Cases & Developments - National Association of College and University Attorneys

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Date:
7/14/2023
Olson v. Macalester Coll. (D. Minn. July 5, 2023)
Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former student at Macalester College, brought Title IX claims against the College after he was expelled for domestic violence, stalking, and harassment of his former girlfriend, Jane Roe. In granting summary judgment in favor of the College, the court held that plaintiff’s selective enforcement theory failed, finding that Roe was not a similarly situated comparator in large part because the College dropped its investigation against her due to plaintiff’s own lack of cooperation. The court also held that plaintiff’s assertion of procedural irregularities failed, finding (1) that the College did not investigate his “consent” defense because he had consistently denied Roe’s allegations and (2) that College did not interview all of the plaintiff’s suggested witnesses because its practice was to interview only witnesses who could offer “firsthand knowledge” of the facts at issue.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
7/14/2023
303 Creative LLC v. Elenis (U.S. June 30, 2023)
Opinion reversing the judgment of the Tenth Circuit. Lorie Smith offers website and graphic design and related services through her business 303 Creative LLC, of which she is the sole member-owner. When she decided to expand her business to offer websites celebrating weddings, she sued seeking injunction to prevent Colorado from requiring her under the Colorado Anti-Discrimination Act (CADA) to produce websites to celebrate same-sex marriages, which she asserted would contradict her sincerely held religious convictions. The district court denied the injunction, and the Tenth Circuit affirmed. In reversing, the Supreme Court held that the First Amendment prohibits Colorado from “seek[ing] to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
7/14/2023
Biden v. Nebraska (U.S. June 30, 2023)
Opinion and Order reversing the judgment of the Eastern District of Missouri and remanding. Six States, including Missouri, challenged the Secretary of Education’s plan to discharge student loan debut under the Higher Education Relief Opportunities for Students (HEROES) Act of 2003. The district court dismissed the case, finding the States lacked standing, but the Eighth Circuit granted an emergency injunction pending appeal. In reversing the judgment of the district court, the Supreme Court found that Missouri had standing because the Missouri Higher Education Loan Authority (MOHELA), a public instrumentality, would lose an estimated $44 million in fees as a result of the Secretary’s plan. The Court then held that the plan cannot fairly be interpreted as either a “waiver” or “modification” of the provisions of the student financial assistance programs under Title IV of the Higher Education Act and, therefore, exceeds the Secretary’s statutory authority under the HEROES Act. It further held under the “major questions doctrine” that in the absence of clear statutory authorization a decision of such “magnitude and consequence” must be reserved to Congress. In the related case, Department of Education v. Brown (U.S. June 30, 2023), the Court vacated the judgment of the Northern District of Texas, finding that the respondents—two borrowers who would not receive the full benefit of the Secretary’s plan and who asserted they had been denied the opportunity to participate in a notice and comment rulemaking process—lacked standing.
Topics:
Financial Aid, Scholarships, & Student Loans | Students
Date:
7/14/2023
Palmer v. Liberty Univ. (4th Cir. June 30, 2023)
Opinion affirming summary judgment in favor of the University. Plaintiff, a former studio art professor at Liberty University who was 79 at the time, brought an age discrimination claim against the University after it declined to renew her contract, citing increased demand for digital arts course offerings. In affirming summary judgment in favor of the University, the Fourth Circuit held, first, that two comments made by University officials suggesting that plaintiff might wish to characterize her departure as a retirement were not direct evidence of discrimination because they were made only after the decision not to renew her contract. It similarly held that a comment that plaintiff seemed “resistant to change” did not support an inference of discrimination because her Chair and Dean had both informed her multiple times over a two-year period that she needed to improve her technology and digital art skills, which she took no steps to do. Accordingly, the court held that plaintiff’s prima facie case failed because she had not demonstrated she had met the University’s legitimate expectations. Finally, having resolved the statutory issue in favor of the University, the Fourth Circuit vacated the district court’s denial of the University’s assertion of the First Amendment “ministerial exception” defense, citing the doctrine of constitutional avoidance.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity
Date:
7/14/2023
Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Niehay (Tex. June 30, 2023)
Opinion reversing the judgment below and dismissing for lack of jurisdiction. Plaintiff, a former medical resident in the Texas Tech University School of Medicine emergency-medicine department who was 5’9’’ tall and weighed approximately 400 pounds, alleged disability discrimination under the Texas Commission on Human Rights Act (TCHRA) after her residency was terminated following multiple professionalism and patient safety concerns, asserting that she was dismissed due to her obesity. Interpreting the language of the TCHRA, the Supreme Court of Texas held that weight is a physical characteristic and that obesity constitutes an impairment only when it is caused by an underlying physiological disorder or condition. It then held that because plaintiff had presented no evidence that she had or that the University perceived her to have an underlying disorder or condition, her disability discrimination claim failed. Without such an evidentiary showing, the University was entitled to sovereign immunity as a state institution.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
7/14/2023
The Univ. of Tex. Sys. v. The Franklin Ctr. For Gov’t & Pub. Integrity (Tex. June 30, 2023)
Opinion reversing and remanding. Plaintiff, the Franklin Center for Government and Public Integrity, sued the University of Texas at Austin under the Texas Public Information Act seeking complete access to the documents underlying a report by an external investigator examining whether external pressures influenced admissions decisions at the University. At issue was whether three sets of documents related to the production of the report, which was always intended for public release, are protected by attorney-client privilege. After finding that the investigator was employed by the System’s General Counsel as a lawyer’s representative, the Supreme Court of Texas held, first, that drafts of communications to be sent by the System’s General Counsel to University employees that were reviewed by the investigator in preparation for interviews are within the scope of privilege because no mention of those communications appeared in the released report. It held, however, that the trial court must determine on remand whether the released report disclosed in “significant part” (1) internal communications between System and University lawyers that were subsequently listed in a privilege log and shared with the investigators and (2) typed and handwritten notes created by the investigator based on interviews with System and University employees.
Topics:
Admissions | External Investigations | Freedom of Information & Public Record Laws | Investigations | Privacy & Transparency | Students
Date:
7/14/2023
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (U.S. June 29, 2023)
Opinion and Order reversing the judgments of the First Circuit and Middle District of North Carolina. Students For Fair Admissions (SFFA), a nonprofit membership organization whose members believe that “racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional,” sued Harvard College and the University of North Carolina, challenging their admissions practices under the Fourteenth Amendment and Title VI. In reversing the judgments of the lower courts, the Supreme Court held that Universities’ admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. Without explicitly overruling Grutter v. Bollinger (2003) the Court held that “[b]oth programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”
Topics:
Admissions | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Students
Date:
7/14/2023
Groff v. DeJoy (U.S. June 29, 2023)
Opinion and Order vacating the judgment of the Third Circuit and remanding. Petitioner, a former Rural Carrier Associate with the United States Postal Service (USPS) who observes Sunday Sabbath, sued the USPS under Title VII after efforts to have other carriers cover his Sunday shifts failed, leaving him to resign rather than face progressive discipline for declining to work on Sundays. The district court granted summary judgment in favor of the USPS, and the Third Circuit affirmed. In vacating the judgment of the Third Circuit, the Supreme Court held that lower courts have erred in interpreting an “undue hardship” “to mean any effort or cost that is ‘more than … de minimis.’” Rather, to establish that an accommodation would impose an undue hardship “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” The Court further held that in evaluating such claims “courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size and operating cost of [an] employer.’”
Topics:
Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation
Date:
7/14/2023
Abdulsalam v. The Bd. of Regents of the Univ. of Neb. (D. Neb. June 29, 2023)
Memorandum and Order granting Defendant’s Motion for Judgment on the Pleadings. Plaintiff, a graduate of and former cardiology fellow at the University of Nebraska Medical Center (UNMC), sought to recover damages related to alleged humiliation, mental anguish, suffering, anxiety, and inconvenience she asserts resulted from the deliberate indifference of UNMC officials to her complaints of sexual harassment by other UNMC fellows. In granting judgment on the pleadings in favor of the University, the court held that the Supreme Court’s holding in Cummings v. Premier Rehab Keller, P.L.L.C. (2022) also applies to claims for emotional distress damages under Title IX and that plaintiff’s claimed damages, accordingly, are unrecoverable.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
7/14/2023
Baptiste v. The City Univ. of N.Y. (S.D. N.Y. June 29, 2023)
Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former Chief Diversity Officer and ADA/504 Coordinator at the City College of New York (CCNY), brought discrimination and retaliation claims against the College and its President, alleging that her termination was in response to her support for reasonable accommodations, including one in which an individual allegedly suffered a medical emergency as a result of race-based harassment. The court permitted her retaliation claims to proceed, finding she had sufficiently alleged that her termination followed the day after she had recommended granting one of the accommodation requests. The court dismissed her discrimination claim, however, finding the allegation conclusory.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation

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