Cases & Developments - National Association of College and University Attorneys

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Date:
7/14/2023
Caldwell v. Univ. of N.M. Bd. of Regents, et al. (D. N.M. June 23, 2023)
Memorandum Opinion granting Defendant’s Motion for Judgment on the Pleadings. Plaintiff is a former student and varsity basketball player at the University of New Mexico (UNM) who was placed on interim suspension and banned from campus and from basketball team activities after he was accused of battery. Plaintiff alleged that the Dean of Students violated his due process rights when she banned him temporarily from campus and University housing. In granting the Dean’s motion for judgment on the pleadings, the court held although plaintiff had sufficiently alleged a property right in continued enrollment, the University’s procedures provided due process. It also held that even if he had a property right in his University-provided housing and meals, the two eviction notices and four hearings provided him with adequate notice and process. It held, however, that he had not sufficiently alleged a property right in his ability to play basketball. Finally, the court also held that the Dean was also entitled to qualified immunity because the alleged property rights were not clearly established.
Topics:
Constitutional Issues | Due Process | Student Athlete Issues | Student Conduct | Students
Date:
7/14/2023
Martin v. Chancellor for the Bd. of Regents of the Univ. Sys. of Ga. (11th Cir. June 22, 2023)
Opinion affirming dismissal. Plaintiff, a journalist and filmmaker, brought First and Fourteenth Amendment claims under §1983 against multiple officials of Georgia Southern University after the University declined to hire her as a keynote speaker for a conference due to plaintiff’s refusal to sign a clause required by state law promising not to participate in boycotts of Israel. In affirming dismissal, the Eleventh Circuit found that plaintiff failed to show that including the anti-boycott clause in the contract was a clearly established constitutional violation.
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
7/14/2023
Li v. Univ. of Akron (N.D. Ohio June 22, 2023)
Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, a former tenured professor of educational philosophy at the University of Akron who identifies as Asian and or Taiwanese national origin, brought a race and national origin discrimination claim against the University after her position was eliminated in a campus-wide reduction in force (RIF). In granting summary judgment to the University, the court found that her prima facie case failed because the raw demographic data she provided showed that the percentage of Asians in the RIF was only marginally higher than that in the bargaining unit as a whole. The court also found that plaintiff failed to raise a question of pretext regarding the University’s stated reasoning that she was no longer affiliated with a program (as the Social/Philosophical Foundations of Education program had already been eliminated), her salary was among the highest in the School of Education, and she had limited versatility to teach courses required for licensure in the School’s remaining programs.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
7/14/2023
U.S. Dep.’t of Labor OIRA Filing (July 12, 2023)
U.S. Department of Labor filing with the Office of Information and Regulatory Affairs (OIRA). Through this action pursuant to Executive Order 12866, the Department shared with OIRA its proposed rule on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees. OIRA has 90 days to conduct a cost-benefit analysis before returning the proposed rule to the Department for publication in the Federal Register.
Topics:
Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
7/14/2023
U.S. Dep.’t of Education Dear Colleague Letter on Pre-Dispute Arbitration Agreements and Class Action Waivers (July 3, 2023)
U.S. Department of Education, Office of Federal Student Aid Dear Colleague Letter (DCL) on Implementation and Policy Guidance of the Pre-Dispute Arbitration Agreement Provisions. The DCL provides guidance to institutions participating in the Direct Loan Program on amendments to agreements with students or notices to those students that might be required for compliance with new regulations, which became effective on July 1, 2023, prohibiting institutions from requiring students to agree to internal dispute resolution requirements, class action bans, or pre-dispute arbitration agreements in order to benefit from a Direct Loan.
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Higher Education Act (HEA) | Students
Date:
7/14/2023
NACUBO On Your Side (July 10, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from June 27-July 10, 2023. This summary highlights the publication by the Copyright Royalty Board of the Library of Congress of the final rates and terms related to use of certain musical works in noncommercial broadcasting, including by campus radio stations; and NACUBO’s comments to the Financial Accounting Standards Board (FASB) on its exposure draft, Intangibles—Goodwill and Other—Crypto Assets (Subtopic 350-06) Accounting for and Disclosure of Crypto Assets.
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
6/23/2023
Doe v. Syracuse Univ. (N.D. N.Y. June 21, 2023)
Decision & Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former student at Syracuse University, brought erroneous outcome, selective enforcement, and contract claims against the University after he was expelled for a sexual assault alleged to have happened in March 2021. The court permitted plaintiff to proceed on his erroneous outcome claim, finding that (1) his allegations about flaws in evidentiary decisions and credibility determinations in both the investigative report and decision letter were sufficient to cast an articulable doubt on the outcome of the proceeding and (2) his allegations about the University’s enforcement of its policies supported a “minimal plausible inference of discriminatory intent.” In particular, he alleged that the University was attempting to “create an image that it was ‘tough’ on sexual violence” and that it continued to follow its policies shaped in response to the 2011 Dear Colleague Letter despite having adopted new policies in fall 2020. His selective enforcement claim failed, however, because he did not allege that the University refused to investigate female students accused of similar conduct. His contract claims also failed because the generalized statements he cited did not amount to contractual promises, and the facts alleged showed he was not denied process.
Topics:
Sexual Misconduct | Title IX & Student Sexual Misconduct
Date:
6/23/2023
Sch. Of the Ozarks, Inc. v. Biden (U.S. June 20, 2023)
Order denying petition for certiorari. Petitioner, the College of the Ozarks, sought declaratory and injunctive relief to block implementation of a U.S. Department of Housing and Urban Development (HUD) memo interpreting the agency’s enforcement obligations in light of Bostock. The College argued that HUD’s enforcement priorities frustrated its ability to maintain single-sex residence halls, with room assignments made in accordance with sex assigned at birth, regardless of gender identity. The Eighth Circuit affirmed dismissal for lack of Article III standing. The College petitioned for certiorari, presenting the questions (1) “Whether a notice-and-comment violation, on its own, can establish Article III standing for a regulated entity within the applicable zone of interests, as the Fifth, Sixth, Ninth, D.C. and Federal Circuits have held, or whether an additional injury is required, as the Eighth Circuit held here[;]” and (2) “Whether a regulated entity has Article III standing to challenge an illegal regulation where the entity (a) arguably falls with the rule’s plain scope, and (b) there is a risk of enforcement.” The Court’s Order List denied certiorari without comment.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Gender Identity & Sexual Orientation Discrimination | Religious Discrimination & Accommodation
Date:
6/23/2023
Bhatnagar v. The New Sch. (2nd Cir. June 20, 2023)
Order affirming summary judgment in favor of the University. Plaintiff, a former student in the Master of Fine Arts program at the Parsons School of Design at the New School, brought disability discrimination and contract claims against the University after it awarded him grades of C+ for thesis work and incomplete coursework and conferred his degree, rather than permit him a third year for addiitonal studies. The Second Circuit affirmed summary judgment in favor of the University on his disability discrimination claim, finding that although instructors believed he suffered from mental illness, their actions were based on other concerns, including accusations he made against faculty, potential disruptions to the next MFA class, his inability to complete his thesis, and his resistance to meeting with the Dean to discuss his situation. It affirmed summary judgment on his contract claim, finding that it was fundamentally a grading dispute and therefore non-cognizable under the educational malpractice doctrine.
Topics:
Academic Performance and Misconduct | Disability Discrimination | Discrimination, Accommodation, & Diversity | Students
Date:
6/23/2023
Kinnin v. Skidmore Coll. (2nd Cir. June 20, 2023)
Order affirming summary judgment in favor of the University. Plaintiff, a former Director of User Services in the IT Department at Skidmore College, alleged discrimination and retaliation after she was terminated following a series of conflicts with colleagues, in part memorialized in an investigative report that found she had “a history of subjecting certain of her employees to her wrath for unknown reasons.” The Second Circuit affirmed summary judgment in favor of the College, finding that she identified no evidence to show that the report or the Vice President’s decision to terminate her for poor performance and poor management were motivated by discriminatory animus.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment

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