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.

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First Amendment & Free Speech; Constitutional Issues

Nailon v. University of Cincinnati, et al. (6th Cir. Nov. 9, 2017)

Opinion affirming the district court’s denial of qualified immunity. Plaintiff, a collection specialist in the Office of the Bursar at the University of Cincinnati (UC), alleged that UC’s decision to terminate her for handling her family members’ loan accounts amounted to First Amendment retaliation for her niece’s complaints of racial discrimination in the office. The court found that individual Defendants were not protected by qualified immunity because Plaintiff successfully alleged a causal connection between her niece’s protected speech and her own termination, and the right asserted was clearly established at the time of the termination. 

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. 

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

Board of Trustees of Purdue University, et al. v. Eisenstein (Ind. App. Oct. 30, 2017)

Decision affirming the denial of Appellee’s Motion for Summary Judgment and reversing the denial of Appellant’s Motion for Summary Judgment. Appellee, a Purdue University professor, challenged the University’s Policy and Procedures on free speech and due process under sections 1983 and 1985 of the Civil Rights Act after he received a reprimand for retaliating against an individual who filed a complaint against Appellee for repeated anti-Muslim statements in class, on his Facebook page, and on his personal blog. The court found that the Eleventh Amendment protected Purdue University and Appellants in their official capacities from claims brought under sections 1983 and 1985 because Plaintiff did not seek prospective relief.  The court also awarded judgment to Appellants in their individual capacities, concluding that an absolute privilege under Indiana law, that protected statements made in the course of quasi-judicial proceedings, shielded the Appellants from liability. Turning to Appellee’s state law claims, the court found that Appellee did not allege sufficient facts to support his tort claims, and Appellee’s contract claim could not proceed because the Faculty and Staff Handbook on which he based his argument was not part of his employment contract. 

First Amendment & Free Speech; Constitutional Issues

Justice Department Files State of Interest in California Campus Speech Case (Oct. 24, 2017)

The Department of Justice (DOJ) filed a Statement of Interest in Shaw v. Burke. The case concerns a student who sought to distribute Spanish copies of the U.S. Constitution at Pierce College, a public college within the Los Angeles Community College District, and advances a constitutional challenge to the college’s speech policies that limit free expression to a 606 square-foot “Free Speech Area.” The college’s speech policies further required that students obtain authorization from school officials prior to using the Free Speech Area. In this Statement of Interest the DOJ contends that the college’s speech policies imposed invalid time, place, and manner restrictions on protected speech that amounted to an unconstitutional prior restraint. 

First Amendment & Free Speech; Constitutional Issues

Hale v. University of Alabama Board of Trustees, et al. (N.D. Ala. October 6, 2017)

Memorandum and Opinion granting Defendant’s Motion to Dismiss. Plaintiff, a research assistant at the University of Alabama-Birmingham’s (UAB) Department of Microbiology Tuberculosis Bio-Containment Facility, brought Title VII, tortious deceit and misrepresentation, and First Amendment retaliation claims against UAB after UAB terminated her following remarks about lab safety protocol, which included a formal complaint filed with the Occupational Safety and Health Administration. Dismissing Plaintiff’s Title VII and state law claims as either duplicative barred by sovereign immunity, the court turned its attention to Plaintiff’s First Amendment retaliation claim, and applying a Garcetti analysis, concluded that Plaintiff’s speech was not protected because the statements were made as an employee in furtherance of her responsibilities, rather than as a citizen on a matter of public concern. 

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. 

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

Banik v. Tamez, et al. (S.D. Tex. September 21, 2017)

Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a tenured chemistry professor at the University of Texas Pan-American (UTPA), alleged that Defendants retaliated against him following three statements: first, statements made in the a conversation with a student regarding her personal situation; second, Plaintiff’s reference to a local gentlemen’s club ad; and third, Plaintiff’s criminal allegations  against another professor. The court dismissed all claims either because Plaintiff failed to show he spoke as a citizen on a matter of public concern or because Plaintiff could not show that his speech was a substantial or motivating factor behind Defendant’s decision to terminate his employment.