Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
5/5/2023
U.S. Dep’t of Defense Guidance on Confucius Institute Waiver Program (March 2023)
United State Department of Defense (DoD), Office of Basic Research Guidance to U.S. Institutions of Higher Education (IHE) on the Confucius Institute Waiver Program (CIWP). The guidance defines a Confucius Institute as “a cultural institute funded either directly or indirectly by the Government of the People’s Republic of China.” The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2021 prohibits the DoD from funding a U.S. IHE that hosts a Confucius Institute unless it receives a waiver from the Secretary of Defense. Applications for waivers are due by June 1, 2023. The prohibition takes effect on October 1, 2023.
Topics:
Contracts | Grants, Contracts, & Sponsored Research
Date:
5/5/2023
NACUBO On Your Side (May 1, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from April 18-May 1, 2023. This summary highlights the Department of Education, Office of Federal Student Aid’s (FSA) selection of five companies under its Unified Servicing Data Solution (USDS) plan to streamline servicing and borrower experience for federal student loans; FSA’s announcement of an email to IHE leaders about upcoming changes in federal student aid processes; and the American Council on Education’s (ACE) letter to the Office of Management and Budget (OMB) encouraging regulators to consider the time and effort required for institutions to update data systems to comply with proposed changes to data collection on race and ethnicity across government agencies, including the Integrated Postsecondary Education Data System (IPEDS).
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
4/28/2023
Heine v. Fla. Atl. Univ. Bd. of Trs. (Fla. App. Apr. 26, 2023)
Opinion affirming dismissal and certifying a question to the Florida Supreme Court. Plaintiffs, two students at Florida Atlantic University (FAU) during the Spring 2020 semester, on behalf of themselves and a putative class, brought contract and unjust enrichment claims against the FAU Board of Trustees after FAU ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. In affirming dismissal, the Florida Court of Appeals held that (1) plaintiffs failed to show that their express written contract with FAU offered them anything more than the ability to register for classes and (2) accordingly, enforcement of any other implied promises or expectations was barred by sovereign immunity. Noting similar lawsuits across the State, the court also certified the following question to the Florida Supreme Court: “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?”
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
4/28/2023
Minor v. La. State Univ. at Eunice (W.D. La. Apr. 25, 2023)
Report and Recommendation granting Defendants’ Motion to Dismiss. Plaintiff, a former nursing student at Louisiana State University at Eunice, brought disability discrimination and due process claims against the University and its Dean of Students after she received a zero on an exam for cheating and was dismissed from the program due to the failing grade. The court dismissed her disability discrimination claims against the University as time barred, in part due to lack of proper service. Turning to her due process claims, the court held that even assuming plaintiff’s appeal hearing was disciplinary in nature, plaintiff received sufficient procedural due process even though the University (1) did not present her original scratch paper and alleged cheat sheet or live witnesses, (2) did not consider an advisor’s email describing the way she used scratch paper to write out all of her knowledge at the beginning of an exam to manage her test-taking anxiety, and (3) permitted the allegedly biased Dean to remain with the hearing panel as it made its decision. Plaintiff’s substantive due process claim failed because she did not allege that her dismissal was arbitrary or shocking to the conscience.
Topics:
Academic Performance and Misconduct | Disability Discrimination | Discrimination, Accommodation, & Diversity | Students
Date:
4/28/2023
Lan v. Univ. of Tex. at San Antonio (W.D. Tex. Apr. 24, 2023)
Report and Recommendation granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former doctoral student and research assistant at the University of Texas at San Antonio who is Chinese, proceeding pro se, brought discrimination and retaliation claims against the University after she twice failed her comprehensive exam and was terminated from her research assistantship. As a threshold matter, the court found that plaintiff sufficiently alleged at this stage of the proceedings that she was an employee of the University. The court permitted her discrimination claim to proceed, finding that although she had not identified a comparator who retained an assistantship after twice failing a comprehensive exam, she sufficiently alleged that non-Chinese research assistants were graded more leniently. It also permitted her retaliation claim related to denial of her request for reinstatement to proceed because she alleged that two professors who knew of her grade grievance participated in the decision. Her retaliation claim related to her initial termination failed, however, because that occurred months before she filed her grievance.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Students
Date:
4/28/2023
Osman v. Ala. State Univ., et al. (M.D. Ala. Apr. 24, 2023)
Memorandum Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a former tenure-track Assistant Professor of Accounting at Alabama State University who is Muslim, Black, of African ancestry, and of Sudanese descent, brought discrimination and retaliation claims against the University and multiple officials after his application for early promotion and tenure was denied. The court held that his non-promotion discrimination claim failed because (1) the Provost had independently reviewed his dossier and found he lacked the required five years of teaching experience and (2) his assembled mosaic of comments at the department level were insufficient to permit an inference of intentional discrimination by the Provost. His retaliation claim likewise failed because he was unable to show that the Provost knew of his alleged protected activity prior to his promotion denial.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
4/28/2023
Rudman v. Oklahoma (W.D. Okla. Apr. 23, 2023)
Order granting-in-part and denying-in-part defendants’ motions to dismiss. Plaintiff, a former student and member of the Cheer Team at the University of Central Oklahoma (UCO), brought deliberate indifference, retaliation, equal protection, and due process claims against UCO and its Senior Director of Student Engagement who oversaw UCO’s Spirit Teams, stemming from an off-campus, “unofficial” Cheer initiation event at which new members were allegedly subjected to sexual exploitation and harassment hazing. The court permitted her Title IX deliberate indifference claim against the University and her §1983 equal protection claim against the Senior Director to proceed, finding she sufficiently alleged that the Senior Director had knowledge of similar conduct at past unofficial events and “consciously acquiesced in that conduct by refusing to respond reasonably to it.” However, it dismissed her §1983 due process claims against the Senior Director, finding that (1) the factual allegations were insufficient to allege that she deliberately created an intolerable environment on campus in order to force plaintiff to leave UCO and (2) plaintiff had not shown that a right against “constructive expulsion” was clearly established.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Equal Protection | Retaliation | Students | Title IX & Student Sexual Misconduct
Date:
4/28/2023
Ayoade v. Johnson Cnty. Cmty. Coll. (D. Kan. Apr. 21, 2023)
Memorandum and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a former men’s head soccer coach at Johnson County Community College who is a Nigerian-born citizen of the United States, brought discrimination claims against the College after he was terminated following repeated failures to comply with policies and procedures. Initially, he was placed on a performance improvement plan (PIP) after he disregarded his supervisor’s instruction and permitted an ineligible player to participate in a game in violation of NJCAA rules. He was then terminated after an investigation of anonymous ethics complaints revealed that he violated College procedures about management of team funds and encouraged players to keep concerns “within the team.” In granting summary judgment in favor of the College, the court held that although some of the allegations in the ethics complaints were not fully substantiated upon investigation, plaintiff was unable to demonstrate that his termination for inability to follow policies and procedures was pretextual.
Topics:
Age Discrimination | Athletics & Sports | Athletics Compliance & NCAA Rules | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination
Date:
4/28/2023
V.E. v. Univ. of Md. Balt. (D. Md. Apr. 21, 2023)
Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiff, a former student at the University of Maryland Baltimore County, brought a Title IX deliberate indifference claim against the University, alleging an inadequate response to her reports of abuse, harassment, and relationship violence perpetrated by J.W., a former romantic partner who was also a member of the Swimming and Diving Team. The court held the plaintiff’s claims were time barred. Plaintiff asserted that she was unaware of missteps in the University’s response to her reports of abuse until May 2022, when it released an independent report on alleged sexual misconduct at the University. The court held, however, that her post-assault deliberate indifference claim accrued no later than Fall 2018 when, after having already reported the abuse, she decided not to live in the dorm out of continued fear of J.W.’s presence.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
4/28/2023
Santiago v. Univ. of Miami (S.D. Fla. Apr. 21, 2023)
Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former Clinical Program Coordinator in the Department of Anesthesia at the University of Miami, brought discrimination and retaliation claims against the University, alleging that over a period of multiple years, she complained almost weekly to the University’s HR office about discriminatory treatment by her supervisor until she finally resigned. In adopting the Report and Recommendations of the Magistrate Judge, the court permitted plaintiff’s discrimination claim to proceed, finding that (1) she asserted sufficient unfair work assignments and arbitrary discipline to allege constructive discharge and (2) she alleged appropriate comparators by identifying two colleagues who reported to the same supervisor, even though they held different roles than plaintiff. Plaintiff’s retaliation claim failed, however, because her asserted constructive discharge was too remote to establish causation from when she began reporting her supervisor’s alleged discriminatory treatment to HR.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation

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