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

Zimmerman v. University of Utah and McMahon (D. Utah July 17, 2018)

Memorandum Decision and Order granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, a former employee of the University of Utah, alleged a number of violations under state and federal law in connection to her dismissal from the University. At issue in the present case was whether the requested relief was properly classified as prospective injunctive relief, such that Plaintiff’s section 1983 due process claim against Defendant McMahon in his official capacity could proceed under the  Ex parte Young doctrine.  The court found that Plaintiff’s request for “back pay and lost benefits, front pay, and attorneys’ fees and costs” did not qualify as injunctive relief, while Plaintiff’s request for the “return of HIPPA and FERPA data, for the return of her CDC grant, and for correction of data errors” did not qualify as prospective relief. As a result, the court only allowed Plaintiff’s claim against Defendant McMahon in his official capacity to proceed where Plaintiff requested reinstatement.  

First Amendment & Free Speech; Constitutional Issues; Student Athlete Issues; Due Process; Athletics & Sports

De La Haye v. Hitt, et al. (M.D. Fla. July 10, 2018)

Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a University of Central Florida (UCF) football player, alleged that UCF violated his rights of free speech and substantive due process under the First and Fourteenth Amendments when cancelling his athletic scholarship after UCF officials learned that Plaintiff had monetized his YouTube channel.  UCF characterized Plaintiff’s YouTube activity as a violation of the National Collegiate Athletic Association (NCAA)’s Bylaw 12.4.4, which states that a student-athlete may not use their “name, photograph, appearance, or athletic reputations” to promote a business they’ve established.  As an initial matter, the court determined that Plaintiff had standing to seek injunctive and declaratory relief, and Plaintiff’s claims were not barred by the Eleventh Amendment. Turning to the merits, the court found that Plaintiff presented a plausible First Amendment claim based on his theory that UCF cancelled his scholarship and removed him from the football team due to the content of his YouTube videos. However, the court dismissed Plaintiff’s substantive due process claim after determining that Plaintiff did not have a protected property interest in his athletic scholarship, and the cancellation of his scholarship could not be recast as a deprivation of a protected interest in continuing enrollment since UCF did not academically dismiss or suspend him.

Retaliation; Disability Discrimination; Discrimination, Accommodation, & Diversity; First Amendment & Free Speech; Constitutional Issues

Gamino v. Yosemite Community College District (E.D. Cal. July 10, 2018)

Findings and Recommendation of the Magistrate Judge to grant-in-part and deny-in-part Defendants’ Motion to Dismiss. Plaintiff, a student at Modesto Junior College in the Yosemite Community College District (YCCD) who suffers from hypoplastic right heart syndrome, alleged that Defendants discriminated against him based on disability; retaliated against him for filing a discrimination complaint; and deprived him of his right to free speech and privacy, in violation of the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), and the First Amendment. Plaintiff’s claims arise from his interactions with YCCD instructors and administrators who purportedly required him to take tests without accommodations, made certain remarks about his disability in class, and inadequately responded to his discrimination complaints. Liberally construing Plaintiff’s amended complaint, the court found that Plaintiff presented a cognizable discrimination claim based on a professor’s refusal to allow him to take a test in the testing center. Moreover, the court allowed Plaintiff’s First Amendment retaliation claim to proceed against Defendant Peterson—who embarrassed Plaintiff in his class after Plaintiff filed a complaint against him—but the court dismissed claims against other YCCD administrators. Plaintiff’s claim that YCCD policy and customs exhibited deliberate indifference towards disabled individuals failed because Plaintiff could not show that YCCD failed to exercise due care when hiring instructors, had a policy of discouraging students from filing complaints, or inadequately trained or supervised its instructors and administrators.

Title IX; Sexual Misconduct & Other Campus Violence; Due Process; Constitutional Issues

John Doe v. University of Michigan, et al. (E.D. Mich. July 6, 2018)

Order granting-in-part and denying-in-part Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction. Plaintiff, a University of Michigan (UM) student accused of sexual misconduct, alleged in a section 1983 claim that UM’s Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence deprive students of due process. At present, Plaintiff sought a preliminary injunction to stay Defendants’ investigation and procedures. In partially awarding a preliminary injunction, the court found that Plaintiff established a substantial likelihood of success on the merits.  In its reasoning, the court discussed the legal sufficiency of UM’s single investigator model.  Plaintiff argued that he was entitled to a live hearing with cross examination because the case hinged on the credibility of the parties.  While the court declined to go so far as to say that due process requires a live hearing, it did find that Plaintiff was likely to succeed on the merits because UM’s method of private questioning through the investigator was not sufficient to apprise the respondent of the questions that were actually being asked, and thus deprived him of a meaningful opportunity to cross examine his accuser.  The court also found that Plaintiff had a significant private interest in avoiding  expulsion and revocation of his degree; there was a substantial risk of erroneous deprivation under UM’s Policy; and UM bore a low fiscal and administrative burden in providing Plaintiff a meaningful opportunity to confront his accuser. On balance, the court further determined that Plaintiff’s sufficient showing of irreparable harm and the neutral factor of the public interest outweighed the potential harm to UM’s campus safety and the trauma Plaintiff’s accuser may endure by participating in additional procedures. The court declined to apply the preliminary injunction to UM’s policies and procedures campus-wide and instead limited its relief to Plaintiff’s ongoing investigation.

Contract Administration; Employee Discipline; Tenure; Academic Freedom; Faculty & Staff; First Amendment & Free Speech; Constitutional Issues

McAdams v. Marquette University (Wis. July 6, 2018)

Opinion reversing the Judgment and Order of the circuit court and remanding with instructions to enter Judgment in Favor of Plaintiff. Plaintiff, a tenured professor at Marquette University, alleged that Marquette breached its contract when suspending him for posting a blog entry that was critical of another professor.  He argued that this expression was protected by his contractual guarantee of academic freedom and by his constitutional right to free speech under the First Amendment. As a preliminary matter, the court determined that the parties never agreed that Marquette’s internal procedures for disciplining tenured faculty members would replace or eliminate resolution of disputes through the court system. The court also found that Marquette’s disciplinary procedures suffered from fundamental procedural flaws, which in this instance arose because a member of the tribunal harbored bias against Plaintiff that was evidenced through their signing of a public letter condemning Plaintiff’s blog post. Turning to the merits of Plaintiff’s breach of contract claim, the court found that the doctrine of academic freedom protected his blog post, and Marquette breached its contract when suspending Plaintiff for the blog’s contents. The court ordered that Plaintiff’s suspension end and that MU reinstate him to the faculty.

Collective Bargaining; Faculty & Staff; First Amendment & Free Speech; Constitutional Issues

Janus v. American Federation of State, County, and Municipal Employees Council 31 (U.S. Supreme Court, June 27, 2018)

Order and Opinion reversing the judgment of United States Court of Appeals for the Seventh Circuit and remanding for further proceedings.  Petitioner Mark Janus declined to join his local union because he opposed the public policy positions the union advocated.  Still, pursuant to Illinois law, he was assessed an “agency fee” for lobbying, social and recreational activities, advertising, membership meetings and conventions, litigation, and other unspecified services.  The Petitioner alleged that the mandatory agency fee amounted to “coerced political speech” in violation of the First Amendment.  By imposing a “blanket requirement that all employees subsidize speech with which they may not agree,” the Court invalidated the agency fee under the compelled speech doctrine of the First Amendment. In so doing, the Court overruled its 1977 decision in Abood v. Detroit Bd. of Education.

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

Carmody v. Board of Trustees of the University of Illinois, et al. (7th Cir. June 19, 2018)

Opinion affirming the district court’s judgment granting Defendants’ Motion for Summary Judgment. Plaintiff, a former information technology manager for the University of Illinois (UI), alleged under the Fourteenth Amendment that Defendants deprived him of pre-termination due process when finding “more probable than not” that he had improperly obtained a professor’s emails for use in a separate lawsuit against a UI professor. In reviewing the four summary judgment issues Plaintiff raised on appeal, the court found that Plaintiff failed to show that certain Individual Defendants were either personally involved in his alleged due process deprivations or had dual roles as both investigators and decisionmakers. Addressing Plaintiff’s claims against the UI Board of Trustees, the court determined that Eleventh Amendment immunity protected Defendants from suit and the Ex parte Young exception did not apply because individual members of the Board were not named in their official capacities. Moreover, the court noted that as an extension of the state, the Board could not be sued as a “person” within the statutory language of section 1983. Last, the court found the denial of Plaintiff’s Motion for Summary Judgment unappealable because the case advanced to trial and a final judgment was rendered.

First Amendment & Free Speech; Constitutional Issues

Uzuegbunam and Bradford v. Preczewski, et al. (N.D. Ga. May 25, 2018)

Order granting Defendants’ Motion to Dismiss for Mootness. Plaintiffs—consisting of a former Georgina Gwinnett College (GGC) student and a current GGC student—alleged under the First and Fourteenth Amendments pursuant to Section 1983 that GGC’s speech policies suffered from facial and as-applied constitutional deficiencies.  The policies in effect in 2016 (“Prior Policies”), when a GGC police officer stopped Plaintiff Uzuebunam from distributing religious literature and verbally sharing religious views, required students to obtain permits and prohibited behavior that “disturbed the peace,” among other things.  In February 2017, shortly after the litigation was filed, GGC amended its speech policies (“Amended Policies”) to allow more freely for spontaneous speech.  For limited events, where projected attendance was greater than 30 people or where non-students desired to speak on campus, the Amended Policies required that speakers submit reservation requests, which would be approved or denied based on content and viewpoint neutral, narrowly-tailored time, place, and manner restrictions.  The Amended Policies also deleted entirely any prohibition of speech that “disturbed the peace.”  After dismissing Plaintiff Uzuebunam’s claims as moot since he graduated from GGC in 2017, the court turned to Plaintiff Bradford’s claims for declaratory and prospective injunctive relief.  The  court found that under the totality of the circumstances GGC was unlikely to reenact the Prior Policies, that Amended Policies cured any constitutional deficiencies, and that the challenged conduct had been “terminated,” thus rendering Plaintiff’s request for declaratory and injunctive relief moot.