Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
8/25/2023
DOJ Resolution Agreement with Case W. Reserve Univ. re: Response to Reports of Sexual Harassment (Aug. 22, 2023)
Resolution Agreement between the U.S. Department of Justice (DOJ) and Case Western Reserve University resolving an investigation into the University’s response to reports of sexual harassment and assault. The DOJ investigated the University’s “response to reports of student-on-student and employee-on-student sexual harassment, including sexual assault, between academic years 2017-2018 and 2020-2021.” Through the Resolution Agreement, the University agreed to multiple measures, including that it will (1) “stop and prevent the recurrence of known sexual harassment that creates a hostile educational environment;” (2) “provide clear, consistent, and equitable policies and grievance procedures that provide for prompt and equitable resolution of student and employee complaints alleging sex discrimination;” (3) “prohibit retaliation against students and employees under Title IX;” (4) “ensure that the Title IX Coordinator has necessary autonomy and authority to fulfill [their] duties;” (5) “ensure that the University has the confidential resources and advisors necessary to meet student and employee needs;” (6) “deliver training to students and employees to ensure they understand their rights and the University’s obligations under Title IX;” and (7) “foster greater coordination between University departments to ensure that the University’s obligations under Title IX are met.”
Topics:
Sexual Misconduct | Title IX & Student Sexual Misconduct
Date:
8/25/2023
U.S. Dep.’t of Education Dear Colleague Letter on Race and School Programming (Aug. 24, 2023)
U.S. Department of Education, Office for Civil Rights (OCR) Dear Colleague Letter (DCL) on Race and School Programming. In response to “recent increases in the number of complaints and requests for technical assistance,” the DCL aims “to clarify the circumstances under which recipients of federal financial assistance … can—consistent with Title VI of the Civil Rights Act of 1964 (Title VI) and its implementing regulations—develop curricula or engage in activities that promote racially inclusive school communities.” The DCL notes, “As the Supreme Court recently confirmed [in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College], Title VI prohibits racial classifications that would violate the Equal Protection Clause of the Constitution.” The DCL summarizes ways in which schools may run afoul of Title VI by acting or failing to act and gives examples of how violations might arise within the context of schools’ curricula and programming.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
8/25/2023
NLRB Direct Final Rule on Representation-Case Procedures (Aug. 25, 2023)
National Labor Relations Board Direct Final Rule on Representation-Case Procedures. The direct final rule modifies the procedures by which the Board will administer cases concerning questions of representation. “This rule substantially rescinds the amendments by a rule of the Board promulgated in 2019 … and thereby substantially returns the representation case procedures to those that existed following the Board’s promulgation of a rule concerning representation case procedures in 2014.” In particular, the new rule will shorten the length of time required between an employee petition and an election to resolve a question of representation. The new rule is effective December 26, 2023.
Topics:
Collective Bargaining | Faculty & Staff
Date:
8/25/2023
Sagers v. Arizona State Univ. (D. Ariz. Aug. 14, 2023)
Order granting Defendants’ Motion for Summary Judgment. Plaintiff is a tenured professor and former vice president of research at Arizona State University who was hired in the administrative role to increase research funding. She brought discrimination and retaliation claims against the University and her former supervisor after her administrative contract was not renewed due to a downturn in funding proposals and complaints that she had a negative management style. Plaintiff alleged that she raised concerns that her supervisor created a culture of fear and intimidation among female employees and engaged in gender discrimination. Plaintiff’s discrimination claims failed because (1) vague assertions that her supervisor also had complaints about his management style that did not result in his demotion did not establish him as an adequate comparator, and (2) criticisms of the performance metrics the University used in evaluating her development of funding proposals did not show that the use of those metrics was pretextual. Finally, the court rejected her retaliation claim since it found that while her opposition to alleged gender discrimination was protected activity, she failed to identify evidence that her supervisor was aware of that activity.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
8/25/2023
Doe v. N.Y. Univ. (S.D. N.Y. Aug. 17, 2023)
Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former student at New York University, brought Title IX and promissory estoppel claims against the University after he was expelled for sexual harassment, sexual exploitation, stalking, and repeated violations of the University’s no-contact directive. After his appeal failed and his expulsion took effect, plaintiff filed his own Title IX complaint against the complainant, which the University declined to consider. In granting summary judgment to the University on his Title IX claim, the court found plaintiff identified no evidence supporting his assertion that gender was a reason the University treated his post-expulsion complaint differently from the original complaint against him. Turning to plaintiff’s promissory estoppel claim based on his assertion that his University-appointed advisor in the Title IX process assured him that “under no circumstances would [he] be expelled” for the allegations, the court held that he could not demonstrate reasonable reliance on such a statement, even if it had been made as a clear and unambiguous promise.
Topics:
Sexual Misconduct | Title IX & Student Sexual Misconduct
Date:
8/25/2023
Hecox v. Little (9th Cir. Aug. 17, 2023)
Opinion affirming preliminary injunction. In March 2020, Idaho enacted the “Fairness in Women’s Sports Act” banning transgender females from participating on female sports teams from primary school through college and providing for a “sex dispute verification process whereby any individual can ‘dispute’ the sex of any female student athlete … and require her to undergo intrusive medical procedures to verify her sex.” Plaintiff, a transgender woman who wanted to try out for the track and cross-country teams at Boise State University and who feared her sex would be “disputed,” sought declaratory judgment that the Act violated Title IX and the Equal Protection Clause and injunctive relief barring its enforcement. In affirming the district court’s preliminary injunction on Equal Protection grounds, the Ninth Circuit held that the categorical exclusion of transgender student athletes is unnecessary and overbroad with respect to the Act’s asserted objective of promoting sex equality in sports. It further held that plaintiff was also likely to succeed on the merits of her challenge to the sex dispute verification provision because the Act subjected “only young women and girls to the humiliating and intrusive burden of the sex verification process.”
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination
Date:
8/25/2023
Kerson v. Vermont Law School, Inc. (2nd Cir. Aug. 18, 2023)
Opinion affirming summary judgment in favor of the Law School. In 1993, plaintiff painted murals, entitled The Underground Railroad, Vermont and the Fugitive Slave, directly onto the walls of the Chase Community Center at the Vermont Law School (VLS). Aspects of the murals proved controversial, and VLS decided in 2020 to conceal them behind fabric-cushioned acoustic panels. Plaintiff challenged the plan under the Visual Artists Rights Act of 1990 (VARA), which provides artists with rights of attribution and integrity that they may, in certain circumstances, assert to prevent the modification or destruction of their works during their lifetimes. In affirming summary judgment in favor of VLS, the Second Circuit held that permanently concealing the murals was not a “modification” of the works within the plain meaning of the text of VARA. The court further held that an expert opinion that concealment behind the panels was “not ‘consistent with best practices in the art conservation field’” was insufficient to raise a genuine dispute as to whether the murals might be destroyed through gross negligence.
Topics:
Real Property, Facilities & Construction
Date:
8/25/2023
Little v. Grand Canyon Univ. (D. Ariz. Aug. 21, 2023)
Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a student at Grand Canyon University (GCU) during spring 2020, brought contract and unjust enrichment claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. With respect to his contract claims, the court previously certified one class for those who paid room and board and one for those who paid other fees, but it denied class certification for his unjust enrichment claims. The court granted summary judgment to GCU on the room and board claims, finding no genuine dispute of material fact as to whether GCU breached its contractual obligations because GCU continued to permit students to live on campus, continued to provide take-out meals, and refunded unused “Dining Dollars” to students who graduated. Turning to the contract claims related to other fees, however, the court permitted plaintiff to proceed with respect to the Student Activity Fee and the Health Fee, finding disputes as to whether GCU continued to provide access to facilities and activities and a dispute as to whether the telehealth services it offered were available to students living outside of Arizona. The court granted summary judgment to GCU on plaintiff’s unjust enrichment claims, finding that all damages sought derived from contractual rights and obligations.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
8/25/2023
Doe v. Univ. of Mich. (6th Cir. Aug. 21, 2023)
Opinion vacating an award of attorney fees and remanding for recalculation. Plaintiff is a former student at the University of Michigan who was accused of sexual assault in March 2018. Before the University completed its investigation, plaintiff sued, alleging the University’s procedures violated his due process rights. The district court granted a preliminary injunction. The Sixth Circuit remanded for reconsideration in light of its then recent decision in Doe v. Baum. The district court ultimately granted summary judgment to plaintiff on his assertions that the University withheld his transcript without due process and that the University’s proposed disciplinary process did not afford him a live hearing with cross-examination. The complainant subsequently decided not to participate further in the process. In reviewing the district court’s award of attorney fees, the Sixth Circuit held that plaintiff had standing and was the prevailing party regarding the withheld transcript, but held that the district court lacked jurisdiction over his claim regarding the hearing procedures because those claims were either unripe or moot. Accordingly, it vacated and remanded for recalculation of the award of attorney fees.
Topics:
Constitutional Issues | Due Process | Sexual Misconduct | Title IX & Student Sexual Misconduct
Date:
8/25/2023
Babinski v. Sosnowsky (5th Cir. Aug. 21, 2023)
Opinion reversing and dismissing. Plaintiff, a former Ph.D. student in the theatre program at Louisiana State University, brought due process claims against multiple professors in the department based on his assertion that he was “de facto expelled” from the program without a meaningful opportunity to be heard in his own defense. Plaintiff had submitted a “performative writing” for a course term paper that expressed his disapproval of his professor’s views in a course on “Gender, Sexuality, and Performance.” The chair of the department forwarded the paper to the LSU Police Department and the LSU Office of Student Advocacy and Accountability, though neither found an actionable violation. Plaintiff alleged that his professors then conspired to refuse to teach him, serve on his dissertation panel, or administer his general examinations, thus impeding his ability to complete the doctoral program. He subsequently earned a master’s degree in the philosophy department. In reversing the district court’s denial of qualified immunity to the professors, the Fifth Circuit assumed a constitutional violation but nevertheless held that plaintiff failed to show a clearly established right, finding that he had not identified a case that was sufficiently analogous to his asserted “de facto expulsion” that “dealt with the alleged tainting of the process that a school or university provided to a student.”
Topics:
Constitutional Issues | Due Process | Faculty & Staff | First Amendment & Free Speech | Retaliation

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