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.

Selected Topics: Faculty & Staff Retaliation
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Faculty & Staff; Retaliation

Ackerson v. The Rector and Visitors of The University of Virginia (W.D. Va. Nov. 7, 2017)

Memorandum Opinion denying Defendant’s Partial Motion to Dismiss. Plaintiff, a Project Manager for the University of Virginia (UVA), originally had a one-year term of employment with UVA that was later renewed several times over the course of five years. In June of 2017, shortly after she filed an Equal Employment Opportunity Commission (EEOC) charge of sex and disability discrimination, UVA reminded Plaintiff by letter that her one-year contract was set to expire. Plaintiff was not reappointed as she had been in prior years. Plaintiff alleged that UVA’s decision not to renew her contract was motivated by retaliatory animus in response to her filing the EEOC charge.  Plaintiff brought numerous claims against UVA, but at issue was whether the court had subject matter jurisdiction to hear Plaintiff’s retaliation claim because it was not originally alleged in her EEOC charge and therefore, Defendant argued, Plaintiff had not exhausted her administrative remedies under Title VII. Because the 4th Circuit recognizes an exception to the exhaustion requirement, which allows Plaintiffs to raise for the first time in federal court retaliation claims stemming from a filing of an EEOC charge, the court looked to whether Defendant’s June 2017 letter was an adverse employment action taken in retaliation for Plaintiff’s protected activity or a “mere reminder” of a prior determination. Because UVA previously set term limits on Plaintiff’s employment contract but consistently renewed the contract over a period of years, the court concluded that Plaintiff sufficiently alleged that the nonrenewal of her contract was borne out of filing the EEOC charge. 

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

Marmarchi v. Board of Trustees of the University of Illinois, et al. (7th Cir. Nov. 7, 2017)

Order affirming Defendants’ Motion to Dismiss. Plaintiff, a doctoral student at the University of Illinois (UI), brought claims against UI, his advisor, and various other UI employees under the First Amendment, due process clause, a number of employment discrimination laws, and the Family and Medical Leave Act (FMLA) when he was removed from the doctoral program, purportedly for telling an Associate Dean that he intended to file a “whistleblower complaint” about “fraud by [the] faculties.” The court found that Plaintiff’s alleged facts for his First Amendment retaliation claim were insufficient because he did not specify what he said to the Associate Dean and without more, the court could not determine if Plaintiff had engaged in protected speech. The court also dismissed Plaintiff’s due process claim because Plaintiff did not provide the contract terms that UI violated and further, the process Plaintiff sought under UI’s handbook was discretionary. The court dismissed all of Plaintiff’s other claims because Plaintiff failed to develop them on appeal. 

Retaliation; First Amendment & Free Speech; Constitutional Issues; Faculty & Staff

Tracy v. Florida Atlantic University Board of Trustees, et al. (S.D. Fla. Oct. 31, 2017)

Order granting in part and denying in part Defendants’ Motion for Summary Judgment. Plaintiff, a tenured professor at Florida Atlantic University (FAU), alleged that FAU terminated him in retaliation for writing blog posts that suggested the Sandy Hook shooting never occurred. Defendants contend that Plaintiff was terminated for failure to adhere to FAU’s Conflicts of Interest Policy—which was included in the parties’ Collective Bargaining Agreement—by repeatedly refusing to disclose “outside activity” that could potentially create a conflict of interest for the University and its faculty members. The court found that questions of whether Plaintiff’s speech was constitutionally-protected and whether Defendants’ administration of the Policy was pretextual, presented material facts that could proceed to a jury. However, the court dismissed Plaintiff’s facial and as-applied constitutional challenge to the Conflicts of Interest Policy, because “contractual provision[s] [cannot] be challenged as unconstitutionally vague in the same manner as positive law.”  The court also awarded judgment to the Defendant on Plaintiff’s civil rights, conspiracy, and breach of contract claims; dismissed the action against FAU’s President because he did not directly participate in Plaintiff’s termination; and dismissed the action against the remaining Individual Defendants under qualified immunity. 

Tenure; Retaliation; Faculty & Staff

Hatcher v. Board of Trustees of Southern Illinois University (S.D. Ill. Oct. 30, 2017)

Memorandum and Order denying Defendant’s Motion for Summary Judgment. Plaintiff, an associate professor at Southern Illinois University (SIU), alleged under Title VII that SIU retaliated against her by denying her tenure application, after she filed an Employment Opportunity Commission (EEOC) charge.  Because only eight-weeks separated Plaintiff’s EEOC charge and Defendant’s tenure decision, and because there existed evidence of inconsistency in the Chancellor’s decision to override the tenure recommendation of the University’s Judicial Review Board (compared to past practice) and possible policy violations in reviewing Plaintiff’s tenure application, the court found that material issues of fact regarding pretext should proceed to a jury. 

Title IX; Retaliation; Sexual Misconduct & Other Campus Violence

John Doe v. Columbia College Chicago, et al. (N.D. Ill. October 25, 2017)

Memorandum Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a male student at Columbia College Chicago (CCC), sued CCC under Title IX on the theories of hostile environment harassment, deliberate indifference, erroneous outcome, selective enforcement, and retaliation, after he was found responsible for sexually assaulting Jane Roe, a fellow CCC student. The court found that Plaintiff’s hostile environment and deliberate indifference claims could not proceed because the alleged harassment was not gender-based, but instead was motivated by students’ belief that Plaintiff had sexually assaulted Jane Roe. Further, although the court agreed that Plaintiff sufficiently cast doubt on the accuracy of the disciplinary hearing,  the court found that Plaintiff’s allegations that public and government pressure influenced the outcome of the proceeding, without additional evidence of gender-biased statements from university officials, was not enough from which a factfinder could draw an inference of gender bias, as required to state an action under a theory of erroneous outcome. Finally, the court dismissed Plaintiff’s selective enforcement claim because he did not identify a similarly-situated comparator. Turning to Plaintiff’s retaliation claim, the court concluded that the  Defendant had a legitimate, non-retaliatory reason for Plaintiff’s suspension, and Plaintiff could not show a retaliatory motive for CCC’s response to Plaintiff’s complaints of harassment.  Plaintiff also brought tort and contract claims under State law, which the court dismissed in turn. 

Constitutional Issues; Faculty & Staff; Retaliation; First Amendment & Free Speech

Beverly and Bionaz v. Watson, et al. (N.D. Ill. September 29, 2017)

Memorandum Opinion and Order granting in part and denying in part Defendant’s Motion for Summary Judgment. Plaintiffs, two Chicago State University (CSU) professors, alleged that CSU’s Computer Usage Policy and Cyberbullying Policy, facially and as-applied, violated the overbreadth and vagueness doctrines of the First Amendment. The Complaint also alleged that CSU retaliated against Plaintiffs for exercising protected speech after they blogged content critical of CSU’s administration. Rejecting for lack of evidentiary support Defendant’s argument that its computer network was a non-public forum, the court deemed vague and overbroad language in the Computer Use policy that proscribed “any communication which tends to embarrass or humiliate” and “lewd . . . or harassing comments.” Similarly, the requirement that speech “[r]espect the mission of the university,” was both vague and appeared to encompass a substantial amount of protected speech.  Although expressing some concern about similar language in CSU’s Cyberbullying Policy (i.e. “harassment” and “intentional and repeated harm”), the court awarded judgment to CSU on this claim, finding that Plaintiffs failed to show that the policy curtailed protected expression. Finally, the court found that Plaintiffs sufficiently alleged First Amendment retaliation; the blog amounted to protected activity, and CSU’s “cease and desist” letter as well as alleged misconduct targeting one of the Plaintiffs amounted to adverse actions taken within a time period from which a causal inference could be drawn. 


Kristin Naca v. Macalester College (D. Minn. September 18, 2017)

Order overruling Plaintiff’s objection to the Magistrate Judge’s Order denying leave to amend the Complaint. Plaintiff, an assistant professor at Macalester College, sought to amend her Complaint to include claims of defamation and retaliation against the President of the College, after he stated in a student newspaper interview that Plaintiff’s termination resulted from her sexual relationship with a student. Concluding the Plaintiff’s proposed amendments would be futile—since Defendant’s statement to the newspaper was protected by a qualified privilege and since Plaintiff could not prove, as she must to state a claim of retaliation, that the President’s comments to the newspaper would have dissuaded a reasonable employee from suing the University—the court overruled Plaintiff’s objection and denied leave to amend. 

Retaliation; Faculty & Staff; Discrimination, Accommodation, & Diversity

University of Kentucky v. Bobbye Carpenter, et al. (Ky. August 24, 2017)

Unpublished Memorandum Opinion reversing the Court of Appeals opinion and reinstating the judgments of the trial court. Plaintiffs Marco, Carpenter, and Chilton are female employees of the University of Kentucky Police Department (UKPD) who alleged gender discrimination, hostile work environment, and retaliation against Defendant, the University of Kentucky. Reversing the appellate court and awarding summary judgment to the Defendant on Plaintiff Marco and Chilton’s claims, the Kentucky Supreme Court found that  Plaintiffs failed to allege severe or pervasive conduct that altered the terms of their employment, failed to show disparate treatment based on gender by UKPD, and failed to show that any other conduct by the Defendant was retaliatory or motivated by gender-based animus.   The court also reinstated the trial court’s award of a directed verdict in favor of the Defendant on Plaintiff Carpenter’s claims, finding that the circuit court did not abuse its discretion or make a clear error in ruling on various procedural and evidentiary motions.