Cases & Developments - National Association of College and University Attorneys

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Date:
8/4/2023
Parents Defending Educ. v. Olentangy Local Sch. Dist. Bd. of Educ. (S.D. Ohio July 28, 2023)
Opinion & Order denying Preliminary Injunction. Plaintiff, a nationwide membership organization including parents and students attending the Olentangy Local School District, brought First Amendment claims against the District, challenging its policies on bullying and discriminatory harassment on the grounds that requiring students to use pronouns corresponding to a transgender student’s identity would “require the students to affirm the idea that gender is fluid, contrary to their deeply-held religious beliefs.” In denying preliminary injunction, the court held that plaintiff was unlikely to succeed on the merits under Tinker because the District’s policies “prohibit only that subset of discriminatory speech that creates a threat of physical harm, interferes with students’ educational opportunities, substantially disrupts the operation of schools, or causes or contributes to a hostile environment.”
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Gender Identity & Sexual Orientation Discrimination
Date:
8/4/2023
Puccinelli v. S. Conn. State Univ. (D. Conn. July 28, 2023)
Ruling and Order granting-in-part and denying-in-part Plaintiff’s Motion to Amend. Plaintiff, a former student in the Special Education Teacher Certification program at Southern Connecticut State University who suffers from PTSD and anxiety, brought disparate treatment, failure to accommodate, and retaliation claims against the University and constitutional claims against multiple officials after she was removed from her student teaching assignment and dropped from the program. The court permitted plaintiff to proceed in her disparate treatment claim, finding she had sufficiently alleged that she was held to a higher standard than her peers in her student teaching assignment as a result of her anxiety. The court also permitted plaintiff to proceed in her due process claims under §1983, finding that she had sufficiently alleged that her dismissal was disciplinary, rather than academic, that it resulted when she raised concerns that a child at her placement was not receiving appropriate support, and that officials did not adequately explain the evidence against her in the process that resulted in her expulsion. Her failure to accommodate claim, however, was dismissed as conclusory, and her retaliation claim failed because the only adverse action she pleaded with specific facts was reversed before it took effect.
Topics:
Academic Performance and Misconduct | Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation | Students
Date:
8/4/2023
Boermeester v. Carry (Cal. July 31, 2023)
Opinion reversing and remanding. Plaintiff, a former student at the University of Southern California, sued the University and its Vice President of Student Affairs, seeking a writ of administrative mandate after he was expelled for intimate partner violence. The University had conducted separate and individual evidentiary hearings for both plaintiff and the complainant. The trial court denied the writ, but the Court of Appeals reversed on the grounds that plaintiff did not have the opportunity for a live hearing with cross-examination. The California Supreme Court reversed again, holding under section 1094.5 of the California Code of Civil Procedure that “though universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, they are not required to provide accused students with the opportunity to directly or indirectly cross-examine the accuse and other witnesses at a live hearing with the accused student in attendance, either in person or virtually.”
Topics:
Constitutional Issues | Due Process | Students | Title IX & Student Sexual Misconduct
Date:
8/4/2023
Wallace v. Owens (C.D. Ill. July 31, 2023)
Opinion granting Defendants’ Motion to Dismiss. Plaintiff, a former sworn law enforcement officer at the University of Illinois Springfield, brought Equal Protection claims against her former supervisors after she was terminated because of actions she took during a traffic stop. The court dismissed her claims (1) as barred by sovereign immunity and (2) because her allegation that she “was disciplined more harshly than male co-workers who engaged in comparable violations of policy” was insufficient to “meet the low threshold required of a plaintiff who alleges a Fourteenth Amendment gender discrimination claim.”
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Employee Discipline & Due Process | Equal Protection | Faculty & Staff
Date:
8/4/2023
Pearson Foundation, et al. v. The Univ. of Chi. (N.D. Okla. July 31, 2023)
Memorandum and Order granting-in-part and denying-in-part Defendant’s Partial Motion for Summary Judgment. Plaintiffs, two foundations and one benefactor who had committed $100 million to the University of Chicago to establish a named Institute with related programming, brought contract and fraudulent inducement claims against the University following disputes regarding Institute staffing and programing. The court permitted plaintiffs to proceed on their claim related to faculty hires, finding that although the Grant Agreement provided plaintiffs no “role or authority with respect to making appointments,” the University is nevertheless obligated to use the grant for purposes consistent with the Institute’s stated mission. The court also permitted plaintiffs to proceed on their fraudulent inducement claim alleging that the University misrepresented the extent to which it would contribute funding for salaries and student support rather than operate the Institute as a standalone entity on a perpetual basis. It dismissed plaintiffs’ claim that the University did not develop the agreed upon curriculum, finding that language in recitals stating that the Grant would be used to “create educational programs” did not preclude the University from offering existing courses through the Institute, noting that the operative language merely required the University to offer a specified number of courses.
Topics:
Contracts | Endowments & Gifts | Taxes & Finances
Date:
8/4/2023
Dixon v. Univ. of Miami (11th Cir. July 31, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a student at the University of Miami during the Spring 2020 semester, on behalf of herself and a putative class, brought contract and unjust enrichment claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The University retained full tuition for the semester but refunded a prorated amount of 36.5% of fees for the portion of the semester after it had closed campus facilities. The Eleventh Circuit affirmed summary judgment to the University on her contract claims, holding that any contractual right to in-person education was qualified by Student Handbook provisions permitting modification of procedures and access to facilities. It affirmed summary judgment on her unjust enrichment claim, finding no showing of injustice in the face of executive orders mandating closure and citing the University’s overall $50 million net financial loss for the semester. The court also noted that plaintiff seemed to value online instruction on par with in-person instruction in Fall 2020 when she opted for online instruction over in-person instruction at the same rate. Finally, the court found that plaintiff failed to offer evidence to support her claim that it should have refunded 48% of fees in proportion to its one-week extension of spring break prior to its campus closure.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
8/4/2023
Massey v. Va. Polytechnic Inst. & Commonwealth of Va. (4th Cir. July 31, 2023)
Opinion vacating and remanding dismissal. Plaintiff, a former employee of Virginia Tech who had taken medical leave in April 2019 to recover from surgery, sued the University after it eliminated his position in October 2019 for financial reasons. He originally filed suit in Virginia state court under Section 504 of the Rehabilitation Act. He took a voluntary nonsuit of that action and filed a federal action in January 2021. The district court granted the University’s motion to dismiss on the grounds that the claim was barred under the one-year statute of limitations from the Virginia Rights of Persons with Disabilities Act. The Fourth Circuit reversed, holding that under Virginia law a nonsuit tolls the statute of limitations even when, as here, sovereign immunity bars the claims in state court and that it was sufficient that the state court had potential jurisdiction even though it lacked active subject matter jurisdiction.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Litigation, Mediation & Arbitration | Retaliation
Date:
8/4/2023
Sherman v. Itawamba Cmty. Coll. (N.D. Miss. Aug. 1, 2023)
Memorandum Opinion denying Defendants’ Motion for Summary Judgment. Plaintiff, a former residence hall director and manufacturing extension partnership coordinator at Itawamba Community College, brought retaliation, malicious interference with employment, and whistleblower claims against the College and multiple officials after she was placed on a performance improvement plan (PIP) and then terminated. Plaintiff alleged that her PIP and termination were a result of her report to college officials and the State Auditor of regulatory noncompliance and other violations in the College’s Workforce Training Program. In permitting plaintiff’s First Amendment retaliation claim to proceed, the court found that her reports of wrongdoing to the State were sufficiently outside of her ordinary job duties to demonstrate that she spoke as a citizen. The court also permitted her malicious interference and whistleblower claims to proceed, holding that she had presented sufficient evidence to raise questions of material fact as to whether her termination resulted from her report to the State Auditor.
Topics:
Compliance & Risk Management | Compliance Programs, Policies & Procedures | Discrimination, Accommodation, & Diversity | Retaliation
Date:
8/4/2023
J.C. v. Bd. of Regents of the Univ. Sys. of Ga. (N.D. Ga. Aug. 1, 2023)
Order granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, a former student at Georgia College and State University (GCSU), brought Title IX and multiple other claims against the GCSU, alleging that she was sexually assaulted and harassed by another student, that GCSU unreasonably delayed its investigation and interim measures, and that the Vice President of Student Affairs unreasonably reversed the determination that the respondent was responsible for the assault. The court previously awarded summary judgment to GCSU on all of plaintiff’s claims except her Title IX claim. Defendants then sought summary judgment on the Title IX claim, citing Cummings v. Premier Rehab Keller, P.L.L.C. The court held that plaintiff’s damages related to counseling and psychiatric treatment to redress emotional injuries are unavailable under Title IX post-Cummings. It permitted her to proceed, however, with respect to her alleged economic losses related to tuition, lost income, and prepaid rent for her apartment near campus.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
8/4/2023
A.C. v. Metro. Sch. Dist. of Martinsville (7th Cir. Aug. 1, 2023)
Opinion affirming preliminary injunctions. Plaintiffs, in consolidated cases, are three transgender boys in Indiana who received preliminary injunctions at the district court level permitting them access to the boys’ bathrooms and locker rooms in their middle or high schools. The school districts appealed. In affirming the injunctions, the Seventh Circuit declined to “jump from one side of the circuit split to the other, particularly in light of the intervening guidance in Bostock.” It affirmed on plaintiffs’ likelihood of success on their Title IX and equal protection claims, noting that the district courts had found (1) the schools’ asserted interest in protecting the privacy of other students was conjectural and (2) a lack of evidence that other students might masquerade as transgender to take advantage of the gender-affirming facility access policies.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination

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