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  • Date:

    OCR Title IX Overview Page (updated July 31, 2024)

    U.S. Department of Education, Office for Civil Rights Title IX Overview Page. The overview page provides links to the 2024 Title IX regulations, the Department’s guidance documents related to the regulation, and links to earlier versions of the regulations. The page also notes in red type the current state of federal court orders enjoying the Department from enforcing the 2024 Final Rule, as well as the Department’s position that for states and schools subject to those injunctions the 2020 Title IX Final Rule remains in effect. The page is available via the shortcut ED.gov/TitleIX. 

    Topics:

    Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Students | Title IX & Student Sexual Misconduct

  • Date:

    People for the Ethical Treatment of Animals v. Tabak (D.C. Cir. July 30, 2024)

    Opinion reversing and directing entry of judgment in favor of the appellants. Plaintiff-appellants, People for the Ethical Treatment of Animals (PETA) and two animal rights activists who “frequently commented on the official Facebook and Instagram pages of appellee National Institutions of Health (NIH), criticizing NIH’s funding of research conducted on animals,” brought First Amendment claims against NIH challenging its use of keyword filters “to filter out comments containing words that frequently appeared in posts that it considered ‘off-topic,’ such as the terms ‘animal,’ ‘testing,’ and ‘cruel.’” The district court granted summary judgment in favor of NIH, “holding that NIH’s keyword filters were viewpoint-neutral and reasonable restrictions in a limited public forum.” In reversing and directing summary judgment in favor of the appellants, the D.C. Circuit held that “NIH’s off-topic restriction, as currently presented, is unreasonable under the First Amendment,” finding that (1) NIH’s assertion of its present list of off-topic keywords “defies common sense” in that a substantial number of the posts affected “either directly depict animals or discuss research conducted on animals;” (2) NIH provided no definition of “off-topic” to guide either its moderators or the public and no line at which repetitive off-topic posts become unacceptable; (3) its protocol was inflexible and unresponsive to the context by providing “little, if any, ability to ask NIH to restore” filtered comments; and (4) its position was “further compromised by the fact that NIH chose to moderate its comment threads in a way that skews sharply against the appellants’ viewpoint.”  

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Research | Social Media

  • Date:

    StandWithUs Ctr. For Legal Justice v. Mass. Inst. of Tech. (D. Mass. July 30, 2024)

    Memorandum and Order granting Defendant’s Motion to Dismiss. Plaintiffs, an association with members at the Massachusetts Institute of Technology (MIT) and two individual MIT students, brought Title VI deliberate indifference, 42 U.S.C. §1986 failure to prevent a conspiracy, and contract and negligence claims against the University, alleging that it responded inadequately to protests in the wake of the October 7, 2023, Hamas attack on Israel. In granting the University’s motion to dismiss the deliberate indifference claim, the court found that although the operative complaint “compellingly depicts a campus embroiled in an internecine conflict that caused Jewish and Israeli students great anguish,” the facts alleged were inconsistent with the assertion that the University’s response was “largely … one of inaction.” In dismissing the §1986 claim, the court found that although the complaint sufficiently alleged that the protesting groups had acted in concert, it failed to raise “a plausible inference that the groups agreed to plan the events ‘at least in part for the purpose of’ depriving plaintiffs of their civil rights.” The court declined to retain jurisdiction over the state-law claims.

    Topics:

    Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination

  • Date:

    Viewpoint Neutrality Now! v. Bd. of Regents of the Univ. of Minn. (8th Cir. July 25, 2024)

    Opinion affirming summary judgment in favor of the University. Plaintiffs, a student organization at the University of Minnesota-Twin Cities Campus and two individuals, sued the University alleging that the University’s 2011 allocation of lounge space in its student union building (renovated in 2013) to registered student organizations (RSOs) representing cultural minorities for “cultural centers” was viewpoint discrimination, or at least vested unbridled discretion in the University officials who allocated the space, in violation of the First Amendment. In affirming summary judgment in favor of the University, the Eight Circuit held that while the designation of space for RSOs representing cultural minorities was a content-based restriction on the use of the limited public forum, the process by which the space was allocated was reasonable, focused on status with no evidence suggesting the RSOs advocated a particular viewpoint, and left ample alternative channels in the form of space available by reservation or designated for common mixed use. It also affirmed that plaintiffs’ assertion of the unbridled discretion doctrine was misplaced because the University’s one-time space allocation decision in 2011 provided for space to be reassigned only if an occupant failed to comply with policies for two years in a row and did not constitute an annual reevaluation of space allocations.   

    Topics:

    Constitutional Issues | First Amendment & Free Speech | Student Organizations | Students

  • Date:

    Foley v. Drexel Univ. (E.D. Pa. July 25, 2024)

    Opinion granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, a tenured professor in the Department of English and Philosophy at Drexel University, brought discrimination and retaliation claims against the University and her department chair, alleging a pattern of “academic bullying” that “she contends is commonly perpetrated against productive female scholars.” In granting summary judgment in favor of the University on plaintiff’s hostile work environment claim, the court found that her assertions of class cancellations, questions about her promotion to full professor, delayed computer upgrades, and various academic slights were insufficient to raise a question of severe or pervasive harassment. It similarly found that her retaliation claims failed because she was unable to show that any of the allegedly retaliatory actions were either materially adverse or causally connected to her discrimination complaints. It permitted her to proceed on her Equal Pay Act claim, finding a dispute of fact as to whether the salary of a male colleague with a lower academic rank was due to his past service in administrative roles.

    Topics:

    Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Retaliation | Sex Discrimination

  • Date:

    NLRB Final Rule on Representation—Case Procedures (Aug. 1, 2024)

    National Labor Relations Board (NLRB) Final Rule on Representation—Case Procedures: Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships. The Board’s Fair Choice-Employee Voice 2024 Final Rule rescinds and replaces April 2020 amendments concerning treatment of petitions for Board-conducted representation elections during the pendency of an unfair labor practice charge, and after an employer’s voluntary recognition of a union as an employee majority-supported collective-bargaining representative. The 2024 Final Rule, thus, “return[s] the law” regarding both blocking charge policy and the voluntary-recognition doctrine “to that which existed prior to the adoption of the April 2020 rule.” It also rescinds an amendment governing construction industry-specific petitions for a Board-conducted representation election. The Final Rule is effective September 30, 2024.  

    Topics:

    Collective Bargaining | Faculty & Staff

  • Date:

    U.S. Dep’t of Education DCL re: Voluntary Disclosure of Hate Crime Sub-Categories (July 29, 2024)

    U.S. Department of Education, Office of Federal Student Aid Dear Colleague Letter (DCL) re: Voluntary Disclosure of Hate Crime Sub-Categories. Noting “heightened concerns about acts of hate on campuses,” “the Department reminds institutions that they may voluntarily provide information about hate crimes to members of their campus communities, beyond what the Clery Act requires to be reported.” The Department noted that “the Federal Bureau of Investigations’ (FBI’s) Hate Crime Statistics Data Collection identifies sub-categories that institutions can use if they choose to voluntarily provide such additional information separate and apart from their obligations under the Clery Act” and provided the list in the DCL.

    Topics:

    Campus Police, Safety, & Crisis Management | Clery Act | Sexual Misconduct

  • Date:

    ACE Issue Brief on Preparing for a Potentially Tumultuous Fall on Campus (July 31, 2024)

    American Council on Education (ACE) Issue Brief on “Preparing for a Potentially Tumultuous Fall on Campus: A Conversation with a Former President, a General Counsel, and a Campus Police Chief Who Have Been There Before.” In the Brief, ACE’s Peter McDonough facilitates a discussion amongst Frederick M. “Fred” Lawrence, Stephen S. “Steve” Dunham, and Steven J. Healy, who offer strategies to prepare for and respond to possible campus unrest during a Fall semester that will include the anniversary of the October 7th attack in Israel and a contentious U.S. presidential election. The Brief covers concerns surrounding safety, anti-harassment, and free speech and academic freedom and recommends campuses prioritize institutional mission, civil discourse, and building trust through campus engagement to simultaneously support the community and navigate heightened political criticism.   

    Topics:

    Campus Police, Safety, & Crisis Management | Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Student Speech & Campus Unrest | Students

  • Date:

    Michel v. Yale Univ. (2nd Cir. Aug. 7, 2024)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former student at Yale University filed a putative class action case raising promissory estoppel and unjust enrichment claims based on the University’s refusal to issue tuition refunds following the transition to online-only courses during the COVID-19 pandemic in 2020. The District Court granted the University’s motion for summary judgment as plaintiff failed to demonstrate how the transition to online-only classes caused financial detriment and barred him from recovering on claims of promissory estoppel and unjust enrichment. The case was subsequently dismissed in January of 2023. Upon appeal, the Circuit affirmed the District Court’s summary judgment ruling but for a different reason. The Second Circuit Court of Appeals held that plaintiff’s quasi-contract claims were barred by a “Temporary Suspension Provision” in the University’s undergraduate Regulations. Under these regulations (an enforceable force majeure clause that specifically addressed “public health concern”), the University had discretion in responding to the pandemic by transitioning to online-only classes without refunding students’ tuition. This enforceable force majeure clause absolved the University of liability regarding the temporary suspension of in-person classes.  

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    Kestenbaum v. President & Fellows of Harvard Coll. (D. Mass. Aug. 6, 2024)

    Memorandum and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss.  Plaintiffs, a recent Harvard graduate and Students Against Antisemitism, Inc., an association “founded to defend the rights of individuals ‘to be free from antisemitism in higher education,’” brought Title VI and contract claims against Harvard University, alleging that it responded inadequately to protests and other incidents in the wake of the October 7, 2023, Hamas attack on Israel. In permitting their Title VI deliberate indifference claim to proceed, the court found plaintiffs had sufficiently alleged multiple incidents in which the University’s response was “indecisive, vacillating, and at times internally contradictory,” as well as other incidents to which it did not respond. It held that the record was insufficient at this stage to rule on the University’s assertion that it had acted to avoid infringing on protected First Amendment activity. It dismissed plaintiffs’ direct discrimination claim for lack of an adequate comparator. Turning to their contract claims, the court ruled that two instances in which the University did not notify complainants of a decision to close or accept a complaint were sufficient to allege breach of a contract entailed in its complaint-handling procedures. It also held that assertion of “several instances in which students were penalized for violating various Harvard policies, but the students allegedly engaged in antisemitic conduct have not faced discipline,” though “insufficient to state a Title VI claim,” were sufficient to “sketch a claim that Harvard breached the implied covenant by failing to evenhandedly administer its policies.” 

    Topics:

    Contracts | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Religious Discrimination & Accommodation

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