Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
12/15/2023
U.S. Dep.’t of Education Notice of Information Collection under the CARES Act (Dec. 14, 2023)
U.S. Department of Education Notice of New Information Collection on Foreign Institution Reporting Requirements Under the CARES Act. The CARES Act permitted foreign institutions to provide part of eligible programs via distance education and to enter into written agreements institutions of higher education in the United States to take courses from that institution. It required those foreign institutions to report to the Secretary the use of either activity no later than 30 days after the start of those courses. That information collection was discontinued at the end of the COVID-19 national emergency. “However, due to other global situations [ED is] no requesting a new information collection to allow for the on-going use of the CARES Act waiver.” Comments are due on or before February 12, 2024.
Topics:
Accreditation, Authorizations, & Higher Education Act | Higher Education Act (HEA)
Date:
12/15/2023
Rasheed v. Mt. San Antonio Coll. (9th Cir. Dec. 12, 2023)
Memorandum affirming summary judgment in favor of the College. Plaintiff, a former student at Mount San Antonio College, brought Title IX retaliation claims after she was “expelled, in part, for continuing to accuse an administrator of ‘sexual assault’ after the College’s internal Title IX investigation found that the evidence indicated that the administrator had not engaged in the alleged conduct.” In affirming summary judgment in favor of the College, the Ninth Circuit held that continuing to make the accusations after the investigation was no longer protected activity because plaintiff “failed to produce any evidence indicating that she had a reasonable belief that the administrator had engaged in unlawful conduct.”
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
Date:
12/15/2023
Mitchell v. Univ. of Pittsburgh (3rd Cir. Dec. 12, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former campus police officer at the University of Pittsburgh, brought an age discrimination claim against the University after demoted him from senior sergeant and shift supervisor to patrolman. In affirming summary judgment in favor of the University, the Third Circuit held that plaintiff’s assertion that his supervisor provided him with a copy of the collective bargaining agreement and said he could “take advantage of retirement” was not direct evidence of age discrimination because the provision in the agreement on retirement had changed since plaintiff was last covered by it. It also held that plaintiff’s prima facie case of discrimination failed because his assertion of his personal understanding that he was replaced by a younger employee was insufficient to create a presumption of discrimination because it was insufficient to overcome the University’s evidence that the younger employee was only promoted to sergeant and did not otherwise take on his prior duties.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity
Date:
12/15/2023
Dennison v. Ind. Univ. of Pa. (3rd Cir. Dec. 12, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former Executive Director of Housing, Residential Living and Dining at Indiana University of Pennsylvania, brought discrimination and First Amendment retaliation claims against the University and University officials after she was first demoted to Director of Residence Life and then had her position eliminated with staff reductions at the onset of the coronavirus pandemic. Plaintiff alleged that she was terminated for unilaterally implementing a contactless checkout process when the University closed its residential facilities in March 2020. In affirming summary judgment in favor of the University on her First Amendment retaliation claim, the Third Circuit held that plaintiff’s speech defending her decision to implement the checkout process was not protected because it was pursuant to her duties as a University employee. Her sex discrimination claim failed because she should not show that the University’s decision in favor of flatter, streamlined organization in her demotion was pretextual and because her responsibilities were given to another woman. Her age discrimination claim similarly failed because she was unable to show that the University’s preference for efficiency or her supervisor’s ultimate loss of confidence in her leadership were pretextual.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
12/15/2023
Khlafa v. Or. Health & Sci. Univ. (D. Or. Dec. 12, 2023)
Order granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, a former information specialist at the Oregon Health and Science University (OHSU), proceeding pro se, brought age and other discrimination claims against OHSU after he signed a Separation Agreement, which included a broad Mutual Release of All Claims, ending his employment the following day. The court permitted plaintiff to proceed in his age discrimination claim because the Separation Agreement did not provide plaintiff with a 21-day period to consider the agreement or a 7-day period to revoke after execution as required for a knowing and voluntary release under the ADEA as amended by the Older Workers Benefit Protection Act (OWBPA). It granted summary judgment to OHSU on his other discrimination claims because he provided no evidence to support his claim that he signed the Separation Agreement under duress, noting, in particular, that he was represented by counsel at the time.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff
Date:
12/15/2023
Edrich v. Dall. Coll. (N.D. Tex. Dec. 12, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Executive Director of Human Resources at Brookhaven College, which was consolidated into Dallas College along with several other separately accredited colleges, brought discrimination and contract claims against Dallas College after she was reassigned to a new role during a transitional phase and then not hired for any of the new positions in the final phase of the consolidation. In granting summary judgment to the College on her contract claims, the court held that plaintiff’s assertion that she had been demoted when the College reassigned her failed because her month-to-month employment contract referred to her only as an administrator and she continued to receive the same salary after her the reassignment. In granting summary judgment to the College on her race and age discrimination claims, the court found that plaintiff failed to point to any evidence showing that the College’s assertion that it sought to hire the most qualified candidates was pretextual.
Topics:
Age Discrimination | Contracts | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
12/8/2023
Acheson Hotels, LLC v. Laufer (U.S. Dec. 5, 2023)
Opinion vacating as moot and remanding to the First Circuit with instructions to dismiss. Respondent, a self-described “tester,” sued Acheson Hotels and hundreds of other hotels because they did not provide information about accessibility of their rooms on their websites as required by the Americans with Disabilities Act. To resolve a circuit split, the Supreme Court granted certiorari on the question, “Does a self-appointed Americans with Disabilities Act ‘tester’ have Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation?” The Court dismissed the case as moot after respondent voluntarily dismissed her pending suits with prejudice following her lawyer’s suspension from the practice of law for lying in fee petitions and during settlement negotiations.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
12/8/2023
Cohen v. Bd. of Trs. of Univ. of Dist. of Columbia (D. D.C. Dec. 5, 2023)
Memorandum Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a former professor at the University of the District of Columbia, brought a due process claim against University officials after he was terminated for failing to submit a required cumulative evaluation portfolio. Under the collective bargaining agreement, after an appeal to the University President plaintiff was permitted to file a grievance with the Union, though the Union was not obligated to arbitrate the case. Plaintiff, however, did not file a grievance after his appeal was denied. In granting summary judgment in favor of the University defendants on plaintiff’s due process claim, the court found that the procedures outlined in the collective bargaining agreement provided an adequate post-deprivation opportunity to be heard and that plaintiff had not otherwise identified any necessary additional procedural safeguards.
Topics:
Collective Bargaining | Constitutional Issues | Due Process | Faculty & Staff
Date:
12/8/2023
Skoorka v. Kean Univ. (D. N.J. Dec. 4, 2023) (unpub.)
Opinion and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a former professor at Kean University, brought retaliation claims against the University after it shifted him from a teaching role to a nonteaching assignment in order to give him more time to complete evaluations he had not completed and to permit him to focus on his research and scholarship. In denying the University’s motion for summary judgment, the court held that (1) the shift from a teaching to a nonteaching role may constitute an adverse employment action and (2) plaintiff’s testimony that he was told his reassignment was because he failed to attend required professional development sessions was sufficient to raise a material question of fact as to causation.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
12/8/2023
McKinley v. Princeton Univ. (D. N.J. Dec. 1, 2023) (unpub.)
Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiff, a former employee of Princeton University who had been granted a religious exemption to the University’s COVID-19 vaccination requirement, brought discrimination and retaliation claims against the University after it denied her request for a religious exemption to its masking, testing, and contract tracing policies and terminated her shortly thereafter. In dismissing her amended complaint, the court found that plaintiff failed to identify a religious belief preventing her from complying with the policy. It found that her assertion that “her body is a temple, that she decries and does all that she can to abolish any and all abuse against life and Mankind, and that she decries the suppression of knowledge, wisdom, philosophy, or data which would help Mankind” stated a personal moral code and lacked information regarding religious belief or other formal and external signs of religion.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation | Retaliation

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