Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
6/16/2023
Grabowski v. Ariz. Bd. of Regents (9th Cir. Jun 13, 2023)
Opinion affirming-in-part, vacating-in-part, reversing-in-part, and remanding dismissal. Plaintiff, a former member of the track team at the University of Arizona, brought Title IX deliberate indifference and retaliation claims against the University and §1983 claims against two coaches, alleging that he experienced homophobic bullying from other team members and that when he reported it, the University cancelled his scholarship and removed him from the team. The Ninth Circuit relied on Bostock to hold that Title IX prohibits discrimination based on perceived sexual orientation. It then affirmed dismissal of plaintiff’s Title IX claim, finding the pleadings insufficient to support a claim that the bullying denied him access to educational opportunities, when instead, the pleadings specified that his grades and relationships with students outside the running program remained exemplary. It reversed dismissal of his retaliation claim, finding that the timeline of events, coupled with additional allegations that his coaches directed antagonistic comments and actions towards him, was sufficient to allege causation. It affirmed dismissal of plaintiff’s §1983 claim against the coaches, holding that caselaw does not clearly establish a property right in an athletic scholarship.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Sexual Misconduct | Title IX & Student Sexual Misconduct
Date:
6/16/2023
Kashdan v. George Mason Univ. (4th Cir. June 13, 2023)
Opinion affirming dismissal. Plaintiff, a tenured professor of psychology specializing in human sexuality studies at George Mason University (GMU), brought Title IX, due process, and First Amendment claims against GMU and multiple officials after he was disciplined for creating a hostile educational environment for four female graduate students. The Fourth Circuit affirmed dismissal of his Title IX claims, finding that Department of Education pressure to enforce Title IX was insufficient to show anti-male bias, and his allegation that GMU does not investigate female professors for similar conduct was conclusory. It affirmed dismissal of his due process claim, finding that GMU’s temporary disciplinary sanctions limiting his teaching and clinical privileges did not amount to a significant demotion and did not exclude him from his trade or calling. It affirmed dismissal of his First Amendment claim, finding that his personal stories and questions about his students’ sex lives were speech outside of his curricula and topics of purely personal interest.
Topics:
Constitutional Issues | Employee Sexual Misconduct | Faculty & Staff | First Amendment & Free Speech
Date:
6/16/2023
Oldham v. Univ. of N.C. (M.D. N.C. June 13, 2023)
Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff is a former volunteer assistant fencing coach at the University of North Carolina (UNC). In December 2017, she was sexually assaulted on a commercial flight by a fencing coach from another university. A SafeSport investigation found him responsible, which resulted in his suspension by USA Fencing and his termination from his coaching job. In April 2019, plaintiff applied for a position as head fencing coach at UNC, but she was not hired. When she learned from the SafeSport investigative report that coaches at both UNC and the other university had made disparaging remarks about her during the investigation, she brought Title IX discrimination and retaliation claims against UNC, alleging that UNC declined to hire her either because of impermissible sex discrimination or because of protected conduct related to the underlying sexual assault investigation. The court dismissed most of plaintiff’s claims as time-barred, noting that the claims accrued when she discovered the injury, rather than when she discovered the elements of the claim. It permitted her to proceed, however, on the limited basis of retaliatory events that might have taken place within the three-year limitations period.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment
Date:
6/16/2023
Doe v. The Citadel (4th Cir. June 12, 2023)
Opinion affirming dismissal. Plaintiff, a former student at The Citadel, brought Title IX and due process claims against the College and multiple administrators after he was expelled for sexual misconduct. In affirming dismissal of plaintiff’s due process claims against the individual defendants, the Fourth Circuit declined to hold that the disciplinary board violated his due process rights when it stopped his representative from cross-examining the complainant about her memory, noting that he was afforded notice, a hearing, and an opportunity for appeal. Turning to his Title IX claim, the court held that he failed to connect either the generalization that most complainants are female or the 2011 “Dear Colleague Letter” requiring compliance with Title IX to any facts suggesting sex discrimination in his case.
Topics:
Constitutional Issues | Due Process | Sexual Misconduct | Title IX & Student Sexual Misconduct
Date:
6/16/2023
Jenkins v. Howard Univ. (D. D.C. June 12, 2023)
Memorandum Opinion granting Defendants’ Motion to Dismiss. Plaintiffs, alumni of Howard University, brought contract and breach of fiduciary duty claims against the University after its Board of Trustees amended its bylaws to permit representatives of affiliate groups, including the alumni association, to serve on Board committees, but otherwise excluded those representatives from membership as Trustees on the Board. Plaintiffs’ contract claim failed because neither a conclusory reference to a 1923-24 agreement with alumni to permit nomination of trustees, nor a 1926 amendment to the bylaws permitting their election was sufficiently definite to allege an enforceable contract. In dismissing plaintiffs’ breach of fiduciary duty claim, and without deciding whether Congress intended to establish the University as a charitable trust, the court held that plaintiffs lacked standing to sue to enforce the alleged trust because they constitute an unlimited class, rather than a limited class with a special interest in the continued performance of the alleged trust.
Topics:
Governance | Governing Boards & Administrators
Date:
6/16/2023
The Claremont Canyon Conservancy v. The Regents of the Univ. of Cal. (Cal. App. June 9, 2023)
Opinion reversing grant of peremptory writ of mandate. To reduce the risk of wildfire on approximately 800 acres of its Hill Campus in the East Bay Hills, the University of California, Berkeley developed a vegetation removal plan and prepared and certified an environmental impact review (EIR) as required under the California Environmental Quality Act (CEQA). Two local organizations challenged the EIR, and the trial court ordered the University to vacate the EIR certification, finding that the plan was insufficiently concrete and at points too ambiguous to permit informed decision making and public participation. In reversing, the California Court of Appeals reviewed the descriptions and objectives of specific projects for individual areas of the Hill Campus and found that the EIR provided sufficient detail to enable public understanding, but that arborists and foresters also needed flexibility to respond to potentially highly variable conditions from season to season. In particular, it found that inclusion of a detailed tree inventory was not reasonably feasible.
Topics:
Taxes & Finances
Date:
6/16/2023
Binney v. The Pa. State Univ. (M.D. Pa. June 9, 2023)
Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, a part-time adjunct instructor at Penn State University, brought age discrimination claims against the University after it hired younger candidates, including graduate students, for multiple courses and independent studies, for an internship coordinator position, and for a full-time contract lecturer position. The court held that most of plaintiff’s claims failed for lack of pretextual evidence. In particular, plaintiff presented nothing beyond his own subjective beliefs to support allegations that the University preferred the successful candidates for unlawful reasons, as opposed to their superior qualifications. In granting summary judgment to the University on his claims regarding course assignments in independent studies, the court found that plaintiff could not have been “replaced” by younger instructors because the students, rather than the University, initiated their own projects.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity
Date:
6/16/2023
McCarthy, et al. v. Jauregui, et al. (M.D. Pa. June 2, 2023)
Report and Recommendation granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff is a Title IX complainant at King’s College, and defendants are the respondent and his attorney. Respondent was expelled for engaging in nonconsensual sexual intercourse with complainant. As the investigation proceeded, respondent retained counsel and subsequently filed a Title IX counterclaim against complainant, asserting that she had previously engaged in sexual violence against him. During that investigation, however, he recanted or modified many of his initial allegations. Plaintiff sued defendants, alleging, among other things, that the Title IX counterclaim was an abuse of process. Applying Pennsylvania tort law, the Magistrate Judge permitted the claim to proceed, finding both that the federal Title IX regulations require sufficient procedural protections to constitute a quasi-judicial proceeding and that plaintiff had sufficiently alleged that defendants knowingly pursued meritless assertions.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
6/16/2023
U.S. Dep’t of Defense. GSA, and NASA Interim Rule Prohibiting TikTok (June 2, 2023)
U.S. Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) Interim Rule prohibiting TikTok on information technology used by Government Contractors. This Interim Rule implements the No TikTok on Government Devices Act included in the Consolidated Appropriations Act, 2023. The Rule amends the Federal Acquisition Regulation to include contract language providing that Government Contractors are “prohibited from having or using [TikTok] on any information technology owned or managed by the Government, or on any information technology used or provided by the Contractor under this contract, including equipment provided by the Contractor’s employees.” The Interim Rule is effective immediately. Comments are due on or before August 1, 2023.
Topics:
Contracts | Contracts Administration | Cybersecurity | Technology
Date:
6/16/2023
IRS Office of Chief Counsel Memo re: Whether NIL Collectives Further Exempt Purposes (May 23, 2023)
U.S. Internal Revenue Service Office of Chief Counsel Memorandum on Whether Operation of an NIL Collective Furthers an Exempt Purpose Under Section 501(c)(3). The memo concludes that “many organizations that develop paid NIL opportunities for student-athletes are not tax exempt as described in section 501(c)(3) because the private benefits they provide to student-athletes are not incidental both qualitatively and quantitatively to any exempt purpose furthered by that activity.” The memo notes that many NIL collectives may already have received favorable determination letters and that these may be candidates for section 7805(b) relief from retroactive enforcement upon reconsideration of their exempt status.
Topics:
Foundations & Affiliated Entities | Governance | Student Athlete Issues | Students | Taxes & Finances

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