Cases & Developments - National Association of College and University Attorneys

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Date:
10/11/2024
Missouri v. Department of Education (E.D. Mo. Oct. 3, 2024)
Memorandum and Order granting Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, the States of Missouri, Arkansas, Florida, North Dakota, Ohio, and Oklahoma were granted a Temporary Restraining Order (TRO) entered by the U.S. District Court for the Southern District of Georgia on September 5, 2024, pertaining to their claims that the U.S. Secretary of Education was unlawfully trying to mass cancel hundreds of billions of dollars in student loan debt. After the TRO was entered, Georgia was dismissed from the suit based on a lack of standing and venue was transferred to the U.S. District for the Eastern District of Missouri, which took up the as yet undecided motion for preliminary injunction. Relying on Missouri v. Biden, 112 F.4th 531 (8th Cir. 2024), the court reasoned that “irreparable harm to the Plaintiffs will occur if Defendants wrongfully and unlawfully eliminate the debt at issue” and that permitting the Department to eliminate student loan debt now would also prevent subsequent appellate review.
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Higher Education Act (HEA) | Students
Date:
10/11/2024
Florida v. Miguel Cardona (S.D. Fla. Oct. 2, 2024)
Order granting Defendants’ Motion to Dismiss without prejudice. Plaintiff, the State of Florida challenged the constitutionality of the federal government’s use of private accreditation agencies as part of its process to approve postsecondary institutions as eligible institutions within the meaning of the Higher Education Act (HEA). Plaintiff sought an injunction on the continued enforcement of the accreditation requirement, alleging that the HEA violates the Constitution; specifically: (1) the private nondelegation doctrine; (2) the Spending Clause; and (3) the Appointments Clause. Alternatively, plaintiff alleged that the three letters issued by the U.S. Department of Education in July 2022 violated the Administrative Procedure Act (APA). Plaintiff alleges that the delegation of authority to accreditors is improper since it is beyond the plain language of the HEA, and that permitting accreditors to alter their standards creates ambiguity for institutions, which imperils their access to Title IV funds. Lastly, plaintiff contends that the Department’s July 2022 “Dear Colleague” letters in response to SB 7044’s mandate that all public institutions switch accreditors are contrary to law. Relying on Carter v. Coal Company, the court found that postsecondary accreditation does not involve any recognized federal regulatory action, and as such, is not an exercise of a legislative function. It reasoned that accreditation alone does not end the eligibility inquiry for Title IV funding and “mere reliance on private entities does not equate to granting them governmental power or final authority.” The court also found that absent an exercise of legislative function by accreditors, plaintiff’s Appointments Clause claim fails for want of significant authority sufficient to transform a private entity into a public office. It concluded that the Spending Clause is inapplicable when at issue federal funds go to students, rather than states, and that the HEA is neither ambiguous nor coercive. Finally, the court found that plaintiff failed to adequately allege any way the 2022 DCLs adversely impacted the State of Florida or its institutions, that no additional legal consequences inured, and that claims that the letters are contrary to law are “untethered to the language of the [l]etters themselves.”
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
10/11/2024
National Labor Relations Board General Counsel Memo re: Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act (Oct. 7, 2024)
National Labor Relations Board (NLRB) General Counsel (GC) Memo re: Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act (NLRA). The memo, which was issued to all field offices, expands upon the GC’s May 2023 memo and reaffirms the position that overbroad non-compete agreements are unlawful because they chill employees from exercising their rights under Section 7 of the NLRA, which protects employees’ rights to take collective action to improve their working conditions. The second part of the GC’s memo sets forth the proposed framework for assessing the lawfulness of “TRAP” provisions that limit employee mobility, the remedies that will be sought in enforcement actions before the Board, and the circumstances under which the GC may decline to issue a complaint against preexisting “stay-or-pay” arrangements.
Topics:
Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees
Date:
10/11/2024
American Association of University Professors New Statement on DEI Criteria and Faculty Evaluation (Oct. 9, 2024)
The American Association of University Professors (AAUP) New Statement on Diversity, Equity, and Inclusion (DEI) Criteria and Faculty Evaluation. The AAUP released a new statement titled Diversity, Equity, and Inclusion Criteria for Faculty Evaluation, which holds that, when appropriately designed and implemented, DEI criteria for faculty appointment, reappointment, tenure, and promotion are compatible with academic freedom and may serve as an important means of fostering a diverse and inclusive academic environment. It encourages colleges and universities to recruit and retain diverse student and scholarly bodies. The statement was approved by the AAUP’s Committee A on Academic Freedom and Tenure.
Topics:
Diversity in Employment | Faculty & Staff
Date:
10/11/2024
NACUBO On Your Side (Oct. 7, 2024)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from October 1-7, 2024. This summary highlights that registration is now open for the U.S. Department of Education’s free, virtual Federal Student Aid Training Conference, which is set for December 3-6; that the Governmental Accounting Standards Board (GASB) approved the issuance of Statement No. 104, Disclosure of Certain Capital Assets; and that GASB is soliciting institutional input via a survey regarding Statement No. 72, Fair Value Measurement and Application.
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
10/4/2024
Univ. of Md. Students for Justice in Palestine v. Bd. of Regents (D. Md. Oct. 1, 2024)
Memorandum Opinion granting Plaintiff’s Motion for Preliminary Injunction. Plaintiff, a registered student organization, brought claims alleging violation of free speech against the University of Maryland, College Park (UMCP), its Board of Regents, and UMCP’s President following the revocation of their October 7, 2024, event registration. Congruent with UMCP campus use policy, plaintiff sought and was approved to host what it referred to as an “interfaith vigil … to mourn lives lost in Israel’s purported ‘genocide’ in Gaza.” Following “passionate opposition to the event,” including a petition that received nearly 28,000 signatures and asserted that putative references during the event to Israel “as an apartheid state” or accusations that the country was “committing genocide” would be tantamount to “an antisemitic attack” and must be curtailed; UMCP first met with organizers and then, revoked approval for the event and banned all on-campus student organization events for that day. After a hearing, the court issued an injunction permitting the event to proceed, finding plaintiff is likely to prevail on the merits of its free speech claims since although it “picked a particularly controversial date to hold an event to commemorate Gaza War dead, to decry what it terms Israeli ‘genocide,’ and to promote … Palestinian life and culture,” the ideas underlying the event were “expressive … however vile they may seem to some” and thus, must be accorded “protection as speech when … used in the forum of a public university.” The court recognized UMCP’s compelling interest in maintaining a safe campus but found that cancellation of the event was neither viewpoint neutral nor narrowly tailored and relied upon evidence that (1) over the past year plaintiff held more than 70 events on campus “without significant disruption or conflict,” (2) the event reservation form contained no indication “that Jewish students will be threatened or harassed, or otherwise impeded from attending classes, or that any buildings will be occupied, an encampment established, or property destruction contemplated,” and also found that UMCP has reasonable alternatives to banning all expressive speech including employment of additional security personnel, reliance upon assistance from local and state police, and installation of temporary metal detectors and fencing for crowd control.
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
10/4/2024
Thiry v. Bd. of Regents of Univ. of Mich. (E.D. Mich. Sep. 27, 2024)
Opinion & Order granting in part and denying in part Defendants’ Motion for Summary Judgment. Plaintiff, a former employee of the University of Michigan with a substance-use disorder brought claims of discrimination and retaliation under Section 504 of the Rehabilitation Act (Rehab Act) and unlawful restrictions of protected activity and retaliation under the First Amendment against the University and three of its employees. Plaintiff sought in-patient treatment for substance-use disorder and alleged that upon his return to work his supervisor created a hostile work environment by making derogatory comments about his disorder, publicly berating him, and disclosing confidential information about his treatment. Plaintiff sent a series of communications to his supervisor, including some texts and emails outside of working hours, and the University held an internal mediation between the parties in which plaintiff was admonished to constrain future communications to work related topics sent during working hours. The communications continued and plaintiff received a two-day disciplinary layoff for “Negligent Careless Work Performance” about which he filed a grievance. Plaintiff was placed on paid suspension pending an investigation into his conduct, the University held a Disciplinary Review Conference (DRC), and plaintiff was terminated. Thereafter, plaintiff sought and was granted the opportunity to retire in lieu of termination, and signed a Settlement Agreement and Release of Liability stating among other things that he would forgo “further claims, demands, or actions related to the DRC” and his grievance about the two-day layoff. Despite signing the Agreement, plaintiff filed suit. The court granted summary judgment in favor of all defendants on plaintiff’s claim for emotional distress damages related to the Rehab Act claim, as well as the Rehab Act claims against the individual defendants, and for the University on plaintiff’s Section 1983 claims for money damages, but denied the motion as to individual defendants, reasoning that “official-capacity claims are not barred by the Eleventh Amendment where a plaintiff seeks only prospective equitable relief.” The court found that while the plain language of the Agreement precluded claims pertaining to the DRC and suspension, a material factual dispute remained regarding whether the Agreement prohibited plaintiff’s broader claims related to discrimination under the Rehab Act, as well as Section 1983 claims for money damages from individual defendants, and for declaratory and injunctive relief.
Topics:
Constitutional Issues | Disability Discrimination | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation
Date:
10/4/2024
Doe v. Rutgers, The State Univ. of N.J. (D. N.J. Sep. 27, 2024) (unpub.)
Opinion denying Defendant’s Motion to Dismiss. Plaintiff, a former undergraduate student at Rutgers University brought Title IX claims against the University alleging it selectively enforced its Title IX policies against plaintiff and failed to investigate allegations that he made. Plaintiff also alleged that the University reached an erroneous decision when it found him responsible for violating University policy, due to his presumed innocence. While a student, plaintiff was in a relationship with Jane Doe. Following a breakup between the two, plaintiff learned that Doe was telling professors and peers that plaintiff allegedly sexually assaulted and harassed her. Plaintiff took a leave of absence, but prior to his return, he purportedly began receiving threats from other students who had learned of Doe’s allegations. After a live hearing, a third-party decisionmaker (TPD) found plaintiff not responsible for the original charge of domestic violence under any University policy but responsible for dating violence and stalking in violation of the University’s Title IX Policy and suspended him for two years. Plaintiff alleged that the University failed to follow its Title IX Policy when during its investigation he disclosed that Doe assaulted him at a party, but the Title IX coordinator failed to file a formal complaint. Plaintiff also alleged that he informed two professors that the “rumors” Doe shared were false and that he received threats of physical violence, but neither reported the conduct. Further, the chair of the University’s theater department purportedly warned plaintiff that it may not be safe for him to return to campus due to the threats, but similarly, failed to report them to the Title IX coordinator. In denying the University’s motion and permitting plaintiff’s claims to proceed, the court reasoned that plaintiff’s choice to forgo filing a formal complaint did not justify differential treatment of the cross-complaints between the two students under the Third Circuit’s Princeton decision, and that “though anti-male bias is not the only plausible explanation for the university’s conduct, or even the most plausible[,] … alternative explanations are not fatal to [the] ability to survive a Rule 12(b)(6) motion to dismiss” (internal cites omitted). Finally, the court found that plaintiff sufficiently alleged that the TPD was influenced by anti-male bias citing rulings barring him from asking a witness about their romantic relationship with the plaintiff, allowing witnesses to provide supplemental written statements, and permitting Doe to introduce evidence regarding plaintiff’s mental health and medical history in violation of University Policy.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
10/4/2024
Zavada v. E. Stroudsburg Univ. (M.D. Pa. Sep. 26, 2024)
Memorandum denying Defendant’s Motion to Dismiss. Plaintiff, a current student at East Stroudsburg University, brought claims against the University and its Student Misconduct Official, alleging that the University failed to take meaningful action following her report of inappropriate conduct by another student. In addition to her deliberate indifference claims, plaintiff brought equal protections claims, failure to train, and Policy, Practice, or Custom of “One Free Title IX Violation.” Plaintiff alleged that as a result of the University’s actions and inactions: (1) plaintiff was sexually harassed by another student; (2) University personnel had “actual knowledge” of harassment due to her visits to the Title IX office and her attempts to report the incidents to resident assistants, Title IX coordinators, and student misconduct officials; (3) the University and personnel were “deliberately indifferent” to the harassment; and (4) the harassment deprived plaintiff of access to educational opportunities and benefits. According to her allegations, plaintiff experienced multiple harassing encounters with another student and reported the onset of the harassment to the Student Misconduct Official, who took no action in response. Thereafter, plaintiff obtained a no-contact order and met with the University’s Title IX coordinator who purportedly failed to explain plaintiff’s rights, despite her request to submit a formal complaint. Then, she asserts that while her complaint regarding the initial incident was delayed for multiple months, plaintiff experienced additional harassment, which she reported to police but the University neither reprimanded the student for violating the no-contact order, nor informed plaintiff of her right to file another Title IX complaint. Subsequently, plaintiff moved out of her dorm for fear of her safety since the University declined to relocate the other student. Finally, plaintiff alleged that the Student Misconduct Official questioned the truthfulness of her allegations. The court found that plaintiff’s allegations, taken as true at this stage of litigation, constituted sufficient evidence of official University policy that is at least partly responsible for plaintiff’s second assault, including her claim that another student had also made sexual harassment reports against the student who allegedly harassed plaintiff, to which the University also allegedly failed to respond.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
10/4/2024
Agreement with Muhlenberg College re: Antisemitism Investigation (Sep. 30, 2024)
Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Muhlenberg College resolving a complaint that it responded inadequately to alleged harassment by a professor based on shared Jewish ancestry. The associated Resolution Letter noted that OCR recognizes the College’s responsiveness to notice it received regarding some incidents that could contribute to a hostile environment for students based on national origin, including shared ancestry; however, the College did not appear to have fulfilled its obligation under Title VI to address a possible hostile environment created by the Professor for students pertaining to the Professor’s social media posts and in-class discussion; additionally noting that the College appears not to have consistently fulfilled its obligation under Title VI with regard to other complaints of shared ancestry harassment, treating similar conduct differently. Through the Agreement, the College agreed to provide annual training to all employees and staff responsible for investigating complaints and other reports of discrimination, including harassment, based on shared ancestry or ethnic characteristics; conduct a survey of all staff that attend the required training to assess the effectiveness of the training; complete an investigation into whether actions by the Professor, based upon the totality of the circumstances, created a hostile environment for Jewish students on campus; administer a climate survey and create an action plan in response to any concerns raised in the survey; and provide OCR with documentation of the College’s response to any report of discrimination and/or harassment on the basis of shared ancestry during the 2024-2025 academic year.
Topics:
Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation

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