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  • Date:

    Cordero v. Mont. State Univ. (Mont. Aug. 6, 2024)

    Opinion affirming the judgment of the District Court. Plaintiff, a former student at Montana State University, requested prorated reimbursement of his tuition and fees from the University after it transitioned to online learning due to the COVID-19 pandemic in 2020. The District Court granted summary judgment in favor of the University in 2023, and plaintiff appealed the judgment arguing the University had “an express contractual duty to provide in-person and on-campus education and services” and the District Court erred when it dismissed his implied contract claim and unjust enrichment claim. The Supreme Court of Montana affirmed the District Court’s judgment but on different grounds. Contrary to the District Court, the Supreme Court of Montana determined that there was an express contract between plaintiff and the University through the plaintiff’s application. However, the contract did not include an express promise to provide an “in-person on-campus educational experience” and consequently, the contract was not breached. Because the court determined there was an express written contract, plaintiff is unable to recover under his claims of an implied contract and unjust enrichment as an alternative cause of action under M. R. Civ. P. 12(b)(6). 

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    Update: Texas v. Cardona (N.D. Tex. Aug. 5, 2024)

    Memorandum Opinion and Order granting Plaintiff’s Motion for Summary Judgment. Plaintiff, the State of Texas, sued seeking vacatur and permanent injunction on implementation or enforcement of the U.S. Department of Education’s 2021 Notice of Interpretation, Dear Educator Letter, and Fact Sheet (the “Guidance Documents”), which cited the Supreme Court’s decision in Bostock v. Clayton County to interpret the nondiscrimination protections of Title IX to prohibit discrimination on the basis of gender identity and sexual orientation. In granting summary judgment in favor of the State and awarding the requested relief, the court first held that the Guidance Documents are contrary to law and exceed the Department’s authority, finding that (1) the statutory text uses “sex” to mean biological sex and “identifies many situations in which differential treatment and separation is permissible;” (2) the Guidance Documents conflict with or undermine provisions of Title IX; and (3) the Department exceeded the clear-statement requirement of the Spending Clause to give the States congressional notice of their obligations and attempted to decide a major question properly left to Congress. It rejected the Department’s application of the underlying reasoning of Bostock to Title IX, noting that “Bostock stated without equivocation that it’s holding only applies to Title VII.” It further held that the Guidance Documents “constitute a substantive rule—rather than interpretive statements—subject to the APA’s notice and comment rulemaking process.”  The court enjoined the Department from implementing or enforcing the interpretation “against Plaintiff and its respective schools, school boards, and other public, educationally based institutions.” Update: On August 5, 2024, the court updated its order to provide, “This scope of this relief SHALL NOT extend to pending cases involving Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 Fed. Reg. 33,474 (Apr. 29, 2024) (to be codified at 34 C.F.R. § 106 on August 1, 2024).” 

    Topics:

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

  • Date:

    Butler v. Collins (5th Cir. Aug. 2, 2024)

    Opinion certifying a question to the Supreme Court of Texas. Plaintiff, a former law professor at Southern Methodist University sued the University and several individual administrators claiming negligent supervision, fraud, defamation, conspiracy-to-defame, as well as Texas common-law claims for breach of contract, and several statutory claims after being denied tenure in 2016. The District Court dismissed the action for failure to state a claim. On appeal, plaintiff challenged the District Court’s judgment that the Texas Commission on Human Rights Act (TCHRA) preempts her fraud, defamation, and conspiracy-to-defame claims. In light of inconsistent precedent and unsure of whether tort claims asserted against employers can extend to harmful workplace conduct, the United States Court of Appeals for the Fifth Circuit certified the following question to the Supreme Court of Texas: “Does the Texas Commission on Human Rights Act [], Texas Labor Code § 21.001, et seq., preempt a plaintiff-employee’s common law defamation and/or fraud claims against another employee to the extent that the claims are based on the same course of conduct as discrimination and/or retaliation claims asserted against the plaintiff’s employer?” The Fifth Circuit otherwise retained the appeal, held in abeyance pending response from the Supreme Court of Texas. 

    Topics:

    Faculty & Staff | Litigation, Mediation & Arbitration | Tenure | Tort Litigation

  • Date:

    Doe v. Syracuse Univ. (N.D. N.Y. Aug. 2, 2024)

    Decision and Order granting-in-part and denying-in-part Defendant’s Partial Motion to Dismiss. Plaintiff, a former student and lacrosse player at Syracuse University, brought Title IX retaliation, contract, and negligence claims against the University, alleging inadequate responses to violence in her “on-again-off-again relationship” with a male lacrosse player, particularly following an incident in April 2021 for which the male lacrosse player was eventually arrested. In dismissing her negligent hiring, retention, and supervision claims, the court found plaintiff failed to allege either that (1) the University did not “maintain or keep its student housing safe from intruders” or that her assailant, whom she let into her room, was an intruder, or (2) that the University was aware of any ongoing criminal conduct against her or other students that it failed to curb. In permitting her contract claim to proceed, the court found plaintiff had sufficiently alleged that the University breached (1) provisions of its student handbook regarding No Contact Orders (NCOs) when it removed the NCO between plaintiff and her assailant even though she had reported a past incident of domestic violence, and (2) the terms of its MOU between its Public Safety Department (Safety) and the Syracuse Police Department (Police) when Safety reported an alleged on-campus incident between plaintiff and her assailant to Police a week later rather than immediately as provided in the MOU.   

    Topics:

    Discrimination, Accommodation, & Diversity | Litigation, Mediation & Arbitration | Retaliation | Students | Title IX & Student Sexual Misconduct | Tort Litigation

  • Date:

    Flores v. Bennett (E.D. Cal. Aug. 2, 2024)

    Entry of Permanent Injunction, Judgment, and Order in favor of Plaintiffs. Plaintiffs, three individual students at Clovis Community College and the Young Americans for Freedom at Clovis Community College (YAF), sought a preliminary injunction in their First Amendment challenge to the College’s Flyer Policy after officials permitted them to post pro-life flyers on designated “Free Speech Kiosks” but not on bulletin boards reserved for student materials. The policy permitted Student Center staff to withhold posting permission for materials that contain “inappropriate or offensive language or themes.” The parties entered into a Settlement Agreement resulting in State Center Community College District and its subsidiary colleges and educational centers being “permanently enjoined from enforcing, by policy or practice, any unlawful viewpoint-discriminatory, overbroad, or vague regulation, or prior restraint, on the content of the speech of recognized student clubs, including but not limited to bans on ‘inappropriate’ or ‘offensive’ language; using or further instituting the use of the prior Poster/Flyer Instructions; and mandated to adopt and implement the Replacement Posting Procedure.” 

    Topics:

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

  • Date:

    Doe v. Emory Univ. (11th Cir. Aug. 1, 2024)

    Opinion partially affirming dismissal and partially reversing. Plaintiff, a former student at Emory University who was suspended for one semester after being found responsible for alleged sexual misconduct that took place in April of 2019, brought a Title IX claim against the University, alleging “(1) that the university’s investigation was plagued by procedural and evidentiary irregularities, (2) that members of the disciplinary panel that decided his case made statements indicating anti-male bias, and (3) that the university faced-and caved to-overwhelming public pressure to credit female accusers over male suspects.” The district court dismissed the claim on the ground that his allegations reflected “pro-complainant bias,” and did not “plausibly” allege “pro-female bias.” While the district court dismissed Plaintiff’s contract-based claims on the ground that he failed to allege the parties agreed to terms, the Circuit reversed finding he “explicitly alleged mutual assent” through his matriculation to the University and being bound by the “Policy 8.2 Sexual Misconduct document.” The Circuit affirmed dismissal of the Title IX discrimination claim. The court relied heavily on Doe v. Samford Univ., 29 F.4th 675 (11th Cir. Mar. 24, 2022), in coming to their conclusion, citing substantial similarities between the two cases and reiterating the need for plaintiffs’ allegations to cross the line from “possibility” to “plausibility.” 

    Topics:

    Contracts | Students | Title IX & Student Sexual Misconduct

  • Date:

    Jorjani v. N.J. Inst. of Tech. (D. N.J. July 29, 2024)

    Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a former full-time philosophy lecturer at New Jersy Institute of Technology (NJIT), brought a First Amendment retaliation claim against the Institute when his contract was not renewed following revelations that he had founded an organization called the “AltRight Corporation” and published views advocating white supremacy. An investigation conducted while he was on paid administrative leave found that he had violated the New Jersey ethics code by not disclosing “that he was a founder, director, and shareholder of the AltRight Corporation,” he had inaccurately asserted that a New York Times video of him discussing his views had been misleadingly edited, and he had cancelled 13 classes in Spring 2017 without informing his department while “exhibit[ing] a clear pattern of non-responsiveness” to communications throughout his employment. In granting summary judgment in favor of NJIT, the court held under the Pickering balancing test that plaintiff’s speech “does not merit protection under the First Amendment,” noting particularly that “Plaintiff’s speech did not merely cause offense—it disrupted (and was likely to further disrupt) NJIT’s administration, interfered with NJIT’s mission to effectively provide a hostile-free learning environment for its students, and impeded Plaintiff’s ability to effectively perform his teaching duties.” 

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation

  • Date:

    NLRB GC Memo re: Clarifying Disclosure Obligations under the NLRA and FERPA (Aug. 6, 2024)

    National Labor Relations Board (NLRB) General Counsel (GC) Memo re: Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA). The memo notes that private colleges and universities may have obligations under the NLRA to provide a collective-bargaining representative with information about student-workers, which is otherwise protected under FERPA. The memo provides guidance on the process by which institutions should respond to information requests, including to determine whether requested information is covered by FERPA, the duty to “offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution of the matter,” and to abide by any agreements reached regarding furnishing records. The memo also counsels that institutions covered by FERPA might also include a FERPA consent form “in paperwork to be completed by a student-employee upon onboarding of employment,” and provides a suggested FERPA Template Consent Form.   

    Topics:

    Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Family Educational Rights and Privacy Act (FERPA) | Privacy & Transparency

  • Date:

    U.S. Dep’t of Education, FSA Announcement re: Draft FVT/GE Completers List (Aug. 5, 2024)

    U.S. Department of Education, Office of Federal Student Aid Electronic Announcement re: Draft FVT/GE Completers List Now Available. This Electronic Announcement notes that the Department has made the draft Financial Value Transparency and Gainful Employment (FVT/GE) Completers List available to schools. The list “identifies all relevant students who completed a GE and Eligible Non-GE program” for the relevant cohort periods. “Schools have a 60-day period to review and correct student information on the draft FVT/GE Completers List.” The correction period began Aug. 6, 2024, and closes on Oct. 5, 2024.   

    Topics:

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

  • Date:

    OCR Resolution Agreement with Drexel University re: Title VI Compliance (July 31, 2024)

    Resolution Agreement between the U.S. Department of Education, Office for Civil Rights (OCR) and Drexel University resolving a complaint that it responded inadequately to alleged discrimination based on shared Jewish ancestry. The associated Resolution Letter noted (1) thirty-five reports/complaints concerning alleged harassment and/or discrimination based on shared Jewish ancestry from October 2022 through January 2024 and (2) that “OCR recognizes that the University took important steps to address a possible hostile environment at the campus.” Through the Agreement, the University agreed to review its policies and procedures; continue to provide training to employees and provide training to all faculty, staff, and students; provide OCR with documentation of the University’s spring 2024 and winter 2025 climate survey results as well as the University’s response to each report of discrimination and/or harassment on the basis of shared ancestry for the 2022-2023 and 2023-2024 school years and information regarding its investigations of reports of alleged discrimination for the 2024-2025 and 2025-2026 academic years.   

    Topics:

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

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