FILTERS
- Age Discrimination
- Disability Discrimination
- Diversity in Employment
- Diversity in the General Counsel’s Office
- Enforcement of Non-Discrimination Laws
- Family and Medical Leave Act (FMLA)
- Gender Identity & Sexual Orientation Discrimination
- Genetic Information Nondiscrimination Act (GINA)
- Race and National Origin Discrimination
- Religious Discrimination & Accommodation
- Retaliation
- Sex Discrimination
- Veterans Discrimination
- Academic Freedom & Employee Speech
- Background Checks & Employee Verification
- Collective Bargaining
- Diversity in Employment
- Employee Benefits
- Employee Discipline & Due Process
- Employee Sexual Misconduct
- Employment of Foreign Nationals
- Employment Separation, RIFs, ERIPs & Retrenchment
- Fair Labor Standards Act (FLSA) & Categorization of Employees
- Family and Medical Leave Act (FMLA)
- Intellectual Property
- Reproductive Health Issues
- Research
- Retaliation
- Tenure
- Veterans & Uniformed Services Employment and Reemployment Rights Act (USERRA)
- Diversity in the General Counsel’s Office
- Ethical Obligations of Higher Education Lawyers
- Evaluation of Operations & Staff in the General Counsel’s Office
- External Counsel
- Law Office Management
- Law Office Technology
- Law Office Training
- Roles & Responsibilities of the General Counsel
- Wellness & Stress Management
- Academic Performance and Misconduct
- Admissions
- Distressed & Suicidal Students
- Financial Aid, Scholarships, & Student Loans
- Hazing
- Internships, Externships, & Clinical Work
- Student Athlete Issues
- Student Conduct
- Student Housing
- Student Organizations
- Student Speech & Campus Unrest
- Title IX & Student Sexual Misconduct
- Uncategorized
Latest Cases & Developments
Date:
Porter v. F. Tyler Sergent (6th Cir. Oct. 29, 2024) (unpub.).
Opinion affirming-in-part and reversing-in-part Judgment on the Pleadings. Plaintiff, a former tenured professor of psychology at Berea College, brought discrimination, retaliation, and contract claims against the College after it terminated him for publishing a survey about a series of “hypothetical” scenarios mirroring a recent Title IX investigation that found his department chair responsible for creating a hostile work environment for three female colleagues. Plaintiff also brought defamation, false light, and retaliation claims against the faculty advisor to the Student Government Association (SGA), after the advisor warned student leaders to stay out of the controversy and to forego awarding plaintiff a student service award. The district court granted summary judgment to the College on all claims, and specific to the defamation claim, held that the advisor was shielded by qualified common interest privilege in his role as an SGA advisor who provided relevant information to student leaders. The Sixth Circuit conducted a de novo review and affirmed the district court’s judgment on all claims except the defamation claim. In reaching a different conclusion on the latter claim, the Circuit found the district court erred as the claimed privilege is “not an absolute defense” and may be negated if the speaker either “abused” the privilege or acted with “malevolence or ill will,” which are questions for a jury to consider. It also noted that the alleged statements could be viewed as abusive and that the comments might be animated by interests beyond the role as an advisor, insofar as one of the three female colleagues in the underlying Title IX conflict was allegedly the advisor’s wife. Accordingly, the Court remanded for further proceedings on the defamation claim.
Topics:
Employee Discipline & Due Process | Faculty & StaffDate:
Students for Justice in Palestine, at the University of Houston v. Gregg Abbott (W.D. Tex. Oct. 28, 2024)
Order granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiffs, student groups from the University of Texas at Austin, the University of Houston, and the University of Texas at Dallas alleged violations of their First Amendment rights and assert claims of viewpoint discrimination and chilled speech, against their respective institutions, boards, and personnel, as well as Texas Governor Greg Abbott, based on implementation of Executive Order GA-44 “relating to addressing acts of antisemitism in institutions of higher education.” The Order required Texas public postsecondary institutions to “establish appropriate punishments” for antisemitism as that term is defined in Texas Code, which relies in part on the International Holocaust Remembrance Alliance’s “Working Definition of Antisemitism” (adopted May 26, 2016). Plaintiffs claimed that inclusion of that definition of antisemitism in institutional policy would proscribe their ability to criticize Israel, and that the Order chilled their free speech and violated the First Amendment. In initially permitting the claims to proceed, the court found plaintiffs’ intended future speech would be proscribed by the policy and that under Speech First, Inc. v. Fenves (5th Cir. 2020), “in the pre-enforcement context, [] chilling a plaintiff’s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.” However, the court denied the request for a preliminary injunction as overly overboard, and dismissed the claims against Governor Abbott, the University of Houston and UT Austin and their respective boards as barred by sovereign immunity.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Race and National Origin Discrimination | Religious Discrimination & Accommodation | Student Speech & Campus Unrest | StudentsDate:
Niblock v. University of Kentucky (E.D. Ky. Oct. 28, 2024)
Judgment in favor of the University. Plaintiffs, former students at the University of Kentucky, filed a putative class action against the University alleging Title IX and Equal Protection violations. Specifically, plaintiffs alleged the number of opportunities for women to participate in varsity sports is not substantially proportional to the percentage of women enrolled at the University. Plaintiffs further alleged the University does not have a history or continued practice of expanding intercollegiate athletic opportunities for female students, and it has not fully or effectively satisfied the interests and abilities of female students in intercollegiate varsity athletic opportunities. Plaintiffs sought addition of women’s varsity lacrosse, field hockey, and equestrian teams. The Court applied the three-prong effective accommodation test, to determine, if (1) there is a statistical disparity in participation opportunities for men and women; (2) a history and continued practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; and (3) the institution is fully and effectively accommodating the interests and abilities of the underrepresented sex. After a bench trial, the court concluded that the University (1) does not provide female students with athletic participation opportunities substantially proportionate to its enrollment (finding that to reach substantially proportionate numbers, the University would need to offer at least 116 additional spots for women); and (2) the University did not prove a history and continued practice of expanding participation opportunities for its female students. The court also found the University’s procedure for determining whether to add teams was “problematic,” and noted that the University had only added one women’s sport since 2017. Ultimately however, the court held that under the third prong, the salient question is whether the University meets the actual interest and abilities of its students, and that although “these numbers may prove an interest in various sports, but they are not evidence of the numbers of female students at [the University] who can play at the varsity level or even have the interest in doing so.” And since plaintiffs “confine[d] their argument” to three specific sports for which “not nearly enough students who indicated interest and ability in … provided contact information to field a team in any of” the court entered judgment in favor of the University.
Topics:
Athletics & Sports | Gender Equity in AthleticsDate:
Congressional Committee Report on Antisemitism on College Campuses (Oct. 31, 2024)
The U.S. House of Representatives Committee on Education and the Workforce (Committee) published a Republican Staff Report titled, “Antisemitism on College Campuses Exposed.” The Report summarizes the Committee’s yearlong investigation into allegations of antisemitism at several postsecondary institutions and sets forth its four key findings, which the Committee wrote “demonstrate an environment hostile to Jewish students likely in violation of Title VI” but also noted were “not conclusive judgments on violations.” The Report includes a 200+ page appendix of selected materials acquired by the Committee through subpoena, forewarns of future expanded investigation, and calls for a “fundamental reassessment” of federal support for postsecondary institutions “that have failed to meet their obligations to protect Jewish students, faculty, and staff, and to maintain a safe and uninterrupted learning environment for all students.”
Topics:
Discrimination, Accommodation, & Diversity | Governance | Government Relations & Community Affairs | Race and National Origin Discrimination | Religious Discrimination & Accommodation | Student Speech & Campus Unrest | StudentsDate:
Letter from 25 Attorneys General to Columbia University Regarding Potential Divestment (Oct. 23, 2024)
Letter to Columbia University from twenty-five Attorneys General encouraging the University to resist demands to divest from Israel. The Letter “commend[s] [the] University for its [prior] decision … to not divest from Israel” and urges it to “maintain that position.” The Letter cites a similar letter previously sent to Brown University, wherein the authors asserted that divestment “could trigger laws in nearly three-fourths of States prohibiting [them] from associating with entities that discriminate against Israel, Israelis, or their business partners.”
Topics:
Endowments & Gifts | Public Private Partnerships | Taxes & FinancesDate:
Saavedra v. Lehigh Carbon Cmty. Coll. (E.D. Pa. Oct. 23, 2024)
Opinion denying Defendant’s Amended Motion to Dismiss. Plaintiff, a former student at Lehigh Carbon Community College who identifies as a person with Autism, brought disability discrimination, equal protection, retaliation, and denial of due process claims against the College. Plaintiff alleged the College denied his accommodations, including extended time on exams and reduced distraction environment, and also “intimidat[ed]” him into forgoing a right to a hearing following a charge of an academic integrity violation. Although he received accommodations during the spring semester, plaintiff alleged that the College failed to implement corresponding accommodations for the summer term, which prompted him to have his mother scribe his summer course midterm exam scratchwork for him after he became fatigued while taking the test. Afterwards, plaintiff was charged with an academic integrity violation, for which he sought a hearing and retained counsel but claims that he was “threatened” when the dean of the college stated “most of the cases like yours ending in a hearing will finish with bad outcomes, and there is no need to go through the whole process,” which prompted plaintiff to forfeit the hearing and permit the violation to stand. The court permitted the disability discrimination claim to proceed, finding that plaintiff’s allegation that the College refused to implement any accommodation “in it of itself” sufficed to state a claim, and that the College’s defense targeted the academic dishonesty violation but failed to take into account plaintiff’s claim that the institution had knowledge that his rights were “substantially likely to be violated” in light of plaintiff’s prior accommodations, and requests for similar accommodations for the summer semester. The court also allowed the retaliation claim to move forward, finding the dean’s alleged statement to plaintiff was an adverse action sufficient to deter a person from exercising their rights, when considering plaintiff’s Autism and the vulnerability the disability exposed him to. Finally, the court found that the College’s motion did not address plaintiff’s equal protection claim and rejected the defense that the charge of academic dishonesty did not give rise to a claim for substantive due process absent either suspension or expulsion.
Topics:
Constitutional Issues | Disability Discrimination | Discrimination, Accommodation, & Diversity | Equal Protection
NACUA Annual Conference
Join us in the Music City June 29 – July 2 to connect, learn, and lead alongside higher education attorneys shaping policy, practice, and impact nationwide together.