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.

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Gender Identity & Sexual Orientation Discrimination; Discrimination, Accommodation, & Diversity

Students and Parents for Privacy, et al. v. U.S. Dep’t of Educ., et al. (N.D. Ill. Dec. 29, 2017)

Memorandum Opinion and Order adopting the Magistrate Judge’s Report and Recommendation. Plaintiffs, an unincorporated association entitled “Students and Parents for Privacy” and various minors represented by their parents or guardians, brought Title IX and constitutional privacy claims against the U.S. Department of Education and the U.S. Department of Justice (federal defendants), the School of Directors of Township High School District 211, and unnamed Students A, B, and C, seeking to enjoin a district policy that allowed transgender students to use restrooms and locker rooms consistent with their gender identity.  The court dismissed much of the action as moot, since Plaintiffs had voluntarily dismissed the federal defendants after they withdrew joint guidance underlying Plaintiff’s federal claims.  As to the remaining claims, the court found that Plaintiffs failed to show a reasonable likelihood of success on the merits,  irreparable harm, or lack of an adequate remedy at law. Specific to Plaintiffs’ Title IX claim, the court determined that Plaintiffs relied on a narrower interpretation of “sex” discrimination than that recognized in the Seventh Circuit, which interprets Price Waterhouse’s analysis of sex stereotyping as protecting transgender individuals. The court also rejected Plaintiff’s constitutional privacy claim, reasoning that the District’s policy did not provoke a “forced or extreme invasionof privacy,” as would be necessary to sustain a constitutional privacy claim, especially since Plaintiffs at all times had access to privacy stalls.

Sex Discrimination; Retaliation; Gender Identity & Sexual Orientation Discrimination; Discrimination, Accommodation, & Diversity

Tudor v. Southeastern Oklahoma State University and The Regional University System of Oklahoma (W.D. Okla. October 26, 2017)

Memorandum Opinion and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, a transgender professor at Southeastern Oklahoma State University (SOSU), alleged that SOSU discriminated and retaliated against her, and created a hostile work environment, by denying her tenure and dismissing her after SOSU learned that Plaintiff would be transitioning from male to female. The court found that Plaintiff had sufficiently shown severe or pervasive conduct for a hostile work environment claim and that Defendants could not assert an affirmative defense under Faragher/Ellerth because their policies were not specific to transgender discrimination. Addressing Plaintiff’s discrimination claim, the court found that Plaintiff had alleged a prima facie case of discrimination and Plaintiff’s evidence of procedural irregularities and inconsistencies in the tenure process were enough to establish pretext. The court also allowed Plaintiff’s retaliation claim to proceed because Plaintiff was a member of a protected class and had plead sufficient facts establishing her protected activities, namely filing an internal grievance and sending a letter to the U.S. Department of Education. 

Gender Identity & Sexual Orientation Discrimination; Discrimination, Accommodation, & Diversity

Memorandum Revising Treatment of Transgender Employment Discrimination Claims Under Title VII Issued By Attorney General Sessions (Oct. 4, 2017)

Memorandum from the Department of Justice on the enforcement of Title VII regarding gender identity and sex discrimination. The memo provides as a conclusion of law, that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” Interested parties with questions about the memorandum or its application in litigation are invited to contact their Civil Chief or Component’s Front Office. 

Retaliation; Gender Identity & Sexual Orientation Discrimination; Discrimination, Accommodation, & Diversity; Faculty & Staff

Patricia Knapp v. University of Nebraska Board of Regents and Kevin Ruser (Neb. September 1, 2017)

Order affirming the district court's award of summary judgment to the Defendant and overruling Plaintiff's Motion to Alter or Amend the Judgment. Plaintiff, a legal clinic supervising attorney at the University of Nebraska College of Law, sued Defendants in federal court over an alleged "gender equity" problem with salary valuation and the overall working environment of the legal clinical program. In addition to filing various federal claims, all of which were dismissed or otherwise disposed of at summary judgment in federal court, she alleged various discrimination and pay equity claims under Nebraska state statutes. In the case at bar, the Nebraska Supreme Court affirmed the district court's findings that Plaintiff failed to establish a prima facie case of wage or sex discrimination under Nebraska law, because she did not present evidence of male employees who performed comparable work, nor did she identify a similarly-situated male employee who received more favorable treatment than her. She further failed to establish a prima facie case of retaliation because she did not present required evidence of "adverse employment action." Last, the court found that Plaintiff did not show employment-related retaliation required for a successful public policy exception to the at-will employment doctrine.

Sex Discrimination; Retaliation; Religious Discrimination; Gender Identity & Sexual Orientation Discrimination; Discrimination, Accommodation, & Diversity

Russell v. New York University (S.D.N.Y. July 17, 2017)

Opinion and Order granting New York University’s Motion for Summary Judgment on all federal claims and declining to exercise supplemental jurisdiction over remaining state law claims. A former adjunct faculty member at NYU complained that another faculty member was placing her on mailing lists to which she had not subscribed and impersonating her online. However, Plaintiff was ultimately terminated for harassing, intimidating, and threatening the faculty member she believed was responsible for the mailings and impersonations. Plaintiff filed suit against the University, an NYU dean, and two faculty members for violations of Title VII, Title IX, the Age Discrimination in Employment Act (ADEA), and state antidiscrimination law. The court concluded that no reasonable factfinder could find that NYU had failed to take reasonable steps to remedy the alleged harassment. Additionally, Plaintiff failed to demonstrate circumstances giving rise to an inference that she was terminated because of her sex, age, or religion.

Gender Identity & Sexual Orientation Discrimination; Discrimination, Accommodation, & Diversity

Internal Memo by the Office for Civil Rights on Title IX and Transgender Students (June 6, 2017)

Internal field memo issued to regional directors of the U.S. Department of Education's Office for Civil Rights (OCR) on the enforcement of Title IX with regard to transgender students. In explaining the joint Dear Colleague Letter issued by the Departments of Education and Justice on February 22, which withdrew the previous administration's May 2016 Dear Colleague Letter on transgender students, the internal memo states that regional directors should rely on Title IX, its implementing regulations, relevant decisions of federal courts, and OCR guidance documents that remain in effect when they evaluate sex discrimination complaints against individuals, regardless of whether the individual is transgender. The memo contains a list of five scenarios involving transgender students over which OCR has jurisdiction.

Gender Identity & Sexual Orientation Discrimination; Equal Protection; Constitutional Issues; Discrimination, Accommodation, & Diversity

Whitaker v. Kenosha Unified School District No. 1 Board of Education (7th Cir. May 30, 2017)

Order declining to assert pendant jurisdiction over the district court’s decision to deny Defendant’s Motion to Dismiss and affirming the district court’s grant of Plaintiff’s Motion for Preliminary Injunction. A transgender high school student who identifies as male brought suit against the Kenosha Unified School District and its superintendent, alleging that the School District's unwritten bathroom policy forbidding transgender students from using the restroom conforming to their gender identity violated Title IX and the Equal Protection Clause. After declining to invoke the doctrine of pendant jurisdiction over the district court’s determination on the School District’s Motion to Dismiss, the Seventh Circuit found that a preliminary injunction was warranted. Though the School District asserted Plaintiff’s harms were self-inflicted—since Plaintiff refused to use the gender-neutral bathroom offered to him as a compromise—the court concluded that Plaintiff’s worsening depression due to the School District’s enforcement of its policy was sufficient to show he was likely to suffer irreparable harm without an injunction. The court also found that Plaintiff was likely to succeed on his Title IX claim based on the sex-stereotyping theory of sex discrimination articulated in Price Waterhouse vHopkins, and on his equal protection claim due to its finding that the School District’s policy is “inherently based upon sex-classification” and thus subject to heightened scrutiny.

Gender Identity & Sexual Orientation Discrimination; Discrimination, Accommodation, & Diversity

Hively v. Ivy Tech Community College (7th Cir. Apr. 4, 2017)

Opinion and Order reversing the district court’s judgment dismissing Plaintiff’s suit and remanding for further proceedings. Plaintiff--an openly-lesbian, former adjunct professor at Ivy Tech Community College--filed suit against the College alleging discrimination on the basis of her sexual orientation in violation of Title VII. The Seventh Circuit, sitting en banc, concluded that discrimination on the basis of sexual orientation is a form of sex discrimination and that Plaintiff asserted a legally-cognizable claim by alleging that because she was female, she was treated differently from a male employee who was married to a woman. The court likened Plaintiff’s claim that she was not promoted and/or terminated for failure to conform to the female stereotype to valid claims brought by women who were rejected for jobs in traditionally male workplaces.