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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Title IX; Sex Discrimination; Due Process; Sexual Misconduct & Other Campus Violence; Discrimination, Accommodation, & Diversity; Constitutional Issues

John Doe v. Regents of the University of California and Perkin (9th Cir. June 6, 2018)

Order reversing and remanding the judgment of the district court. Plaintiff, a male student at the University of California at Santa Barbara (UCSB), alleged that UCSB discriminated against him based on sex in violation of Title IX, deprived him of procedural due process pursuant to section 1983, and committed various wrongful acts under state law after finding him responsible for sexually assaulting a female USCB student and suspending him for two quarters. The court rejected Plaintiff’s petition for a writ of administrative mandamus on Eleventh Amendment immunity grounds. Because Plaintiff neglected to file a petition for a writ of administrative mandamus in state court, the court further dismissed Plaintiff’s section 1983 and Title IX claims without prejudice for failure to exhaust judicial remedies in state court.

Race and National Origin Discrimination; Sex Discrimination; Disability Discrimination; Age Discrimination; Discrimination, Accommodation, & Diversity

Steshenko v. McKay (9th Cir. May 25, 2018)

Unpublished Memorandum affirming the district court’s judgment granting Defendants’ Motion for Summary Judgment. Plaintiff, a former student at Cabrillo Community College (CCC) who proceeds pro se, alleged a number of state and federal claims against CCC based on his dismissal from their nursing program. The court found insufficient evidence to support Plaintiff’s discrimination claims based on age, sex, national origin, and purported disability. The court further found no genuine issue of material fact to support his section 1985 conspiracy claim, defamation claim, and labor law claims. Additionally, Plaintiff’s section 1985 claim failed because it lacked an independent basis for liability, since the jury found against Plaintiff on his section 1983 claim.

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

Chen v. Suffolk County Community College and County of Suffolk, New York (2nd Cir. May 24, 2018)

Summary Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a female professor of Taiwanese national origin who taught at Suffolk County Community College (SCCC), alleged that SCCC discriminated and retaliated against her based on age, gender, and national origin in violation of the Age Discrimination and Employment Act (ADEA) and Title VII following her 30-day suspension and termination for failing to timely submit leave reports, as required by a December 2010 Stipulation she entered into with SCCC. The court found no discriminatory pretext in SCCC’s legitimate, non-discriminatory reason for terminating Plaintiff. Specifically, the court found insufficient evidence to infer discriminatory animus from statements by the Physical Sciences Department Chair and from purported irregularities in SCCC’s adherence to its disciplinary and class rescheduling procedures. The court gave no weight to Plaintiff’s argument that she was unaware that she had violated the terms of the Stipulation Agreement, since this disclosure had no bearing on whether Defendants’ reasons for suspending Plaintiff were discriminatory.

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.

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. 
Litigation, Mediation & Arbitration; Practice of Higher Education Law; Sex Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Pierotti v. Bd. of Regents of the Univ. of Cal. (N.D. Cal. May 11, 2018)

Order granting Defendant’s Motion for Partial Summary Judgment. Plaintiff, a senior administrator at the University of California (UC) Berkeley who proceeds pro se, alleged under Title VII and state law that 1) a UC immediate supervisor subjected her to sexual harassment and 2) Defendant retaliated against her by demoting and terminating her after she pursued a whistleblower complaint. Defendant alleged that Plaintiff was terminated for “engaging in a lengthy sexual relationship with a subordinate and by abusing her position with the University to provide that subordinate promotions, pay raises and bonuses.” Looking to the scope of conduct alleged in Plaintiff’s EEOC charge, the court found that Plaintiff’s sexual harassment claim was not “reasonably related” to the general allegations of age and sex discrimination set forth in the EEOC charge. Further, equitable excuse could not save Plaintiff’s sexual harassment claim because her inquiry to the EEOC about adding claims that accrued “since the time” she initiated her charge did not encompass harassing conduct by her supervisor that occurred before her EEOC filing. As a result, Plaintiff could not show that but for her reliance on a mistaken response by an EEOC employee, she would have been able to file her sexual harassment claims. The court further found Plaintiff’s retaliation claim time-barred, since Plaintiff filed her cause of action outside the three-year statute of limitations. Moreover, Plaintiff’s retaliation claim could not proceed under equitable tolling because doing so denied Defendant timely notice of the claim.

First Amendment & Free Speech; Title IX; Sexual Misconduct & Other Campus Violence; Sex Discrimination; Due Process; Discrimination, Accommodation, & Diversity; Constitutional Issues

Doe v. Distefano (D. Colo. May 7, 2018)

Order granting in part and denying in part Defendant’s motion to dismiss.  Plaintiff, a male student at the University of Colorado, Boulder (University), sued after he was expelled for sexually assaulting two female students, claiming that the University’s investigation and its outcome violated Title IX because both were “motivated by pervasive anti-male bias amounting to sex discrimination.” Plaintiff also claimed a procedural due process violation and requested the Court order Defendant to purge an adverse notation from his transcript.  The court granted Defendants’ motion on the portion of Plaintiff’s claim based on the assertion that “[a] person has a protected liberty interest in his good name, reputation, honor and integrity” because Plaintiff failed to contest Defendant’s counterarguments in his reply and because “[h]arm to reputation alone is not the sort of harm that supports a procedural due process claim…[under] the so-called ‘stigma plus’ test.” However, the court denied the motion as to the portion of Plaintiff’s claim based on a property interest because Defendant failed to engage the question raised by Plaintiff “whether this context—wherein a plaintiff is accused of conduct which may form the basis for criminal prosecution—changes the Mathews v. Eldridge [due process] calculus in a manner requiring more than minimal notice and an opportunity to respond” and because “Plaintiff’s accusations, taken together, create a plausible inference of bias against those accused of sexual misconduct.” 

Sex Discrimination; Discrimination, Accommodation, & Diversity

McMullen v. Arcadia University (E.D. Pa. April 26, 2018)

Memorandum Granting Defendant’s Motion for Summary Judgment.  Plaintiff, a patrol officer for the Department of Public Safety at Arcadia University, alleged that she was disciplined, suspended, and terminated based on her gender.  Plaintiff failed to establish a prima facie case of discrimination because she could not demonstrate that she was similarly situated to male employees who were treated more favorably.  The court also credited Defendant’s legitimate reasons for the adverse employment actions—namely, based on multiple instances of unprofessional conduct, neglect of supervisory duties, misuse of computer resources, and failure to report inappropriate conduct of other officers, Plaintiff accrued a lengthy disciplinary record of verbal warnings, a counseling letter, formal discipline, a “last chance letter,” and ultimately termination after she engaged in 5 additional incidents of misconduct.  Even if Plaintiff were able to establish the prima facie elements of discrimination, Plaintiff did not offer any evidence that would give rise to an inference of discrimination or otherwise implicate that Defendant’s legitimate reasons for suspending and terminating her were pretext for unlawful discrimination. Notably, the court gave no weight to a non-decisionmaker’s stray remark about Plaintiff being a “woman officer who was a big problem,” characterizing the remark as an accurate description Plaintiff’s gender but not implicating discriminatory animus.