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  • Date:

    U.S. Dep.’t of Education DCL on Title IV Eligibility for Direct Assessment Programs (Feb. 14, 2024)

    U.S. Department of Education Dear Colleague Letter (DCL) on Applying for Title IV Eligibility for Direct Assessment (Competency-Based) Programs. The letter addresses the process by which an institution may apply to use Title IV funds for a competency-based program that relies on direct assessment of competencies rather than clock or credit hours. Of note, the institution must “establish a methodology to reasonably equate each module in the direct assessment program to either credit hours or clock hours” and this methodology must be approved by an accrediting or State approval agency with direct assessment in its scope of recognition. The application must also address how the institution will determine whether the student is making satisfactory progress or has withdrawn or changed enrollment status.  

    Topics:

    Accreditation | Accreditation, Authorizations, & Higher Education Act | Higher Education Act (HEA)

  • Date:

    The Pa. State Univ. v. Vintage Brand, LLC (M.D. Pa. Feb. 6, 2024)

    Memorandum Opinion granting-in-part and denying-in-part the Parties’ cross Motions for Summary Judgment. Plaintiff, The Pennsylvania State University, brought infringement and related claims against Vintage Brand, LLC and its three members, for producing goods featuring historical images that contain Penn State’s trademarks. Vintage Brand counterclaimed to cancel Penn State’s Seal Marks for incorporating the Coat of Arms of the Commonwealth of Pennsylvania and its PENN STATE Marks as merely ornamental. Though the court granted summary judgment to Vintage Brands on the University’s counterfeiting, false advertising, false endorsement, and dilution claims, it permitted the University to proceed on its infringement claims, finding factual disputes for a jury to resolve as to whether Vintage Brand’s use of Penn State’s marks causes a likelihood of confusion. The court also permitted Vintage Brand to proceed in its counterclaims seeking cancellation of certain of the University’s marks.  

    Topics:

    Intellectual Property | Trademarks

  • Date:

    Delaney v. Syracuse Univ. (N.Y. App. Div. Feb. 9, 2024)

    Order and Memorandum reversing dismissal and reinstating the complaint. Plaintiff sued Syracuse University seeking to recover damages for injuries he sustained when he fell off his motorized bicycle while riding on an allegedly defective sidewalk on the University campus. The trial court dismissed the complaint under New York’s recreational use statute. In reversing and reinstating the complaint, the Appellate Division held the statute was inapplicable, noting that although bicycle riding is one of the enumerated activities, plaintiff had sufficiently alleged that the sidewalk where he fell was situated between a busy roadway and a building entrance, not otherwise appropriate for recreational use.  

    Topics:

    Litigation, Mediation & Arbitration | Tort Litigation

  • Date:

    Polk State Coll. Dist. Bd. of Trs. v. Fisher (Fla. App. Feb. 9, 2024)

    Opinion reversing and remanding with instructions to dismiss. Plaintiff, a student at Polk State College during the Spring and Summer semesters of 2020, on behalf of herself and a putative class, brought contract and unjust enrichment claims against the College asserting that she and other students were entitled to a pro rata refund of fees after the College ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The district court dismissed plaintiff’s unjust enrichment claim based on sovereign immunity but permitted her contract claim to proceed, finding she had sufficiently alleged the existence of an express contract to forestall the College’s sovereign immunity defense. The College exercised its right to interlocutory appeal of the denial of its entitlement to sovereign immunity, and the Florida Court of Appeals held that the invoices and schedule of fees attached to plaintiff’s complaint lacked adequate promissory statements as to how, when, or where the fees are to be used or services provided to impose an express, written duty on the College that would abrogate its immunity.    

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    Univ. of S. Fla. Bd. of Trs. v. United States (Fed. Cir. Feb. 9, 2024)

    Opinion affirming summary judgment in favor of the U.S. Government. Plaintiff, the University of South Florida (USF), sued the United States, alleging infringement of its patent entitled “Transgenic Mice Expressing APPK670N,M671L and a Mutant Presenilin Transgenes,” for mice used in studying Alzheimer’s Disease and other neurogenerative disorder, by allowing a third party to use and manufacture the mice, which were developed, in large part, by USF researchers. At issue was whether research, which had been delegated to USF researchers by two former USF professors who moved to the Mayo Clinic (Mayo) in December 1996, was supported by a grant awarded to Mayo by the National Institute on Aging, thereby entitling the Government to a license to practice the patent under the Bayh-Dole Act. USF urged that Bayh-Dole is not triggered since the invention was reduced to practice in April 1997, but Mayo did not execute its subcontract with USF to pay for the work under the NIH grant until November 1997. In affirming summary judgment in favor of the U.S. Government, the Federal Circuit upheld the Government’s right to the invention, noting that “against the well-known background of the Bayh-Dole Act Regime” USF accepted funding under the grant that was designated for past-work. The court found this consistent with the “statutory policy to ‘ensure that the Government obtains sufficient rights to federally supported inventions’” and noted that it is common for research work to continue without interruption with the expectation that it will be covered by a subsequent grant award.  

    Topics:

    Faculty & Staff | Intellectual Property | Technology | Technology Transfer

  • Date:

    Speech First, Inc. v. Shrum (10th Cir. Feb. 9, 2024)

    Opinion reversing and remanding for further proceedings. Plaintiff, Speech First, a national free speech watchdog group, sued Oklahoma State University alleging that three schoolwide policies chilled protected speech, offering in support pseudonymous declarations from three students asserting that their constitutionally protected expression had been inhibited. The district court dismissed the case for lack of standing, finding plaintiff had not identified by name at least one member who would have standing to bring the claim personally. In reversing and remanding, the Tenth Circuit found that a pseudonym is sufficient to identify a particular person asserting an injury for the purpose of establishing Article III standing.   

    Topics:

    Constitutional Issues | First Amendment & Free Speech

  • Date:

    MacTaggart, et al. v. President & Fellows of Harvard Coll. (Sup. Ct. Mass. Feb. 12, 2024)

    Decision and Order allowing Defendants’ Motions to Dismiss. Plaintiffs, 47 close relatives of individuals who donated their bodies to Harvard Medical School (HMS) for teaching purposes, in cases consolidated for pre-trial purposes, brought negligence and related claims against Harvard, two officials who managed the HMS Anatomical Gift Program, and Harvard’s former morgue manager after the former morgue manager was indicted in a scheme to steal and sell dissected portions of the cadavers prior to cremation and return to their families. In granting the motions to dismiss filed by Harvard and the managers of its Anatomical Gift Program, the court found no plausible allegation that these defendants failed to act in good faith and that they are, accordingly, entitled to qualified statutory immunity under the Uniform Anatomical Gift Act.   

    Topics:

    Litigation, Mediation & Arbitration | Tort Litigation

  • Date:

    Fedder v. Bloomsburg Univ. of Pa. (M.D. Pa. Feb. 13, 2024)

    Memorandum Opinion denying Defendants’ Motion to Dismiss. Plaintiff, a former employee in the mailroom at Bloomsburg University of Pennsylvania who had worked at the University for over 20 years, brought discrimination and retaliation claims against the University and the Pennsylvania State System of Higher Education alleging that her supervisor engaged in a pattern of sexually suggestive and intimidating behavior, that after she twice complained to Human Resources and the Title IX Coordinator she faced increased harassment and was reprimanded, and that she was told she would be terminated if she did not improve the situation with him, which she asserted was constructive discharge. In permitting her discrimination claim to proceed, the court found plaintiff had plausibly alleged both a hostile work environment and circumstances suggesting she would not have been constructively discharged had she been a man. The court also permitted her retaliation claim to proceed, finding the close temporal proximity between her complaints and her only workplace discipline at the University sufficient to allege causation.

    Topics:

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

  • Date:

    Dai v. Le (5th Cir. Feb. 5, 2024)

    Opinion affirming summary judgment in favor of the defendants. Plaintiff, a former graduate student and graduate assistant at Louisiana Tech University, brought constitutional and contract claims against multiple University officials after she received negative feedback on a public presentation and a low grade in a related class, was terminated from her assistantship, and resigned from the program when she was unable to form a dissertation committee. In affirming summary judgment in favor of the defendants on her First Amendment retaliation claim, the Fifth Circuit rejected her assertion that an email she sent to those who had attended her presentation attempting to clarify her research methodology was a matter of public concern, finding that she offered no evidence of a widespread debate in the community on the topic. Turning to her due process claim, the court found that (1) her property interest in her assistantship was not unqualified because her offer letter provided it could be terminated early for unsatisfactory performance and (2) the dean provided sufficient process on her complaint over the termination by reviewing the materials she submitted, her paper, and presentation materials, and by speaking with faculty members before upholding the termination. In affirming the lower court’s decision on her contract claim, the court noted that the decision that plaintiff was not making satisfactory progress was an academic decision to be reviewed deferentially.   

    Topics:

    Academic Performance and Misconduct | Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation | Students

  • Date:

    McGowan v. S. Methodist Univ. (N.D. Tex. Feb. 5, 2024)

    Memorandum Opinion and Order granting-in-part and denying-in-part Defendant’s Motion for Partial Summary Judgment. Plaintiffs, nine former members of the women-only rowing team at Southern Methodist University, brought Title IX and negligence claims against the University alleging that it provided inferior resources to female rowers and that due to inadequate coaching, training, and medical treatment they all suffered the same type of hip injury. The court granted summary judgment in favor of the University with respect to eight of the nine plaintiffs on the grounds that their tort and Title IX claims are time-barred. Turning to plaintiffs’ request for compensatory damages, the court granted the University’s motion with respect to pain and suffering, emotional and psychological harm, and loss of quality of life, finding those types of relief unavailable after Cummings v. Premier Rehab Keller, P.L.L.C. It permitted the sole remaining plaintiff to proceed, however, in her request for compensatory damages for medical expenses for personal injury as well as for loss of educational opportunities and benefits. 

    Topics:

    Athletics & Sports | Gender Equity in Athletics | Litigation, Mediation & Arbitration | Tort Litigation

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