Cases & Developments - National Association of College and University Attorneys

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Date:
6/2/2023
Knox, et al. v. Georgia (Ga. May 31, 2023)
Opinion affirming dismissal. Plaintiffs, five professors in the University System of Georgia, challenged a 2017 statutory amendment removing public colleges and universities from the definition of a “school safety zone,” alleging that the amendment unconstitutionally infringes upon the Board of Regents’ constitutional authority to govern, control, and manage the System and its member institutions. The Supreme Court of Georgia affirmed dismissal, noting that the Board had adopted a gun policy consistent with the statutory amendments. Because it was Board’s action that authorized the policy at issue in the complaint, the Court held that the professors’ case against the State is moot.
Topics:
Constitutional Issues | Second Amendment & Guns on Campus
Date:
6/2/2023
Bethune-Cookman Univ. v. Dr. Mary McLeod Bethune Nat’l Alumni Ass’n (11th Cir. May 30, 2023)
Opinion affirming denial of a preliminary injunction. Plaintiff, Bethune-Cookman University, Inc., brought trademark infringement, false designation of origin, dilution, and unlawful trade practices claims against the Dr. Mary McLeod Bethune National Alumni Association, formerly known as the National Alumni Association of Bethune-Cookman University, Inc., after the University ended its cooperative relationship with the Alumni Association and sent a cease-and-desist demand. The district court denied the University’s Motion for Preliminary Injunction, because nearly 6 months had elapsed from the time the University filed the complaint until the University moved for preliminary injunctive relief. Though the University argued it was entitled to the presumption of irreparable harm based on the likelihood of success on the merits, the Eleventh Circuit affirmed, finding no clear error in the conclusion that the filing delay undermined the University’s assertion of imminent irreparable harm.
Topics:
Foundations & Affiliated Entities | Governance | Intellectual Property | Trademarks
Date:
6/2/2023
Li v. Ne. Univ. (W.D. Wash. May 30, 2023)
Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former marketing manager at Northeastern University’s Seattle Campus who was diagnosed with conditions making it difficult for her to type, sit at her desk, or speak for extended periods, brought state-law failure to accommodate, disparate treatment, and retaliation claims against the University after it placed her on a performance improvement plan (PIP) and terminated her for failing to meet job expectations. After taking intermittent and then continuous FMLA leave, the University denied her ADA accommodation request for speech-to-text software, noting she still would be unable to perform essential functions, and terminated her employment. Sitting in diversity, the court permitted plaintiff to proceed on her failure to accommodate claim, finding that questions of fact remained as to (1) whether she could have performed her duties with the help of the software and (2) whether the University had engaged sufficiently in an interactive process. It granted summary judgment to the University, however, on her disparate treatment and retaliation claims.
Topics:
Disability Discrimination | Discrimination, Accommodation, & Diversity | Retaliation
Date:
6/2/2023
Brown v. Bd. of Regents for the Univ. Sys. of Ga. (S.D. Ga. May 25, 2023)
Order denying Defendant’s Motion for Summary Judgment. Plaintiffs, here and in a parallel order, are two former police officers for Savannah State University (SSU) whose positions were eliminated in a reduction in force (RIF) initiative. They alleged that their termination was in retaliation for their actions encouraging two colleagues to file sexual harassment complaints against SSU’s former Police Chief. In denying SSU’s Motion for Summary Judgment, the court first held that plaintiffs’ opposition to the alleged harassment was protected activity and that they had adequately demonstrated that the decision makers were aware of that opposition. It then held that the timeline, testimony about the impetus for the departmental restructuring, and the fact that only plaintiffs’ positions were eliminated were sufficient to raise a question as to whether budgetary reasons were a pretextual motive for the RIF.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
Date:
6/2/2023
Coalition for TJ v. Fairfax County School Board (4th Circuit, May 23, 2023)
Opinion reversing the judgment of the district court and remanding for entry of summary judgment in favor of the Fairfax County School Board (the Board). The Coalition for TJ, an advocacy organization comprised of Fairfax County public school parents, challenge a revised admissions policy adopted by the Board for the purpose of “increas[ing] Black and Hispanic enrollment.” As applied, the policy, which was both race neutral and “race-blind” (emphasis in original), increased demographic diversity on a number of metrics. Most notably for this case, the number of admissions offers extended to Black applicants increased from “too small for reporting” (<10) to 7.9% of the incoming class, while the number of admissions offers extended to Asian American applicants decreased from 65-75% over the previous five application cycles to 48.59%. Overturning the District Court, the Fourth Circuit upheld the revised admissions policy. First, the court held that Asian American applicants were not disparately impacted by the challenged admissions policy since they received far more offers of admissions than applicants from other racial and ethnic groups. Second, the court held that the Coalition failed to show discriminatory intent, as they must, to support an Equal Protection claim. Finally, in response to the Coalition’s argument that the Board discriminated against Asian American applicants “by proxy” insofar as the Board’s stated goal of increasing the number of Black and Hispanic matriculants naturally would result in a decreased share of admissions slots for Asian American matriculants, the court relied on U.S. Supreme Court precedent in Massachusetts v. Feeney and other cases to dismiss that argument.
Topics:
Admissions | Students
Date:
6/2/2023
Fla. Int’l Univ. Bd. of Trs. v. Alexandre (Fla. App. May 17, 2023)
Opinion and order reversing and remanding the denial of Defendant’s Motion to Dismiss. Plaintiff, a student who was enrolled at Florida International University (FIU) in 2020, on behalf of a putative class, brought contract and unjust enrichment claims against the Board of Trustees after FIU ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. FIU sought dismissal, claiming that sovereign immunity barred the action since plaintiff did not produce an express, written contract. The appellate court cited to binding precedent in the jurisdiction to determine that an express contract could not be derived from student invoices and financial obligation agreements listing the relevant fees or other enabling statutes and unspecified documents. Similarly, an itemized list of paid charges did not amount to an express contract. Without an express contract, plaintiff’s claim could not overcome FIU’s sovereign immunity claim. The court also certified a modified question to the Florida Supreme Court on “whether sovereign immunity bars a breach of contract claim against a state university based on the university’s failure to provide its students with access to on campus services and facilities, notwithstanding the absence of an express, written contract to provide such services and facilities in a specific time, manner, or place[.]”
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
6/2/2023
Omori v. Brandeis Univ. (D. Mass. May 16, 2023)
Memorandum and order denying Plaintiffs’ Motion for Class Certification. Plaintiffs, two students at Brandeis University during the Spring 2020 semester, on behalf of themselves and a putative class, brought contract, unjust enrichment, and conversion claims against Brandeis after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court denied certification of plaintiffs’ proposed class relating to tuition and the class relating to the studio fee charged by the University. In denying certification for the tuition class, the court held that plaintiffs could not establish the actual value of the post-covid education that students received during the Spring 2020 semester and therefore could not satisfy the predominance requirement because plaintiffs’ damages model did not account for (1) the differences between the asynchronous, online courses offered at the graduate school and the online, post-covid courses that were typically offered in real-time and taken by class members, (2) how covid-19 may have affected the value of online education, and (3) the variation in scholarships, grants, and aid provided for different programs. The court denied certification for the studio fee class and held that the existence of damages depends on the individual facts concerning each class member.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
6/2/2023
Doe v. Bd. of Trs. of Whitman Coll. (E.D. Wash. Apr. 25, 2023)
Order denying Motion for Temporary Restraining Order. Plaintiff, a former student at Whitman College, brought Title IX, contract, and state Consumer Protection Act claims against the College and sought a TRO, after he was expelled for sexual misconduct. Plaintiff’s numerous factual allegations included internal and external pressures to prevent sexual misconduct, disproportionate adverse findings related to male students, unfair credibility and relevancy determinations, and sanctioning irregularities. The court, however, found none of these assertions sufficient to show a likelihood of success on the merits. Though it found that plaintiff established the likelihood of irreparable harm, the equities, including the burden on the College’s interest in maintaining and enforcing Title IX procedures, weighed against the TRO. Finally, the court held that a TRO was not in the public interest, noting that it “would embolden the targets of Whitman’s Title IX investigations to file suit in the hopes of attaining injunctive relief without providing evidence that the investigation was discriminatory” and “would likely discourage Title IX complainants from coming forward, placing the entire Title IX process at Whitman in doubt.”
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
6/2/2023
NLRB GC Memo re: Non-Compete Agreements that Violate the NLRA (May 30, 2023)
Memorandum from the General Counsel of the National Labor Relations Board (NLRB) re: Non-Compete Agreements that Violate the National Labor Relations Act. In the memo, the NLRB General Counsel outlines ways in which non-compete agreements may chill employees from engaging in protected activity and may, therefore, violate Section 8(a)(1) of the National Labor Relations Act. It provides that non-compete agreements may be justified in limited circumstances, such as when narrowly tailored to protect an employer’s legitimate business interest in protecting proprietary or trade secret information.
Topics:
Collective Bargaining | Faculty & Staff
Date:
5/26/2023
Ma v. Cincinnati Children’s Hosp. Med. Ctr. (Ohio App. May 24, 2023)
Opinion reversing summary judgment in favor of the Hospital and remanding. Plaintiff, a former biomedical researcher and tenured professor at Cincinnati Children’s Hospital Medical Center (Children’s Hospital) and the University of Cincinnati, brought contract claims against Children’s Hospital after he was terminated for failing to meet expectations related to external funding. In reversing summary judgment in favor of Children’s Hospital, the Court of Appeals of Ohio held that because plaintiff’s contract with Children’s Hospital did not specify whether failure to secure funding was “just cause” for termination, the question could not be decided as a matter of law.
Topics:
Faculty & Staff | Tenure

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