New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

Faculty & Staff; Tenure; Due Process; Constitutional Issues

Jackson v. Texas Southern University (S.D. Tex. Apr. 19, 2017)

Memorandum and Order granting Defendants’ Partial Motion to Dismiss. Plaintiff, a female Associate Professor at Texas Southern University’s (TSU) Thurgood Marshall School of Law, was denied tenure after being subject to an external review process, denied an opportunity to review or rebut the decision against her, and refused an opportunity to appeal the decision. She sued the University, its President, and the Dean of the University’s law school, claiming that Defendants denied her due process in her application for tenure and promotion.  The court dismissed Plaintiff’s § 1983 claim against TSU since the University, as an agency of the State, is not a person within the meaning of the statute. Because Plaintiff failed to establish that she had a protected property interest in being promoted, the court found that she could not demonstrate that her due process rights had been violated.

Campus Police, Safety & Crisis Management

Diviney v. University of Maine System (Me. Mar. 28, 2017)

Opinion and Order affirming the superior court’s entry of summary judgment in favor of the University of Maine System. A student at the University of Southern Maine (USM) was injured when she slipped and fell on ice outside her dormitory, which was located on USM’s Gorham campus. Asserting that her injury was due, at least in part, to USM’s failure to maintain its walkways, she filed suit against the University System under the Maine Tort Claims Act. The lower court concluded that Plaintiff’s claim was time barred because it was not filed within the statutory 180-day filing period and Plaintiff failed to satisfy the statutory “good cause” standard required to justify the delay in filing. 

Foreign Students; Immigration & International Activities; Employment

Presidential Executive Order on Buy American and Hire American (Apr. 18, 2017)

Executive Order issued by the President directing federal agencies to recommend changes to the H-1B visa program. Postsecondary institutions often use H-1B visas to hire international staff and faculty. The Executive Order directs the Attorney General and the Secretaries of State, Labor, and Homeland Security to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” A background briefing on the Order mentions the President’s concern for abuse of the H-1B visa program and suggests a number of reforms that could be implemented, including increasing fees, adjusting the wage scale, pursuing more vigorous enforcement measures, and adjusting the lottery system for choosing among applicants.  

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

Tymczak v. Texas Southern University (S.D. Tex. Apr. 18, 2017)

Opinion and Order granting Texas Southern University’s (TSU) Motion to Dismiss. Plaintiff, a Caucasian male and tenured faculty member at TSU, alleged that his supervisor, an African American male, made derogatory comments toward him, disparaged his qualifications for promotion and tenure, interfered with his research efforts, subjected him to harassment and accusations, and denied him employment opportunities, all because of his race. He sued the University for discrimination under Title VII. The court found that Plaintiff failed to satisfy the fourth element of a prima facie discrimination case—that similarly situated employees outside of Plaintiff’s protected class were treated more favorably in nearly identical circumstances—and generally failed to tie the alleged discriminatory treatment to racial animus.

Copyright & Fair Use; Intellectual Property

Israel v. University of Utah (D. Utah Apr. 18, 2017)

Memorandum Decision and Order granting the University of Utah’s Motion to Dismiss. Plaintiff, a former student at the University, filed suit alleging that the individual Defendants violated her intellectual property rights by producing peer-reviewed publications, academic papers, posters, and presentations based on her copyrighted materials without her consent, and that the University repeatedly failed to address her reports of copyright infringement. The court dismissed Plaintiff’s claims against the University, finding that the University was an arm of the state under the Eleventh Amendment, that Congress had not abrogated states’ immunity to suit under federal copyright statutes or their amendments, and that the University had not consented to suit by endorsing the Copyright Act, accepting federal assistance, or filing state court litigation in federal court.

Search & Seizure; First Amendment & Free Speech; Constitutional Issues

McGovern v. George Washington University (D.D.C. Mar. 28, 2017)

Memorandum Opinion granting Defendants’ Motion for Summary Judgment. Plaintiff, a visitor at George Washington University (GWU), claimed that the private University and three of its Special Police Officers violated his First and Fourth Amendment rights by arresting him for engaging in “a silent expression of dissent" during an address by then-Secretary of State Hillary Clinton on University property. The court found that the individual Defendants acted under color of state law in approaching, removing, and arresting Plaintiff, but it sidestepped the issue of whether and under what circumstances police officers employed by private universities may invoke the defense of qualified immunity because Plaintiff’s arrest was supported by probable cause. Plaintiff also failed to establish that the officers falsely arrested him in violation of his constitutional rights or that a reasonable jury could conclude that the force employed was objectively unreasonable, and therefore GWU was entitled to summary judgment on these claims. Finally, because GWU is a private institution, Plaintiff failed to establish that the University must abide by the First Amendment ,and therefore he could not bring a legally-cognizable free expression claim against the University.

Race and National Origin Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Artiste v. Broward College (11th Cir. Apr. 17, 2017)

Per curiam Order affirming the district court’s grant of summary judgment in favor of Broward College. Plaintiff filed suit against Broward College, alleging employment discrimination and retaliation in violation of 42 U.S.C. § 1981, Title VII, and state civil rights law. Plaintiff claimed that Broward terminated his employment based on his race and in retaliation for his filing of a complaint against a Dean. Broward claimed that it terminated Plaintiff because he was the subject of a harassment complaint, he obtained a loan from a subordinate in violation of College policy, and he used work computers for personal purposes. The Eleventh Circuit held that the district court properly granted summary judgment to Broward on Plaintiff’s Section 1981 claim because Broward—a Florida community college—is an arm of the state and therefore protected from suit under sovereign immunity. The court also affirmed the district court’s grant of summary judgment on Plaintiff’s discrimination claims. Plaintiff failed to allege evidence that he was treated differently than similarly-situated employees outside of his protected class and did not offer any evidence indicating that Broward's proffered reasons for terminating him were pretext for discrimination. Finally, the court affirmed the district court’s grant of summary judgment on Plaintiff’s retaliation claim, since Plaintiff was terminated thirteen months after filing a complaint against the Dean, and the Dean had retired by the time Plaintiff was terminated.

FERPA; Students

E.D. ex rel. T.D. v. Colonial School District (E.D. Pa. Mar. 31, 2017)

Memorandum denying Plaintiffs’ Motion for Summary Judgment and granting Defendant’s Motion for Summary Judgment. Plaintiffs T.D. and C.D., individually and on behalf of their daughter E.D., filed suit alleging that the Colonial School District denied E.D. a free appropriate public education (FAPE) to accommodate her learning disabilities. As part of their claim, Plaintiffs alleged that the District violated the Family Educational Rights and Privacy Act (FERPA) by refusing to turn over education records corresponding to E.D., including a draft report of a school psychologist’s evaluation and emails between school administrators discussing plans to hold the child back from second grade. The court found that the requested records did not qualify as “education records” under FERPA. The draft report was not maintained by the District “in any meaningful way,” was “obvious[ly] . . . not intended for dissemination or publication, was clearly in a transitional stage, and [bore] neither real probative value nor any hallmarks of credibility.”  The emails were “casual discussions” of a “fleeting nature” and were not kept as part of a record filing system with an intention that they be maintained. Therefore, because the requested records did not constitute education records to which Plaintiffs are guaranteed a right of access, the court found there was no violation of their procedural rights.