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  • Date:

    Boje v. Mercyhurst Univ. (W.D. Pa. Mar. 6, 2024)

    Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiff, a former student at Mercyhurst University, on behalf of himself and a putative class, brought negligence and related state-law claims against the University after he received notice in late 2022 that his personally identifiable information was compromised in a data breach earlier that year and was offered twelve months of credit monitoring protection. In granting the University’s motion to dismiss, the court held that plaintiff lacked standing, finding that without an allegation that he had suffered actual identity theft or facts suggesting that misuse was imminent (such as publication of his data on the Dark Web) plaintiff failed to allege injury in fact. The court then remanded the matter to the state court.

    Topics:

    Data Privacy | Litigation, Mediation & Arbitration | Privacy & Transparency | Tort Litigation

  • Date:

    Speech First, Inc. v. Sands (U.S. Mar. 4, 2024)

    Order granting certiorari, vacating, and remanding with instructions to dismiss as moot. Plaintiff-Appellant, Speech First, a national free speech watchdog group, sued Virginia Tech, alleging that the University’s Bias Intervention and Response Team (BIRT) Policy (Bias Policy) violates the First Amendment. In affirming denial of a preliminary injunction, the Fourth Circuit held that Speech First failed to show injury in fact, noting that the BIRT lacks the authority to punish students and that its process is not “so burdensome that an objectively reasonable student would self-censure to avoid encountering it.” Instead, it found that through the Bias Policy the University permissibly “devised a way to educate its student body about both protected speech and the role of tolerance in the campus community.” In a declaration accompanying the brief in response to Speech First’s petition for certiorari, Virginia Tech President Timothy Sands noted that the bias-incident response protocol and BIRT were discontinued in 2023 after a review undertaken by a new Dean of Students and a new Vice President of Student Affairs. The Supreme Court granted certiorari, vacated the judgment below as to the Bias Policy, and remanded with instructions to dismiss the claims as moot. Justice Thomas filed a dissent, in which Justice Alito joined. 

    Topics:

    Constitutional Issues | First Amendment & Free Speech

  • Date:

    Honeyfund.com, Inc. v. DeSantis (11th Cir. Mar. 4, 2024)

    Opinion affirming preliminary injunction. Plaintiffs, employers, and consultants in Florida who conduct or seek to conduct diversity, equity, and inclusion (DEI) trainings in the workplace, bought a First Amendment challenge to Florida’s “Individual Freedom Act” (also called the “Stop W.O.K.E. Act”), which prohibits mandatory workplace trainings that endorse any of a range of statutorily enumerated concepts related to DEI. The Eleventh Circuit affirmed the issuance of a preliminary injunction and found that the Act discriminated on the basis of both content and viewpoint and failed strict scrutiny. The court rejected the State’s argument that it regulates only conduct associated with holding certain meetings, noting that under the Act “the disfavored ‘conduct’ cannot be identified apart from the disfavored speech.” It also rejected the State’s assertion that the Act functions like Title VII, finding that under the Act “speech is not regulated incidentally as a means of restricting discriminatory conduct—restricting speech is the point of the law.”   

    Topics:

    Constitutional Issues | First Amendment & Free Speech

  • Date:

    Doe v. The Univ. of N.C. Sys. (W.D. N.C. Mar. 4, 2024)

    Memorandum of Decision and Order granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, a former student at the University of North Carolina at Chapel Hill and recipient of an independently funded full scholarship, brought Title IX, due process, contract, and tort claims against the University and numerous officials after he was expelled for alleged sexual misconduct. Plaintiff alleged that he did not receive proper notification of the accusations, that he was not allowed to cross-examine his four accusers, that evidence was withheld from him and exculpatory evidence was not considered, and that investigators and members of hearing panels showed gender bias. The court found the factual allegations sufficient for plaintiff to proceed on his Title IX erroneous outcome, due process, and contract claims. The court also found the alleged procedural flaws sufficient to state a claim for negligent infliction of emotional distress claim, but it found no allegation that the flaws were intended to inflict emotional distress. The court also permitted plaintiff to proceed on his tortious interference with a contract claim, finding that he had sufficiently alleged that the University had communicated information about the flawed disciplinary proceedings to the foundation funding his scholarship.   

    Topics:

    Constitutional Issues | Due Process | Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation

  • Date:

    Griswold v. Drexel Univ. (E.D. Pa. Mar. 1, 2024)

    Memorandum Opinion granting-in-part and denying-in-part Defendants’ Motion for Partial Summary Judgment. Plaintiff, a former associate professor at Drexel University College of Medicine who provided clinical instruction and care at the now-closed Hahnemann University Hospital (60%) and was the Director of a graduate program in medical and healthcare simulation (40%), brought discrimination and retaliation claims against the University after her position was eliminated following closure of the hospital. Plaintiff was placed on administrative leave and barred from campus while the Public Safety Department investigated an incident that occurred a month after she filed complaints of gender discrimination, with the result that she was unable to secure another faculty role as required for her to retain her program director position. In granting summary judgment in favor of the University on her discriminatory termination claim, the court found plaintiff’s proposed comparators with dual roles who were permitted to stay were not similarly situated because one position was a deanship and the other was funded contractually by a different hospital. The court permitted plaintiff’s retaliation claim to proceed, noting that her ban from campus, which contributed to her discharge, was in close temporal proximity to her protected activity. The court also permitted her hostile environment claim to proceed, finding the survival of her retaliation claim sufficient to raise a question about intentional discrimination. Plaintiff’s claims regarding other alleged adverse employment actions were not at issue in the instant motion.   

    Topics:

    Discrimination, Accommodation, & Diversity | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Dawit v. Meharry Med. Coll. (M.D. Tenn. Mar. 1, 2024)

    Memorandum Opinion granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former student at Meharry Medical College who was granted testing accommodations for internal Meharry exams related to Obsessive Compulsive Disorder and General Anxiety Disorder, brought failure to accommodate, contract, and negligent misrepresentation claims against the College after it dismissed him following three failed attempts at Step 1 of the United States Medical Licensing Examination. Plaintiff did not request testing accommodations from the National Board of Medical Examiners (NBME) for his first attempt, and he withdrew his requests for his second when he did not allow NBME sufficient processing time and for his third attempt when NBME informed him he needed more recent medical documentation. In permitting his discrimination and contract claims to proceed, the court found the fact that the School had previously permitted other students to attempt the exam a fourth time sufficient to state a prima facie case of discrimination and to raise a question of pretext. In granting summary judgment in favor of the School on his negligent misrepresentation claim, the court held that the alleged misrepresentations were at most statements of the School’s intention to provide reasonable accommodations and its plans to apply a subsequently adopted policy to plaintiff in the future, rather than statements of present or past facts.     

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity

  • Date:

    Cooper v. Yale Univ. (D. Conn. Feb. 29, 2024)

    Ruling granting Defendant’s Motion for Summary Judgment. Plaintiff, a former administrator in the Department of Laboratory Medicine at Yale University who is African American, brought discrimination and retaliation claims against the University after a series of negative audit findings and performance issues led successively to a demotion, a Performance Improvement Plan (PIP), which she failed, a phased retirement agreement, and her termination when her attorney wrote the University claiming the agreement was void. In granting summary judgment in favor of the University on her discrimination claims, the court held that plaintiff failed to raise a question as to pretext, noting that of the five comparators she suggested only one had the same title, supervisor, and similar functions, but that comparator lacked plaintiff’s extensive history of unfavorable audits and unsatisfactory performance evaluations. Turning to her retaliation claim, the court found that even though plaintiff’s PIP was implemented a month after she expressed that she felt increased oversight of her work was discriminatory, she was unable to demonstrate pretext given that the long-standing concerns about her performance predated this complaint.   

    Topics:

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

  • Date:

    Berlanga v. Univ. of S.F. (Cal. App. Feb. 29, 2024)

    Opinion affirming summary adjudication in favor of the University. Plaintiffs, undergraduate students at the University of San Francisco in Spring 2020, on behalf of themselves and a putative class, brought contract claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. In affirming summary adjudication in favor of the University, the California Court of Appeals found that the various University statements plaintiffs identified concerning the educational experiences were of such a level of generality as to support only an inference that some instruction and services would be provided in person, but not an inference that it would be provided exclusively in person. It similarly found that plaintiffs failed to identify past conduct or custom showing that the University had historically provided in-person instruction during public health or safety emergencies. In affirming disposition of their claims regarding Fall 2020 and Spring 2021, the court noted that plaintiffs could not reasonably have believed the University had promised in-person instruction for those semesters.

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    Settlement Agreement between U.S. Dep’t of Education and Liberty University (Mar. 5, 2024)

    Settlement Agreement between the U.S. Department of Education and Liberty University. The Agreement resolves findings of a Campus Crime Program Review evaluating the University’s compliance with the Clery Act. The University agreed to pay $14,000,000, to make certain programmatic improvements, and to be subject to a two-year period of post-review monitoring. The Agreement also memorialized numerous remedial actions and process improvements the University had already made.

    Topics:

    Campus Police, Safety, & Crisis Management | Clery Act | Sexual Misconduct

  • Date:

    NACUBO On Your Side (Mar. 4, 2024)

    Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from February 27-March 4, 2024. This summary highlights Congress’s passage of a “laddered” continuing resolution funding some parts of the government through March 8 and others, including the Department of Education, through March 22; the Department of Education’s voter toolkit reminding universities and students about activities they can take to increase voter turnout, including through the use of Campus Work-Study funds for nonpartisan election purposes; Congress’s postponment of a vote on legislation to impose new risk-sharing requirements on institutions subject to the endowment excise tax; and NACUBO’s participation, along with other Amici, in a brief submitted to U.S. Court of Appeals for the Eleventh Circuit in Zhang v. Emory University, a case concerning a student suicide in which plaintiffs seek to hold the school liable for student self-harm, absent adequate allegations that show the school had particularized knowledge of the student’s consideration of self-harm. 

    Topics:

    Accreditation, Authorizations, & Higher Education Act

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