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

Lamar University v. Jenkins (Tex. App. Jan. 11, 2018)

Memorandum Opinion granting Appellant’s Plea and dismissing Appellee’s Claims with prejudice. Appellee, a non-tenured professor at Lamar University (LU), alleged that LU retaliated against him by denying his application for promotion and tenure after he opposed LU’s use of the Graduate Records Exam (GRE) as a criteria for admission. Appellee argued that the GRE was an “inherently racist test,” and its use would exclude racial minorities and women from becoming paid graduate assistants at LU and from working as professional educators in Texas public schools, which amounted to an unlawful employment practice by LU. The court found that Appellants were entitled to sovereign immunity under the TCHRA because Appellee failed to plead a prima facie case of retaliation, specifically because Appellee could not show that LU’s use of the GRE in its admissions process amounted to an unlawful employment practice. As to Appellee’s remaining due process and First Amendment claims, the court found that Appellee had no protected property interest in continued employment or tenure, and that the speech at issue was within the scope of his employment duties and was not made as a citizen on a matter of public concern. 

First Amendment & Free Speech; Constitutional Issues

V.A. v. San Pasqual Valley Unified School District, et al. (S.D. Cal. Dec. 21, 2017)

Order granting Plaintiff’s Motion for a Preliminary Injunction. Plaintiff is a member of the San Pasqual Valley High School (SPVHS) varsity football team.  During football season, Plaintiff silently took a knee during the National Anthem to protest racial injustice.  Though most of these protests were without incident, on at least one occasion, students from rival teams directed racial slurs at SPVHS students, threatened to “force” team members to stand, and sprayed water bottles at SPVHS students.  After this incident, the District Superintendent issued a memorandum requiring students to stand during the National Anthem.  At about the same time, the District created a draft facilities use policy, that if adopted, would prevent students from engaging in “political activism or protesting” during extracurricular events.  In awarding a preliminary injunction, the court concluded that Plaintiff was likely to succeed on the merits.  As a preliminary matter, the court concluded that taking a knee assuredly qualified as speech, and could not be confused with school-sponsored speech.  Applying Tinker, and determining that Plaintiff’s speech neither amounted to “a substantial disruption or material interference with school activities” nor jeopardized student safety, the court concluded that Plaintiff was likely to succeed in showing that the memorandum and the District’s draft policy amounted to an impermissible regulation of protected speech.  Also, because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” and because the balance of equities and public interest weighed in favor of Plaintiff, the court awarded the preliminary injunction.  

Due Process; Constitutional Issues

Moeller v. The Board of Trustees of Indiana University, et al. (S.D. Ind. Dec. 27, 2017)

Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a non-tenure track professor at the Indiana University School of Dentistry (the University), alleged that the University deprived him of due process when it terminated him for patting, rubbing, and massaging female students without their permission. Plaintiff also brought claims for breach of contract and breach of the covenant of good faith and fair dealing against the University and Individual Defendants, both in their official and individual capacities. The court found that Plaintiff had a property interest in his continued employment at the University. However, the court found that Plaintiff was afforded due process to satisfy constitutional standards and there was a low risk of erroneous deprivation for the processes used—specifically, the University’s written Notice of Complaint, Plaintiff’s multiple opportunities to respond to the allegations in a meaningful way, and Plaintiff’s participation in numerous post-termination appeals. In exercising supplemental jurisdiction over Plaintiff’s contract claims, the court found that the University and Individual Defendants in their official capacities were protected by Eleventh Amendment immunity, while also finding that Plaintiff’s contract claims against Individual Defendants in their individual capacities failed as a matter of law. 

Title IX; First Amendment & Free Speech; Sexual Misconduct & Other Campus Violence; Due Process; Constitutional Issues

Yeasin v. Durham, (10th Cir. Jan. 5, 2018)

Order and Judgment affirming the dismissal of Plaintiff’s Complaint based on qualified immunity. Plaintiff, a former University of Kansas (UK) student, brought a section 1983 claim against the Vice President for Student Affairs at UK, for allegedly violating his First and Fourteenth Amendment rights when UK expelled him for physically restraining his ex-girlfriend and posting demeaning tweets about her online. The court found that Plaintiff failed to show that Defendant violated clearly established rights under either the First or Fourteenth Amendments and therefore, Defendant was entitled to qualified immunity. Notably, the court acknowledged that First Amendment doctrine regarding the intersection of free speech and harassment was unsettled, but distinguished precedent-setting cases from Plaintiff’s conduct, largely because Plaintiff was charged with a crime and Defendant acted on a reasonable belief that Plaintiff’s sexually demeaning tweets disrupted the complainant’s education. Regarding Plaintiff’s Fourteenth Amendment claim, the court found that Defendant’s non-academic reasons for expelling Plaintiff were dissimilar to the clearly established, substantive due process rights owed to students expelled for academic reasons.

Tenure; Due Process; Faculty & Staff; Constitutional Issues

Hernandez v. The University of Texas System (5th Cir. Jan. 3, 2018)

Per curiam Opinion affirming the district court’s award of judgment to the Defendants.  Plaintiff, an assistant professor with tenure at the University of Texas Pan American (UTPA), was terminated from her position when UTPA merged with another Texas institution to form the University of Texas Rio Grande Valley (UTRGV).  Plaintiff alleged that her dismissal from UTPA and UTRGV’s subsequent failure to hire her deprived her of a constitutionally protected property interest without due process.  Adopting the Court’s reasoning in Edionwe v. Bailey, another wrongful termination suit arising as a result of the institutional merger, the Court concluded that Plaintiff neither had a constitutionally protected interest in employment nor tenure, at UTRGV or in the UT System at large, and that she received all process that was due with respect to the termination of her employment at UTPA.

Litigation, Mediation & Arbitration; Practice of Higher Education Law; Constitutional Issues; Due Process

Kramer v. Southern Oregon University, et al. (9th Cir. Jan. 3, 2018)

Opinion reversing the district court’s order that denied Appellant-Cullinan qualified immunity and reversing the district court’s award of summary judgment to the Appellee. Appellee, who served as both the Executive Director of Jefferson Public Radio and the JPR Foundation, Inc., alleged that Appellant-Cullinan, as the former president of Southern Oregon University (SOU), violated his liberty interest without due process of law when she released “stigmatizing” statements about him during a Foundation Board meeting. Appellant-Cullinan argued that she was entitled to qualified immunity because the released statements did not include stigmatizing charges and Appellee’s asserted constitutional right was not clearly established at the time of the alleged violation. The court found in favor of Appellant-Cullinan, noting that the conditional language regarding potential liability in the published statements could not be construed as imputing to Appellee bad faith, willful misconduct, intentional acts, waste, or fraud—charges that would otherwise require a name-clearing hearing to satisfy due process. Further, the court provided that it would have reached the same result in reviewing whether Appellant-Cullinan had violated a clearly established constitutional right, since there was no existing precedent to suggest that the publication of conditional statements (similar to those in this case) would be stigmatizing “beyond debate.” 

Religious Discrimination; First Amendment & Free Speech; Discrimination, Accommodation, & Diversity; Due Process; Constitutional Issues

Duffin v. Idaho State University, et al. (D. Idaho, Dec. 21, 2017)

Memorandum Decision and Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a member of the Church of Jesus Christ of Latter Day Saints (LDS) and a former member of the men’s tennis team at Idaho State University (ISU), alleged that ISU officials impaired his free exercise of religion, deprived him of substantive due process, infringed protected speech, and engaged in various tortious acts by harassing and disparaging Plaintiff for participating in a LDS mission and abstaining from alcohol and premarital sex. The court found that Defendants waived Eleventh Amendment immunity by stipulating to an extended scheduling order and summary judgment deadline—where Defendants intended to raise the issue of sovereign immunity for the first time—as a tactical attempt to have the statute of limitations run on Plaintiff’s claims in state court. However, the court found that Defendants were entitled to qualified immunity on Plaintiff’s free exercise claim because Defendant’s remarks and actions, while inappropriate, did not rise to the level of coercion or substantial pressure to modify Plaintiff’s behavior, as required in a free exercise of religion claim, and thus did not amount to a violation of a clearly established constitutional right. The court further found no property interest vested in Plaintiff’s education or scholarship to substantiate his substantive due process claim. On Plaintiff’s state law claims, the court allowed Plaintiff’s NIED claim to proceed and submitted a certified question of law to the Idaho Supreme Court to determine whether a special relationship existed between a student and a university, as required by Plaintiff’s negligence claims. 

Due Process; Constitutional Issues

Wilkerson v. University of North Texas (5th Cir. Dec. 20, 2017)

Interlocutory Order reversing that decision of the United States District Court for the Eastern District of Texas and awarding summary judgment to the Defendant regarding administrators’ claims to immunity.  Plaintiff alleged that the University of North Texas denied him due process and tortuously interfered with a property interest when it declined to renew his one-year contract as an untenured lecturer.  In reversing the district court and concluding that individual defendants were entitled to qualified immunity for the §1983 claims, the court determined that Plaintiff had not identified a clearly established property right, since the plain language of Plaintiff’s contract only gave him a “temporary, non-tenurable, one-year appointment,” and left it within the University’s discretion as to whether to renew the contract for an additional 5-year period.  The court also awarded governmental immunity to the Department Chair, concluding that the tortious interference claim could be brought against the State only, and not against individual defendants.