Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
10/13/2023
U.S. Dep.’t of Health and Human Services NPRM on Public Health Service Policies on Research Misconduct (Oct. 6, 2023)
U.S. Department of Health and Human Services Notice of Proposed Rulemaking (NPRM) on Public Health Service Policies on Research Misconduct. The proposed revisions to the 2005 Final Rule include updates and clarifications to the responsibilities of institutions, new terms and definitions and clarifications to the definition of “plagiarism,” changes to the Office of Research Integrity’s (ORI) procedures, and a streamlined process for appeals of ORI findings. Comments are due on or before December 5, 2023.
Topics:
Research | Research Misconduct
Date:
10/13/2023
ACE Letter to DOL Requesting an Extension of the Comment Period for the Proposed Overtime Rule (Oct. 12, 2023)
Letter from the American Council on Education (ACE) and 30 other higher education associations to the Department of Labor requesting a 60-day extension of the comment period for the Notice of Proposed Rulemaking (NPRM) on overtime exemptions. The letter cited the need to gather data and fully assess the potential impact of the proposed rule, noting the potentially disruptive challenges in “absorbing the increased costs that come with much higher salaries for exempt employees; expanded overtime payments; implementing effective monitoring of remote work, which vastly expanded since the last increase; and other costs and disruptions from transitioning traditionally exempt employees into nonexempt status.”
Topics:
Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
10/13/2023
NACUBO On Your Side (Oct. 10, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from October 3-10, 2023. This summary highlights the vote in the U.S. House of Representatives to remove Speaker McCarthy; the release by the U.S. Department of Education Office of Federal Student Aid (FSA) of a prototype of the new Free Application for Federal Student Aid (FAFSA); changes by FSA to its guidance on audits for student consent to opening accounts such as bank cards as devices to provide students with access to their balances; a new FSA Training Conference; a recap from the Financial Accounting Standards Board of its September Not-for-Profit Advisory Committee meeting; NACUBO’s advocacy with the White House for greater support for student aid; its comments with the American Council on Education (ACE) and other associations to the Department of Justice on its NPRM on accessibility of online information for public colleges and universities; its advocacy with multiple agencies for greater support for student mental health efforts; and a new tool to help interested parties to contact legislators and regulators regarding the Department of Labor’s proposal to expand the Fair Labor Standards Act’s salary-level threshold for overtime pay.
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
10/6/2023
Miller v. Univ. of Houston-Downtown (S.D. Tex. Oct. 4. 2023)
Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a candidate for a tenured faculty position at the University of Houston-Downtown, brought retaliation claims against the University alleging that it denied her application in retaliation for her opposition to alleged discrimination at her previous university where she was denied tenure and promotion. In granting summary judgment to the University, the court found that plaintiff had established a prima facie case of retaliation because the reasons for her tenure denial were discussed during her interviews and a member of the search committee had called her former department chair. Nevertheless, it held that (1) concern over a previous tenure denial was a legitimate nondiscriminatory reason not to hire a candidate, even for a position in which prior tenure was not listed as a requirement, and (2) plaintiff had offered no evidence to suggest that this concern was pretextual.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
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
Powell v. Doane Univ. (D. Neb. Oct. 3, 2023)
Memorandum and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former women’s basketball head coach at Doane University, brought sex discrimination and retaliation claims against the University after it terminated her employment when both of her assistant coaches quit mid-season and multiple players complained of abusive and erratic behavior. In granting summary judgment to the University on her discrimination claim, the court found that one comment made by the Athletic Director referring to the disputes as a “female thing” was insufficient to raise a genuine issue of pretext. The court granted summary judgment to the University on plaintiff’s retaliation claim, finding her complaints to her student-athletes about their uniforms and other alleged disparities were insufficient to give the University actual notice of discrimination under Title IX or to constitute reports of discriminatory employment practices under Title VII.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Gender Equity in Athletics | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
10/6/2023
Sacks v. Tex. S. Univ. (5th Cir. Oct. 3, 2023)
Opinion affirming dismissal. Plaintiff, a former professor of law at Texas Southern University, brought discrimination and retaliation claims against the school and multiple employees after she resigned alleging constructive discharge and retaliation after she filed a similar suit two years before. In affirming dismissal of plaintiff’s Title VII constructive discharge claim, the Fifth Circuit held that, even if “menial,” curricular changes, “extra faculty meetings,” and mandates of “new methods of attendance recording” were insufficient to allege factors that would make a reasonable person feel compelled to resign. Her retaliation claims failed because she had not alleged sufficient facts to show that her prior suit was the cause of new mandates and procedures in the law school. Finally, the court also dismissed her claims under §1983 against a colleague who “threw her hair into [plaintiff’s] face in the law school lobby” and yelled at her in a church parking lot, finding that these allegations indicated a personal conflict rather than action under color of law.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
10/6/2023
Miranda v. Xavier Univ. (S.D. Ohio Oct. 3, 2023)
Order granting Plaintiff’s Unopposed Motion for Final Approval of Class Action Settlement. Plaintiffs, a class of 494 students enrolled in the Accelerated Bachelor of Science in Nursing Program at Xavier University in Spring and Summer 2020, brought contract, unjust enrichment, and promissory estoppel claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. Through the Settlement Agreement, the University agreed to pay $750,000 to be distributed in accordance with the Agreement.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
10/6/2023
Sharma v. Bd. of Trs. of the Univ. of Ill. (N.D. Ill. Sep. 29, 2023)
Memorandum Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a former administrative employee at the University of Illinois at Chicago College of Medicine, brought discrimination claims against the University and multiple officials after he was placed on paid administrative leave, required to undergo a fitness for duty evaluation, and not reappointed following multiple complaints of threatening and hostile behavior toward colleagues. In granting summary judgment, the court found plaintiff offered no admissible evidence that the University’s stated concern with his behavior was pretextual.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
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

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