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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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First Amendment & Free Speech; Constitutional Issues

Davis v. Angelina College Board of Trustees, et al. (E.D. Tex. April 11, 2018)

Order adopting the Report and Recommendation of the Magistrate Judge and denying Plaintiff’s Motion for Preliminary Injunction. Plaintiff, a former student at Angelina College (AC) who proceeds pro se, sought a preliminary injunction to order AC to overturn his expulsion and to allow him back on campus without any restrictions on his enrollment. Plaintiff also alleged that the College impermissibly curtailed his First Amendment rights by prohibiting him from contacting Ms. Boyd, an administrative employee he previously harassed and who remained in fear of Plaintiff. In denying Plaintiff’s  request that the College reinstate him and remove restrictions on contacting or directly petitioning Ms. Boyd, the court found that Plaintiff could not show irreparable harm.  The deprivation of First Amendment rights he alleged were unfounded, especially since Plaintiff had alternative means conducting university business without contacting Ms. Boyd, and Plaintiff did not have a constitutional right to contact her because his speech would have invaded her right to a safe and harassment-free work environment. Moreover, any burden on Plaintiff’s speech did not outweigh the damage the injunction might have caused AC, nor would the requested relief serve the public interest, since the relief sought would frustrate AC’s ability to provide a safe and harassment-free zone for employees and students.

4/16/2018
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First Amendment & Free Speech; Constitutional Issues

ACE Survey of College Presidents on Free Speech and Campus Inclusion (Apr. 9, 2018)

The American Council on Education’s (ACE) Center for Policy Research and Strategy published survey results on Free Speech and Campus Inclusion:  A Survey of College Presidents. The survey gathered the viewpoints and experiences of 471 college presidents in the topic of free speech and inclusion on campus.  Survey questions probed issues related to democratic values on campus, the perceived relationship between speech and inclusion, preparing and managing conflict, and student voices on campus.  In addition to the survey results, ACE has also published on its website a comparison of this survey with the  Knight-Gallup Survey on student attitudes towards free speech.

4/13/2018
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Title IX; Race and National Origin Discrimination; Sex Discrimination; Retaliation; Discrimination, Accommodation, & Diversity; Due Process; Constitutional Issues

Arora, et al. v. Daniels, et al. (W.D. N.C. April 2, 2018)

Order granting Defendant RCCC’s Motion to Dismiss. Plaintiffs, consisting of the former Chair of the Electronics Engineering Technology Program at Rowan-Cabarrus Community College (RCCC) and his wife, alleged pro se a number of violations under Title VII, procedural due process, section 1981, Title VI, Title IX, the Fair Housing Act (FHA), and per se negligence against Defendants based on RCCC’s response to Plaintiff’s complaint of discrimination, a March 17, 2015 incident in which police officers conducted a wellness check at Plaintiff’s home, and Plaintiff’s termination. The court found that Plaintiffs had abandoned their Title VII claim, failed to show a causal link in support of their Title VI claim, failed to show an affirmative duty in support of their negligence per se claim, failed to allege facts of harassment resulting from their protected status under the FHA, and failed to allege facts showing sex discrimination under Title IX. Furthermore, the court dismissed Ms. Aurora’s Title IX claim for lack of standing, along with Plaintiffs’ section 1981 claims because they failed to show that RCCC Defendants were motivated by race or that RCCC’s decision to terminate Mr. Aurora was causally connected to his filing a racial discrimination complaint. Last, the court held that RCCC satisfied the constitutional requirements of procedural due process by affording Plaintiff adequate notice and an opportunity to be heard prior to his termination. The court further noted that Plaintiff did not hold a property interest in RCCC’s adherence to its policies on scheduling meetings and issuing warnings, nor was a liberty interest violated by his termination.

4/9/2018
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Due Process; Constitutional Issues

John Doe v. University of Cincinnati, et al. (S.D. Ohio March 28, 2018)

Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a student at the University of Cincinnati (UC) who was sanctioned by a UC disciplinary panel for sexual assault, alleged an erroneous outcome claim under Title IX and a deprivation of procedural due process under the Fourteenth Amendment pursuant to section 1983. In light of the Sixth Circuit’s affirmation of the district court’s award of a preliminary injunction, which determined that “where the credibility of an alleged victim is at issue, the university must provide a way for the adjudicative body to evaluate the victim’s credibility and ‘to assess the demeanor of both the accused and his accuser’,” the court allowed Plaintiff’s procedural due process claim to proceed since he was not able to cross-examine his accuser during his disciplinary proceeding. However, the court dismissed Plaintiff’s claim that that he was deprived of an impartial decisionmaker because the evidence he offered of  “victim-centered” training materials, a Title IX administrator’s work with a victims’ advocacy center, and “institutional pressure” from the Office for Civil Rights, did not plausibly show bias. “The court further dismissed Plaintiff’s Title IX erroneous outcome claim because he failed to connect procedural defects in his disciplinary proceeding with gender bias. Moreover, the court distinguished Plaintiff’s case from recent Ohio decisions that found an inference of gender bias from either statistical evidence or the initiation of an OCR investigation by a complainant. Last, neither the Eleventh Amendment nor qualified immunity protected Individual Defendants from Plaintiff’s requests for declaratory or prospective injunctive relief.

4/4/2018
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Race and National Origin Discrimination; Retaliation; First Amendment & Free Speech; Age Discrimination; Discrimination, Accommodation, & Diversity; Equal Protection; Constitutional Issues

Wilson v. City University of New York, et al. (E.D.N.Y. March 26, 2018)

Unpublished Memorandum & Order adopting the Magistrate Judge’s Report and Recommendation, granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a tenured African-American professor at the City University of New York (CUNY)’s Brooklyn College, alleged that CUNY discriminated against him on account of age and race when it terminated him for misappropriating $100,000 of CUNY funds, using CUNY funds for personal purchases, and submitting false and misleading documents. Before the court were Plaintiff’s objections to the dismissal of his defamation, First Amendment retaliation, Fourteenth Amendment claim for selective enforcement, and Fourth Amendment claims against various Defendants. The court rejected Plaintiff’s defamation claim against Defendant Kotowski because he failed to show that the Defendant’s statement was false, and to the extent that he was alleging “defamation by implication,” failed to make a “rigorous showing” from which one could draw a defamatory inference. The court dismissed Plaintiff’s First Amendment retaliation claim because he failed to show that Defendants knew  about his presentation condemning CUNY to a New York City Council Committee (the protected speech) when they  banned him from campus (the adverse action). Third, Plaintiff’s Fourteenth Amendment claim for selective enforcement under the Equal Protection Clause failed because he did not identify any similarly situated comparators. The court dismissed the remaining discrimination claims because the Plaintiff failed to cure legal and factual deficiencies previously identified by the Magistrate Judge. Last, the court rejected Defendants’ argument that collateral estoppel should bar two of Plaintiff’s remaining claims.  Though, in some instances, arbitration could estop plaintiffs from brining claims, in this instance, the arbitrator examined whether Plaintiff’s termination was justified under a collective bargaining agreement (CBA), whereas the issues brought before the court were not limited to the terms of the CBA. 

4/3/2018
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Due Process; Constitutional Issues

Shkilnyj v. Erie Community College (W.D.N.Y. March 23, 2018)

Decision and Order granting Defendants’ Motion to Dismiss. Plaintiff, a part-time Biology Instructor at Erie Community College (ECC)’s Orchard Park campus, alleged through various constitutional, contract, and tort claims that ECC deprived him of procedural due process pursuant to section 1983 and conspired to violate section 1983, when the college did not interview or hire him for a full-time instructor position in the Biology Department. Plaintiff alleged that certain provisions of his union’s Collective Bargaining Agreement (CBA) granted him a liberty and property interest in being considered for the full-time position. The court found that the CBA did not create a property interest because its provisions did not promise that job applicants would be interviewed or evaluated for open positions with ECC. Moreover, Plaintiff had no liberty interest in the position since he was not prevented from seeking employment elsewhere. As a result, Plaintiff’s conspiracy claim failed to plausibly allege a violation of section 1983. The court declined to exercise supplemental jurisdiction on Plaintiff’s remaining state law claims. 

4/3/2018
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Due Process; Constitutional Issues

Schovanec v. Assadi-Porter (Tex. App. March 20, 2018)

Memorandum Opinion reversing the trial court’s order and dismissing Appellee’s due process claims for lack of jurisdiction. Appellee, a former Research Assistant Professor at Texas Tech University (TTU), alleged that Appellants violated her due process rights under the Fourteenth Amendment and the Texas Constitution when they terminated her and deemed her post-termination grievance to be untimely. Appellee’s employment contract with Appellants provided for a twelve-month, non-tenure track faculty appointment. Appellee relied on certain provisions of TTU’s operational policy to argue that she had a property interest in continued employment through the conclusion of the  twelve-month contract. The court found that the operational provision identified by Appellee allowed non-tenured or non-tenured track faculty members to be dismissed for cause only after they worked at TTU for six years. Since Appellee had not worked for TTU for six years, the court instead recognized her as an at-will employee without a property interest in continued employment and, therefore, her dismissal did not implicate any due process violations.

3/29/2018
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Due Process; Constitutional Issues

Rudolph v. Lloyd, et al. (E.D. Mich. March 21, 2018)

Opinion and Order denying Defendants’ Motion to Dismiss and granting-in-part Plaintiff’s Motion for Partial Summary Judgment, Declaratory Relief, and Reinstatement. Plaintiff, a U.S. army veteran who previously worked in Custodial Operations at Wayne State University (WSU), alleged that Defendants violated the Michigan Veterans Preference Act (MVPA)—which limits circumstances in which honorably discharged veterans can be dismissed from  public employment —and the due process clause of the Fourteenth Amendment, when the University refused to hold a hearing on his termination. The court found that 1) WSU was subject to the MVPA, 2) Plaintiff’s claims against Individual Defendants in their individual and official capacities could proceed, and 3) Plaintiff’s failure to exhaust administrative rights under his Collective Bargaining Agreement was irrelevant to his MVPA claim. The court further found that under the MVPA, Plaintiff had a property interest in his continued employment and was entitled to notice and a hearing before WSU terminated him. The court stated that it would revisit the issue of backpay and reinstatement after Defendants provided Plaintiff with a notice and a hearing before an impartial decisionmaker.

3/29/2018
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