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  • Date:

    American Bar Association Formal Opinion 512 on Generative Artificial Intelligence Tools (Jul. 29, 2024)

    Formal opinion from the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility regarding Generative Artificial Intelligence Tools. The opinion discusses lawyers’ ethical obligations to ensure clients are protected, and asserts that counsel using generative artificial intelligence tools must fully consider their applicable ethical obligations, including their duties to provide competent legal representation, to protect client information, to communicate with clients, to supervise their employees and agents, to advance only meritorious claims and contentions, to ensure candor toward the tribunal, and to charge reasonable fees.  

    Topics:

    Ethics | Technology

  • Date:

    Doe v. Fla. Gulf Coast Univ. Bd. of Trs. (11th Cir. Sep. 18, 2024) (unpub.)

    Opinion affirming the district court’s judgment to deny Defendant’s Motion to Proceed Anonymously. Plaintiff, a student at Florida Gulf Coast University (FGCU), brought due process, breach of contract, and a Title IX erroneous outcome claim against the University after he was found responsible for alleged sexual misconduct from 2019. Plaintiff claimed that FGCU should have applied its policy as amended by the 2020 Regs, which would have afforded him the right to receive a copy of the investigative report and to cross examine complainant, to its investigation. Because his allegations against FGCU included information about his underage drinking and drug use, as well as pertaining to potential exposure to a sexual infection, plaintiff sought to proceed anonymously. The district court denied his request for anonymity, and plaintiff sought appellate review under the collateral orders doctrine. Relying on Doe v. Frank for the proposition that “courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff’s identity may cause her to ‘suffer some personal embarrassment,’” the Eleventh Circuit reasoned that neither the inclusion of medical information regarding potential exposure to sexual infection nor underage drug and alcohol use, and attendant risks of either social stigma or potential prosecution, respectively, outweighs the presumption that parties ought to proceed publicly. The Court also found that although plaintiff’s suit is against a public entity, the “government-activity factor” did not weigh in his favor, since FGCU was not acting as the government “in the traditional sense.”  

    Topics:

    Students | Title IX & Student Sexual Misconduct

  • Date:

    Diei v. Boyd (6th Cir. Sep. 17, 2024)

    Opinion partially reversing dismissal and remanding. Plaintiff, a former pharmacy student at the University of Tennessee Health Science Center College of Pharmacy brought claims asserting violation of the First Amendment against the University President, members of the University Board of Trustees, and the Dean of the College of Pharmacy after she was twice investigated for alleged violation of the College’s professional standards due to anonymous complaints about posts to her pseudonymous social media accounts. After the second investigation deemed her posts “sexual,” “crude,” and “vulgar” in violation of the College’s “Standards for Student Professionalism Conduct” – and although the Dean reversed the Committee’s decision to dismiss plaintiff from her studies – plaintiff sought declaratory relief and an injunction blocking the continued application of the College’s Professionalism Policies, which she alleged are vague and overly broad, as well as damages. The University sought dismissal and attached documents to their motion. While those motions were pending, plaintiff graduated from the College, and the University sought to dismiss her nonmonetary claims as moot. The district granted both motions, and in doing so relied upon the attachments to the first motion to dismiss. The Sixth Circuit reversed in part, and conducted a de novo review of the remaining monetary damages claims, disregarding the “inappropriate attachments” considered by the district court in its ruling on the first motion pursuant to Fed. R. Civ. P. 12(b)(6). The Sixth Circuit distinguished Yoder v. Univ. of Louisville, wherein a nursing student was expelled for inappropriate blog posts that both identified her as a student and violated the confidentiality of her patients, reasoning that in the instant case, plaintiff’s pseudonymous “speech did not identify her with the college, had no connection to her studies, and did not lead to disruption” and therefore, absent “a genuine educational purpose for regulating plaintiff’s speech [on sexuality, fashion, and song lyrics], her communications fell safely within the confines of the First Amendment protection.” Allowing that postsecondary institutions maintain legitimate pedagogical “interest[s] in teaching students to comply” with professional standards, the Court ruled that the University’s potentially applicable policies were not properly before them or the lower court since they were beyond the four corners of the complaint. The Court also found that plaintiff plausibly alleged that the University’s multiple investigations into her speech, vote to expel her, and implication that continued speech could compromise her professional studies were sufficiently chilling to survive dismissal, and thus, remanded plaintiff’s First Amendment damage claims.  

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Social Media

  • Date:

    Whetstone v. Howard Univ. (D. D.C. Sep. 12, 2024)

    Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former employee at Howard University brought claims under the Employee Retirement Income Security Act alleging violations of the joint and survivor annuity (JSA) actuarial equivalence requirement and the definitely determinable rules requirement, as well as breach of fiduciary duty against the University and the University’s Retirement Plan Committee. Plaintiff asserted that the University violated the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 by using outdated formulas to calculate benefits paid out to eligible University retirees. Plaintiff alleged that the University’s retirement Plan used “antiquated actuarial assumptions” while reliance upon “reasonable actuarial assumptions” in the form of the Treasury Department’s preferred numbers to make a horizontal conversion would increase his monthly payout by $17.99 (about 3%). The court permitted plaintiff’s claims for violation of JSA actuarial equivalence requirements to proceed, finding a narrow challenge to the horizontal conversion from a straight life annuity (SLA) to a JSA sufficient to allege financial harm. In allowing plaintiff’s breach of fiduciary duty requirements to proceed, the court found “a violation of one of ERISA’s substantive requirements-like the actuarial equivalence standard-can constitute a breach of fiduciary duty.” The court dismissed plaintiff’s claim for violation of the definitely determinable rules requirement under ERISA as time barred.  

    Topics:

    Employee Benefits | Employee Retirement Income Security Act (ERISA) | Faculty & Staff

  • Date:

    Vengalattore v. Cornell Univ. (N.D. N.Y. Sep. 10, 2024)

    Decision and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former tenure-track Assistant Professor at Cornell University, brought Title IX, Title VI (national origin), and defamation claims against the University based on alleged flaws in an investigation that resulted in a finding that the plaintiff had violated the University’s Policy on Romantic and Sexual Relations Between Students and Staff. In allowing plaintiff’s Title IX claims to proceed, the court categorized plaintiff’s claim as one for “erroneous outcome” finding that there were disputes of material fact regarding if the University departed from proper procedure in application of timelines within its investigatory process; if the failure to interview additional witnesses identified by plaintiff rose to the level of evidentiary infirmities in the University’s findings; and in maintenance of confidentiality between the misconduct and tenure review processes. The court allowed plaintiff’s gender bias claims to proceed given the evidence alleged an “atmosphere of public pressure” and suggested that a reasonable jury could infer anti-male gender bias from the combined alleged procedural irregularities and external pressure to correct perceived tolerance of sexual misconduct. The court dismissed plaintiff’s defamation claim finding that he himself published the alleged defamatory content when he publicly filed a petition seeking review of his denial of tenure under New York’s Article 78.  

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Faculty & Staff | Sex Discrimination | Students | Tenure | Title IX & Student Sexual Misconduct

  • Date:

    Public Health Service Policies on Research Misconduct (Sep. 17, 2024)

    The U.S. Department of Health and Human Services Office of Research Integrity (ORI) published a Final Rule revising the regulations governing Public Health Service Policies on Research Misconduct. The purpose of the Rule is to implement policy changes and respond to technological changes that occurred over the past several years applicable to research misconduct. The Rule establishes requirements for addressing research misconduct in Public Health Services (PHS) funded research, further clarifies ORI’s regulatory oversight responsibility, and outlines the role of PHS-funded organizations in establishing research integrity. The Rule goes into effect January 1, 2025, and all regulatory requirements are applicable beginning on or after January 1, 2026.  

    Topics:

    Contracts | Grants, Contracts, & Sponsored Research | Research | Research Misconduct

  • Date:

    Documentation Requirements for Mandatory and Discretionary Trigger Reporting Under Financial Responsibility (Sep. 17, 2024)

    U.S. Department of Education, Office of Postsecondary Education published documentation requirements for mandatory and discretionary trigger reporting under Financial Responsibility. The Announcement provides information on the suggested documentation that institutions may provide to fulfill the reporting requirements that went into effect July 1, 2024, and details that institutions are required to report triggers for conditions that exist as of July 1, 2024, regardless of when the circumstance first occurred. The Department plans to treat triggers that would otherwise be mandatory as discretionary triggers under 34 CRF 668.171(d)(14) if the relevant circumstance began prior to July 1, 2024, and is still in effect, and will be determined on a case-by-case basis whether in those circumstances the institution is able to meet its financial or administrative obligations. Finally, the Announcement further clarifies that institutions must report triggers that first began prior to July 1, 2024, but that were still in effect as of July 1. Institutions have 21 days from the date of the Announcement to report such triggers. 

    Topics:

    Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Students

  • Date:

    Comprehensive Policy Letter to Presidential Candidates (Sep. 11, 2024)

    Letter from the American Council on Education to the current U.S. Presidential Candidates outlining several proposals to adopt once in office. The proposals review the top concerns in the categories of making college affordable; supporting students; advancing research; campus safety; Title IX; and Higher Education Tax Policy. The letter goes into further detail about increasing the purchasing power of the Pell Grant; increased federal funding for Student Mental Health; repealing the taxability of scholarship and grant aid; and improving Visa processing.  

    Topics:

    Accreditation, Authorizations, & Higher Education Act

  • Date:

    Josephson v. Ganzel (6th Cir. Sep. 10, 2024)

    Memorandum Opinion affirming the district court’s denial of Defendants’ Motion for Summary Judgment. Plaintiff, a former professor of psychiatry and Division Chief at the University of Louisville School of Medicine (the Medical School) brought claims alleging retaliation in violation of his First Amendment rights against multiple administrators at the Medical School. In 2017, after plaintiff shared his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank, which led to dissention amongst faculty, the Medical School first demoted him and then, did not renew his employment contract. The Sixth Circuit affirmed the district court’s rejection of the Medical School’s immunity defenses, finding that Plaintiff’s request for reinstatement as a faculty member and expungement of any reference to nonrenewal from him personnel file, are prospective in nature, and thus, not barred by Eleventh Amendment. The Circuit also found the Medical School was not entitled to qualified immunity since protections for Plaintiff’s speech were clearly established at the relevant time, and that a reasonable jury could find retaliation occurred where (1) Plaintiff participated in the off campus, privately funded panel in his individual rather than official capacity, which a moderator specifically advised attendees about prior to Plaintiff voicing his own views regarding treatment of children with gender dysphoria, which is a matter of public concern; (2) limited evidence supported that Plaintiff’s remarks yielded disharmony amongst his colleagues, including when he stormed out of a contentious faculty meeting, but that the Medical School produced no evidence that the remarks otherwise impacted either patient care or recruitment of other personnel and thus no “significant disruption” occurred; and (3) genuine factual disputes remained regarding whether Plaintiff’s demotion and subsequent termination was due to poor performance or his protected speech.  

    Topics:

    Academic Freedom & Employee Speech | Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation

  • Date:

    Santa Maria v. Loyola Univ. of Chi. Stritch Sch. of Med. (N.D. Ill. Sep. 9, 2024)

    Opinion and Order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiff, a former medical student at Loyola University of Chicago Stritch School of Medicine, who suffers from depression, anxiety, and ADHD brought claims of disability discrimination, retaliation, breach of implied contract, IIED, and negligence against the University and The National Board of Medical Examiners (NBME), after she failed a required exam three times, and was dismissed from the program. After a successful administrative appeal, Plaintiff was reinstated at the University with conditions to ensure she passed the exam during a subsequent attempt. Prior to retaking the exam, Plaintiff sought and received accommodations from NBME, about which she notified the University. Plaintiff alleges that as part of her reinstatement the University agreed to set up an eight-week study period and monthly meetings with the Dean to help her prepare to retake the exam, but that these supports were either only partially provided or were not provided in a timely manner, which meant that she could not utilize the NBME’s accommodation allowing her to space the two modules of the exam out by 14 days, causing her to fail the exam, and leading to a second dismissal for failure to complete the terms of her readmission. The court declined to dismiss the discrimination claims, reasoning that based upon the language of the reenrollment letter, the University recognized Plaintiff as a well-performing student except for when her disabilities presented challenges, and that if Plaintiff had no disability, she would not have failed her exams, and the University would not have offered reenrollment on specified terms. The court permitted Plaintiff’s contract claim to proceed, stating that the University “cannot use [the provision requiring plaintiff to pass the exam on her first attempt] to argue that [plaintiff] failed to perform an obligation it could not require her to fulfill.” The court dismissed Plaintiff’s negligence claim as duplicative of her claim for breach of contract, and her IIED claim reasoning that she failed to demonstrate that the University’s actions were “extreme and outrageous.” 

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation

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