Cases & Developments - National Association of College and University Attorneys

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Date:
7/12/2024
Corner Post, Inc. v. Board of Governors of the Federal Reserve System (U.S. July 1, 2024)
Opinion reversing the judgment of the Eighth Circuit. Corner Post, a truck stop and convenience store that opened in 2018, accepts payments via debit cards. In 2021, it joined a suit against the Board of Governors of the Federal Reserve System to challenge a regulation promulgated in 2011 under the Durbin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, alleging that the regulation permits payment networks to charger higher fees than allowed by the underlying statute. The district court dismissed the claim as time-barred under 28 U.S.C. §2401(a), which provides the default statute of limitations of “six years after the right of action first accrues” under the Administrative Procedure Act (APA). The Eighth Circuit affirmed, holding that “when plaintiffs bring a facial challenge to a final agency action, the right of action accrues, and the limitations period begins to run, upon publication of the regulation.” In reversing, the Supreme Court held that “[a]n APA claim does not accrue for purposes of §2401(a)’s 6-year statute of limitations until the plaintiff is injured by final agency action” and “[b]ecause Corner Post filed suit within six years of its injury, §2401(a) did not bar its challenge.”
Topics:
Litigation, Mediation & Arbitration
Date:
7/12/2024
Moody v. NetChoice, LLC (U.S. July 1, 2024)
Opinion vacating the judgment of the Fifth and Eleventh Circuits and remanding. NetChoice, a trade association that includes Facebook and YouTube, brought facial challenges to statutes enacted in 2021 by Florida and Texas regulating content moderation by large social-media companies “restricting covered platforms’ choices about whether and how to display user-generated content to the public” and requiring platforms to give individualized explanations of their reasons for content-moderation choices. The district courts granted preliminary injunctions. The Eleventh Circuit affirmed, while the Fifth Circuit reversed. The Supreme Court vacated, holding that the courts below failed to properly assess the scope of the facial challenges to the laws at issue, instead addressing how they applied to Facebook and YouTube in particular. The Court clarified that when “platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices” entitled to First Amendment protection. It further held that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.”
Topics:
Constitutional Issues | First Amendment & Free Speech | Social Media
Date:
7/12/2024
Loper Bright Enterprises v. Raimondo (U.S. June 28, 2024)
Opinion vacating the judgment of the D.C. and First Circuits and remanding. Petitioners in this and the related case, Relentless v. Department of Commerce, challenged a National Marine Fisheries Service rule requiring operators of fishing vessels in the Atlantic herring fishery to cover the cost of carrying federal observers on their vessels to collect data to protect against overfishing. The Magnuson-Stevens Fishery Conservation and Management Act provides for the observers, but it is silent as to whether the Service may require vessel owners to pay for the cost. Both districts granted summary judgment in favor of the Service, and the Circuit Courts affirmed, affording the agency deference under the doctrine announced in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (U.S. 1984) requiring courts reviewing agency regulation that fills a gap where the authorizing statute is either silent or ambiguous to defer to the agency’s interpretation so long as that interpretation is based on a permissible construction. The Supreme Court vacated the judgment of the Circuit Courts and overruled Chevron, finding that the Administrative Procedure Act (APA) “incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions” and that Chevron “cannot be squared with the APA.” It held that “courts need not and under the APA may not defer to agency interpretation of the law simply because a statute is ambiguous.”
Topics:
Constitutional Issues
Date:
7/12/2024
City of Grants Pass, Oregon v. Johnson (U.S. June 28, 2024)
Opinion reversing the judgment of the Ninth Circuit and remanding. Grants Pass, Oregon maintains ordinances prohibiting individuals from sleeping or camping on public property, including in public parks. Two individuals experiencing homelessness brought a class action challenge to these ordinances, asserting that they violate the Eight Amendment’s Cruel and Unusual Punishments Clause, citing the Ninth Circuit’s precedent in Martin v. Boise (9th Cir. 2019), which held that the Eighth Amendment “barred Boise from enforcing its public-camping ordinance against homeless individuals who lacked ‘access to alternative shelter.’” Citing Martin, the district court certified the class action and enjoined Grants Pass from enforcing the ordinance against individuals experiencing homelessness, and the Ninth Circuit affirmed. In reversing the judgment of the Ninth Circuit, the Supreme Court found “the Eight Amendment a poor foundation on which to rest the kind of decree the plaintiffs seek … and the Ninth Circuit has endorsed since Martin,” noting that “[t]he Cruel and Unusual Punishments Clause focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize behavior in the first place or how it may go about securing a conviction for that offense.”
Topics:
Constitutional Issues
Date:
7/12/2024
Murthy v. Missouri (U.S. June 26, 2024)
Opinion reversing the judgment of the Fifth Circuit and remanding. Plaintiffs, Missouri, Louisiana, and five individual social-media users, sued “dozens of Executive Branch officials and agencies,” alleging that they had violated the First Amendment by encouraging or coercing various social media platforms, including Facebook and Twitter, to remove, demote, or otherwise treat as “misinformation” many of plaintiffs’ postings related to COVID-19 vaccines and policy and the 2020 elections. The district court granted a sweeping preliminary injunction, and the Fifth Circuit affirmed, though it limited the injunction to provide that “defendants, and their employees and agents, shall not ‘coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including though altering their algorithms, posted social-media content containing protected free speech.’” The Supreme Court stayed the injunction and granted certiorari. In reversing the judgment of the Fifth Circuit, the Supreme Court held that plaintiffs lacked standing to seek injunction against the defendants, finding that plaintiffs had not made a clear showing that (1) the alleged injuries were the result of the defendants’ actions rather than the independent content moderation practices of the platforms or (2) there is a substantial risk that they would face similar alleged restrictions in the near future.
Topics:
Constitutional Issues | First Amendment & Free Speech | Social Media
Date:
7/12/2024
Johnson v. Nat’l Collegiate Athletic Ass’n, et al. (3rd Cir. July 11, 2024)
Opinion on interlocutory appeal affirming-in-part denial of Defendants’ Motion to Dismiss. Plaintiffs, student-athletes at several NCAA Division I member schools, on behalf of themselves and a putative class, brought FLSA and unjust enrichment claims against the NCAA and multiple member schools, seeking unpaid wages, liquidated damages, and attorneys’ fees. The district court denied defendants’ motion to dismiss, rejecting the assertion that as amateurs the athletes could not as a matter of law be classified as employees. It held that plaintiffs had pleaded sufficient facts under the multifactor balancing test from Glatt v. Fox Searchlight Pictures, Inc. (2nd Cir. 2016), which considered when unpaid interns may be entitled to compensation under the FLSA, to proceed with their claim. On interlocutory appeal, the Third Circuit affirmed denial of the motion to dismiss but vacated the application of the Glatt test in favor of a common-law economic realities analysis. In distinguishing the instant question from the internship context in Glatt, the court noted that “interscholastic athletics are not part of any academic curriculum” and “the educational and vocational benefits of college athletics cited by Appellants as alternative forms of remuneration (increased discipline, a stronger work ethic, improved strategic thinking, time management, leadership, and goal setting skills, and a greater ability to work collaboratively) are all exactly the kinds of skills one would typically acquire in a work environment.”
Topics:
Athletics & Sports | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Student Athlete Issues | Students
Date:
7/12/2024
Texas v. United States (N.D. Tex. July 11, 2024)
Memorandum Opinion and Order granting-in-part Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, the state of Texas and two professors, challenged the Department of Education’s new Title IX Final Rule and sought preliminary injunction, alleging that it exceeds the statutory authority of Title IX, is arbitrary and capricious, and violates the First Amendment. In granting the injunction, the court found that plaintiffs were likely to succeed on the merits of their claims that (1) the Department’s extension of the definition of sex-based discrimination to include discrimination on the basis of sexual orientation or gender identity exceeds statutory authority under Title IX and is arbitrary and capricious; (2) the Final Rule’s ambiguity as to whether “misgendering” creates a hostile environment or is sex-based harassment would chill the professors’ protected speech in violation of the First Amendment; (3) the requirement that Texas provide insurance coverage for abortions in violation of its own law is arbitrary and capricious; and (4) several provisions on grievance procedures are arbitrary and capricious in their departure from due process, including permitting a single-investigator model, ambiguity as to whether schools must give parties access to evidence, and making live hearings and questioning optional. The injunction is limited to the state of Texas and the two individual plaintiffs.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
7/12/2024
Hofmann v. Long Island Univ. (2nd Cir. July 2, 2024) (unpub.)
Summary Order affirming dismissal. Plaintiff, a student at Long Island University during Spring 2020, brought contract, unjust enrichment, conversion, and deceptive business practices and false advertising claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court dismissed his claims. In affirming, the Second Circuit held that his contract claim failed because the University’s bulletin contained an express force majeure clause and his unjust enrichment claim failed as duplicative of his contract claim. His conversion claim failed because he had not alleged a specific portion of his tuition and fees that had been directed to remote instruction and because it relied on the same factual allegations as his contract claim. His deceptive business practices and false advertising claims failed because he had not identified any materially misleading statement suggesting that an “on-campus experience would remain indefinitely in place, even if burdened by events … such as a global pandemic,” particularly in light of the LIU bulletin’s force majeure clause.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
7/12/2024
Kansas v. U.S. Dep’t of Education (D. Kan. July 2, 2024)
Memorandum and Order granting Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs, the states of Kansas, Alaska, Utah, and Wyoming, three organizations with student members in the plaintiff states and beyond, and one female middle school student from Oklahoma, sought to enjoin the Title IX Final Rule, alleging that the Department impermissibly defined “sex discrimination” to include discrimination on the basis of gender identity. The court found that plaintiffs were likely to succeed in their claims that (1) the definition is inconsistent with the meaning of “sex” in the statute; (2) the Department violated the major questions doctrine by attempting to regulate on an issue of vast economic and political significance without clear statutory authority; (3) it violated the Spending Clause because Congress had not put recipients on notice that sex discrimination includes gender identity; (4) the Final Rule is impermissibly vague and overboard because it subjects the plaintiff organizations’ members to potential investigation and discipline for expressing their beliefs about gender identity and transgender issues, thereby likely chilling their speech; and (5) the Final Rule is arbitrary and capricious. The court enjoined the entire rule as to the plaintiff States, the individual plaintiff, and all schools attended by individual members of the plaintiff organizations or their minor children. The plaintiff organizations have until July 15, 2024, to file notice in the record of the schools their members attend.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
7/12/2024
Idaho Federation of Teachers v. Labrador (D. Idaho July 2, 2024)
Memorandum Decision and Order denying Plaintiffs’ Motion for Preliminary Injunction and granting Defendants’ Motion to Dismiss. Plaintiffs, individual university professors and teachers’ unions with members in the state of Idaho, brought free speech and vagueness challenges to Idaho’s No Public Funds for Abortion Act, which provides that no public funds may be used to “promote abortion” or “counsel in favor of abortion” and imposes criminal penalties for public employees who violate the prohibition. The Attorney General of Idaho, however, issued an opinion letter stating that academic speech does not fall under the Act and would not be prosecuted. In denying preliminary injunction and granting defendants’ motion to dismiss, the court found that without a risk of prosecution plaintiffs failed to demonstrate injury or redressability to establish standing.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech

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