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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.

Dates
Sexual Misconduct & Other Campus Violence; Title IX; Students; Sexual Misconduct & Other Campus Violence

Letter from OCR to Liberty University on Investigation Closure (June 15, 2017)

Letter from the U.S. Department of Education’s Office for Civil Rights (OCR) to the President of Liberty University notifying the University that the Office has closed its investigation of a complaint alleging that the University discriminated on the basis of sex by failing to “promptly and equitably” respond to reports of sexual misconduct. Because the Complainant was not a student at the University and did not have any “meaningful or sustained contact” with the University when the alleged misconduct occurred, and because the alleged misconduct did not occur on the University’s campus, OCR determined that it did not have jurisdiction over the matter. 

6/22/2017
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Sexual Misconduct & Other Campus Violence; Students; Title IX; Campus Police & Relationships with Local Law Enforcement; Campus Police, Safety & Crisis Management; Sexual Misconduct & Other Campus Violence

Ross v. University of Tulsa (10th Cir. June 20, 2017)

Opinion affirming the district court’s award of summary judgment to the University of Tulsa. A female student reported that she was the victim of sexual misconduct by a male student at the University. She later learned that two student athletes had informed campus-security officers of alleged sexual misconduct by the same student, but the officers dropped the investigation at the request of the alleged victim. Plaintiff sued the University under Title IX, claiming that the University acted with deliberate indifference when it failed to investigate a prior report of sexual misconduct and when it excluded evidence of that report from the student conduct hearing held in response to Plaintiff’s report. The Tenth Circuit determined that both claims failed as a matter of law. Although the Court acknowledged that a reasonable fact-finder could conclude that dropping the previous investigation was clearly unreasonable, it found that the officers did not have the authority to take corrective action in response to the report. Regarding Plaintiff’s second claim, the University excluded prior reports of sexual harassment based on a reasonable application of university policy, and therefore had not acted with deliberate indifference in doing so. 

6/22/2017
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Sexual Misconduct & Other Campus Violence; Title IX; Students; Sexual Misconduct & Other Campus Violence

Pacheco v. St. Mary’s University (W.D. Tex. June 20, 2017)

Memorandum Opinion granting Defendants’ Motions for Summary Judgment. Plaintiff, a male student at St. Mary's University, was suspended following a finding that he committed violations of the University's Code of Conduct for sexually harassing a fellow student. The two students were found partially clothed and intoxicated in the Plaintiff’s dorm room by other student residents and the female student’s sorority sister. Plaintiff sued St. Mary’s and two officers of its campus police department, claiming that the University’s investigatory and disciplinary procedures discriminate against male students accused of sexual misconduct based on their sex. His Complaint raised claims of Title IX violations, violation of the Fifth and Fourteenth Amendments, and violations of state contract and tort law. After concluding that the McDonnell Douglas Corp v. Green burden-shifting analysis applies to Title IX claims alleging discriminatory treatment of students based on sex, the court dismissed Plaintiff’s disparate impact claims against the University because Title IX, like Title VII, requires a showing of intentional discrimination.  The court also rejected Plaintiff’s Title IX claim based on erroneous outcome and selective enforcement theories because Plaintiff failed to present evidence casting doubt on the outcome of the disciplinary proceedings, indicating that gender was a motivating factor in the alleged erroneous outcome, or showing that the alleged comparator—the female accuser—was treated more favorably under similar circumstances. 

6/22/2017
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Retaliation; Discrimination, Accommodation, & Diversity; Faculty & Staff; Retaliation; Race and National Origin Discrimination; Discrimination, Accommodation, & Diversity

Lieu v. Board of Trustees of the University of Alabama (N.D. Ala. June 19, 2017)

Memorandum Opinion and Order granting in part and denying in part Defendant Provost’s Motion to Dismiss the claims against her. Plaintiff, a tenured Professor and Department Chair at the University of Alabama who was born in Hong Kong, recruited a Chinese citizen to fill a lecturer’s position at the University. However, the University withdrew its offer after it failed to petition for the lecturer’s work visa in time for her start date, and the lecturer failed to show up for work. Plaintiff later received an email from the Provost stating that the University “will not hire anyone from overseas” because there is “sufficient talent in the United States to fill lecturer positions.” After Plaintiff was subsequently removed from his Chair position, he filed suit against the University’s Board of Trustees and the Provost, claiming Defendants discriminated and retaliated against him because of his race, national origin, and color in violation of the Equal Protection Clause. The Court granted Defendant Provost’s Motion to Dismiss Plaintiff’s Section 1983 equal protection claim insofar as it was grounded in retaliation because Plaintiff failed to plausibly suggest the Provost’s actions violated a clearly established right. However, it allowed Plaintiff’s discrimination claim against the Provost to proceed because the Complaint contained “specific instances of allegedly discriminatory conduct” sufficient to raise a plausible inference of investigation.

6/22/2017
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Sexual Misconduct & Other Campus Violence; Title IX; Due Process; Sexual Misconduct & Other Campus Violence; Constitutional Issues

Recommendations by the American Bar Association Task Force on College Due Process and Victim Protection (June 2017)

Recommendations published by the American Bar Association (ABA) Task Force on Campus Due Process and Victim Protection. The ABA convened the Task Force to provide colleges and universities with guidelines on resolving allegations of sexual misconduct on campus. Topics covered include the institution’s right and responsibility to address sexual misconduct, options for resolving allegations, procedural protections for both the accuser and the accused, guidelines for determining whether a violation occurred, and sanctions. On the standard of proof issue, the Task Force favors an arrangement where the standard applied is based on the type of adjudicatory model used.

6/20/2017
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Tenure; Due Process; Employment Separation, RIFs, ERIPs & Retrenchment; Faculty & Staff

Edionwe v. Bailey (5th Cir. June 19, 2017)

Opinion and Order affirming the district court’s grant of Defendants’ Motion for Judgment on the Pleadings. In 2013, the Texas Legislature passed legislation consolidating the University of Texas-Pan American (UTPA) and the University of Texas at Brownsville (UTB) to create the University of Texas Rio Grande Valley (UTRGV), and ordered the UTRGV Board of Regents to rehire as many faculty and staff from UTPA and UTB as practicable. Plaintiff, a tenured Professor at UTPA, was not rehired because he failed to submit a timely application prior to the deadline. He sued UTPA, UTRGV, the University of Texas System, and the Presidents of UTRGV and UTPA for alleged procedural and substantive due process violations. On appeal, the Fifth Circuit rejected Plaintiff’s contention that his property interest in continued employment at UTPA transferred to UTRGV. It further found that the procedure used to terminate Plaintiff’s tenure satisfied procedural due process requirements.

6/20/2017
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Constitutional Issues; Foreign Students; Equal Protection; Immigration & International Activities

Arizona v. Badillo (Ariz. Ct. App. June 20, 2017)

Opinion reversing and remanding the lower court’s award of summary judgment to Appellees. Appellee Maricopa Community College District began accepting, as evidence of in-state tuition eligibility, employment authorization documents (EADs) issued under the Department of Homeland Security’s Deferred Action for Childhood Arrivals (DACA) program to undocumented immigrants who entered the United States as children. The Arizona Attorney General challenged the practice. The trial court ruled in favor of the District and student Appellees, holding that DACA recipients are “lawfully present” in the United States and thus eligible for in-state tuition. The Arizona Appeals Court reversed. It held that, under federal law, DACA recipients are not “qualified aliens” who are “lawfully present” in the United States for the purposes of eligibility for public benefits, but rather are “beneficiaries of an executive branch policy designed to forego deportation of” certain undocumented immigrants. The Court further held that Arizona’s public-benefit statutory scheme incorporates the “qualified alien” distinction drawn by federal statutes and is therefore not preempted. Finally, in subjecting the Attorney General’s distinction to rational basis review under the Equal Protection Clause, the Court concluded that the Attorney General was justified in singling out DACA recipients for disparate treatment in comparison to other deferred-action recipients due to the “acute humanitarian concerns” surrounding other recipient classes.  

6/20/2017
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FERPA; Students

New Website Launched by the Privacy Technical Assistance Center (June 16, 2017)

New Student Privacy Website was launched by the Privacy Technical Assistance Center (PTAC) and the Office of the Chief Privacy Officer (OCPO). The website will serve as a centralized resource for providing best practices and technical assistance with the Family and Educational Privacy Act (FERPA) and other topics related to student privacy. It replaces the legacy PTAC and the Family Policy Compliance Office (FPCO) websites, and reflects the reorganization of the offices at OCPO into the Student Privacy Protection and Assistance Division (SPPAD). 

6/16/2017
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