Cases & Developments - National Association of College and University Attorneys

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Date:
10/13/2023
Aslani v. Bd. of Trs. of the Univ. of Ill. (N.D. Ill. Oct. 6, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former student at the University of Illinois College of Medicine, brought Title IX and retaliation claims against the University after it dismissed her for unprofessional conduct related to two clinical clerkships. She received a grade of “unsatisfactory” for the first following multiple complaints about her behavior. The second followed a self-designed “coursework letter” under the supervision of a mentor not affiliated with the University. At the clerkship’s end, the mentor declined to complete the registrar’s evaluation, citing that he had never seen the coursework letter and plaintiff was not present in his office during the time outlined in the letter. Plaintiff, who created an email account in the mentor’s name to submit the coursework letter, asserted that she had actually completed the clerkship months earlier, that the mentor had harassed her sexually, and that her mother had left a voice message at the time with the University’s Office of Access and Equity to that effect. In granting summary judgment to the University on plaintiff’s Title IX claim, the court found that the University did not have substantial control over either the alleged harasser or the location of harassment. In dismissing her retaliation claim, the court further found that multiple instances of “‘unprofessional conduct’ interrupted any causal nexus between [her mother’s voice message] and the adverse action” and that plaintiff had offered no other evidence suggesting pretext.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Internships, Externships, & Clinical Work | Retaliation | Sex Discrimination | Students
Date:
10/13/2023
Gradeless v. Kan. State Univ. (D. Kan. Oct. 6, 2023)
Memorandum and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former student at Ross University of Veterinary Medicine in St. Kitts, West Indies, who was completing clinical rotations at Kansas State University (KSU) and who has a medical condition causing serious reactions to some anesthesia medications, brought discrimination claims against KSU after he was dismissed for unsatisfactory performance in three clinical rotation courses. The professors in one noted that he appeared to lack empathy, which plaintiff asserted was because the respirator he wore due to his condition made it difficult to see his facial expressions. In dismissing plaintiff’s claim for damages, the court found that he had not sufficiently alleged deliberate indifference because he had not established that any official overseeing his instructors with authority to address the alleged discrimination had actual knowledge of the discrimination. It permitted him to proceed, however, in his claim for injunction and declaratory relief, finding that although he does not seek to return to KSU, the poor grades and dismissal continue to damage his academic record.
Topics:
Academic Performance and Misconduct | Disability Discrimination | Discrimination, Accommodation, & Diversity | Internships, Externships, & Clinical Work | Students
Date:
10/13/2023
Update: U.S. Dep.’t of Education Final Rule on Financial Value Transparency and Gainful Employment (Oct. 10, 2023)
U.S. Department of Education, Office of Postsecondary Education Final Rule on Financial Value Transparency and Gainful Employment. The new rule “amends regulations related to gainful employment (GE)” and “separately, seeks to enhance transparency by providing information about financial costs and benefits to students at nearly all academic programs at postsecondary institutions.” Under the new “financial value transparency framework,” institutions will be required to report information about their programs to the Department, and the Department will establish “a measure of the earning premium that typical program graduates experience relative to the earnings of typical high school graduates” and “a mechanism for measuring the debt service burden for typical graduates.” Information regarding each program’s performance against the Department’s performance benchmarks will be available on a program information website to be established by the Department, and “for certificate programs and graduate degree programs with poor outcomes under the debt-burden measures, prospective students will be required to acknowledge viewing this information before entering into enrollment agreements with an institution.” The Department released a Fact Sheet on the new regulations. The new rule becomes effective on July 1, 2024. Update: The Department of Education published the final regulations in the Federal Register on October 10, 2023.
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Students
Date:
10/6/2023
Tannous v. Cabrini Univ. (E.D. Pa. Oct. 4, 2023)
Memorandum granting-in-part and denying-in-part Defendant’s Partial Motion to Dismiss. Plaintiff, a former tenure-track professor at Cabrini University who is Palestinian-American, brought discrimination, retaliation, and contract claims against the University after it terminated him for violations of its social media policy after two community groups alerted the University to postings on his personal accounts that they considered to be anti-Semitic. In dismissing his discrimination claim, the court found that plaintiff’s assertion that the University knew of the character of his social media presence and took no action immediately after the community complaints made it implausible that his termination following two additional postings that were “particularly inflammatory” reflected discriminatory intent. The court found that dismissal of plaintiff’s contract claim would be premature absent an authenticated copy of the faculty handbook with its statements on social media use and discussion of the AAUP’s 1940 Statement on Principles on Academic Freedom and Tenures.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Students
Date:
10/6/2023
Doe v. Butler Univ. (S.D. Ind. Sep. 29, 2023)
Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former student at Butler University, brought contract and unjust enrichment claims against the University after it investigated him, but found him not responsible for stalking another student. The investigation suffered from issues stemming, in part, from the abrupt departure from the University of the investigator assigned to his case. The court permitted plaintiff to proceed on his contract claim, finding that he had sufficiently alleged that the policies and procedures in the University’s Student Handbook were an implied contract and that the University had departed from its terms by not providing parties with access to investigative materials, not providing adequate notice of changes to the scheduled hearing time, and permitting the hearing to proceed when the decision-maker did not have a copy of the investigative report. It dismissed his unjust enrichment claim, finding plaintiff had erroneously incorporated by reference his allegations of the existence of a valid contract.
Topics:
Internal Investigations | Investigations | Students | Title IX & Student Sexual Misconduct
Date:
10/6/2023
Wu v. Ma (D. Mass. Sep. 28, 2023)
Memorandum and Order granting Defendant’s Motion to Dismiss. Plaintiff, a former Ph.D. student from China at Worcester Polytechnic Institute (WPI) who had been diagnosed with Major Depressive Disorder, brought disability discrimination, tort, and contract claims against WPI after it processed an administrative withdrawal and terminated her student visa. While enrolled, plaintiff was hospitalized first for a serious suicide attempt and, two months later, again following expressions of suicidal thoughts. Plaintiff also alleged that a fellow Ph.D. student subjected her to emotional manipulation and spread rumors about her among peers and research supervisors. In granting WPI’s motion to dismiss her disability discrimination claims, the court found her allegation that WPI was inflexible with its leave of absence policy was vague, noting that plaintiff also alleged she had declined an offer of a reduced academic load after her first hospitalization. Turning to her claim that WPI was negligent in not protecting her from her fellow student’s conduct, the court declined to find such a duty, noting that (1) plaintiff was a graduate student and an adult “in all respects under the law,” and (2) WPI did not have notice of the alleged conduct to trigger a special duty until immediately prior to her second hospitalization. In similarly dismissing her claim that WPI breached its contractual obligations by not enforcing its Code of Conduct to protect her from the fellow student, the court noted that she only pointed to aspirational expectations in the Code rather than a specific promise.
Topics:
Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Litigation, Mediation & Arbitration | Sexual Misconduct | Students | Tort Litigation
Date:
10/6/2023
Doe v. New Coll. of Fla. (M.D. Fla. Sep. 28, 2023)
Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student at the New College of Florida, brought Title IX and negligence claims against the College after she was sexually assaulted following her participation in the “Tour de Franzia,” a student-run tradition that involved an end-of-semester bicycle tour on and around campus in which small groups of participants were each given a box of wine to consume. In denying summary judgment on plaintiff’s Title IX claims, the court found issues of material fact regarding whether plaintiff informed the Dean of Student Affairs of the assault one week before her assailant’s scheduled graduation and if the Dean replied there was nothing that could be done beyond a no-contact order. The court permitted her negligence claim to proceed with respect to her assertion that Resident Assistants and Teaching Assistants who were obligated to report alcohol use actually supplied alcohol for the Tour, but it dismissed her negligence claim with respect to the design of the College’s policies as barred by state immunity for discretionary functions.
Topics:
Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation
Date:
10/6/2023
Gonzales v. Hushen (Colo. App. Sep. 28, 2023)
Opinion affirming-in-part, reversing-in-part, and remanding on Defendants’ Anti-SLAPP Motion to Dismiss. Plaintiff, a former high school student in the Jefferson County School District (JCSD), brought defamation and intentional infliction of emotional distress claims against two fellow students and their mothers after he was expelled for sexual misconduct but later readmitted after he was tried as a juvenile and acquitted on related criminal charges. Defendants moved to dismiss under Colorado’s Anti-SLAPP law, asserting absolute privilege for statements made in a quasi-judicial proceeding. The trial court granted the motion as to some, but not all, of the communications at issue. In partially affirming and partially reversing, the Colorado Court of Appeals remanded for plaintiff’s claims to proceed as to all of the communications, holding that JCSD’s Title IX procedures were not quasi-judicial for purposes of applying absolute immunity because they did not provide for a hearing with contemporaneous cross-examination, ability to call witnesses, or the right to be represented by counsel.
Topics:
Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation
Date:
10/6/2023
ACE Comment Letter on DOL/IRS/HHS NPRM on Requirements Related to the Mental Health Parity and Addiction Equity Act (Oct. 4, 2023)
Comment Letter from the American Council on Education (ACE) and 18 other higher education associations to the Department of Labor, Internal Revenue Service, and Health and Human Services on their Notice of Proposed Rulemaking (NPRM) on “Requirements Related to the Mental Health Parity and Addiction Equity Act.” Noting that emergency waivers instituted during the COVID-19 pandemic to permit interstate care via telehealth have now expired, the letter encourages the regulating agencies to “find ways within their authority to support provision of behavioral health services to students enrolled in higher education institutions,” including via telehealth services, and to recommend to Congress that it fund measures to address student mental health and authorize the interstate provision of behavioral telehealth services for students enrolled in postsecondary institutions.
Topics:
Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Students
Date:
9/29/2023
U.S. Dep.’t of Education Final Rule on Financial Value Transparency and Gainful Employment (Sep. 28, 2023)
U.S. Department of Education, Office of Postsecondary Education Final Rule on Financial Value Transparency and Gainful Employment. The new rule “amends regulations related to gainful employment (GE)” and “separately, seeks to enhance transparency by providing information about financial costs and benefits to students at nearly all academic programs at postsecondary institutions.” Under the new “financial value transparency framework,” institutions will be required to report information about their programs to the Department, and the Department will establish “a measure of the earning premium that typical program graduates experience relative to the earnings of typical high school graduates” and “a mechanism for measuring the debt service burden for typical graduates.” Information regarding each program’s performance against the Department’s performance benchmarks will be available on a program information website to be established by the Department, and “for certificate programs and graduate degree programs with poor outcomes under the debt-burden measures, prospective students will be required to acknowledge viewing this information before entering into enrollment agreements with an institution.” The Department also released a Fact Sheet on the new regulations. The new rule becomes effective on July 1, 2024.
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Students

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