Cases & Developments - National Association of College and University Attorneys

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Date:
5/12/2023
Doe v. White, et al. (Cal. App. May 8, 2023)
Opinion affirming denial of administrative writ of mandate. Plaintiff, a student at California Polytechnic State University, San Louis Obispo, sought an administrative writ of mandate to overturn his one-year suspension for sexual misconduct, based on allegations of an unfair hearing and findings and sanctions that lacked substantial evidence. In affirming denial of the mandate, the California Court of Appeals held that the University followed its hearing procedures, which afforded plaintiff sufficient opportunity to respond to the charges and evidence and submit questions for the complainant through a hearing officer. It also found that the complainant’s testimony was supported by substantial evidence, noting that the hearing officer was in a position to evaluate the credibility of all testimony.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
5/12/2023
Holmstrom v. Univ. of Tulsa (N.D. Okla. May 8, 2023)
Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a former student at the University of Tulsa, brought Title IX discrimination and retaliation claims against the University after he was expelled for sexual misconduct. Plaintiff asserted that he “was treated as guilty” and did not have the same chance as the complainant to prepare for the hearing or have friends present character statements. The court dismissed his discrimination claim, holding that these allegations showed at most pro-victim or anti-respondent bias. The court likewise found that plaintiff’s assertion that the University felt pressure to “render a speedy decision” before new Title IX regulations took effect did not support an inference of sex discrimination. In dismissing his retaliation claim, the court held that plaintiff failed to allege that he had engaged in protected activity, noting that his assertion that he had to defend himself against an allegation of sexual assault is insufficient to allege that he opposed sex discrimination.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation | Students | Title IX & Student Sexual Misconduct
Date:
5/12/2023
Zarza v. Bd. of Regents of the Univ. of Mich. (6th Cir. May 5, 2023)
Opinion reversing summary judgment in favor of the University. Plaintiff, a former custodial supervisor at the University of Michigan, brought a retaliation claim against the University after she was terminated when a disciplinary panel determined she had created a “hostile work environment of fear, intimidation, and harassment.” Plaintiff asserted that her termination was retaliation to punish her support of disability discrimination claim asserted by a former supervisee. The Sixth Circuit reversed summary judgment in favor of the University, finding that temporal proximity, testimony about reactions to her support for the discrimination claim, and various comments in email correspondence discussing her discipline and termination were sufficient to raise material questions as to causation and pretext.
Topics:
Discrimination, Accommodation, & Diversity | Retaliation
Date:
5/12/2023
Evans v. Brigham Young Univ. (10th Cir. May 5, 2023)
Order and Judgment affirming denial of class certification. Plaintiff, a student at Brigham Young University (BYU) in March 2020, on behalf of himself and a putative class, brought contract and unjust enrichment claims against BYU after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court denied certification of plaintiff’s proposed class of “all persons who paid tuition and/or the Mandatory Fees to attend in-person class(es) during the Winter 2020 term/semester affected by COVID-19 at BYU and had their class(es) moved to online only learning.” The Sixth Circuit affirmed, finding no error in the holding that the class was unascertainable because third parties might have paid tuition for many members. Plaintiff, however, contended that the class could be ascertained by looking to the Financial Responsibility Declaration (FRD) students signed upon registration. The court held, however, that because even students who registered only for online classes signed the FRD, it was administratively unfeasible for the court to inquire individually as to who had registered for in-person as opposed to online classes.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
5/12/2023
Bartoszek v. Delta Coll. (E.D. Mich. May 5, 2023)
Opinion and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a former adjunct instructor in dentistry, nursing, and biology at Delta College, brought an age discrimination claim against the College after he was not hired for a tenure-track biology instructor position. Plaintiff was 68 at the time, and the successful candidate was 38. The College asserted that it did not grant plaintiff an interview because his letter focused on his accomplishments as a dentist rather than pedagogy. At various points, however, members of the search committee cited other reasons, including that plaintiff noted that his transcripts were already on file rather than submitting additional copies for the committee’s consideration. In denying the College’s Motion for Summary Judgment, the court held that the differing reasons cited for not granting plaintiff an interview were sufficient to cast doubt on the College’s stated motivation for not hiring him.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity
Date:
5/12/2023
Loecker v. Bd. of Trustees for Colo. Mesa Univ. (D. Colo. May 1, 2023)
Order granting Defendant’s Motion to Strike and Exclude. Plaintiff, the former head coach of women’s lacrosse at Colorado Mesa University, brought sex discrimination claims against the University after she was terminated following complaints from players and parents that she “created a negative culture.” Plaintiff disclosed as an expert witness a professor of sports management whose report discussed gender bias, stereotypes, and leadership expectations in sports, and how these may affect evaluations of female coaches. The court first held that the testimony is admissible under Rule 702 on expert testimony, even though the expert’s report addressed only general principles, rather than the facts of the instant case. However, the court granted the University’s Motion to Strike and Exclude under Rule 403 on relevance, finding that this was a topic within a layperson’s common knowledge and that “its minimal probative value is substantially outweighed by its prejudicial effect.”
Topics:
Athletics & Sports | Athletics Operations | Discrimination, Accommodation, & Diversity | Sex Discrimination | Sex Discrimination in Employment | Tax Implication of Campus Political Activity | Taxes & Finances
Date:
5/12/2023
McCourt v. Fashion Inst. of Tech. (N.Y. Sup. Ct. May 1. 2023)
Decision and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a former Manager of Enterprise Network Services in the IT Department at the Fashion Institute of Technology (FIT), brought whistleblower retaliation and age discrimination claims against FIT after he was terminated for violating a written warning related to repeated uncivil and threatening behavior. Plaintiff contended that the warning and termination amounted to age discrimination or retaliation for raising concerns about unjustified costs in procurement of computer equipment and wasteful spending on IT vendors. In granting summary judgment to FIT on plaintiff’s retaliation claim, the court held that two months separating his protected activity and the warning was too great to establish causation. It also found that plaintiff lacked evidence to show that he had a reasonable belief that FIT spent too much on the vendors. In granting summary judgment to FIT on his age discrimination claim, the court noted that FIT decided to present plaintiff with the option to retire only after it had decided to terminate him.
Topics:
Age Discrimination | Discrimination, Accommodation, & Diversity | Retaliation
Date:
5/12/2023
In re Noah’s Ark Processors, LLC (N.L.R.B. Apr. 20, 2023)
Decision and Order from the National Labor Relations Board (NLRB) expanding remedies against employers that repeatedly or egregiously violate bargaining duties. Reviewing the decision of an Administrative Law Judge in a case in which the Respondent was twice found to have bargained in bad faith and declared impasse unlawfully, the NLRB imposed additional remedies, including reimbursement of the union’s bargaining expenses and lost pay to employees who participated in bargaining sessions that were determined to have been conducted in bad faith. It also required the employer to provide employees with an explanation of their rights and notice of the unfair labor practice, including through mailings, publication in local media, and reading of the notice by the company’s CEO or an NLRB staffer in the presence of the CEO.
Topics:
Collective Bargaining | Faculty & Staff
Date:
5/12/2023
Chambers v. North Carolina Dep’t of Justice (4th Cir. Apr. 17, 2023)
Opinion affirming-in-part, vacating-in-part, and remanding dismissal. Plaintiff, a former investigator in the Medicaid Investigations Division at the North Carolina Department of Justice who is African American, brought discrimination and wrongful termination claims under §1981 against the Department and two former supervisors after she was terminated. The district court dismissed plaintiff’s claim, finding her claims against the Department barred by sovereign immunity and her claims against her supervisors in their individual capacities time barred under North Carolina’s three-year limitations period for personal injury claims. The Fourth Circuit vacated and remanded as to her claims against her supervisors, noting (1) that in 1990 Congress enacted 28 U.S.C.§1658 to “establish a catchall four-year statute of limitations for federal claims ‘arising under’ any act of Congress … enacted after December 1, 1990” and (2) that in 1991, Congress “expanded §1981 to prohibit race discrimination post-contract formation, including in the termination of contract.”
Topics:
Discrimination, Accommodation, & Diversity | Litigation, Mediation & Arbitration | Race and National Origin Discrimination
Date:
5/12/2023
U.S. Dep.’t of Education Notice of Information Collection on Foreign Gifts and Contracts Disclosures (May 4, 2023)
U.S. Department of Education Notice of New Information Collection Request and Invitation to Comment. The U.S. Department of Education is proposing to continue to collect disclosure reports regarding foreign gifts and contracts required under Section 117 of the HEA through its Partner Enterprise Business Collaboration (PEBC) system “with only slight modifications based on public comment,” but it plans to return oversight of the process from its Office of General Counsel to the Office of Federal Student Aid (FSA). Comments are due on or before June 5, 2023.
Topics:
Ethical Obligations of Higher Education Lawyers | General Counsel | International Activities

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