Login
Home  |  Legal Resources  |  Publications

Cases & Developments

FILTERS

Find by DATE
Reset

Latest Cases & Developments

  • Date:

    Tapinekis v. Pace Univ. (2nd Cir. May 30, 2024) (unpub.)

    Summary Order affirming judgment on the pleadings.  Plaintiff, a student at Pace University during spring 2020, on behalf of herself and a putative class, brought contract, unjust enrichment, deceptive acts or practices, and false advertising claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic.  In affirming dismissal of plaintiff’s implied contract claim as to tuition, the Second Circuit held that the “Emergency Closings” provision in the University’s Academic Catalog “served as a valid force majeure clause.”  It similarly held that plaintiff’s claim that she was forced to vacate campus housing failed because she did not dispute that the University permitted students to remain in its residence halls if needed.  It affirmed dismissal of the unjust enrichment claims as duplicative of the contract claims.  Finally, it affirmed dismissal of her claims under the New York Business Law, noting that she failed to allege a materially misleading act or omission.   

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    NACUBO On Your Side (June 3, 2024)

    Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from May 21-June 3, 2024.  This summary highlights the Department of Education’s Office of Civil Rights (OCR) report that it saw a record number of complaints in 2023; ED’s announcement of steps to “modernize” the Office of Federal Student Aid (FSA); FSA’s reprocessing of FAFSA Forms affected by recent processing issues; the announcement by the NCAA and five athletics conferences of a settlement, which must still be approved by a federal judge and the full details of which have yet to be announced, that would allow colleges to compensate student-athletes for name, image, and likeness; NACUBO’s advocacy with the American Council on Education (ACE) for Congress to improve the FAFSA; and calls from the Student Aid Alliance (SAA) for increased funding in Fiscal Year 2025.   

    Topics:

    Accreditation, Authorizations, & Higher Education Act

  • Date:

    Pearson Foundation v. The Univ. of Chi. (N.D. Okla. June 5, 2024)

    Memorandum and Order granting Defendant’s Supplemental Motion for Partial Summary Judgment.  Plaintiff, the Thomas L. Pearson and Pearson Family Foundation, brought contract and breach of duty of good faith and fair dealing claims against the University of Chicago, alleging that the University had not fulfilled its obligations in staffing an institute the Foundation had committed $100 million to create.  The University counterclaimed for failure to make a $13 million installment when due.  The Foundation objected, in particular, to the University’s designation of current faculty for two of three endowed chairs, asserting they were unqualified.  The court previously partially denied summary judgment without prejudice, holding that the Foundation could pursue the contract claim on the grounds that the hires did not fulfill the institute’s mission, even though the Grant Agreement included no specific qualifications for the appointments and provided that the Foundation no role in the selection process or in setting the institute’s research agenda.  In a surreply to the University’s supplemental motion for partial summary judgment, the Foundation objected that discovery suggested that the University departed from its normal faculty hiring procedures.  In granting the motion, the court held that the Foundation had abandoned its express contract claim in its briefing but may still proceed on its good faith and fair dealing claim as to the hiring process.   

    Topics:

    Contracts | Endowments & Gifts | Taxes & Finances

  • Date:

    State v. Conn. State Univ. Org. of Admin. Faculty. (Conn. June 4, 2024)

    Opinion reversing vacatur of the arbitration award.  In 2018, the former director of student conduct at Central Connecticut State University was arrested following an alleged domestic violence incident at his home.  The University terminated him after its internal investigation, based largely on the police incident report, found his off-duty behavior made him unsuitable to discharge his on-campus responsibilities.  Criminal charges were later dismissed, and a finding of neglect was reversed.  The Union contested the termination, and an arbitrator found that the University’s investigation did not establish the grievant’s guilt by clear and convincing evidence and ordered his reinstatement and other remedies.  The trial court denied the Union’s motion to confirm the award and granted the University’s motion to vacate.  Applying its own precedent for evaluating when “an arbitration award reinstating a terminated employee violates public policy,” the Supreme Court of Connecticut reversed, finding that (1) no explicit public policy prohibits grievant’s reinstatement; (2) though his position was one of public trust, other University employees had been arrested and not terminated; (3) the arbitrator’s factual findings did not establish that the off-duty conduct was so egregious as to require termination; and (4) the arbitrator’s findings similarly did not indicate a substantial risk that the grievant would engage in the same behavior in the future.   

    Topics:

    Employee Discipline & Due Process | Faculty & Staff | Litigation, Mediation & Arbitration

  • Date:

    Croce v. Ohio State Univ. Bd. of Trs. (Ohio App. June 4, 2024)

    Opinion affirming-in-part and reversing-in-part Judgment on the Pleadings.  Plaintiff, a biomedical researcher at The Ohio State University, brought contract claims against the University after an investigation, allegedly sparked by a defamatory newspaper article, cleared him of research misconduct allegations.  The Dean of the College of Medicine nevertheless took non-disciplinary actions against him, including removing him from an endowed chair.  Plaintiff alleged that the University departed from (1) federal standards for addressing research misconduct, (2) its own internal policy to rehabilitate the reputation of researchers who are cleared of research misconduct allegations, and (3) its faculty rules.  The court below granted judgment on the pleadings, finding that (1) the claims based on federal standards were preempted and (2) the remaining claims failed because the University policies leave rehabilitation measures to the discretion of the Vice President of Research and the remaining measures to the discretion of the Dean.  The Court of Appeals of Ohio affirmed that plaintiff’s claims based on federal standards were preempted.  It reversed on the remaining contract claims, noting that the rehabilitation policy stated that the University will “work with” the respondent on such measures and finding that the trial court erred in holding that no set of facts would entitle plaintiff to relief.   

    Topics:

    Contracts | Research | Research Misconduct

  • Date:

    Am. All. for Equal Rights v. Fearless Fund Mgmt. (11th Cir. Jun 3, 2024)

    Opinion reversing denial of preliminary injunction and remanding.  Plaintiff, the American Alliance for Equal Rights, a membership organization dedicated to “ending racial classifications and racial preferences in America,” sued Fearless Fund, its Foundation, and related entities, alleging that the Foundation’s “Fearless Strivers Grant Contest” violates the 42 U.S.C. § 1981 prohibition on racial discrimination by private parties in contracts.  The contest awards monetary grants and other assistance to four winners, who must be black females or businesses that are at least 51% black woman owned, and contestants must agree to the contest’s rules to enter.  The district court found the Alliance had standing based on declarations from three anonymous members who alleged they were excluded from the contest.  Though it agreed that §1981 applied to the contest, it denied a preliminary injunction, finding that (1) the Alliance was not likely to succeed on the merits because the First Amendment may bar the §1981 claim and (2) the Alliance had not demonstrated an irreparable injury.  A divided panel of the Eleventh Circuit reversed the denial of preliminary injunction.  Invoking 303 Creative LLC v. Elenis (U.S. 2023), it held the Alliance was likely to succeed in showing that the Contest crossed the line from an expressive commitment to the Black women-owned business community into discriminatory acts.  It further held that “each lost opportunity to enter Fearless’s contest works an irreparable injury’ with respect to the cash prize, mentorship, and other ensuing business opportunities.   

    Topics:

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

  • Date:

    ACE Letter re: the NDAA and DETERRENT Acts (June 7, 2024)

    Letter from the American Council on Education and 22 other higher education associations to House leaders opposing inclusion of the Bipartisan Workforce Pell Act and the Defending Education Transparency and Ending Rogue Regimes Engaging in Nefarious Transactions (DETERRENT) Act as amendments to the National Defense Authorization Act (NDAA).  The letter highlights multiple potential consequences of the Pell Grant extension legislation’s proposal to require some institutions to make risk-sharing payments to the Department of Education and to impose other new conditions on their participation in the Federal Supplemental Educational Opportunity Grant program.  The letter also highlights multiple concerns with the proposed expansion of Section 117 in DETERRENT Act, including its impact on the privacy of faculty and staff, potentially threatening international collaborations, and tasking the Department of Education with regulatory functions it is not well equipped to implement.

    Topics:

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

  • Date:

    Nat’l Rifle Ass’n of Am. v. Vullo (U.S. May 30, 2024)

    Opinion vacating the judgment of the Second Circuit and remanding. In 2017, New York Department of Financial Services superintendent Maria Vullo began investigating affinity insurance programs offered by the National Rifle Association (NRA), finding that the “Carry Guard” program insured, among other things, intentional criminal acts and that the NRA offered the program without an insurance producer license. In addition to criticism of the NRA in press releases and contemporaneous statements from then-Governor Cuomo, Vullo entered into consent decrees with the companies administering and underwriting the program, issued guidance encouraging insurance and financial companies to reevaluate their business “with the NRA or similar gun promotions organizations,” and told one company in a meeting that it could avoid further enforcement action if it “would scale back its NRA-related business.” The NRA brought First Amendment censorship and retaliation claims against Vullo, alleging that she targeted the NRA for its pro-gun advocacy. The district court denied Vullo’s motion to dismiss, but the Second Circuit reversed, finding neither the guidance nor the meeting with the company were individually unconstitutional. The Supreme Court unanimously vacated the judgment of the Second Circuit, finding that the allegations, if true, were sufficient to state a First Amendment claim and that “[t]he Second Circuit could only reach [its] conclusion by taking the allegations in isolation and failing to draw reasonable inferences in the NRA’s favor.”  

    Topics:

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

  • Date:

    Doe v. N.Y. Univ. (S.D. N.Y. May 30, 2024)

    Opinion & Order granting Defendant’s Motion to Dismiss. Plaintiff, a rising second-year law student at New York University who describes himself as a heterosexual white male who plans to apply to the NYU Law Review, brought Title VI and Title IX claims against the University challenging the Law Review’s selection process in light of the Supreme Court’s decision in the Students for Fair Admissions cases. While the Law Review previously designated 12 of its 50 positions to be filled by a process through its Diversity Committee, it does not currently mention the alleged “diversity set-aside” and instead requires each applicant to submit a statement of interest that it describes as “an opportunity for applicants to provide the Selection Committee a more comprehensive view of who [they] are as an individual.” In granting the University’s motion to dismiss, the court found plaintiff’s assertion that the Law Review could glean information by which it might discriminate from the statements of interest was insufficient to show an injury. It also determined plaintiff failed to state a claim, finding his allegation of a discriminatory selection process both conclusory and unsupported by the facially neutral policy, which did not identify a preference for students from a protected class. Finally, the court noted that absent factual allegations as to what role the institution played in the operations of the student-run Law Review, the complaint failed to allege intentional discrimination by the University.  

    Topics:

    Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination | Race and National Origin Discrimination | Sex Discrimination

  • Date:

    Local 8027, AFT-N.H. v. Edelblut (D. N.H. May 28, 2024)

    Memorandum and Order granting Plaintiff’s Motion for Summary Judgment. Plaintiffs, the American Federation of Teachers and the National Education Association, brought First Amendment and unconstitutional vagueness challenges against State officials after New Hampshire amended its education and discrimination laws to provide “that public primary and secondary school students may not be ‘taught, instructed, inculcated or compelled to express belief in, or support for’” four concepts sometimes categorized as “divisive concepts” in public debates surrounding diversity, equity, and inclusion (DEI) initiatives. At an earlier stage, the court dismissed plaintiffs’ claims asserting a constitutional right to control primary and secondary school curricular speech. On cross-motions for summary judgment, the court granted judgment in favor of the plaintiffs, finding the amendments “fatally vague in three ways: (1) they do not provide fair notice as to the concepts that teachers may not teach, (2) they do not sufficiently explain when classroom discussion of a banned concept qualifies as impermissible teaching, and (3) they do not give teachers enough guidance to know when their extracurricular communications are within the amendments’ reach.” The court further found the vagueness was compounded by allowing teachers to be disciplined absent a finding that they acted with scienter.

    Topics:

    Constitutional Issues | First Amendment & Free Speech

NACUA Annual Conference

Join us in the Music City June 29 – July 2 to connect, learn, and lead alongside higher education attorneys shaping policy, practice, and impact nationwide together.

Register