Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
11/24/2023
Ortegel v. Va. Polytechnic Inst. & State Univ. (W.D. Va. Nov. 20, 2023)
Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a student at Virginia Tech who received an ROTC scholarship, brought Title IX, equal protection, and due process claims against the University and multiple officials after he was disciplined for sexual assault. Of note, plaintiff alleged that the chair of his hearing panel had described himself as a “power disruptor” in a podcast and had posted multiple times on social media about what he described as patriarchy and other forms of oppression. The court permitted plaintiff’s Title IX and equal protection claims to proceed, finding that the allegations about the hearing panel chair’s postings, together with plaintiff’s assertion that a book he was assigned to read as a part of his sanction “posits that masculinity itself … is a social evil,” were sufficient to lead to a plausible inference of gender bias. The court also permitted plaintiff’s procedural due process claim to proceed, finding that he had sufficiently alleged that the University’s Title IX coordinator had appointed a decision-maker who was not impartial.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
11/24/2023
Hershey v. Jasinski (8th Cir. Nov. 21, 2023)
Opinion vacating and remanding for entry of judgment in favor of the University. Plaintiff, an activist who earned money by distributing materials advocating veganism on college campuses, brought First Amendment claims under §1983 against Northwest Missouri State University officials after he was issued a trespass warning for distributing leaflets on campus without first notifying the University. The University’s policy required that non-University publications may be distributed on campus only if prior notice is given to the University, distribution is limited to areas deemed appropriate, and the publication is not defamatory, obscene, or likely to incite violence. The district court found the policy unconstitutionally overbroad. In vacating and remanding for judgment in favor of the University, the Eighth Circuit held that the advance notice requirement for non-University publications is content neutral; that the policy does not function as a prior restraint because its language provided that distribution will be unrestricted with advance notice; and that the policy is on its face unlikely to restrict a substantial number of applications.
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
11/17/2023
Mackey v. Pigott (S.D. Miss. Nov. 14, 2023)
Order granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, the Deputy Executive Director for Accountability at the Mississippi Community College Board who is African American, brought equal protection claims against the members of the Board after he was passed over for the position of Executive Director in favor of an allegedly less qualified white colleague, seeking instatement in the position and damages. The court permitted plaintiff’s claim for instatement to proceed against the defendants in their official capacities, finding that “if reinstatement addresses an ongoing violation,” then, a request for instatement should be treated likewise since both forms of relief seek to remedy “discrete decisions that leave someone without the desired job.” It also permitted plaintiff’s claims against individual capacity defendants to proceed, finding that the successful candidate was a sufficiently similar comparator to plead a prima facie case of discrimination and that the asserted failure-to-promote claim was sufficiently well established to overcome defendants’ assertion of qualified immunity.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
11/17/2023
Johnson v. Watkin (E.D. Cal. Nov. 13, 2023)
Findings and Recommendation that Plaintiff’s Motion for Preliminary Injunction be granted in-part, and that Defendants’ Motion to Dismiss be denied. Plaintiff, a full-time professor at Bakersfield College was an outspoken free speech advocate and critic of colleagues who he perceived to champion diversity, equity, inclusion, and accessibility at the expense of free speech. After the College adopted a new policy requiring employees, among other things, to “promote and incorporate culturally affirming DEIA and anti-racist principles to nurture and create a respectful, inclusive, and equitable learning and work environment,” plaintiff sought declaratory and injunctive relief, alleging that the policy violated First Amendment prohibitions on viewpoint discrimination and compelled speech and was otherwise unconstitutionally vague. In recommending that the request for preliminary injunction be granted in-part, the magistrate judge found that plaintiff was likely to succeed on the merits of his First Amendment challenge with respect to his personal speech, teaching, and academic writing, but not regarding his participation in faculty search committees or in the College’s Equal Opportunity & Diversity Advisory Committee where the College’s interest in the efficiency of its services outweighs his free speech interest under Pickering. The magistrate judge also found that the prohibition on “verbal forms of aggression” in the College’s Code of Ethics is unconstitutionally vague.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech
Date:
11/17/2023
Doe v. E. Stroudsburg Univ. of Pa. (M.D. Pa. Nov. 13, 2023)
Memorandum granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former student at East Stroudsburg University, brought Title IX, §1983, and tort claims against the University and multiple officials related to an alleged March 30, 2018, sexual assault in her dorm by a resident assistant (RA), and their tumultuous relationship dating back to fall of 2016. Defendants moved to dismiss the claims as time-barred under the Pennsylvania general personal injury statute of limitations. The court found that plaintiff’s claims pertaining to events occurring on or after March 30, 2018, were timely under a state tolling provision for civil actions arising from sexual abuse when the action is brought by an individual under the age of 24. The court found that it lacked adequate information to determine the applicability of sovereign immunity, absent sufficient factual allegations about the scope of the RA’s employment and “whether any actions or inactions alleged … were within the scope of those duties,” and thus, allowed plaintiff’s tort claims to proceed, with leave for defendants to re-raise the defense at a later stage of the case.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
11/17/2023
Hughes v. Pacific Univ. (D. Or. Nov. 13, 2023)
Opinion and Order granting Defendant’s Partial Motion for Summary Judgment. Plaintiff, a former Coordinator for Experiential Compliance in the School of Pharmacy Office of Experiential Education at Pacific University, brought discrimination and retaliation claims against the University after she was terminated for allegedly unprofessional communications and failures to follow policies on remote work and use of comp time. Plaintiff alleged that the University discriminated against her by limiting her ability to work remotely to only days when another coordinator would be present in the office and retaliated against her for participating in an assessment committee project that used qualitative research methods to investigate the working environment at the school. In granting summary judgment to the University on her discrimination claim, the court found that male comparators who had greater discretion in when they could work remotely were not in positions similar to plaintiff’s and that her supervisor’s desire to have at least one coordinator in the office every day in case students dropped by was a legitimate, non-discriminatory reason for the policy. In granting summary judgment to the University on her retaliation claims, the court held that her participation in designing the methodology for a survey that found feelings of sexism among the staff was not itself a report or disclosure of wrongdoing and not protected activity.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
11/17/2023
Bennett v. Hurley Med. Ctr. (6th Cir. Nov. 9, 2023)
Opinion affirming Summary Judgment in favor of the Defendant. Plaintiff, a nursing student at the University of Michigan-Flint and clinical intern during Fall 2020 at the Hurley Medical Center who had a history of panic attacks, brought disability discrimination claims against the Center because it withdrew permission for her to have her service dog accompany her on clinical rotations on patient floors after patients and staff had allergic reactions caused by his presence. In affirming summary judgment in favor of the Center, the Sixth Circuit held that plaintiff’s intentional discrimination claim failed because she did not show that the hospital’s decision was motivated by anything other than the allergic reactions, which posed a direct threat to the health and safety of patients. Turning to her failure to accommodate claim, the court found that (1) accommodations necessary to permit the dog’s presence on patient floors, such as screening all patients for allergies, moving patients to other non-specialized floors, and reassigning staff during the COVID-19 pandemic, were not reasonable and (2) the Center repeatedly consulted with medical experts on the feasibility of each of plaintiff’s suggested accommodations and reasonably offered to permit the dog to be present in a crate on a separate floor, and was willing to consider permitting the dog to accompany plaintiff wearing a Shed Defender but plaintiff failed to follow up on procuring the garment for Pistol.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Service & Support Animals
Date:
11/17/2023
P.C. v. Stony Brook Univ. (N.Y. App. Nov. 8, 2023)
Decision & Judgment annulling the determination of the University Appeals Committee. Petitioner, a student at Stony Brook University, sought review of the University’s administrative determination after a University appeals committee affirmed a finding that he was responsible for engaging in sexual conduct with another student without her affirmative consent. In annulling the determination, the court noted that the complainant alleged that she had consented, but that she was too intoxicated at the time to be able to make that decision. It then held that the Appeals Committee’s determination that petitioner had not obtained affirmative consent before engaging in the sexual conduct was not supported by substantial evidence. The court, accordingly, vacated the penalties imposed and directed that references to the finding be expunged from petitioner’s academic record.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
11/17/2023
In re: College Athlete NIL Litigation (N.D. Cal. Nov. 3, 2023)
Order granting Class Certification. Plaintiffs, one former and two current Division I student-athletes, on behalf of themselves and putative classes, in consolidated cases, brought antitrust and unjust enrichment claims against the National Collegiate Athletic Association (NCAA) and its Power Five Conferences, alleging that they suffered damages as a result of (1) the NCAA’s rules prohibiting compensation for student-athletes on the basis of their name, image, and likeness (NIL) from 2016 to July 1, 2021, and (2) the NCAA’s new “interim” NIL policy which subsequently became effective. In certifying three damages classes, the court held the predominant questions in each class are capable of class-wide resolution, finding sufficiently reliable expert opinions that (1) ten percent of the value of the Conferences’ broadcast rights were attributable to student-athlete NIL and that the Conferences would have negotiated agreements to offer equal payments for that NIL but for rules prohibiting that compensation; (2) the number and value of agreements to use student-athlete NIL in video games is similarly ascertainable; and (3) the value of third-party NIL compensation student-athletes did not receive from 2016 to July 1, 2021 may be estimated based on NIL compensation received after the interim NIL policy became effective.
Topics:
Athletics & Sports | Athletics Compliance & NCAA Rules | Student Athlete Issues | Students
Date:
11/17/2023
NACUBO On Your Side (Nov. 13, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred between November 6-13, 2023. This summary highlights the Department of Education’s Dear Colleague Letter on institutions’ obligations under Title VI to address discrimination, including harassment, on campus; NACUBO’s advocacy though comment letters on the Department of Labor’s proposed overtime rules; and NACUBO’s letter with the American Council on Education (ACE) to the House Committee on Education and the Workforce concerning the Defending Education Transparency and Ending Rogue Regimes Engaging in Nefarious Transaction (DETERRENT) Act that would enhance reporting obligations under Section 117 of the Higher Education Act.
Topics:
Accreditation, Authorizations, & Higher Education Act

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