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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
Government Relations; Authorizations & Regulations

Request by College and University Professional Association for Human Resources to the U.S. Dep’t of Treasury and Internal Revenue Service to Delay Implementation of the New UBTI Provisions (May 21, 2018)

Urgent Request by the College and University Professional Association for Human Resources (CUPA-HR) to the Department of Treasury and Internal Revenue Service (IRS) to delay the implementation of new unrelated business income provisions in the Tax Cuts and Jobs Act (TCJA). At issue are two requirements: section 512(a)(6), which would require organizations with “more than one unrelated trade or business” to compute unrelated business income “separately with respect to each such trade or business,” and section 512(a)(7), which would levy a 21% tax on qualified, pre-tax transportation fringe benefits. In the absence of detailed guidance on these provisions from the IRS, CUPA-HR urges the Dep’t of Treasury and the IRS to delay their implementation until one year after Final Rules are promulgated so that higher education institutions can develop responsive systems and processes to meet these new requirements.

5/23/2018
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Retaliation; Discrimination, Accommodation, & Diversity; Due Process; Constitutional Issues

Liu v. Regents of the University of California, et al. (9th Cir. May 21, 2018)

Unpublished Memorandum affirming summary judgment for the Defendants. Plaintiff, who proceeds pro se, alleged several federal and state law claims against the University of California (UC) Berkeley based on her attempts to be rehired from 2009 to 2011, and again from 2013-2015 after UC laid her off. The court found that Plaintiff’s Title VII discrimination and defamation claims failed because the statute of limitations had expired, while Plaintiff’s Title VII retaliation and due process claims failed either because Plaintiff neglected to exhaust administrative remedies or because she did not show a genuine dispute of material fact. Plaintiff further failed to establish a prima facie case in support of her retaliation claim under California law. Last, the court dismissed Plaintiff’s “breach of constitutional rights” claim as derivative of her other claims.

5/23/2018
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Practice of Higher Education Law; Litigation, Mediation & Arbitration; Foundations & Affiliated Entities; Governance

Cain, et al. v. Salish Kootenai College, Inc., et al. (D. Mont. May 17, 2018)

Memorandum and Order granting Defendants’ Motion for Reconsideration. Plaintiffs brought claims against Salish Kootenai College, Inc. under the False Claims Act (FCA) and Defendants argued that sovereign immunity protected them from such claims because they functioned as an arm of the Confederated Salish and Kootenai Tribes (the Tribe). Under the direction of the Ninth Circuit, the court used the multi-factor analysis of White v. University of California to determine that the College’s creation, purpose, structure, ownership, and management supported a finding that it functioned as an arm of the Tribe. In addition, the court found an express intent by the Tribal Council to share its sovereignty with the College and a clear financial relationship between the two in the form of financial contributions, leased trust land, and applications by the Tribal Council for funding from the U.S. Department of Interior on the College’s behalf. As a result, sovereign immunity protected Defendants from Plaintiffs’ FCA claims.

5/21/2018
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Practice of Higher Education Law; Retaliation; Litigation, Mediation & Arbitration; Faculty & Staff

Taswell v. Regents of the Univ. of Cal. (Cal. App. May 14, 2018)

Opinion reversing the grant of Defendant’s Motion for Summary Judgment and Summary Adjudication. Plaintiff, a medical doctor who worked for the University of California (UC) Irvine medical school as a nuclear medicine physician, alleged under state law that Defendant terminated him in retaliation for reporting alleged safety violations to state and federal agencies. Defendant contended that they placed Plaintiff on an investigatory leave of absence and declined to renew his contract because he entered a laboratory without authorization and had interpersonal issues with the staff, among other reasons. Because California law authorized Plaintiff to proceed in court following an adverse administrative decision, the Court deemed it unnecessary for Plaintiff to have filed a petition seeking a writ of mandamus to challenge the administrative decision. Further, the court declined to give preclusive effect to  the administrative decision, rejecting Defendant’s arguments that that matter was barred by res judicata or collateral estoppel. Last, the court found a triable issue of material fact as to whether a causal connection existed between UC’s decision to place Plaintiff on a leave of absence and UC’s decision not to renew his contract.

5/18/2018
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Litigation, Mediation & Arbitration; Employee Discipline; Practice of Higher Education Law; Faculty & Staff

Swauger v. University of North Carolina at Charlotte (N.C. App. May 15, 2018)

Opinion affirming Respondent’s Motion to Dismiss. Petitioner, a mechanic who worked for the University of North Carolina (UNC) at Charlotte, alleged that UNC dismissed him without just cause based on his refusal to sign a Google Terms of Service agreement for email use. At issue is whether Petitioner pursued the correct procedure to appeal an administrative law judge’s finding that UNC had just cause for his dismissal. After looking to the plain language of the relevant statutes and analyzing the case law, the court found that Petitioner did not pursue an “adequate procedure” for judicial review. As a result, the court held that the superior court properly dismissed Petitioner’s petition for lack of subject matter jurisdiction.

5/18/2018
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Retaliation; Family Medical Leave Act (FMLA); Faculty & Staff

Carlson v. Chippewa Valley Technical College (W.D. Wis. May 11, 2018)

Opinion and Order granting Defendant’s Motion for Summary Judgment. Plaintiff, a nursing instructor at Chippewa Valley Technical College (CVTC), alleged that CVTC’s decision to remove her from a special assignment after she took two weeks of medical leave violated the Family Medical Leave Act (FMLA), breached her employment contract, and breached the implied covenant of good faith and fair dealing. Defendant contended that it removed Plaintiff from her special assignment based on her difficulty working with other colleagues, among other reasons. In awarding judgment to the Defendant, the court concluded that no reasonable jury could find that Defendant’s legitimate, non-discriminatory reasons for removing Plaintiff from her special assignment were unlawfully motivated by Plaintiff having taken FMLA leave.  Although the timing of Plaintiff’s removal from her special assignment was suspicious, that alone was not enough to defeat summary judgment because Plaintiff’s difficulty working with other colleagues was not genuinely disputed, and the problems persisted after she returned from FMLA leave. The court discredited Plaintiff’s allegation that CVTC expected her to do work while on FMLA leave.  An email directing Plaintiff to “develop a plan of continuation of the project while on FML,” was merely an expectation that Plaintiff “plan for her leave” by reassigning or delegating duties, not an expectation that Plaintiff work during her leave. The court declined to exercise supplemental jurisdiction over Plaintiff’s state law claims.

5/18/2018
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Government Relations; Authorizations & Regulations

U.S. Dep’t of Education Launches New Website Accessibility Technical Assistance Initiative (May 17, 2018)

Announcement by the U.S. Department of Education’s Office of Civil Rights (OCR) on a New Technical Assistance Initiative. The initiative aims to make online programs, services, and activities delivered by schools, districts, state education agencies, libraries, colleges, and universities more accessible to individuals with disabilities. OCR will provide a series of webinars on the matter and individuals interested in participating should visit OCR’s Disability Discrimination site for scheduling and registration information.

5/17/2018
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Financial Aid; Students; Foreign Students

Barrett v. Regents of the University of California (Cal. App. May 15, 2018)

Unpublished Opinion affirming Defendant’s Motion to Dismiss. Plaintiff, a student at the University of California (UC) Berkeley School of Law, alleged that UC breached its employment contract with Plaintiff by failing to award her tuition remission for work that she performed as a reader in the Academic Student Employee (ASE) program. Preliminarily, the court affirmed dismissal since public employment in California is governed by statute, and not contract.  Moreover, Plaintiff could not proceed on an alternative theory of liability because UC Berkeley’s policies expressly specified that graduate students in “self-supporting” programs, such as the LL.M program in which the Plaintiff was enrolled, were ineligible for tuition remission.  

5/17/2018
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