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  • Date:

    NACUBO On Your Side (Apr. 8, 2024)

    Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from March 26-April 8, 2024. This summary highlights the completion of the FY 24 appropriations process for the federal government, including funding for the U.S. Department of Education; ED’s announcement of additional issues with the FAFSA implementation process; ED’s postponement from July 31 to October 1 of the reporting deadline under the new Financial Value Transparency and Gainful Employment regulations; ED’s reporting on how the Higher Education Emergency Relief Fund (HEERF) funds supported student retention during the COVID-19 pandemic; NACUBO’s feedback to ED with 15 other higher education associations regarding processing of Institutional Student Information Records (ISIRs) and updates to the Student Aid Internet Gateway (SAIG) mailboxes with the new FAFSA implementation process; NACUBO’s letter to ED seeking clarification on new Financial Responsibility Regulations, including new disclosure requirements for related party transactions; and NACUBO’s discussions of federal affairs and their recent advocacy.  

    Topics:

    Accreditation, Authorizations, & Higher Education Act

  • Date:

    Update: DOJ Letter to Univ. of Md. Balt. Re: Title IX Investigation (Apr. 3, 2024)

    Letter from the Department of Justice to the University of Maryland, Baltimore County re: Title IX Investigation. The Letter details the findings of the Department’s investigation into allegations that the University responded inadequately to notice that the head coach of its Swimming and Diving Team subjected student-athletes to a hostile environment, unwanted touching, and other sexual harassment. The Letter also notes the University’s commitment through a comprehensive Settlement Agreement, which is subject to a state-mandated approval process, to enhance its Title IX Office, provide targeted training and support to student-athletes, and provide financial relief to certain student-athletes. Update: On April 3, 2024, the Department and the University entered a Settlement Agreement detailing new policy and compliance requirements and providing that the University will pay up to $4,140,000 in financial relief to impacted student-athletes.  

    Topics:

    Athletics & Sports | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination

  • Date:

    Puentes v. Union Coll. (N.D. N.Y. Mar. 28, 2024)

    Memorandum-Decision and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former student at Union College, brought discrimination, contract, and multiple tort claims against the College after she was unenrolled for noncompliance with its policy that all students must receive a booster dose of a COVID-19 vaccination. Plaintiff requested an exemption, citing her “biblical beliefs,” an alleged severe reaction to her second dose of a COVID-19 vaccine, and immunity from a prior infection. When local media reported that plaintiff had been expelled, the College denied it was an expulsion and declined to discuss more than its general policy. Plaintiff alleged, however, that members of the Board of Trustees questioned the truthfulness of her account. The court dismissed her discrimination claims, finding only broad and cursory allegations. It dismissed her contract and promissory estoppel claims as time-barred under New York’s four-month statute of limitations for challenging determinations of public bodies and administrative agencies. In dismissing her negligence claim, the court declined to find that the College assumed a special duty not to subject her to a risk of a reaction to a vaccine by virtue of its supervision of her health through her visits to the College health clinic, citing the limited scope of duties for universities and New York’s prior rejection of the in loco parentis doctrine. It dismissed her libel and slander claims, finding no allegation of special damages or per se actionability. Finally, although dismissal of the breach of contract, promissory estoppel, and negligence per se claims was with prejudice as defendants sought, the court – while expressing skepticism re the likelihood of success – allowed that plaintiff might replead her other claims.  

    Topics:

    Contracts | Discrimination, Accommodation, & Diversity | Litigation, Mediation & Arbitration | Tort Litigation

  • Date:

    Buck-Yael v. Wash. Univ. (E.D. Mo. Mar. 28, 2024)

    Memorandum and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former IT employee at Washington University who had receive religious accommodations to practice her Orthodox Jewish Faith, brought discrimination, harassment, and retaliation claims against the University after a new supervisor withdrew her accommodation to use unpaid leave rather than vacation time for religious holidays and terminated her following warnings about workplace interactions and sending unauthorized emails. In dismissing her discrimination claim, the court found plaintiff had not alleged that her termination or any discipline were connected to her failure to comply with any employment requirement conflicting with her bona fide religious belief. The court, however, found her allegation regarding the withdrawn accommodations, together with assertions that her supervisor repeatedly berated her in front of colleagues and filed allegedly false warning letters, were sufficient to permit her hostile environment harassment claim to proceed. The court similarly found her assertion that she was terminated two weeks after she cited experiencing religious discrimination and harassment in appealing the warnings sufficient to permit her retaliation claim to proceed.  

    Topics:

    Discrimination, Accommodation, & Diversity | Religious Discrimination & Accommodation | Retaliation

  • Date:

    Thomas v. Weber State Univ. (D. Utah Mar. 29, 2024)

    Order and Memorandum Decision granting Defendant’s Motion for Summary Judgment. Plaintiff earned her undergraduate degree at Weber State University, worked for a University center for two years, and then completed a master’s degree at the University. She brought Title IX deliberate indifference claims against the University, alleging that she was sexually abused on various occasions while she was a private therapy patient of a psychology professor (the Therapist) at the University who was also twice her course instructor. A University Title IX investigation found that the Therapist more likely than not engaged in behavior that was unwelcome and presented a clear conflict of interest. In granting summary judgment in favor of the University, the court rejected two theories of liability. First, it found that neither (1) a complaint that the Therapist graded a female student unfairly, nor (2) a complaint of abuse of a male patient in another state, which was filed 15 years after the fact and which the University’s Strategic Threat Assessment and Response (STAR) team found not credible, nor (3) an incident in which the director of the counseling center advised the Therapist not to touch patients during breathing exercises was sufficient to put the University on notice of a substantial risk of abuse. Second, it found that neither (1) an adjunct professor, who never supervised the Therapist, nor (2) the director of the counseling center, who was a member of the STAR team but who lacked disciplinary authority over the Therapist, was an “appropriate person” whose individual knowledge could impute institutional Title IX liability upon the University.  

    Topics:

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

  • Date:

    Swender v. Garden City Cmty. Coll. (D. Kan. Mar. 29, 2024)

    Memorandum and Order granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, a former president of Garden City Community College, brought contract and tort claims against the College and its outside counsel after a controversy involving a student protest at a Board of Trustees’ meeting led to the end of plaintiff’s formal employment relationship with the College. Following the Board meeting, on the advice of the College and outside counsel, plaintiff issued the students a No Trespass Order that was lifted when the students sued. After plaintiff and the College entered into a Separation Agreement, the College categorized him as an independent consultant in order to satisfy the “Continued Employment” clause of his original Employment Contract, which provided that he should still receive his full salary and benefits for the full term of his contract even if he ceased to be president. As an independent consultant, however, he was no longer eligible for certain retirement benefits. In permitting plaintiff’s contract claim to proceed against the College, the court found he had sufficiently alleged that the Separation Agreement incorporated the terms of the Employment Contract by reference, including its “Continued Employment” clause. It rejected the College’s Release Clause affirmative defense, finding that the clause released the College from claims arising from actions taken up to the time of the Settlement Agreement and that the alleged miscategorization occurred afterwards. The court found plaintiff’s malpractice claims against the College and its outside counsel related to their advice to issue the No Trespass Order were time-barred.  

    Topics:

    Contracts | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Governance | Governing Boards & Administrators

  • Date:

    Doe v. Va. Polytechnic Inst. & State Univ. (W.D. Va. Apr. 2, 2024)

    Memorandum Opinion granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former graduate student in physics at Virginia Tech who is Iranian, brought Title IX, due process, and retaliation claims against the University after he was expelled for sexual misconduct. Plaintiff also alleged that (1) his graduate advisor received a large grant based on research plaintiff had performed in the lab and that his advisor used the funds instead to support a female student with whom he had an inappropriate relationship, and (2) after he reported the behavior, his advisor withheld certification of his master’s degree and made conditions in the lab harsh in an effort to get him to resign from the program. In permitting his due process claim to proceed, the court found that by citing specific provisions of the University’s Code of Conduct and departures from those procedures plaintiff had sufficiently alleged a deprivation of a property interest without due process. Turning to his allegations regarding the conduct of his graduate advisor, the court found plaintiff’s assertions of rude behavior in the lab insufficient to allege a hostile educational environment, but it found assertions regarding the allocation of the grant funds sufficient to him to proceed on his Title IX discrimination and retaliation claims.  

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | Due Process | Retaliation | Students | Title IX & Student Sexual Misconduct

  • Date:

    McDermott v. Ohio State Univ. (Ohio Apr. 3, 2024)

    Order reversing and remanding for further proceedings. Plaintiff, a student enrolled in the dental program at Ohio State University during Spring 2020, on behalf of herself and a putative class, brought contract and unjust enrichment claims after the University ceased in-person instruction and closed campus facilities due to the coronavirus pandemic, related to the (1) mandatory student union fee paid by all students and (2) dental clinic education support fee paid by dental students. The trial court certified plaintiff’s proposed class related to the student union fee and her proposed subclass related to the dental clinic education fee. In the instant appeal, the Supreme Court of Ohio reversed in light of its decision in Smith v. Ohio State Univ., which found that “the Court of Claims does not have jurisdiction when the state makes highly discretionary decisions pursuant to its legislative, judicial, executive, or planning function, because the state has not waived its sovereign immunity in those decisions,” and remanded for the trial court to determine whether discretionary immunity applies.  

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    Career Colls. and Schs. of Texas v. U.S. Dep’t of Educ. (5th Cir. Apr. 4, 2024)

    Opinion reversing denial of preliminary injunction and remanding with instructions to enjoin and postpone the effective date of the challenged regulations. Plaintiffs, the Career Colleges and Schools of Texas (CCST), sued the Department of Education to challenge the borrower-defense and closed-school discharge provisions of the November 1, 2022, Final Regulations on Institutional Eligibility Under the Higher Education Act of 1965 asserting that the regulations are inconsistent with the Higher Education Act and unlawful under the Administrative Procedure Act. The district court denied a preliminary injunction, finding CCST had not shown irreparable harm. In reversing and remanding with instructions to enjoin and postpone the effective date of the provisions pending final judgment, the Fifth Circuit found CCST’s assertions of compelled compliance and compliance costs, altered business operations and missed opportunities, and imminent threats of costly and unlawful adjudications sufficient to show a substantial threat of irreparable harm. It also found “a strong likelihood that the plaintiffs will succeed on the merits in demonstrating the Rule’s numerous statutory and regulatory shortcomings.”  

    Topics:

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

  • Date:

    Gardner v. Kutztown Univ. (E.D. Pa. Mar. 27, 2024)

    Memorandum granting-in-part and denying-in-part Plaintiff’s Motion for Partial Summary Judgment and Defendants’ Motions for Summary Judgment. Plaintiff, a tenured associate professor at Kutztown University who takes immunosuppressive medications to reduce the risk of permanent blindness from an incurable eye condition, brought discrimination and retaliation claims against the University and multiple officials after they denied her request for a remote work accommodation for Fall 2021 in favor of a blanket policy that any change to course modality would present an undue hardship to the University.  The court granted summary judgment to the plaintiff on her intentional discrimination, failure to accommodate, and interference claims, finding no evidence in the record that the University considered plaintiff’s individual circumstances in applying the preferred blanket policy. The court granted summary judgment in favor of the University on plaintiff’s retaliation claims, finding no reasonable jury could conclude that the University’s requirement that plaintiff submit additional medical documentation after she filed her suit was so severe as to dissuade an objectively reasonable employee from requesting an accommodation.   

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus | Disability Discrimination | Discrimination, Accommodation, & Diversity | Faculty & Staff | Retaliation

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