Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
6/9/2023
J.L. v. Rockefeller Univ. (N.Y. Sup. Ct. May 25, 2023)
Decision and Order granting-in-part and denying-in-part Defendant’s Partial Motion to Dismiss. Plaintiff alleged that he was sexually assaulted by a doctor employed by Rockefeller University Hospital between 1957 and 1966, when he was between the ages of seven and sixteen, during appointments for physical exams. The court permitted plaintiff to proceed in his negligent hiring, retention, supervision and/or direction claim, finding that he had sufficiently alleged that hospital staff were aware that the doctor was abusing children and that he had taken inappropriate photographs of his victims while they were patients in the hospital. It dismissed his intentional and negligent infliction of emotional distress claims, finding the allegations duplicative of the negligence claims. In dismissed his breach of duty in loco parentis claim, finding that because the hospital did not have long-term custody or supervision of plaintiff, the duty applicable to schools as contemplated in the case law did not apply to the hospital.
Topics:
Compliance & Risk Management | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Litigation, Mediation & Arbitration | Sex Discrimination | Tort Litigation
Date:
5/26/2023
Frierson v. The Shaw Univ. (E.D. N.C. May 19, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Director of Student Retention at Shaw University, brought a Title IX claim against the University after he was terminated for sexually harassing a student. In response to an OCR investigation that found the University had not given him specific notice of the allegations against him, reasonable opportunity to respond, or an opportunity to confront or question his accuser, the University reopened the investigation with an impartial investigator. Plaintiff declined to participate, and the University upheld its decision to terminate him. In granting summary judgment in favor of the University, the court held that no rational jury could find he complied with the University’s policies or that the decision to terminate him was based on his sex.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination | Sex Discrimination in Employment
Date:
5/26/2023
Orr v. S. Dakota Bd. of Regents (D. S.D. May 11, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former tenure-track instructor of health and physical education at Northern State University, brought multiple discrimination and retaliation claims against the University and multiple officials after he was denied tenure due to insufficient scholarship. Leading up to this decision, plaintiff took 6 weeks of paid parental leave early in 2018, returning approximately a month before he was informed of his tenure denial. Plaintiff claimed that the University unlawfully interfered with his rights under the FMLA by declining to extend 12 weeks of paid leave. The court disagreed. Although FMLA permits eligible employees to take 12 weeks of leave, the leave need not be paid. Further, plaintiff never requested an additional 6 weeks, thus extinguishing any rights he may have otherwise had under the Act. However, the court permitted plaintiff to proceed on his FMLA retaliation claim based on disputed facts about whether plaintiff was denied tenure for insufficient scholarship, as the Tenure Committee represented, or whether shifting explanations about plaintiff’s collegiality coupled with animosity and controversy related to plaintiff’s parental leave “more likely motivated” the tenure decision. The court dismissed plaintiff’s Title IX claim for lack of an adequate comparator but permitted him to proceed in his First Amendment retaliation claim against the Dean.
Topics:
Academic Freedom & Employee Speech | Discrimination, Accommodation, & Diversity | Faculty & Staff | Family and Medical Leave Act (FMLA) | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
5/26/2023
Dep.’t of Education Timing Update on Title IX Rulemaking (May 26, 2023)
U.S. Department of Education Timing Update on Title IX Rulemaking. In a blog posting, ED announced that it is updating its Spring Unified Agenda to reflect an anticipated October 2023 publication date for both the final Title IX rule and the final Athletics regulation.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Gender Equity in Athletics | Sex Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
5/19/2023
Countryman-Roswurm v. Muma (10th Cir. May 15, 2023)
Order and Judgment reversing denial of Defendant’s Motion to Dismiss and remanding. Plaintiff, a tenured professor of social work at Wichita State University and Executive Director of the University’s Center for Combating Human Trafficking, faced harassment from a colleague who allegedly spread rumors that she had secured her dual appointment through sexual favors. Among other claims, she alleged Equal Protection violations under §1983 against the University’s Provost, asserting that after responding inadequately to her initial complaint, he terminated her contract with the Center when she reported continued harassment. The district court denied the Provost’s Motion to Dismiss, finding that precedent forbids a supervisor’s acquiescence in sexual harassment. The Tenth Circuit reversed, holding that because the University had already launched an investigation, its precedents did not clearly establish that the Provost’s response amounted to acquiescence.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Equal Protection | Sex Discrimination | Sex Discrimination in Employment
Date:
5/12/2023
Loecker v. Bd. of Trustees for Colo. Mesa Univ. (D. Colo. May 1, 2023)
Order granting Defendant’s Motion to Strike and Exclude. Plaintiff, the former head coach of women’s lacrosse at Colorado Mesa University, brought sex discrimination claims against the University after she was terminated following complaints from players and parents that she “created a negative culture.” Plaintiff disclosed as an expert witness a professor of sports management whose report discussed gender bias, stereotypes, and leadership expectations in sports, and how these may affect evaluations of female coaches. The court first held that the testimony is admissible under Rule 702 on expert testimony, even though the expert’s report addressed only general principles, rather than the facts of the instant case. However, the court granted the University’s Motion to Strike and Exclude under Rule 403 on relevance, finding that this was a topic within a layperson’s common knowledge and that “its minimal probative value is substantially outweighed by its prejudicial effect.”
Topics:
Athletics & Sports | Athletics Operations | Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment | Tax Implication of Campus Political Activity | Taxes & Finances
Date:
5/5/2023
Heineke v. Santa Clara Univ. (Cal. App. Apr. 27, 2023)
Opinion affirming-in-part and vacating-in-part summary judgment in favor of the defendants. Plaintiff is a former tenured professor at Santa Clara University (SCU) who was terminated after a faculty judicial board (FJB) determined he sexually harassed a former teaching assistant, Jane Doe. He sought mandamus and injunctive relief and damages against SCU and brought defamation claims against both SCU and Doe. The California Court of Appeals affirmed denial of the writ of mandate, finding that although the Faculty Handbook was unclear about procedures for student-teacher sexual harassment cases, plaintiff received a fair hearing, and his termination was supported by substantial evidence. It affirmed summary judgment in favor of SCU on his wrongful termination and contract claims, finding no evidence supporting his claim of discrimination and no procedural irregularities sufficient to show breach of contract. Turning to his defamation claims, the court held that Doe’s complaint, the investigation, and an independent investigator’s report are all subject to the litigation privilege for quasi-judicial proceedings. It reversed summary judgment, however, as to statements Doe made to a witness prior to her complaint, which plaintiff testified were fabrications. This, the court held, created a triable question as to whether (1) Doe knew the statements were false and (2) the common-interest privilege she asserted over them was negated by malice.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Due Process | Employee Sexual Misconduct | Litigation, Mediation & Arbitration | Sex Discrimination | Tort Litigation
Date:
4/21/2023
Lashley v. Spartanburg Methodist Coll. (4th Cir. Apr. 18, 2023)
Opinion affirming summary judgment in favor of the College. Plaintiff, a former instructor and Director of the Criminal Justice Program at Spartanburg Methodist College, brought discrimination and retaliation claims against the College and multiple officials after she was told that her contract would not be renewed and that her employment would be terminated early. In affirming summary judgment in favor of the College, the Fourth Circuit first held that her retaliation claims failed because the President, who was the ultimate decision maker, was unaware of her advocacy for female students or her complaints about mold in her office building. It also held that she was unable to show that the College’s concerns about her unprofessional behavior and threatening statements about “‘evil people’ who would ‘get theirs’” were pretextual. Her disability discrimination claims likewise failed because (1) plaintiff disengaged from the interactive process and (2) her testimony that her department chair had used an “angry tone” in saying “tell me about your health issues,” without more, was insufficient to support a claim based on an unlawful health inquiry.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
4/21/2023
Anderson v. Fort Hays State Univ. (10th Cir. Apr. 14, 2023)
Order and Judgment affirming summary judgment in favor of the University. Plaintiff, a former adjunct instructor at Fort Hays State University, brought a discrimination claim against the University after she was not selected for a tenure-track position. She alleged that she had greater teaching experience and a Ph.D., whereas the successful candidate had limited teaching experience and had not yet completed a doctorate. In affirming summary judgment in favor of the University, the Tenth Circuit held that plaintiff was unable to demonstrate that the University’s reasoning was pretextual, noting that while she scored higher on teaching experience and credentials, her total score was lower when scores in all seven areas of the preferred qualifications were calculated. The court also held that the reactions of two colleagues who felt plaintiff was more qualified were insufficient to raise a question about pretext, finding that the opinions were conjectural and lacked foundation because neither colleague was involved in or otherwise had knowledge of the selection process.
Topics:
Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment

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