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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Employee Discipline; Faculty & Staff; Campus Police, Safety & Crisis Management

Whitehurst v. East Carolina University (N.C. App. Feb. 6, 2018)

Order affirming the Final Decision of the Administrative Law Judge. Appellant, East Carolina University (ECU), dismissed Appellee—an officer in ECU’s Police Department—after he failed to properly investigate and document an assault incident on campus. After terminating Appellee for “unacceptable personal conduct for which no reasonable person should expect to receive a prior warning,” Appellee sought review by the Office of Administrative Hearings before an Administrative Law Judge (ALJ), who did not find just cause for dismissal. Instead, the ALJ demoted Appellee one pay grade below his rank. Appellant contends that the ALJ erred in concluding that ECU did not have just cause to dismiss Appellee and the ALJ lacked authority to order the alternative sanction of demotion. The court found that under state law, ECU did not have just cause to dismiss Appellee because his conduct was mitigated by his misunderstanding of who the assault victim was, the relatively light sanction imposed on a different responding officer for a similar violation, and Appellee’s lack of prior disciplinary actions. The court also  concluded that the ALJ had authority to impose the less severe sanction of demotion. 

Employee Discipline; Tenure; Age Discrimination; Due Process; Faculty & Staff; Discrimination, Accommodation, & Diversity; Constitutional Issues

Heineke v. Santa Clara University, et al. (N.D. Cal. Dec. 5, 2017)

Order granting Defendants’ Motion to Dismiss. Plaintiff, a seventy-nine year old tenured professor at Santa Clara University (SCU), a private institution, brought a section 1983 claim for due process violations and a claim of age discrimination under the Age Discrimination in Employment Act (ADEA) against SCU after he was dismissed following an SCU determination that Plaintiff violated the institution’s Gender-Based Discrimination and Sexual Misconduct Policy. Plaintiff also brought claims against a former student and SCU for wrongful termination, breach of contract, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, negligent infliction of emotional distress, and defamation. The court found that Plaintiff did not sufficiently plead state action to support his section 1983 claim and further, was unpersuaded by Plaintiff’s argument that SCU’s compliance with Title IX obligations transformed the private institution into a state actor. Additionally, the court found that Plaintiff did not plead sufficient facts to support his age discrimination claim, primarily because his conclusory allegations were unsupported by evidence showing that he was fired because of his age or that SCU sought to replace him with someone younger. The court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims. 

Employee Discipline; First Amendment & Free Speech; Due Process; Faculty & Staff; Constitutional Issues

Board of Trustees of Purdue University, et al. v. Eisenstein (Ind. App. Oct. 30, 2017)

Decision affirming the denial of Appellee’s Motion for Summary Judgment and reversing the denial of Appellant’s Motion for Summary Judgment. Appellee, a Purdue University professor, challenged the University’s Policy and Procedures on free speech and due process under sections 1983 and 1985 of the Civil Rights Act after he received a reprimand for retaliating against an individual who filed a complaint against Appellee for repeated anti-Muslim statements in class, on his Facebook page, and on his personal blog. The court found that the Eleventh Amendment protected Purdue University and Appellants in their official capacities from claims brought under sections 1983 and 1985 because Plaintiff did not seek prospective relief.  The court also awarded judgment to Appellants in their individual capacities, concluding that an absolute privilege under Indiana law, that protected statements made in the course of quasi-judicial proceedings, shielded the Appellants from liability. Turning to Appellee’s state law claims, the court found that Appellee did not allege sufficient facts to support his tort claims, and Appellee’s contract claim could not proceed because the Faculty and Staff Handbook on which he based his argument was not part of his employment contract. 

Contract Administration; Practice of Higher Education Law; Employee Discipline; Faculty & Staff

Fendley v. Wright State University (Ohio Ct. Cl. September 19, 2017)

Decision of the Magistrate Judge recommending judgement in favor of Defendant. Plaintiff, former employee of Wright State University, filed suit alleging breach of contract when he was terminated purportedly without “just cause” or “documented just cause,” as required by the Defendant’s administrative policies and procedures. At the time of his termination, Plaintiff was under investigation for visa fraud. While no indictment ultimately followed, the court found that Defendant’s belief that an indictment was imminent was reasonably informed and constituted “just cause” for Plaintiff’s termination in compliance with the University’s policies and procedures.

Employee Discipline; Tenure; Faculty & Staff

Michael Miller v. Los Angeles Community College District, et al. (Cal. Ct. App. August 30, 2017)

Unpublished judgment affirming the trial court’s denial of Plaintiff’s Petition for Writ of Mandate. Plaintiff, a tenured physical education instructor at Los Angeles Community College District (LACCD), alleged he was wrongfully dismissed for dishonesty in connection to an investigation of possible financial aid fraud and seeks backpay, as well as reinstatement of his employment. Central to Plaintiff’s claim were two allegations (1) that LACCD failed to evaluate the tenured college instructor “at least once in every three academic years” as statutorily required and (2) that the President of LACCD failed to make a final recommendation of dismissal to the district governing board, as required by statute. The court found that any failure by LACCD to substantially comply with its statutory requirements was harmless error.  Moreover, finding that substantial evidence supported appellant’s termination, since appellant destroyed documents and erased his hard drive in the course of the fraud investigation, the court concluded that Plaintiff was not entitled to backpay. 

Constitutional Issues; Faculty & Staff; First Amendment & Free Speech; Employee Discipline; Due Process; Academic Freedom

McAdams v. Marquette University (Wis. Cir. Ct. May 4, 2017)

Decision and Order denying Plaintiff’s Motions for Summary Judgment and granting Marquette University’s Motion for Summary Judgment. Plaintiff, a tenured professor at Marquette, published a post on his personal blog criticizing a graduate student by name and linking to her contact information. After the student received threatening emails, a faculty hearing committee was convened, and the committee found that Plaintiff’s conduct “clearly and substantially” failed to meet the University’s standards of personal and professional excellence. Plaintiff sued, alleging breach of contract and violations of his rights to academic freedom and free expression. The court found that the University was owed “due weight deference” in its disciplinary decision-making based on the fact that Plaintiff had agreed to abide by the disciplinary procedures incorporated into his employment contract, and ultimately found that Marquette afforded Plaintiff the process he was due under contract. On Plaintiff’s academic freedom claim, the court concluded that, “[e]ven putting deference aside and deciding this issue independently, as a matter of law, the actions of [Plaintiff] in posting [the student’s] name and contact information are clearly not an exercise of his ‘right of academic freedom,’ but an act he should have foreseen would create harm and anguish to a graduate student.” The court reached a similar determination regarding Plaintiff’s free speech claim, finding that there was substantial evidence to support the faculty committee’s conclusion.