Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
12/1/2023
Scruggs v. Grand Canyon Univ. (D. Ariz. Nov. 21, 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former nursing student at Grand Canyon University who suffers from a weakened immune system and other complications as a result of childhood cancer treatments, brought discrimination, contract, and unfair trade practices claims against the University after she was dismissed from the program when she failed a required course for not submitting forms to extend her excused absences when complications from a strep infection further delayed her return to school. Her disability discrimination claim failed because plaintiff had not notified the University of her underlying weakened immunity or other complications. The court also rejected plaintiff’s contention that the medical documentation policy was confusing, noting that she was familiar with the University’s absence policy and used it to her benefit in the past. Her breach of contract claim related to the University’s nondiscrimination policy failed because her alleged injuries were redressable under the ADA and Rehabilitation Act. Her unfair trade practices claim failed because she provided no evidence that the University had represented to her that her nursing credits would be transferable to another nursing program.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
12/1/2023
U.S. Dep.’t of Education Notice of Negotiated Rulemaking (Nov. 29. 2023)
U.S. Department of Education, Office of Postsecondary Education Notice of Negotiated Rulemaking. The Department announced its intention to establish a negotiated rulemaking committee on Program Integrity and Institutional Quality. The committee will propose new regulations on recognition of accrediting agencies; institutional eligibility, including State authorization; requirements for distance education, including for clock hour programs; return of Title IV funds; cash management; and eligibility requirements for Federal TRIO program participants. Nominations for negotiators to serve on the committee are due on or before December 13, 2023. In a related Press Release, the Department noted that the committee’s topics do not include Third Party Services (TPS), but that the Department intends to issue updated guidance on TPS in early 2024.
Topics:
Accreditation, Authorizations, & Higher Education Act | Higher Education Act (HEA)
Date:
12/1/2023
NACUBO On Your Side (Nov. 27, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from November 21-27, 2023. This summary highlights the upcoming reporting deadline of December 15 for institutions participating in the Perkins Loan Program to report their amount of cash on hand to the Office of Federal Student Aid (FSA); a reminder about the FSA Training Conference that started on November 28; a Notice of Proposed Rulemaking (NPRM) from the IRS on issues related to the energy investment credit; the Supreme Court’s decision not to hear Indiana Municipal Power Agency v. United States, a case about the federal government’s obligation to refund interest payments on Build America Bonds; and a report from the Institute of International Education showing a 12 percent increase in international student enrollments in 2022-23 from the prior year.
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
11/24/2023
ACE Letter to ED re: FAFSA Implementation Process (Nov. 17, 2023)
Letter from the American Council on Education (ACE) and six other higher education associations to the U.S. Department of Education Office of Federal Student Aid (FSA) regarding the Free Application for Federal Student Aid (FAFSA) implementation process. Noting that FSA has announced that the new FAFSA will be available by December 31, 2023, ACE requested greater clarity regarding changes to the process after an applicant completes the form. ACE also requested that ED communicate to applicants that ED (rather than the institution) has not processed applications received and what this means for the institution’s ability to work with students on their eligibility. ACE further requested that ED explore ways to expedite processing of FAFSAs given the now shortened timeframes.
Topics:
Financial Aid, Scholarships, & Student Loans | Students
Date:
11/24/2023
NACUBO On Your Side (Nov. 20, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from November 14-20, 2023. This summary highlights the passage of a continuing resolution (CR) extending funding of some federal agencies until January 19, 2024, and of others until February 2, 2024; hearings in the House Committee on Ways and Means on the increase in antisemitism on campuses stemming from the ongoing conflict between Israel and Hamas; proposed regulations from the IRS setting a 20 percent excise tax on taxable distributions from donor-advised funds and liability for fund managers who knowingly agree to make a taxable distribution; the implementation timeline from the Department of Education’s Office of Federal Student Aid (FSA) for the 2024-25 FAFSA; and an updated complaint form from ED’s Office for Civil Rights specifying that Title VI protections extent to students who “are or are perceived to be Jewish, Muslim, Hindu, or Sikh, or based on other shared ancestry or ethnic characteristics.”
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
11/24/2023
Update: NLRB Final Rule on Standard for Determining Joint Employer Status (Nov. 22, 2023)
National Labor Relations Board (NLRB) Final Rule on Standard for Determining Joint Employer Status. Under the new standard, an entity may be considered a joint employer if each entity has an employment relationship with the employee and if the entities share or codetermine one or more of the employee’s essential terms and conditions of employment, defined as “(1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to safety and health of employees.” The NLRB also released a Fact Sheet on the Final Rule. Update: On November 22, 2023, the NLRB published a Notice in the Federal Register delaying the effective date of the regulation to February 26, 2024 “to facilitate resolution of legal challenges with respect to the rule.”
Topics:
Collective Bargaining | Faculty & Staff
Date:
11/24/2023
Savannah State Univ. Found. v. Lewis (Ga. App. Nov. 17, 2023)
Opinion reversing denial of Defendants’ Motion for Summary Judgment. Defendants are the Savannah State University Foundation, Inc. and the Savannah State University Foundation Real Estate Ventures, LLC, of which the Foundation is the sole member. The LLC leases the “University Village,” an apartment facility built on land leased to it by the Board of Regents of the University System of Georgia, to Savannah State University (SSU) for use as student housing. Plaintiff brought premises liability, nuisance, and related claims against the Foundation and the LLC after her son was shot and killed while visiting friends at the University Village. Defendants moved for summary judgment, asserting that neither was in control or possession of the property at the time. The trial court denied the motion, but the Court of Appeals of Georgia reversed, holding that neither restrictions in the lease on how SSU may use the property nor rights to enter and inspect the property, which were reserved to protect the LLC’s ownership interests rather than any possessory interests, were sufficient to raise issues of material fact regarding whether the LLC retained possession or control of the property.
Topics:
Foundations & Affiliated Entities | Governance | Litigation, Mediation & Arbitration | Tort Litigation
Date:
11/24/2023
McClendon-Lemman v. Tarrant Cnty. Coll. (N.D. Tex. Nov. 17, 2023)
Order accepting the Findings, Conclusions, and Recommendation of the U.S. Magistrate Judge and granting Defendant’s Motion for Summary Judgment. Plaintiff, a former part-time instructor with the Tarrant County College District (TCCD), proceeding pro se, brought discrimination and retaliation claims against TCCD alleging that after she complained to HR that an African American instructor had allegedly bullied special needs students, she began receiving fewer hours than African American instructors. Plaintiff’s discrimination claim failed because her asserted comparator was not similarly situated and because she otherwise failed to refute TCCD’s evidence that her hours varied greatly and that she sometimes worked more hours than non-white instructors. Her retaliation claim similarly failed because her asserted reduction of hours was not in close temporal proximity to when she filed her complaint.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
11/24/2023
Underwood v. Cuyahoga Community College (Ohio App. Nov. 20, 2023)
Opinion affirming summary judgment in favor of the College. Plaintiff, a former manager of plant operations at Cuyahoga Community College, brought contract and wrongful termination claims against the College after he was terminated for engaging in multiple inappropriate deals with College vendors, including for a $50,000 personal loan and the installation of cabinetry in his vacation home in the U.S. Virgin Islands, in violation of Ohio Ethics Laws and the College’s Code of Conduct. In affirming summary judgment in favor of the College on plaintiff’s breach of contract claim, the Court of Appeals of Ohio found that plaintiff’s letter of appointment made clear that he was an at-will employee and that plaintiff failed to raise an issue of material fact as to whether he was terminated for good cause or whether the college had paid him all sums due in his final paycheck. The court also affirmed summary judgment in favor of the College on plaintiff’s claim that he was wrongfully terminated in violation of public policy in retaliation for his 2018 report of theft from the College’s metal recycling program, noting that his contract was renewed again in 2019 before his termination in 2020.
Topics:
Employee Discipline & Due Process | Faculty & Staff
Date:
11/24/2023
Wilson v. Johnson (N.D. Ind. Nov. 20, 2023)
Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiffs, three former members of the cross-country and track and field teams at Huntington University, brought Title IX deliberate indifference claims against the University, alleging that their former head coach, who was later arrested, subjected them to a hostile environment, unwanted touching, and other assaults. Plaintiffs also alleged that the coach had engaged in sexual relationships with two student-athletes and that two assistant coaches were aware of the relationships and should have known of other inappropriate behavior. In dismissing plaintiffs’ claims without prejudice, the court found insufficient factual allegations that an appropriate person had actual knowledge of the alleged abuse.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination

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