Cases & Developments - National Association of College and University Attorneys

FILTERS

Latest Cases & Developments

Date:
11/7/2023
NACUBO On Your Side (Oct. 30, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred between October 24-30, 2023. This summary highlights the selection of a new Speaker of the House of Representatives; a report from the National Student Clearinghouse Research Center on undergraduate enrollments after the onset of the COVID-19 pandemic; a revised checklist from the National Association of Student Financial Aid Administrators (NAFSAA) to help institutions plan for implementation of the new FAFSA form; advocacy by NACUBO and 87 other organizations with members of Congress regarding the Department of Labor’s proposed changes to the salary-level threshold for overtime pay; and a request from NACUBO seeking information from institutions regarding the number of debt notices they are receiving from the Department of Veterans Affairs (VA) requesting funds from schools following changes in student veterans’ enrollment.
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
11/7/2023
Update: U.S. Dep.’t of Education Final Regulations on Financial Responsibility, Administrative Capability, Certification Procedures, Ability to Benefit (ATB) (Oct. 24, 2023)
U.S. Department of Education, Office of Postsecondary Education Final Regulations on Financial Responsibility, Administrative Capability, Certification Procedures, and Ability to Benefit (ATB). Among key provisions, the new regulations require that institutions provide adequate financial aid counseling and information, including cost of attendance information; new mandatory and discretionary triggers to give the Department with notice when an institution might not be able to be able to meet its financial responsibilities; a requirement that institutions certify that in each State where they enroll students, including through distance programs, that they meet applicable accreditation and licensure requirements and comply with State laws related to closures; a requirement that institutions provide, upon a student’s request, an official transcript reflecting all credit or clock hours for periods in which a student received Title IV funds; and a requirement that institutions provide adequate career services and clinical or externship opportunities. The Department also released a Fact Sheet on the new regulations, which become effective on July 1, 2024. Update: The Department of Education published the final regulations in the Federal Register on October 31, 2023.
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Students
Date:
11/7/2023
NLRB GC Memo re: Guidance on the NLRB’s Decision in Cemex (Nov. 2, 2023)
Memorandum from the General Counsel (GC) of the National Labor Relations Board (NLRB) re: Guidance in Response to Inquiries about the Board’s Decision in Cemex Construction Materials Pacific, LLC. In the memo, the NLRB General Counsel reviews the framework adopted by the Board in its recent Cemex decision for resolving questions concerning employee representation and offers guidance on the process by which the Board will review charges of unfair labor practices while a representation question is pending to determine whether to issue a remedial bargaining order. The memo also notes situations in which an employer may forfeit or waive its option to seek a Board-conducted election that are not addressed by the Cemex decision.
Topics:
Collective Bargaining | Faculty & Staff
Date:
11/7/2023
Executive Order re: Development and Use of Artificial Intelligence (AI) (Oct. 30, 2023)
Executive Order (EO) from President Biden on the Safe, Secure, and Trustworthy Use of Artificial Intelligence (AI). The EO aims to advance “a coordinated, Federal Government-wide approach” to “governing the development and use of AI safely and responsibly.” The EO contains provisions addressing the development of guidelines and best practices for the development and use of AI; cybersecurity and protection of privacy; concerns regarding equity and civil rights; protections for consumers, patients, and students; impact on workers; innovation and competitiveness; and use of AI by government agencies. The EO also directs the Secretary of Education to “develop resources, policies, and guidance regarding AI” including recommendations for “appropriate human review of AI decisions, designing AI systems to enhance trust and safety and align with privacy-related laws and regulations in the educational context, and developing education-specific guardrails.” The White House also released a Fact Sheet summarizing the directives in the EO.
Topics:
Cybersecurity | Technology
Date:
11/7/2023
Jones v. The Regents of the Univ. of Cal. (Cal. App. Oct. 31, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, an employee at the University of California, Irvine, brought premises liability and negligence claims against the University after an accident in which she left work at the end of the day, mounted her bicycle to ride home, and seconds later swerved to avoid a trench that was cordoned off with orange posts and caution tape, falling off her bike and sustaining injuries. The trial court granted summary judgment to the University, finding that (1) workers’ compensation was her exclusive remedy because the accident happened on campus and (2) she had not exercised due care at the time. In affirming on the grounds of the workers’ compensation exclusivity rule, the California Court of Appeals held that the trial court had properly applied the premises line rule, which offers “a ‘sharp line of demarcation’ as to when the employee’s commute terminates and the course of employment commences” under the judicially created “going and coming rule” in workers’ compensation cases.
Topics:
Litigation, Mediation & Arbitration | Tort Litigation
Date:
11/7/2023
Schweyen v. Univ. of Montana-Missoula (D. Mont. Oct. 31, 2023)
Order granting the University’s Motion for Summary Judgment. Plaintiff, a former head coach of the women’s basketball team at the University of Montana-Missoula, brought a discrimination claim against the University after it declined to renew her contract following multiple seasons of poor team performance and complaints about her purportedly intimidating coaching style, including from student-athletes who planned to transfer from the University. Plaintiff alleged that her performance was evaluated more harshly than male coaches. In granting summary judgment in favor of the University, the court found that plaintiff was unable to demonstrate that the University’s dissatisfaction with her performance was pretextual, noting that she was unable to identify male comparators who were the subject of similar complaints and that allegations of disparate treatment between men’s and women’s teams were insufficient to create an inference of discriminatory animus in the decision not to renew her contract.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment
Date:
11/7/2023
Thomas v. Auburn Univ. (M.D. Ala. Nov. 1, 2023)
Memorandum Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Director of Academic Support Services for student-athletes at Auburn University, brought discrimination and retaliation claims against the University after he was terminated for waiting more than a year, in violation of NCAA compliance rules, to report that he suspected a student-athlete’s grade was changed inappropriately. After plaintiff received a “marginal” rating in his annual performance evaluation, he complained to a Human Resources generalist that he had been treated unfairly and filed an EEOC charge alleging discrimination and hostile work environment. He explained that he only reported his concern regarding the grade change after he began to suspect that his knowledge of it was related to what he perceived as hostile treatment. The court granted summary judgment to the University on his discrimination claim finding that his supervisors who did not believe the grade change was inappropriate were not adequate comparators and that he failed to present a convincing mosaic of circumstantial evidence of discrimination. Plaintiff’s retaliation claim also failed because he offered nothing to connect his termination to his EEOC charge or complaints he filed months earlier with HR.
Topics:
Athletics & Sports | Athletics Compliance & NCAA Rules | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
11/7/2023
Wallace v. Mary Baldwin Univ. (W.D. Va. Nov. 1, 2023)
Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiff, a full-time employee of the American Shakespeare Center (ASC) taught a summer theater course at Mary Baldwin University as a part of a partnership between ASC and the University. She brought discrimination claims against the University after it discovered she had a consensual relationship with an employee, which it deemed inappropriate and thus declined to offer her a contract for the summer of 2019. After not running the course in 2020, the University also initially declined to offer her a contract for the summer of 2021, but changed course when plaintiff retained counsel. Plaintiff, however, rejected the offer to teach. In granting the University’s motion to dismiss, the court found that plaintiff’s claims as to 2019 were time-barred. Turning to her claims as to 2021, the court ruled that both her failure to hire or rehire claim and her disparate treatment claim failed because she, in fact, was offered a contract.
Topics:
Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment
Date:
11/7/2023
Terrell v. Ala. State Univ. (M.D. Ala. Oct. 30, 2023)
Memorandum Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a former Senior Associate Athletic Director of Internal Operations at Alabama State University, brought pay discrimination and retaliation claims against the University after a new Athletic Director eliminated her position in favor of a new Senior Associate Athletic Director/Chief of Staff role for which one of the AD’s former direct reports was hired. Plaintiff was also designated as the Senior Woman Administrator, though she did not receive the additional compensation the University had earmarked in its budget for the function. The court granted summary judgment to the University on her Equal Pay Act claim, finding that plaintiff failed to identify proper comparators, and her assertion that two male employees received the same salary for less work was insufficient to show that they were paid more for equal work. It granted summary judgment to the University on both her retaliation and Title IX discrimination claims, ruling that her challenges to the wisdom of the University’s proposed reorganization and budget process fell short of raising questions of pretext.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
10/27/2023
Khan v. Yale Univ. (2nd Cir. Oct. 25, 2023)
Opinion affirming-in-part and vacating-in-part dismissal and remanding. In 2015, Jane Doe, a student at Yale University, accused plaintiff, also a student at Yale, of sexual assault. In 2018, after he was found not guilty in a state criminal trial, the University conducted a disciplinary hearing and expelled him for violating its Sexual Misconduct Policy. Plaintiff subsequently sued Doe and Yale for defamation and tortious interference with a contract. The district court dismissed plaintiff’s claims, finding that Doe enjoyed an absolute quasi-judicial immunity for her statements to the 2018 disciplinary hearing and that plaintiff’s claims as to Doe’s 2015 statements were time-barred. After the Connecticut Supreme Court opined in response to questions certified to it that Yale’s disciplinary procedure lacked necessary procedural safeguards—such as an oath requirement, cross-examination, the ability to call witnesses, meaningful assistance of counsel, and an adequate record for appeal—to constitute a quasi-judicial proceeding to support Doe’s assertion of immunity, the Second Circuit vacated dismissal of plaintiff’s claims as to statements made during the 2018 disciplinary hearing that resulted in his expulsion. It affirmed that his claims as to Doe’s 2015 statements were time-barred.
Topics:
Constitutional Issues | Due Process | Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation

NACUA Annual Conference

Join us in the Music City June 29 – July 2 to connect, learn, and lead alongside higher education attorneys shaping policy, practice, and impact nationwide together.