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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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.

Practice of Higher Education Law; Retaliation; Litigation, Mediation & Arbitration; Faculty & Staff

Taswell v. Regents of the Univ. of Cal. (Cal. App. May 14, 2018)

Opinion reversing the grant of Defendant’s Motion for Summary Judgment and Summary Adjudication. Plaintiff, a medical doctor who worked for the University of California (UC) Irvine medical school as a nuclear medicine physician, alleged under state law that Defendant terminated him in retaliation for reporting alleged safety violations to state and federal agencies. Defendant contended that they placed Plaintiff on an investigatory leave of absence and declined to renew his contract because he entered a laboratory without authorization and had interpersonal issues with the staff, among other reasons. Because California law authorized Plaintiff to proceed in court following an adverse administrative decision, the Court deemed it unnecessary for Plaintiff to have filed a petition seeking a writ of mandamus to challenge the administrative decision. Further, the court declined to give preclusive effect to  the administrative decision, rejecting Defendant’s arguments that that matter was barred by res judicata or collateral estoppel. Last, the court found a triable issue of material fact as to whether a causal connection existed between UC’s decision to place Plaintiff on a leave of absence and UC’s decision not to renew his contract.

Litigation, Mediation & Arbitration; Employee Discipline; Practice of Higher Education Law; Faculty & Staff

Swauger v. University of North Carolina at Charlotte (N.C. App. May 15, 2018)

Opinion affirming Respondent’s Motion to Dismiss. Petitioner, a mechanic who worked for the University of North Carolina (UNC) at Charlotte, alleged that UNC dismissed him without just cause based on his refusal to sign a Google Terms of Service agreement for email use. At issue is whether Petitioner pursued the correct procedure to appeal an administrative law judge’s finding that UNC had just cause for his dismissal. After looking to the plain language of the relevant statutes and analyzing the case law, the court found that Petitioner did not pursue an “adequate procedure” for judicial review. As a result, the court held that the superior court properly dismissed Petitioner’s petition for lack of subject matter jurisdiction.

Litigation, Mediation & Arbitration; Practice of Higher Education Law

Threadford v. Board of Trustees of the University of Alabama (N.D. Ala. May 14, 2018)

Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiff alleged that Defendant violated the Telephone Consumer Protection Act (TCPA) and invaded her privacy under state law by repeatedly contacting her with a pre-recorded message through autodialing without her permission. The court found that Eleventh Amendment immunity barred Plaintiff’s TCPA claim because nothing in the express language of the Act abrogated Defendant’s immunity, while sovereign immunity barred Plaintiff’s invasion of privacy claim.

Litigation, Mediation & Arbitration; Practice of Higher Education Law; Sex Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Pierotti v. Bd. of Regents of the Univ. of Cal. (N.D. Cal. May 11, 2018)

Order granting Defendant’s Motion for Partial Summary Judgment. Plaintiff, a senior administrator at the University of California (UC) Berkeley who proceeds pro se, alleged under Title VII and state law that 1) a UC immediate supervisor subjected her to sexual harassment and 2) Defendant retaliated against her by demoting and terminating her after she pursued a whistleblower complaint. Defendant alleged that Plaintiff was terminated for “engaging in a lengthy sexual relationship with a subordinate and by abusing her position with the University to provide that subordinate promotions, pay raises and bonuses.” Looking to the scope of conduct alleged in Plaintiff’s EEOC charge, the court found that Plaintiff’s sexual harassment claim was not “reasonably related” to the general allegations of age and sex discrimination set forth in the EEOC charge. Further, equitable excuse could not save Plaintiff’s sexual harassment claim because her inquiry to the EEOC about adding claims that accrued “since the time” she initiated her charge did not encompass harassing conduct by her supervisor that occurred before her EEOC filing. As a result, Plaintiff could not show that but for her reliance on a mistaken response by an EEOC employee, she would have been able to file her sexual harassment claims. The court further found Plaintiff’s retaliation claim time-barred, since Plaintiff filed her cause of action outside the three-year statute of limitations. Moreover, Plaintiff’s retaliation claim could not proceed under equitable tolling because doing so denied Defendant timely notice of the claim.

Title IX; Sexual Misconduct & Other Campus Violence; First Amendment & Free Speech; Litigation, Mediation & Arbitration; Practice of Higher Education Law; Due Process; Constitutional Issues

Hyman v. Cornell Univ. (2nd Cir., May 9, 2018)

Summary Order affirming the judgment of the district court.  Hyman (Plaintiff) sued Cornell University and seventeen other University employees (Defendants) alleging First Amendment and Title IX violations when her report of sexual harassment against one of the Defendants was dismissed and when she was sanctioned by the school for harassing him.  Plaintiff’s suit was dismissed by the district court as barred by res judicata because her claims relied on the same operative facts as a previous suit she had filed against the University and one of the named Defendants.  Plaintiff appealed both the dismissal and denial of reconsideration by the district court.  Plaintiff attempted to overcome res judicata by pointing to additional allegations in the suit that post-date her first suit and by naming sixteen additional defendants in the suit that were not named in the first.  The court found that the addition of new facts were from substantially the same transaction or occurrence and even though they post-date the first claim, do not amount to a new claim.  In addition, citing the principle of privity, the court found that the naming of sixteen additional defendants did not overcome claim preclusion because all the named defendants are “[University] professors and administrators whose ‘interests were adequately represented’ by [the University] in the first suit.”  The court found no error in the district court’s denial of reconsideration.

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

Sheil v. Horton (Ohio Ct. Cl. April 16, 2018)

Report and recommendation from the Ohio State Court of Claims concluding that the Cuyahoga Community College Foundation (“Tri-C Foundation”) – a tax exempt, nonprofit entity created to solicit, receive, and hold public contributions for the benefit of Cuyahoga Community College (“Tri-C”) – is subject to Ohio’s Public Records Act. Requester Sheil alleged that respondent Horton, the Media Relations Manager at Tri-C, denied access to public records by rejecting his request for a copy of a contract between Tri-C Foundation and an actress for a speaking engagement. Horton argued that Tri-C Foundation was not subject to the public records act because it was not the functional equivalent of a public entity, and that, even if it were, the contract constituted a trade secret. Applying the “functional equivalency” test in State ex rel. Oriana House, Inc. v. Montgomery, the court concluded that all factors weighed in favor of finding that Tri-C Foundation was the functional equivalent of a public office. Even were it not the functional equivalent of a public office, Tri-C Foundation and Horton were subject to the act as “person[s] responsible for public records.” Horton’s trade secret argument failed because he failed to show that any material in the requested contract constituted a trade secret.

Litigation, Mediation & Arbitration; Practice of Higher Education Law; Disability Discrimination; Discrimination, Accommodation, & Diversity

Ticer v. Young, et al. (N.D. Cal. May 4, 2018)

Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a disabled student who was prone to “debilitating fear and anxiety related to other people,” alleged under the Americans with Disabilities Act, the Rehabilitation Act of 1973, and state law that San Jose State University (SJSU) discriminated against him and intentionally inflicted emotional distress (IIED) while he attended its engineering program. Specifically, Plaintiff alleged that Defendant Young—a professor in the Biomedical, Chemical, and Material Engineering department—refused to reasonably accommodate his disability and subjected him to years of disparaging and discouraging remarks, which resulted in his taking a medical leave of absence, his diagnosis of post-traumatic stress disorder, and his disqualification from the engineering program without notice. At issue was whether Plaintiff’s disability discrimination and tort claims were subject to equitable tolling due to his mental disability and lack of notice about his disqualification. After reviewing the relevant case law, the court distinguished Plaintiff’s circumstances from the high bar of “incapacitation” required to benefit from equitable tolling. Namely, Plaintiff did not assert in his complaint that despite knowing his legal rights, he failed to bring his claims because of his mental disability. However, the court allowed Plaintiff’s claim based on his disqualification without notice to proceed since it was not challenged by Defendants, while also allowing Plaintiff to amend his IIED claim to clarify that he wished to hold SJSU vicariously liable.