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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.

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Gender Identity & Sexual Orientation Discrimination; Equal Protection

Miller v. Board of Regents of the University of Wisconsin System (W.D. Wis. July 2, 2018)

Order granting-in-part and denying-in-part Defendants’ Partial Motion to Dismiss. Plaintiff, an employee of the University of Wisconsin-Stout in the University of Wisconsin System (UWS), alleged that UWS discriminated against her on account of her sexual orientation in violation of Title VII and violated her rights under the Equal Protection Clause pursuant to 42 U.S.C. Section 1983. At issue was whether the Board of Regents for WSU and Individual Defendants in their official capacities could be sued as “persons” within the statutory language of Section 1983. The court dismissed the WSU Board of Regents, but allowed claims against Individual Defendants in their official capacity to proceed because Plaintiff sought prospective relief against them in the form of a cease and desist order.

7/6/2018
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Title IX; Gender Identity & Sexual Orientation Discrimination; Sex Discrimination; Discrimination, Accommodation, & Diversity; Equal Protection; Constitutional Issues

Doe, et al. v. Boyertown Area School District, et al. (3rd Cir. May 24, 2018)

Judgment affirming the district court’s denial of Plaintiffs’ Preliminary Injunction. Plaintiffs, four students who attend or recently attended schools in the Boyertown Area School District (BASD), sought a preliminary injunction to enjoin a BASD policy that permits transgender students to use restrooms and locker rooms based on their gender identity rather than their biological sex. Plaintiffs alleged that the policy creates a hostile environment and thereby violates their right of access to educational opportunities, programs, benefits, and activities under Title IX. Moreover, Plaintiffs alleged that the policy violates their right of privacy under the Fourteenth Amendment and state law. The court found that Plaintiffs failed to show a likelihood of success on the merits of their case and failed to show irreparable harm in the absence of an injunction. The court provided that its reasoning was substantially similar to the district court opinion on the matter and stated that a formal opinion will follow.

5/29/2018
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Sex Discrimination; Gender Identity & Sexual Orientation Discrimination; Equal Protection; Constitutional Issues

Grimm v. Gloucester County School Board (E.D. Va. May 22, 2018)

Order denying Defendant’s Motion to Dismiss. Plaintiff, a transgender man who was a former student in the Gloucester County School District, alleged that the Gloucester County School Board (GCSB) violated Title IX and the Equal Protection Clause of the U.S. Constitution by enacting a policy that required students to use restroom and locker room facilities according to their biological sex. The court held that Plaintiff’s claim of discrimination on the basis of his transgender status constituted a per se actionable claim of sex discrimination under Title IX. Similar to the logic applied in Price Waterhouse v. Hopkins, the court concluded that the Plaintiff plead an actionable Title IX claim by alleging that the policy unlawfully subjected students to differential treatment based on gender stereotyping. Addressing Plaintiff’s Equal Protection claim, the court found intermediate scrutiny appropriate because GCSB’s policy relied on sex stereotypes and therefore applied sex-based classifications. Moreover, the court held that transgendered individuals constituted a quasi-suspect class because 1) they have been historically subjected to discrimination based on their gender identity, 2) their gender status has little to no bearing on their ability to contribute to society, 3) their status is immutable, and 4) they constitute a minority demographic in society with little political power. Applying intermediate scrutiny, the court concluded that Plaintiff plead sufficient facts to allege that GCSB’s policy was not substantially related to achieving its governmental objective of protecting other students’ privacy rights. 
5/24/2018
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Gender Identity & Sexual Orientation Discrimination; Sex Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Miller, et al. v. Bd. of Regents of Univ. of Minn. (D. Minn. Feb. 1, 2018)

Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiffs are three former female coaches of the University of Minnesota Duluth (UMD) who alleged UMD discriminated against them based on their sex and sexual orientation, created a hostile work environment, retaliated against them for reporting discrimination, and compensated them less than male coaches in violation of Title VII, the Minnesota Human Rights Act (MHRA), and the Equal Pay Act (EPA). The court dismissed Plaintiffs’ sexual orientation discrimination claims, because the Eighth Circuit does not recognize sexual orientation as a protected classification under federal law, and Eleventh Amendment immunity protected Defendant from Plaintiffs’ MHRA claims. The Court allowed Plaintiff Miller’s sex discrimination and retaliation claims under Title VII to proceed, based on allegations that UMD renewed the contract of the men’s hockey coach, despite the team’s worse performance; applied different criteria in determining which coaching contracts would be renewed; and offered inconsistent explanations for contract decisions.  The court also allowed Plaintiff’s retaliation claim to proceed since Plaintiff showed that UMD declined to renew her contract shortly after she complained about perceived Title IX violations.    Plaintiffs failed to identify severe or pervasive conduct to support a hostile environment claim, nor did they offer any evidence suggesting that pay differences between them and their male comparators were attributable to anything other than gender-neutral market forces. 

2/8/2018
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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.

1/10/2018
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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. 

10/31/2017
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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. 

10/10/2017
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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.

9/6/2017
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