps to address a possible hostile environment at the campus.” Through the Agreement, the University agreed to review its policies and procedures; continue to provide training to employees and provide training to all faculty, staff, and students; provide OCR with documentation of the University’s spring 2024 and winter 2025 climate survey results as well as the University’s response to each report of discrimination and/or harassment on the basis of shared ancestry for the 2022-2023 and 2023-2024 school years and information regarding its investigations of reports of alleged discrimination for the 2024-2025 and 2025-2026 academic years.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
8/2/2024
Kestenbaum v. President & Fellows of Harvard Coll. (D. Mass. Aug. 6, 2024)
Memorandum and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiffs, a recent Harvard graduate and Students Against Antisemitism, Inc., an association “founded to defend the rights of individuals ‘to be free from antisemitism in higher education,’” brought Title VI and contract claims against Harvard University, alleging that it responded inadequately to protests and other incidents in the wake of the October 7, 2023, Hamas attack on Israel. In permitting their Title VI deliberate indifference claim to proceed, the court found plaintiffs had sufficiently alleged multiple incidents in which the University’s response was “indecisive, vacillating, and at times internally contradictory,” as well as other incidents to which it did not respond. It held that the record was insufficient at this stage to rule on the University’s assertion that it had acted to avoid infringing on protected First Amendment activity. It dismissed plaintiffs’ direct discrimination claim for lack of an adequate comparator. Turning to their contract claims, the court ruled that two instances in which the University did not notify complainants of a decision to close or accept a complaint were sufficient to allege breach of a contract entailed in its complaint-handling procedures. It also held that assertion of “several instances in which students were penalized for violating various Harvard policies, but the students allegedly engaged in antisemitic conduct have not faced discipline,” though “insufficient to state a Title VI claim,” were sufficient to “sketch a claim that Harvard breached the implied covenant by failing to evenhandedly administer its policies.”
Topics:
Contracts | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
7/26/2024
Beuca v. Wash. State Univ. (9th Cir. July 18, 2024) (unpub.)
Memorandum reversing dismissal with prejudice. Plaintiff, a former medical student employed by Washington State University and completing a residency at Providence Regional Medical Center, brought discrimination claims against the University after it declined to grant him a religious exemption to its COVID-19 vaccination requirement and terminated him, even though the Center had granted the exemption. In dismissing plaintiff’s claims with prejudice, the district court held that (1) plaintiff’s allegations were conclusory because he alleged no facts as to the nature of his sincerely held religious belief or when or how he had requested the exemption from the University and (2) the University successfully asserted undue hardship because permitting plaintiff to work in a hospital without a vaccination posed an increased risk to patients of COVID-19 exposure. After the case was dismissed, the Supreme Court decided Groff v. DeJoy, holding “that showing ‘more than a de minimis coast,’ as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII.” In reversing dismissal with prejudice, the Ninth Circuit held, “[o]n this record at this stage, we cannot take into account ‘all relevant factors’ as Groff requires, and, therefore, cannot rule as a matter of law that Beuca’s request constituted an undue hardship.”
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation
Date:
7/12/2024
OCR Resolution Agreement with Brown University re: Title VI Compliance (July 8, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Brown University of Rhode Island resolving a complaint that it responded inadequately to alleged harassment based on shared Jewish ancestry. The associated Resolution Letter noted (1) additional incidents of alleged harassment based on shared Palestinian, Arab, and/or Muslim ancestry and (2) that the University had “begun implementing changes to its Title VI organizational structures, reporting processes, and resources” in support of newly adopted “key priorities.” Through the Agreement, the University agreed to make additional updates to its policies and procedures; provide training to all employees and students; engage in detailed record keeping, review, and reporting on its responses to complaints; and engage in continued analysis and action pursuant to a climate assessment it had already begun.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation
Date:
6/21/2024
OCR Resolution Agreement with City Univ. of N.Y. re: Title VI Compliance (June 10, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and the City University of New York resolving multiple complaints of discrimination based on national origin, including shared Jewish, Israeli, Palestinian, Arab, Muslim, and/or South Asian ancestry by the University or its constituent schools and colleges. Through the Agreement, the University agreed to complete comprehensive reviews already underway of its policies and procedures for its 25 constituent colleges and schools; conduct new-hire and annual refresher training for diversity and compliance employees and campus peace officers; conduct an audit of its responses to all complaints of discrimination or harassment based on national origin; conduct a climate assessment and analysis for all constituent colleges and schools; issue a statement from the Chancellor within 30 days that the University does not tolerate discrimination or harassment based on national origin, including shared ancestry and ethnic characteristics, encouraging students and employees to report incidents of such discrimination or harassment, and provide outlined individualized remedies. The University also agreed to ongoing monitoring until OCR determines it has demonstrated compliance with all the provisions of the Agreement. A related Resolution Letter summarized the findings of OCR’s investigation.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation

NACUA Annual Conference

Join us in the Music City June 29 – July 2 to connect, learn, and lead alongside higher education attorneys shaping policy, practice, and impact nationwide together.