Cases & Developments - National Association of College and University Attorneys

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Date:
8/11/2023
Doe 1, et al. v. The Univ. of S.F., et al. (N.D. Cal. Aug. 2, 2023)
Order granting-in-part Defendants’ Motion to Dismiss. Plaintiffs, 14 former baseball players at the University of San Francisco, on behalf of themselves and a putative class, brought discrimination, retaliation, and contract claims against the University and two former coaches, alleging that the coaches created a sexualized and abusive environment and that the University permitted the behavior to persist. Does 1-3 played on the team beginning in 2020, and Does 4-14 played between 1999 and 2018. The court permitted all plaintiffs to proceed in their Title IX and state-law discrimination claims. The court found that Does 4-14 had sufficiently alleged a University coverup that was a cause of their Title IX injury and held that whether the alleged coverup tolled the statute of limitations under the discovery rule is better addressed at the summary judgment phase. The court also permitted Does 1-3 to proceed on their retaliation claims, but it dismissed the retaliation claims of Does 4-14 as time barred, noting that the alleged retaliatory conduct was overt and experienced as abuse at the time. The court dismissed plaintiffs’ contract claims because they attached the wrong document to their complaint. It also dismissed plaintiffs’ claim based on the agreement between the University and the NCAA requiring the University to abide by the NCAA Division Manual, finding that even though student-athletes benefit from NCAA principles, the principles fall short of expressing a clear intent to establish the student-athletes as third-party beneficiaries.
Topics:
Athletics & Sports | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination
Date:
8/11/2023
Kluge v. Brownsburg Cmty. Sch. Corp. (7th Cir. July 20, 2023)
Order vacating the court’s opinion and judgment and remanding to the district court. Plaintiff, a former high school music teacher with the Brownsburg Community School Corporation who asserted that his sincerely held religious beliefs prevented him from engaging in any action to “promote gender dysphoria,” brought discrimination and retaliation claims against Brownsburg after he was forced to resign rather than comply with the school’s Name Policy requiring teachers to call students by their first names as listed in the school’s database. The school initially permitted him to refer to all students by their last names only, but it withdrew the accommodation, asserting that it was harming students and disrupting the learning environment. The district court granted summary judgment in favor of Brownsburg. Initially, the Seventh Circuit affirmed, finding the school had sufficiently demonstrated that continuing the accommodation posed an undue burden on its mission of educating students according to its established theory and practice. However, “[i]n light of the Supreme Court’s clarification in Groff v. DeJoy … of the standard to be applied in Title VII cases for religious accommodation,” the Seventh Circuit vacated its Opinion and Judgment and “remanded for the district court to apply the clarified standard to the religious accommodation claim in the first instance.”
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Religious Discrimination & Accommodation | Retaliation
Date:
8/11/2023
EEOC NPRM on Pregnant Workers Fairness Act (Aug. 11, 2023)
Equal Employment Opportunity Commission (EEOC) Notice of Proposed Rulemaking (NPRM) to implement the Pregnant Workers Fairness Act (PWFA). The NPRM contains an overview of the PWFA, the proposed implementing regulations, and an appendix with interpretive guidance that will become a part of the Code of Federal Regulations when the rule is finalized. The EEOC has also established a website, called What You Should Know About the Pregnant Workers Fairness Act, with information and resources in FAQ format. Comments are due on or before October 10, 2023.
Topics:
Discrimination, Accommodation, & Diversity | Pregnancy Discrimination | Sex Discrimination
Date:
8/11/2023
U.S. Dep.’t of Education Guidance on FAFSA Changes (Aug. 4, 2023)
U.S. Department of Education, Office of Federal Student Aid (FSA) Dear Colleague Letter (DCL) on FAFSA Simplification Act Changes for Implementation in 2024-25. The DCL “explains the final changes to the need analysis formulas and the calculation of Pell Grant awards that the Department is implementing beginning with the 2024-25 Award Year” to complete the implementation of the FAFSA Simplification Act. It highlights the transition from Expected Family Contribution to the new Student Aid Index, new requirements related to the use of Federal Tax Information, and changes to the Need Analysis Formulas and calculations of Pell Grant Awards.
Topics:
Financial Aid, Scholarships, & Student Loans | Students
Date:
8/11/2023
NACUBO On Your Side (Aug. 7, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from July 25-August 7, 2023. This summary highlights actions from the Department of Education opening applications for the Postsecondary Student Success Grant Program to improve outcomes for underserved students, announcing the Fiscal Operations Report for 2022-23 and Application to Participate for 2024-25 (FISAP), and previewing the new FAFSA; the issue brief from the American Council on Education (ACE) on the recent Supreme Court ruling on race-conscious admissions; NACUBO’s advocacy to the House Committee on Appropriations expressing concern over proposed constraints on the Department of Education’s budget; and NACUBO’s advocacy on a proposal to form a working group to address the IPEDS Finance Survey.
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
8/4/2023
Croce v. Ohio State Univ. Bd. of Trs. (Ohio. Ct. Cl. June 9, 2023)
Decision granting Defendant’s Motion for Judgment on the Pleadings. Plaintiff, a biomedical researcher at The Ohio State University, brought contract claims against the University after an investigation cleared him of research misconduct allegations. The Dean of the College of Medicine, however, took non-disciplinary actions against him, including removing him from an endowed chair, requiring additional training, and requiring development of data management plans. The court granted the University’s Motion for Judgment on the Pleadings on his claim that the University had not acted sufficiently to rehabilitate his reputation as required by the University’s Policy on Research Misconduct when a researcher is cleared of allegations, finding that the policy leaves the steps the University must take to rehabilitate plaintiff’s reputation to the discretion of the University. The court also found that plaintiff’s complaint that the investigation took longer than permitted by the Policy is preempted by federal law “because Congress has established a comprehensive legislative scheme intended to promote the uniformity of research misconduct proceedings by universities using federal funds.”
Topics:
Research
Date:
8/4/2023
S. Cent. Jurisdictional Conference of the United Methodist Church v. S. Methodist Univ. (Tex. App. July 26, 2023)
Opinion affirming-in-part and reversing-in-part summary judgment in favor of the University. In November 2019, the Board of Trustees of Southern Methodist University approved amendments to the University’s Articles of Incorporation to remove reference to the South Central Jurisdictional Conference of the United Methodist Church, including a provision that SMU would be “forever owned, maintained and controlled” by the Conference. Among other issues, the Conference brought breach of contract claims against the University and sought declaratory judgment that the Amended Articles and actions taken pursuant to them were void. The trial court granted summary judgment in favor of the University. In reversing, the Court of Appeals of Texas concluded that the Conference had sufficiently pled that SMU’s previous Articles constituted a binding contract between the Conference and SMU conferring upon the Conference the right to approve any amendments to the Articles. It further concluded that the trial court erred in denying declaratory judgment that the 2019 Amendments were void.
Topics:
Governance
Date:
8/4/2023
Steshenko v. Foothill-De Anza Cmty. Coll. Dist. (Cal. App. July 26, 2023)
Opinion affirming summary judgment in favor of the College. Plaintiff, a former student in the medical laboratory technician (MLT) program at De Anza College who is over 50, brought age discrimination, contract, and intentional infliction of emotional distress claims against the College after he was unable to secure a clinical externship as required for graduation and licensure. Three sites declined to hire him, and he refused to consider sites he deemed to require a prohibitive commute. In affirming summary judgment in favor of the College on his state-law age discrimination claim, the California Court of Appeals held that the MLT program was an educational program to prepare plaintiff for employment rather than a training program leading to employment. His contract claim failed because he failed to show either (1) the College’s contracts with its clinical placement sites were included in his contract, or (2) the College breached its contractual relation with him. His IIED claim failed because, while he alleged the College could have done more to assist him in securing an externship with one of his preferred sites, he presented no evidence that the College acted in an extreme or outrageous manner.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity | Internships, Externships, & Clinical Work | Students
Date:
8/4/2023
Smart v. Nat’l Collegiate Athletic Ass’n (E.D. Cal. July 27, 2023)
Memorandum and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiffs in two related cases, former “volunteer coaches” in multiple sports at Division I universities in California and Arizona, on behalf of themselves and putative classes, brought antitrust and unjust enrichment claims against the National Collegiate Athletic Association, alleging that, as a result of NCAA Bylaw 11.01.06 (repealed in January 2023) permitting schools to add one unpaid coach position, they worked at a rate of compensation below what they would have received in a competitive market. In permitting plaintiffs’ antitrust claims to proceed, the court found under a quick look analysis that plaintiffs had sufficiently alleged that the Bylaw had an anticompetitive effect, noting the large salaries of other coaches and recent increases in those salaries. The court dismissed their unjust enrichment claims, however, noting that the volunteer coaches had not alleged that they worked without contracts.
Topics:
Antitrust | Athletics & Sports | Athletics Compliance & NCAA Rules | Taxes & Finances
Date:
8/4/2023
Askin v. Univ. of Notre Dame (Ky. Ct. App. July 28, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former football player at the University of Notre Dame in the 1980s and later in the NFL who suffers from chronic traumatic encephalopathy (CTE), brought personal injury claims against the University, alleging that his CTE was the result of multiple concussions he experienced as a student-athlete. In affirming summary judgment in favor of the University, the Court of Appeals of Kentucky held that plaintiff’s claims were time barred, noting that under the discovery rule his claims accrued in 2014 when he was put on notice of the harm through a discussion with a pain management nurse of pending litigation with the NFL, rather than in 2018 when he was diagnosed with CTE.
Topics:
Litigation, Mediation & Arbitration | Student Athlete Issues | Students | Tort Litigation

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