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: Governance
New Search
Endowments & Gifts; Freedom of Information & Public Record Laws; Tax; Practice of Higher Education Law; Foundations & Affiliated Entities; Governance

Transparent GMU v. George Mason Univ., et al. (Va. Cir. July 5, 2018)

Opinion Letter concluding that the George Mason University Foundation, Inc. is not a public body subject to the Virginia Freedom of Information Act (VFOIA). In considering this matter of first impression, the court looked to the plain language of VFOIA and limited its analysis to whether the Foundation was “support[ed] wholly or principally by public funds” and “perform[ed] delegated functions of the public body or… advise[d] the public body.” The court determined that neither factor rendered the Foundation to be a public body subject to VFOIA. Specifically, the court found under controlling state law and advisory board guidance that 1) private individual donations held by the Foundation for the benefit of GMU did not qualify as public funds, 2) the corporate structure of the Foundation separated it as an independent entity from GMU, and 3) the Foundation’s fundraising service did not qualify as a public function. However, the court held that the public had a right to inspect records under VFOIA where the GMU Gift Acceptance Committee accepts funds from the Foundation with restrictions or conditions.

Freedom of Information & Public Record Laws; Practice of Higher Education Law; Governance

Andrich v. Delta College Board of Trustees (Mich. App. June 5, 2018)

Unpublished Per Curiam Opinion reversing-in-part and remanding for further proceedings. Plaintiff alleged that Defendant in two different public meetings violated the Open Meetings Act (OMA) by failing to identify particular cases when calling for a closed session to discuss “specific pending litigation” and by failing to accurately reflect in its minutes decisions to engage in settlement negotiations as recommended by its counsel. Similar to the court’s reasoning in Estate of Ader v. Delta College Board of Trustees, the court held that the statutory language of the OMA, analogous case law in the jurisdiction, and the Attorney General’s guidance on the matter required Defendant to identify a specific lawsuit before entering a closed session to discuss “specific pending litigation.” The court also found the minutes to be statutorily insufficient.  The minutes reflected that the Board passed motions to “accept Counsel’s recommendation,” when, according to the court, they should have said that the Board “authorize[d] its counsel to settle a specific case within certain parameters.“ The remainder of Plaintiff’s claims were dismissed either because they were without merit or were abandoned on appeal.

Freedom of Information & Public Record Laws; Practice of Higher Education Law; Governance

Estate of Ader v. Delta College Board of Trustees (Mich. App. June 5, 2018)

Unpublished Per Curiam Opinion reversing-in-part and remanding for further proceedings. Plaintiff alleged that Defendant in four different public meetings, spanning over two years, violated the Open Meetings Act (OMA) when calling for a closed session to discuss with its counsel “specific pending litigation” without identifying the specific case name. Looking to the statutory language of the OMA, the court found that Defendant violated the statute by failing to identify the “specific pending litigation” to be discussed in the closed session. The court reasoned that while not explicitly required in the OMA, such an omission would render the word “specific” in the legislation void. The court further noted that its decision was consistent with its analysis of closed-session procedures for FOIA-exempt materials in Herald Co., Inc., as well as being consistent with guidance issued in the Attorney General’s OMA Handbook and with the statute’s purpose of promoting government accountability through public notice of “issues and decisions of public concern.” For a related case with similar issues, see Andrich v. Delta College Board of Trustees.

Students; Foundations & Affiliated Entities; Governance; Athletics & Sports

Osmond v. Hofstra University, et al. (N.Y. App. Div. May 23, 2018)

Decision and Order reversing the Supreme Court of Nassau County’s denial of summary judgment to the Defendant and dismissing the action in its entirety.  Plaintiff injured herself during a slam dunk competition while attending basketball camp at Hofstra University and Hofstra Summer Camps. Plaintiff alleged that her injury was the result of Defendants’ negligent supervision, while Defendants argued that Plaintiff assumed the risk of injury by voluntarily participating in the competition. The appeals court reversed the lower court, instead finding that Defendants established a prima facie case of primary assumption of risk and were entitled to summary judgment.

Practice of Higher Education Law; Litigation, Mediation & Arbitration; Foundations & Affiliated Entities; Governance

Cain, et al. v. Salish Kootenai College, Inc., et al. (D. Mont. May 17, 2018)

Memorandum and Order granting Defendants’ Motion for Reconsideration. Plaintiffs brought claims against Salish Kootenai College, Inc. under the False Claims Act (FCA) and Defendants argued that sovereign immunity protected them from such claims because they functioned as an arm of the Confederated Salish and Kootenai Tribes (the Tribe). Under the direction of the Ninth Circuit, the court used the multi-factor analysis of White v. University of California to determine that the College’s creation, purpose, structure, ownership, and management supported a finding that it functioned as an arm of the Tribe. In addition, the court found an express intent by the Tribal Council to share its sovereignty with the College and a clear financial relationship between the two in the form of financial contributions, leased trust land, and applications by the Tribal Council for funding from the U.S. Department of Interior on the College’s behalf. As a result, sovereign immunity protected Defendants from Plaintiffs’ FCA claims.

Foundations & Affiliated Entities; Governance

Dorf and Chicago Educational Research Foundation v. Kent State University Foundation (N.D. Ill. Nov. 17, 2017)

Order denying Plaintiff’s Motion to Dismiss Count I of Defendant’s Counterclaim. Plaintiffs are (1) the Chicago Board of Trade Educational Research Foundation (CBOT-ERF), (2) an Emeritus Board that created the Chicago Educational Research Foundation (CERF) as a method for retaining the successor of rights for the now defunct (CBOT-ERF), and (3) a donor representative of the Emeritus Board. Plaintiffs brought suit against Kent State University Foundation (KSUF) to surrender a $1.2 million donation from CBOT-ERF to KSUF for the purpose of funding an annual symposium on “futures and options” and supporting Kent State’s engineering program. At issue is whether the discontinuation of the annual symposium and dissolution of Kent State’s engineering program allows the donor representative to direct KSUF to surrender the gifted donation or allows the donor representative only to identify “alternative feasible directions as to use” of the donated funds in a way that satisfies CBOT-ERF’s intentions for the gift, as consistent with the equitable doctrine of cy pres. Looking to the contract language of the gift and acknowledging the early stage of the present litigation, the court found it plausible that CBOT-ERF intended for the funds to remain with KSUF and plausibly trusted KSUF to spend the $1.2 million in accordance with the purpose of the agreement. 

Foundations & Affiliated Entities; Contract Administration; Practice of Higher Education Law; Governance; Disability Discrimination; Discrimination, Accommodation, & Diversity

Huffman v. University Medical Center Management Corp., et al. (E.D. La. Oct. 31, 2017)

Order and Reasons denying Defendant’s Motion to Dismiss. Plaintiff, a deaf individual who communicates primarily in American Sign Language, alleged that Defendants’ failure to provide her an interpreter while she was admitted to University Medical Center, a full-service hospital owned by Defendant Louisiana State University (LSU) but operated by a private entity through a Cooperative Endeavor Agreement, resulted in her receiving substandard medical treatment in violation of Section 504 of the Rehabilitation Act, the Affordable Care Act, and the American Disabilities Act. The issue before the court was whether LSU’s contract with Defendant Louisiana Children’s Medical Center (LCMC) and Defendant University Medical Center Management Corporation (UMCMC), to provide medical services that LSU was authorized to provide, qualified as a “service, program, or activity” of LSU. The court found that Plaintiff had alleged sufficient facts to proceed and in its reasoning, adopted 5th Circuit precedent and regulatory guidance that imputed liability to state entities when they have contracted with a private entity to provide services and the private entity denies a person services because of a disability.