Cases & Developments - National Association of College and University Attorneys

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Date:
4/28/2025
OCR Finds the University of Pennsylvania in Violation of Title IX (Apr. 28, 2025)
U.S. Department of Education, Office for Civil Rights (the Department) announced its finding that the University of Pennsylvania’s policies and practices of permitting male-to-female transgender student athletes to compete in women’s intercollegiate athletics and to occupy women-only intimate facilities, violated Title IX in that it denied other women equal opportunities. The Department tendered a proposed Resolution Agreement to the University to resolve the purported violations, giving the University ten days to voluntarily resolve the finding, or risk a referral to the U.S. Department of Justice for further enforcement proceedings. The proposed Resolution Agreement requires the University to: “(i) issue a statement to the University community stating that the University will comply with Title IX in all of its athletic programs; (ii) restore to all female athletes all individual athletic records, titles, honors, awards or similar recognition for Division I swimming competitions misappropriated by male athletes competing in female categories; and (iii) send a letter to each female athlete whose individual recognition is restored expressing an apology on behalf of the University for allowing her educational experience in athletics to be marred by sex discrimination.”
Topics:
Athletics & Sports | Gender Equity in Athletics | Student Athlete Issues | Students | Title IX & Student Sexual Misconduct
Date:
3/28/2025
Pavia v. National Collegiate Athletic Association (6th Cir. Mar. 28, 2025)
Amicus Brief in Favor of Appellant. Amici, the American Council on Education, the Association of American Universities, the Association of Public and Land-Grant Universities, the College and University Professional Association for Human Resources, the Council for Christian Colleges & Universities, the Southern Association of Colleges and Schools Commission on Colleges, and the Thurgood Marshall College Fund allege that if the District Court’s preliminary injunction against the National Collegiate Athletic Association (NCAA) is affirmed, the injunction jeopardizes the NCAA’s ability to effectively set and enforce nationwide eligibility rules for intercollegiate athletics. Amici argue that contrary to the District Court’s ruling that “rules regulating who can play … became ‘commercial in nature’… [once the NCAA] lifted the restriction on [name, image, and likeness] NIL compensation” current student-athlete eligibility criteria are non-commercial rules, stating “meaningful NIL compensation impacts a tiny sliver of the half-million-plus student-athletes who compete on nearly 20,000 intercollegiate teams.” They also argue that “the District Court’s preliminary injunction threatens to shift the formulation and enforcement of the NCAA’s eligibility rules from educators and athletics administrators to federal courts.” Further distinguishing that different from other courts, “the District Court’s analysis appears to suggest that because the NCAA now allows athletes to pursue NIL deals, all of its eligibility rules are automatically ‘commercial’ – regardless of their purpose or function –and therefore subject to antitrust scrutiny.” Amici criticize the District Court’s lack of acknowledgement of the extra-curricular nature of intercollegiate athletics, and point out that if allowed to proceed, “a patchwork of ad hoc rule adjustments and waivers granted by judges around the country – rather than by athletics conferences or the NCAA – will replace a nationwide system developed and implemented by the schools and their membership organizations.” Amici conclude that courts should not be arbiters of who qualifies as a “student-athlete” and the Circuit should reverse the injunction granted below.
Topics:
Athletics & Sports | Athletics Compliance & NCAA Rules | Student Athlete Issues | Students
Date:
12/6/2024
Slusser v. The Mountain West Conference (D. Colo. Nov. 25, 2024)
Order denying Emergency Motion for Preliminary Injunction. Plaintiffs, several student athletes and participants in the Mountain West Conference (MWC), sought emergency injunctive relief against the MWC and its Commissioner regarding the MWC’s “Transgender Participation Policy” (TPP) and San José State University’s rostering of an alleged transgender woman on its women’s volleyball team, asserting violation of Title IX, the Fourteenth Amendment, and First Amendment. Plaintiff-Intervenor University of Utah also joined in the claim that the TPP violates Title IX. Specifically, plaintiffs were requesting that the court require the MWC to “(1) rescind the TPP; (2) flip the wins granted [to the University] and the losses accorded forfeiting teams; (3) recalculate the teams’ standings; and (4) enjoin [the University] from continuing to roster its alleged trans teammate and prohibit her from playing in the upcoming tournament.” The request for injunction followed a slew of forfeits from teams scheduled to play against the University’s women’s volleyball team after news of the alleged transgender player on the team and the public acknowledgment of MWC’s TPP. In denying the motion for injunction the court found plaintiffs failed to meet their burden of showing irreparable harm, as the alleged harm had already occurred, accounting for the fact the team member in question has been part of the team since 2022. Further, the court noted that plaintiffs’ delay in filing the action until two weeks prior to the commencement of the MWC Tournament weakened their argument regarding irreparable harm. Additionally, the court found that plaintiffs failed to meet their burden to establish a likelihood of success on the merits with respect to their Title IX claims, Equal Protection claims, and First Amendment claims, explaining that the TPP has been in place since 2022, and schools that chose to forfeit their matches against the University during the 2024 season expressly acknowledged their understanding and application of the TPP, without protest.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Gender Equity in Athletics | Gender Identity & Sexual Orientation Discrimination | Student Athlete Issues | Students
Date:
11/15/2024
Hodge v. Spalding Univ. (W.D. Ky. Nov. 7, 2024)
Memorandum opinion and order granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiffs, former members of the women’s volleyball team at Spalding University brought claims of negligence, negligent hiring and supervision, willful and wanton disregard for player safety and well-being, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages alleging they experienced bullying from their teammates while on the volleyball team, and their coach contributed toward the bullying and retaliated against plaintiffs when they complained of the bullying. One plaintiff also brought claims of disability discrimination and retaliation under the Americans with Disabilities Act. Plaintiffs allege they were both kicked off the team following concerns for their mental health due to the alleged bullying from other members on the team. In finding that plaintiffs sufficiently alleged claims of negligence, the court found that based on the allegations that a coach (1) disclosed plaintiff’s confidential, personal information by sharing that she took time off for her mental health, and (2) forced the student to perform sprints despite her known hip injury, plausibly breached the duty of ordinary care. In allowing plaintiffs’ NIED claims to proceed, the court credited plaintiffs’ allegations that they experienced “emotional distress, anxiety, embarrassment, humiliation, and mental anguish” from the claimed bullying by their teammates, which the coach purportedly disregarded. Based on its finding that plaintiffs sufficiently alleged gross negligence and NIED claims, the court determined that a jury could award punitive damages at a trial. However, the court dismissed the claims of negligent hiring and supervision finding that plaintiffs failed to demonstrate how the coach was unfit for the job at the time of hire or how her supervisors were aware of the alleged wrongdoing when it transpired. It also dismissed claims for willful and wanton disregard finding there was not an “entire absence of care” and that plaintiffs were unable to establish intentional, reckless, outrageous, or intolerable actions by the coach necessary to sustain a claim for IIED. Finally, the court allowed the single plaintiff’s claims of disability discrimination and retaliation to proceed finding the coach’s alleged decision to prohibit the student from playing for an entire season after being informed of her mental health diagnosis constitutes a “denial of [plaintiff one’s] opportunity … to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of [the university]” on the basis of her diagnosed anxiety.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation | Student Athlete Issues | Students
Date:
8/30/2024
Williams v. Coppin State Univ. (D. Md. Aug. 22, 2024)
Memorandum Opinion granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiff, a former student athlete at Coppin State University, brought Title IX discrimination and retaliation, negligence, and IIED claims against the University following an episode in which an unidentified person contacted him through social media under the guise of developing a romantic relationship and he responded by sharing intimate images of himself, which the anonymous individual then threatened to redistribute. The blackmailer – who plaintiff believed to be an assistant coach on the basketball team – purportedly demanded that plaintiff engage in videotaped sex acts with the assistant coach, and after plaintiff refused to do so, the intimate images were published. Plaintiff filed a sexual harassment report and alleged that during the pendency of the investigation he was stripped of his scholarship and subjected to invasive questions. The court permitted the Title IX discrimination claim to proceed, finding that plaintiff sufficiently alleged the head coach and athletic director knew the assistant coach “to be a sexual predator, and to previously have engaged in abusive behavior” and “acted with reckless and/or thoughtless disregard of the consequences to the rights of students on the basketball [] team.” The court allowed plaintiff’s IIED claims to continue based upon the same allegations and also found that he adequately pled a claim for Title IX retaliation based on the purported withdraw of his tuition and housing funding following his report and request for investigation. The negligence claims were dismissed based on state sovereign immunity.
Topics:
Student Athlete Issues | Students | Title IX & Student Sexual Misconduct
Date:
7/19/2024
ACE Issue Brief on the College Student Athletics Policy Landscape (July 16, 2024)
American Council on Education Issue Brief on the College Student Athletics Policy Landscape in 2024. This Issue Brief discusses the traditional role of the National Collegiate Athletic Association (NCAA) in shaping the relationship between student athletes and their institutions of higher education and the impact of recent legal and legislative developments on that relationship. It discusses, among others, issues related to name, image, and likeness (NIL) compensation; questions about whether athletes might be categorized as employees; and efforts related to collective bargaining and unionization.
Topics:
Athletics & Sports | Athletics Compliance & NCAA Rules | Student Athlete Issues | Students
Date:
7/12/2024
Johnson v. Nat’l Collegiate Athletic Ass’n, et al. (3rd Cir. July 11, 2024)
Opinion on interlocutory appeal affirming-in-part denial of Defendants’ Motion to Dismiss. Plaintiffs, student-athletes at several NCAA Division I member schools, on behalf of themselves and a putative class, brought FLSA and unjust enrichment claims against the NCAA and multiple member schools, seeking unpaid wages, liquidated damages, and attorneys’ fees. The district court denied defendants’ motion to dismiss, rejecting the assertion that as amateurs the athletes could not as a matter of law be classified as employees. It held that plaintiffs had pleaded sufficient facts under the multifactor balancing test from Glatt v. Fox Searchlight Pictures, Inc. (2nd Cir. 2016), which considered when unpaid interns may be entitled to compensation under the FLSA, to proceed with their claim. On interlocutory appeal, the Third Circuit affirmed denial of the motion to dismiss but vacated the application of the Glatt test in favor of a common-law economic realities analysis. In distinguishing the instant question from the internship context in Glatt, the court noted that “interscholastic athletics are not part of any academic curriculum” and “the educational and vocational benefits of college athletics cited by Appellants as alternative forms of remuneration (increased discipline, a stronger work ethic, improved strategic thinking, time management, leadership, and goal setting skills, and a greater ability to work collaboratively) are all exactly the kinds of skills one would typically acquire in a work environment.”
Topics:
Athletics & Sports | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Student Athlete Issues | Students
Date:
4/19/2024
B.P.J. v. Bd. of Educ. (4th Cir. Apr. 16, 2024)
Opinion partially vacating, reversing, and remanding summary judgment in favor of the State. Plaintiff, a now “13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade” and who has participated in her school’s girls’ cross country and track teams under preliminary injunction through the litigation below, brought equal protection and Title IX claims against the West Virginia State Board of Education challenging application of the State’s “Save Women’s Sports Act,” which provides that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex,” and defines “‘male’ as ‘an individual whose biological sex determined at birth is male.’” On cross-motions for summary judgment, the district court granted judgment to the State on both claims, finding that plaintiff’s equal protect claim failed because the State’s definition of “girl” was “substantially related to the important government interest of providing equal athletic opportunities for females” and that her Title IX claim failed because she may still try out for the boys’ teams. The Fourth Circuit reversed and directed entry of judgment in plaintiff’s favor on the Title IX claim pursuant to its finding that the Act operates on the basis of sex and treats girls who are transgender differently, “regardless of whether any given girl possesses any inherent athletic advantages based on being transgender.” It remanded the equal protection claim for further proceedings, finding that a factual dispute as to whether plaintiff’s exclusion from the girls’ teams was substantially related to competitive fairness since she never experienced elevated testosterone due to gender affirming hormone therapy, precluded a direct grant of judgment in her favor.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Student Athlete Issues | Students
Date:
3/29/2024
Locke v. N.C. State Univ. (E.D. N.C. Mar. 25, 2024)
Order certifying interlocutory appeal. Plaintiff, a former soccer player at North Carolina State University, brought Title IX claims against the University, alleging that between 2015 and 2017 the team trainer, who was also the University’s director of sports medicine, abused him sexually, including by directing him to shower in front of him and by touching him inappropriately under the guise of performing a sports massage. A Title IX investigation found that in early 2016 the head soccer coach notified the senior associate athletic director that he suspected the trainer was engaged in sexual grooming of male student-athletes, at which point the trainer was moved to more administrative duties. The court dismissed plaintiff’s claim, holding that “an allegation of grooming behavior, without more, does not constitute actual notice of ‘an incident of sexual harassment’ as required to hold an educational institution liable under Title IX.” In certifying the question to the Fourth Circuit, the court noted that “the question of whether ‘grooming’ is sexual harassment for Title IX purposes is a question of first impression in this circuit.”
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination | Student Athlete Issues | Students
Date:
3/15/2024
ACE Statement to House Subcommittees on the NLRB’s Decision on Student-Athletes (Mar. 12, 2024)
Statement from the American Council on Education and five other higher education associations to a joint congressional hearing titled “Safeguarding Student-Athletes from NLRB Misclassification” conducted by subcommittees of the House Health, Employment, Labor, and Pensions and Education and Workforce Development committees on the National Labor Relation Board’s decision to recast collegiate student-athletes as employees. The statement foregrounds that “[t]he vast majority of college and university athletic programs are not revenue generating enterprises for their institutions” and identifies potential consequences of recategorizing student-athletes as employees for both institutions that might need to eliminate fiscally unsustainable teams and aspiring collegiate athletes who might not have the opportunity to participate in intercollegiate athletics.
Topics:
Collective Bargaining | Faculty & Staff | Student Athlete Issues | Students

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