Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
7/21/2023
Pesta v. Cleveland State Univ. (N.D. Ohio July 14, 2023)
Opinion & Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former Professor of Management at Cleveland State University, brought First Amendment retaliation claims against the University and six officials after he was terminated following a committee investigation into allegations that he had used NIH data unethically. Plaintiff alleged, however, that the investigation and termination were retaliation for his defense of the “hereditarian hypothesis” in an article entitled “Global Ancestry and Cognitive Ability.” In permitting plaintiff to proceed in his First Amendment retaliation claims, the court found, first, that in the absence of a developed record regarding the alleged misuse of NIH data plaintiff had plausibly alleged that his speech interest outweighed the University’s interest in promoting the efficiency of its public services. It further found that plaintiff’s assertion that prior to his termination the University had also removed links on its website to other controversial articles he had written was sufficient to allege causation. The court, however, dismissed plaintiff’s claims for monetary damages against the University and the individual defendants in their official capacities as barred by sovereign immunity.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Retaliation
Date:
7/21/2023
In re Robert T. Keeler Maint. Fund for the Hanover Country Club at Dartmouth Coll. (N.H. July 13, 2023)
Opinion affirming denial of motion to intervene. The last will and testament of Robert T. Keeler left Dartmouth College 50% of his residuary estate “for the sole purpose of upgrading and maintaining its golf course,” which upon his death established the $1.8 million “Robert T. Keeler 1936 Maintenance Fund for the Hanover Country Club at Dartmouth College.” In July 2020, Dartmouth closed the Hanover Country Club golf course and applied under the Uniform Prudent Management of Institutional Funds Act (UPMIFA) to modify the restrictions on permissible use of the Fund. The Robert T. Keeler Foundation, as fiduciary for the Estate, moved to intervene, seeking to direct the Fund to the Foundation at the behest of the Estate. The trial court denied the motion and granted Dartmouth’s application. In affirming, the Supreme Court of New Hampshire held that the Fund was a completed charitable gift and that the Foundation, as a former contingent beneficiary, lacked special standing to intervene.
Topics:
Foundations & Affiliated Entities | Governance
Date:
7/21/2023
Norris, et al. v. Stanley (6th Cir. July 13, 2023)
Opinion affirming dismissal. Plaintiffs, three employees of Michigan State University, brought substantive due process, unconstitutional conditions, and preemption challenges to the MSU’s COVID-19 vaccination policy after they were denied exemptions to the policy based on their natural immunity from prior infection. One plaintiff was terminated, one was placed on unpaid leave, and one received a religious exemption. In affirming dismissal of their substantive due process challenge, the Sixth Circuit held that plaintiffs failed to show that there was no rational relation between the MSU’s legitimate public health interest and the vaccine policy, even if the vaccine was of lesser benefit to those who are naturally immune. The court further held that because plaintiffs failed to show the policy violated a fundamental right, plaintiffs’ unconstitutional conditions claim failed. Finally, the court rejected plaintiffs’ claim that MSU’s policy was preempted by the federal Emergency Use Authorization statute, finding the statute’s consent provisions do not apply to interactions between an employer and an employee.
Topics:
Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus
Date:
7/21/2023
Veikos v. Trs. Of the Univ. of Pa. (E.D. Pa. July 12, 2023)
Memorandum granting Defendant’s Motion for a New Trial or Remittitur. Plaintiff, a former tenure-track professor at the University of Pennsylvania School of Design, brought discrimination and retaliation claims against the University after it twice denied her application for tenure and promotion. The jury returned a mixed verdict, rejecting plaintiff’s discrimination claim and retaliation claim with respect to her first tenure denial, but finding she had demonstrated a retaliatory motive in her second tenure denial. The jury then awarded plaintiff $1 million in non-economic compensatory damages for emotional distress. In reviewing the University’s Motion for a New Trial or Remittitur, the court held that the evidence was sufficient to support the jury’s verdict as to liability. It found, however, that the emotional distress damages did not bear a rational relationship to the evidence presented at trial, noting that she had presented no evidence of physical manifestations of distress or a need for professional counseling. Accordingly, the court stated it would grant the University’s motion for a new trial unless plaintiff remits her emotional distress damages to $100,000.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
Date:
7/21/2023
In re Duke Univ. (N.L.R.B July 10, 2023)
National Labor Relations Board Decision and Direction of Election. Petitioners, the Southern Region Workers United, affiliated with the Service Employees International Union (SEIU), sought to represent a unit of all Ph.D. students at Duke University at its Durham and Beaufort, N.C. campuses who are working toward Ph.D. degrees and who are employed to teach undergraduate or graduate courses or labs or to provide research services. The N.L.R.B. Regional Director for Region 10 found that Ph.D. students in the proposed unit are employees within the meaning of Section 2(3) of the National Labor Relations Act. The Regional Director further directed that since the election is to be conducted during the summer it should be a mail ballot election.
Topics:
Collective Bargaining | Faculty & Staff
Date:
7/21/2023
Corbett v. Tex. Tech. Univ. Health Scis. Ctr. (N.D. Tex. July 10, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student in the Texas Tech University Health Sciences Center’s Anesthesiology Residency Program, brought discrimination and retaliation claims against the Center after she failed the American Board of Anesthesiology (ABA) Basic Exam four times and was dismissed from the program. Plaintiff’s discrimination claim failed because her repeated failures on the ABA Exam prevented her from showing she was qualified for the position and because she identified no comparator who had failed as many times and was treated differently. Her retaliation claim similarly failed because she presented no evidence to show that anything other than her failures on the ABA Exam were the cause of her dismissal. The court permitted her hostile work environment claim to proceed, however, holding that plaintiff’s testimony that the Program Director made comments that he did not want women in the program on “at least 10 to 15 occasions” was sufficient to present a triable question as to whether the comments affected the conditions of her employment.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment | Students
Date:
7/21/2023
Shams v. Delta State Univ. (N.D. Miss. July 10, 2023)
Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a former tenure-track assistant professor at Delta State University who is of Iranian national origin, brought discrimination, retaliation, and harassment claims against the University after (1) officials, citing poor student evaluations, allegedly pressured him to resign rather than accept a notice of nonrenewal and a terminal year and (2) his Department Chair, who is Turkish, replaced him with a new instructor who is also Turkish. In permitting his discrimination claim to proceed, the court found allegations of hostile treatment from the Department Chair, together with evidence that the Chair was using Instagram prior to plaintiff’s termination to encourage the eventual replacement to apply for the position, sufficient to raise triable questions for a jury. The court similarly found the temporal proximity between plaintiff’s discrimination complaints to HR and alleged efforts to hasten his departure sufficient to raise material questions as to retaliation. Finally, the court found evidence that the chair denied plaintiff teaching materials, treated him uncivilly in public settings, and placed him on a performance improvement plan sufficient to raise triable questions of hostile work environment.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation
Date:
7/21/2023
Stedrak v. Seton Hall Univ. (N.J. Super. App. Div. July 10, 2023)
Opinion affirming dismissal. Plaintiff, a former assistant professor at Seton Hall University, brought wrongful termination in violation of a clear public policy and tortious interference with prospective economic advantage claims against the University and several officials after the University denied him tenure and declined to renew his contract. Plaintiff alleged that the interim president had a conflict of interest because she intended to return to the faculty and would be supervised by a member of the faculty who opposed his tenure. In affirming dismissal, the Appellate Division held that plaintiff’s factual allegations of a conflict of interest were insufficient to show a violation of a clear public policy. In affirming dismissal of his tortious interference claim, the court held that plaintiff failed to identify intentional or malicious interference with his tenure application and failed to allege facts that the defendants knew of or interfered with his attempt to obtain a position at another college or university.
Topics:
Faculty & Staff | Tenure
Date:
7/21/2023
Fraser v. The Pa. State Univ. (M.D. Pa. July 7, 2023)
Memorandum Opinion granting Defendants’ Motion to Dismiss. Plaintiff, a former doctoral student at Penn State University, brought constitutional and wage claims against the University, multiple officials, and Keystone Nano, an entity established to commercialize intellectual property, after he twice failed his thesis defense and was dismissed from the Program. He alleged the dismissal was retaliation for reporting that his advisor had required him to perform lab work for Keystone Nano that was unrelated to his dissertation. In dismissing his Amended Complaint with prejudice, the court held that although use of public funds for private work was a matter of public concern, plaintiff’s speech lacked temporal proximity to the alleged retaliatory actions related to the supervision of his research and thesis. It dismissed his due process claims, finding in his chronicle of a “year-long back-and-forth” with his dissertation committee neither an arbitrary deprivation of a fundamental right to continued enrollment, nor a lack of notice and opportunity to be heard. His FLSA claims failed (1) against Keystone because he failed to allege that his work was outside the scope of his doctoral program, that he had a contractual relationship with Keystone, or that anyone at Keystone exercised control over his work and (2) against the University because he failed to establish that the alleged requirement that he do lab work for his program that was unrelated to his dissertation research altered his employment status with the University.
Topics:
Academic Performance and Misconduct | Students
Date:
7/21/2023
Beny v. Univ. of Mich. (E.D. Mich. July 7, 2023)
Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor of law at the University of Michigan Law School who is African American and has been a critic of what she perceived as inequitable practices, brought discrimination and retaliation claims against the University and the Law School’s Dean after she was suspended from teaching and made ineligible for various benefits pursuant to a finding that she had abandoned her duties and retaliated against students. She alleged her advocacy made her a target for increased monitoring that culminated in an accusation of retaliation when she addressed anonymous complaints during a class session. She then emailed students that she could no longer teach the class and took medical leave, citing work-related psychological injury. Plaintiff’s discrimination and hostile work environment claims failed because the limited factual allegations that fell within the statutory period were insufficiently related to her race, sex, or family status. The court, however, permitted her to proceed on her Title VII retaliation claim against the University and her state-law retaliation claim against the Dean, finding she had sufficiently pled adverse employment actions in close temporal proximity to her complaints of discrimination and retaliation.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Sex Discrimination | Sex Discrimination in Employment

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