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  • Date:

    NACUBO On Your Side (Mar. 18, 2024)

    Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from March 12-18, 2024. This summary highlights a report from the U.S. Government Accountability Office on physical and digital infrastructure needs of Hispanic-Serving Institutions, as well as their funding sources for capital projects; the Department of Education’s request for comments on the information reporting requirements under its new Gainful Employment and Financial Value Transparency regulations; the Department of Labor’s final regulations on factors distinguishing employees and independent contractors under the Fair Labor Standards Act taking effect on March 11; and ED’s announcement of technical corrections to the 2024-25 Free Application for Federal Student Aid (FAFSA) to allow contributors without Social Security numbers to start or access a student’s online FAFSA form.   

    Topics:

    Accreditation, Authorizations, & Higher Education Act

  • Date:

    ACE Letter to House Committee re: Respecting the First Amendment on Campus Act (Mar. 20, 2024)

    Letter from the American Council on Education (ACE) and five other higher education associations to Chairwoman Foxx and Ranking Member Scott of the House Committee on Education and the Workforce opposing H.R. 7683, the Respecting the First Amendment on Campus Act. The letter notes multiple concerns with the proposed legislation, including the difficulty and cost associated with developing required standards for allocation of funds to student organizations; the harshness of the proposed sanction of automatic loss of Title IV funding for all students for one year in response to a single instance of noncompliance, as well as the dangerous precedent of government intrusion into matters of academic freedom and institutional autonomy; and that provisions mandating public forum status for all publicly accessible areas of campus would limit administrators’ ability to provide learning environments free from discrimination and potentially make campuses less safe. 

    Topics:

    Accreditation, Authorizations, & Higher Education Act | Constitutional Issues | First Amendment & Free Speech | Higher Education Act (HEA)

  • Date:

    DOJ Letter to Univ. of Md. Balt. re: Title IX Investigation (Mar. 18, 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.   

    Topics:

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

  • Date:

    Zapata v. Tex. Tech. Univ. (N.D. Tex. Mar. 11, 2024)

    Memorandum Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a Fall 2021 graduate of the Ph.D. program in Chemical Engineering at Texas Tech University who is of Columbian national origin, brought discrimination, retaliation, and constitutional claims against the University and multiple officials, alleging that (1) his advisor yelled at him for speaking Spanish and required post-defense dissertation revisions delaying his graduation by two semesters; (2) officials enforced, but later waived, a two-publication requirement; (3) the Dean refused to make his girlfriend, who had joined the faculty, his hooding professor so he could propose marriage on stage; and (4) the University denied his post-graduation request for a non-thesis master’s degree. In dismissing his Title VI discrimination claim, the court found (1) that his factual assertions about actions officials took to move him toward graduation undercut his deliberate indifference claim, and (2) no assertion that a comparator who had already matriculated out requested and received a non-thesis master’s degree. In dismissing his Title VI retaliation claim, the court noted that by October 2021 when plaintiff filed his first grievance, he had satisfied all but the two-publication requirement, which the University then waived. It further found that plaintiff’s allegation that the Dean refused to let him propose marriage on stage was insufficient to allege a retaliatory University policy or deliberate indifference to retaliation. The court also found plaintiff’s equal protection and due process claims against individual officials barred by qualified immunity.   

    Topics:

    Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Students

  • Date:

    Doe v. St. Lawrence Univ. (N.D. N.Y. Mar. 14, 2024)

    Memorandum-Decision and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a tenure-track assistant professor at St. Lawrence University, brought discrimination and retaliation claims against the University, alleging that the director of another program, with whom she was assigned to design a community-based learning experience, drugged and raped her, that the University had received information through social media and from an investigator at another university that her alleged assailant had been accused of sexual misconduct at two prior jobs, and that when she reported the assault the University launched a “sham” investigation before eventually hiring outside counsel to investigate. In permitting her hostile work environment claim to proceed, the court found plaintiff’s assertions that the University permitted her alleged assailant to continue to work on campus for over two months before placing him on administrative leave and that it did not issue findings regarding her report were sufficient to allege an inadequate effort to remedy the harassment. The court permitted her to proceed in her pre-assault and post-assault deliberate indifference claims, finding sufficient allegations that the University responded inadequately to (1) specific knowledge of alleged prior misconduct, and (2) plaintiff’s own report, providing insufficient supportive measures and an inadequate investigation. The court dismissed the plaintiff’s retaliation claims, finding her assertion of a “sham” investigation was insufficient to allege an adverse action absent allegations that it had any impact upon her employment status.   

    Topics:

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

  • Date:

    McCarter v. The Univ. of N.C. at Chapel Hill (M.D. N.C. Mar. 15, 2024)

    Memorandum Opinion and Order granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, a graduate of the Ph.D. program in Bioinformatics and Computational Biology and former post-doctoral fellow at the University of North Carolina at Chapel Hill who is African American, brought discrimination, retaliation, and equal protection claims against the University and several former advisors, alleging that they delayed his progress and subsequently plagiarized his work. Of note, though the court granted summary judgment to the University on most of his claims, plaintiff also alleged (1) that his advisors imposed “last minute” requirements on a manuscript he was completing toward fulfillment of the curricular requirement, which they later waived, of submitting work for professional publication and (2) that after he resigned his fellowship, they falsely attributed work contained in his unpublished manuscript to another graduate student. The court granted summary judgment to the defendants regarding the alleged new requirements, citing insufficient evidence that the additional requirements were the result of race-based discrimination. It permitted him to proceed regarding the plagiarism allegation, however, finding that (1) plaintiff’s side-by-side comparison of his manuscript with another student’s dissertation was sufficient to raise a question of plagiarism and (2) evidence of previous allegations against the professors of publishing the work of another student of color without attribution was sufficient to raise a question of pretext.   

    Topics:

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

  • Date:

    Wortis v. Trs. of Tufts Coll. (Mass. Mar. 14, 2024)

    Opinion affirming-in-part and reversing-in-part summary judgment in favor of the University. Plaintiffs, eight tenured faculty at Tufts University School of Medicine (TUSM), brought contract claims against the University when it reduced their salaries, full-time status, and lab space after they purportedly failed to meet the requirements of TUSM’s 2016, 2017, and 2019 compensation and lab space policies. The trial court granted summary judgment in favor of the University, concluding that the compensation and lab space policies did not violate the academic freedom or economic security provisions of the University’s tenure documents. In reversing and remanding with respect to the compensation policies, the Supreme Judicial Court of Massachusetts found that the meaning of the “economic security” provisions in the tenure documents is ambiguous and that “more evidence is required regarding the customs and practices and reasonable expectations related to salary and full-time status for tenured professors at TUSM, and even other universities and medical schools, to resolve the question whether the significant reductions … violated the economic security provided in the tenure documents.” It affirmed summary judgment in favor of the University on plaintiffs’ claims regarding lab space, finding statements on academic freedom and economic security insufficient to support the claim that lab space was guaranteed.   

    Topics:

    Contracts | Faculty & Staff | Grants, Contracts, & Sponsored Research | Tenure

  • Date:

    Lindke v. Freed (U.S. Mar. 15, 2024)

    Opinion vacating and remanding for further proceedings. When James Freed became city manager for Port Huron, Michigan in 2014, he updated his Facebook page to reflect his new position and began posting job-related information. When Kevin Lindke posted comments critical of officials and the city’s response to COVID-19, Freed blocked him. Lindke sued under 42 U.S.C. §1983, characterizing the comments sections on Freed’s Facebook page as a public forum and alleging that Freed had violated his First Amendment rights. The district court granted summary judgment to Freed, finding that he managed his Facebook page in his private capacity and that blocking Lindke was not state action as required to give rise to §1983 liability. The Sixth Circuit affirmed, finding insufficient indicia of a connection between Freed’s official duties and his social-media postings to transform the postings into official action. In vacating and remanding, the Supreme Court held that “[t]he state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.” In a Per Curiam opinion in O’Connor-Ratcliff v. Garnier (Mar. 15, 2024), concerning Facebook accounts of two school board trustees created originally for their election campaigns, the Court vacated the judgment of the Ninth Circuit for further proceedings in light of its opinion in Lindke v. Freed.   

    Topics:

    Constitutional Issues | First Amendment & Free Speech

  • Date:

    Erikson v. Xavier Univ. (S.D. Ohio Mar. 18, 2024)

    Order denying Defendants’ Motions to Dismiss. Plaintiff, a former tenured Associate Professor of Art at Xavier University, brought (1) gender discrimination claims against the University after it terminated him for alleged sexual misconduct and (2) defamation claims against his complainant. The alleged assault took place at plaintiff’s off-campus home, the complainant was an alumna of the University who had no other connection with the University at the time, and she filed her complaint outside of the two-year statute of limitations in the University’s Harassment Code and Accountability Procedures (HCAP). In permitting his Title VII discrimination claim to proceed, the court found plaintiff had sufficiently alleged that members of his hearing panel (1) expressed moral disapproval of him as a male for having intercourse without a condom and (2) attributed an imbalance of power in the encounter based on plaintiff’s position at the University, as well as his societal status as a male. Turning to his Title IX claim, the court found plaintiff sufficiently alleged that the University erroneously terminated him under the HCAP for conduct beyond the policy’s scope and that the alleged comments about plaintiff’s status as a male were sufficient to connect procedural irregularities to potential gender bias. In permitting his defamation claim against the complainant to proceed, the court found plaintiff sufficiently alleged that her statements were made with actual malice to overcome a defense of qualified privilege.

    Topics:

    Discrimination, Accommodation, & Diversity | Litigation, Mediation & Arbitration | Sex Discrimination | Sex Discrimination in Employment | Tort Litigation

  • Date:

    Goldstein v. Prof’l Staff Congress/CUNY (2nd Cir. Mar. 18, 2024)

    Opinion affirming dismissal. Plaintiffs are six full-time instructional staff members at the City University of New York (CUNY) who resigned from the Professional Staff Congress (PSC) of CUNY (their state-mandated exclusive bargaining representative) as they “vehemently disagree” with its political activity related to Israel and Palestine and believe it unfairly prioritizes the interest of part-time instructors over theirs. Plaintiffs brought First Amendment claims against PSC, CUNY, and the City of New York, challenging provisions of a New York state law (1) requiring that a union certified as the exclusive bargaining unit of public employees be the exclusive bargaining representative even for non-union employees and (2) limiting that union’s duty of fair representation to collective bargaining, thus permitting it to decline to represent non-members in individual disciplinary proceedings. The Second Circuit affirmed dismissal of the challenge to the exclusive bargaining provision, finding “the First Amendment does not guarantee public employees the right to engage in collective bargaining with their employer.” The court also upheld the limitation on the union’s duty of fair representation to collective bargaining, reasoning that while Janus v. AFSCME, 585 U.S. 878 (U.S. 2018) rejected mandatory payment of union fees by non-members, it allowed that unions could choose to offset financial burdens by declining to represent non-union employees in collateral proceedings.   

    Topics:

    Collective Bargaining | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech

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