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Date:
9/8/2023
Casper v. Tex. Woman’s Univ. (Tex. App. Aug. 31, 2023)
Memorandum Opinion affirming dismissal. Plaintiff, a tenured professor at Texas Woman’s University, brought due process and First Amendment claims against the University and multiple officials after an investigation substantiated a student complaint that plaintiff had engaged in demeaning conduct toward students and failed to provide required disability accommodations. The University permitted plaintiff to retain her tenure, salary, and benefits, but barred her indefinitely from teaching or performing other faculty duties. In affirming dismissal of her procedural due process claim, the Court of Appeals of Texas held that plaintiff failed to allege that she had a protectable property right in the performance of the specific duties the University barred her from performing. Her substantive due process claim similarly failed under the stigma-plus test because she did not allege that the University publicized the charges against her or revoked her tenure. Finally, her First Amendment claim failed because she failed to allege that comments she claimed she made about “the value of hard work” were either matters of public concern or made in the context of classroom discussions.
Topics:
Constitutional Issues | Due Process | First Amendment & Free Speech
Date:
9/8/2023
Lax v. The City Univ. of N.Y. (N.Y. Sup. Ct. Aug. 11, 2023)
Opinion granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiffs, five observant Jewish professors at Kingsborough Community College (Kingsborough) of the City University of New York (CUNY), brought discrimination and retaliation claims against CUNY, the Professional Staff Congress (PSC) union, the New Caucus of the PSC, and multiple individual professors. Plaintiffs alleged that the professor defendants subjected them to a hostile work environment, conspired to exclude Jewish applicants from a New Caucus-aligned group at Kingsborough called the Progressive Faculty Caucus, and sought their removal from their jobs. They further alleged that CUNY did not take adequate corrective action. In denying CUNY’s motion to dismiss the hostile work environment claims, the court found plaintiffs had sufficiently alleged that CUNY’s response to the allegations was inconsistent with findings documented in an investigative report completed by outside counsel. Turning to the retaliation claims, the court also found that plaintiffs had sufficiently alleged that critical statements by the Kingsborough President and a delay of over a year in replacing Kingsborough’s chief diversity officer were reasonably likely to deter a person from engaging in protected activity.
Topics:
Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation | Retaliation
Date:
9/8/2023
Update: DOL NPRM on Overtime Exemptions (Sep. 8, 2023)
U.S. Department of Labor, Wage and Hour Division Notice of Proposed Rulemaking (NPRM) on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees. The NPRM proposes to update and revise the regulations under the Fair Labor Standards Act implementing the exemptions from minimum wage and overtime pay requirements for executive, administrative, professional, outside sales, and computer employees. Notable revisions include increasing the minimum salary level to $55,068 annually and the salary level for the Highly Compensated Exemption to $143,988. Update: The Department of Labor published the NPRM in the Federal Register on September 8, 2023. Comments are due on or before November 7, 2023.
Topics:
Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
9/8/2023
U.S. Copyright Office Notice of Inquiry on Artificial Intelligence and Copyright (Aug. 30, 2023)
Library of Congress, Copyright Office Notice of Inquiry and Request for Comments. As part of a study of copyright law and policy issues raised by artificial intelligence (AI), the U.S. Copyright Office seeks comments on numerous questions concerning AI systems, “including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs.” Written comments are due on or before November 15, 2023.
Topics:
Copyright & Fair Use | Intellectual Property
Date:
9/8/2023
In re Miller Plastics Products, Inc. (N.L.R.B. Aug. 25, 2023)
Decision and Order adopting a totality of the circumstances standard for determining concerted activity. In March 2020, an employee of Miller Plastics Products, Inc. challenged his supervisor’s assertion that his employer was an essential, life-sustaining business and, days later, questioned the employer’s return-to-work procedures after another employee returned to the workplace two days after a suspected COVID exposure. Shortly thereafter, his employer terminated him for poor performance and policy violations. In affirming an Administrative Law Judge’s finding that the employee’s activity was both concerted and protected, the National Labor Relations Board overruled its decision in Alstate Maintenance, LLC (2019) and returned the standard in Meyers II (1986), which held that “the question of whether an employee has engaged in concerted activity is a factual one based on the totality of the record evidence.” In so doing, it held that “activity that at inception involves only a speaker and a listener can be concerted, ‘for such activity in an indispensable preliminary step to employee self-organization.’” Here, it held that the employee’s complaints were also protected because they sought to bring group complaints to the attention of management.
Topics:
Collective Bargaining | Faculty & Staff
Date:
9/8/2023
NACUBO On Your Side (Sep. 5, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from August 15-September 5, 2023. This summary highlights the U.S. Department of Education’s Annual Lists of its top 10 audit and school program review findings for FY22; the Office of Federal Student Aid’s Federal Application for Free Student Aid (FAFSA) simplification webinar recordings; a RAND Corporation report on Income-Share Agreements; and NACUBO’s participation in an amicus brief filed with 10 other organizations in Indiana Municipal Power Agency v. U.S. in support of utility providers suing the federal government to prevent it from reneging on commitments under the Build America Bonds (BABs) program.
Topics:
Uncategorized
Date:
9/1/2023
R.W. v. Columbia Basin Coll. (E.D. Wash. Aug. 30, 2023)
Order denying Plaintiff’s Motion for Judgment as a Matter of Law. Plaintiff, a former nursing student at Columbia Basin College (CBC) who had accommodations for epilepsy and back pain, was hospitalized for four days in 2017 after he reported graphic, intrusive homicidal ideation about three of his instructors. CBC found him responsible for violating its policy on Abusive Conduct, sanctioned him, and imposed parameters on his return, including monthly sessions with an independent mental health counselor and consent to permit a CBC conduct official to speak with the counselor. Plaintiff brought disability discrimination claims against CBC and multiple officials. After a jury found for defendants, plaintiff renewed his motion for judgment as a matter of law. In denying the motion, the court found evidence presented at trial from which the jury could have concluded that (1) plaintiff’s expressions of homicidal ideation resulted not from depression, but from frustration with low grades, and (2) he was not a qualified individual because his reported ideation was specific enough that his primary physician and a state-certified Designated Crisis Responder thought he might have begun active planning. The court further rejected his claim that the requirement of independent counseling was an impermissible surcharge, finding no evidence that CBC permitted other students with similar conduct violations to reenroll without incurring such an expense.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Student Conduct | Students
Date:
9/1/2023
Kollias v. Univ. of Rochester (W.D. N.Y. Aug. 30, 2023)
Decision and Order granting Defendant’s Motion for Summary Judgment. In the early morning hours of December 5, 2015, plaintiff and a friend, both students at the University of Rochester, left a fraternity party with two women the friend met through Facebook. The women drove to a house where plaintiff and his friend were assaulted and held captive in retaliation for the robbery of several non-student drug dealers that a University football player had orchestrated the week before at the friend’s off-campus, University-owned apartment. After the football player was arrested, a coach signed bail paperwork, and the University issued an interim suspension and banned him from campus. Plaintiff brought multiple negligence claims against the University, and although he failed to meaningfully oppose the summary judgment motion, the court dismissed each claim on the merits. The court dismissed the duty to warn claim finding that the Clery Act, which plaintiff asserted as the basis for a duty of care, does not create a standard of care actionable in tort. His claim that the University selectively enforced its drug policy against the football player was dismissed for lack of evidence that the University was on notice of the player’s drug-related activity. Plaintiff’s negligence claim based on the coach’s role in bailing the football player out of jail failed for want of causation since the retaliation plot began before the player made bail. Finally, his claim that the University obstructed the investigation into his disappearance failed because only 35 minutes passed from when his friends reported him missing to when the University Public Safety reported it to the Rochester Police.
Topics:
Campus Police, Safety, & Crisis Management | Litigation, Mediation & Arbitration | Tort Litigation
Date:
9/1/2023
Rakhshandeh v. Tex. Tech Univ. (5th Cir. Aug. 30, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenure-track assistant professor at Texas Tech University, brought discrimination claims after he withdrew his tenure application when it became clear that it would be denied. In affirming summary judgment in favor of the University, the Fifth Circuit held his prima facie case failed because his voluntary withdrawal of his tenure application was not an adverse employment action. It declined to consider his claim that encouragement from his department chair to withdraw the application amounted to constructive discharge because it was not properly presented to the court below.
Topics:
Discrimination, Accommodation, & Diversity | Faculty & Staff | Race and National Origin Discrimination | Tenure
Date:
9/1/2023
Palmore v. Clarion Univ. of Pa. (3rd Cir. Aug. 30, 2023)
Opinion affirming-in-part and vacating-in-part dismissal. Plaintiff is a former student at Clarion University of Pennsylvania who was accused of sexual misconduct in Fall 2015. While his University Conduct Board (UCB) hearing was pending, he was charged criminally. The following year he was convicted, but in 2019 he was retried and acquitted. In 2021, the University declined to reschedule his UCB hearing, citing that he did not wish to return as a student. Proceeding pro se, he brought Title IX, due process, contract, negligence, and false arrest and imprisonment claims against the University and multiple officials, alleging that University Police withheld requested video footage and that the University declined to take steps after his acquittal to clear his record. The district court dismissed his claims as time-barred. The Third Circuit vacated dismissal of his due process claims, holding that they accrued not in 2015 when the University did not reschedule a postponed hearing, but in 2021 when a student conduct official emailed him that it would be “unnecessary at this time to move forward with a hearing.” On these allegations, as well as the allegation that the University declined to correct his transcript to reflect his exoneration in 2019, it vacated dismissal also of his Title IX, contract, and negligence claims. It affirmed dismissal, however, of false arrest and imprisonment claims. The remaining claims were remanded for further proceedings.
Topics:
Sexual Misconduct | Title IX & Student Sexual Misconduct

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