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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.

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Title IX; Sexual Misconduct & Other Campus Violence

Jane Doe v. University of Notre Dame Du Lac (N.D. Ind. May 11, 2018)

Opinion and Order granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, an undergraduate student at Holy Cross College who sought to transfer to Notre Dame under a transfer enrollment program between the two institutions, alleged under Title IX that Notre Dame’s handling of her report that she had been sexually assaulted by a Notre Dame football player was deliberately indifferent. The court noted the “unusual circumstance” in which Plaintiff sought to hold Notre Dame liable—specifically, Plaintiff alleged that Notre Dame’s decision to investigate the incident was deliberately indifferent to her wish to keep the matter private. The court found that Notre Dame’s decision to investigate the matter was not “clearly unreasonable” in light of its independent obligation to investigate allegations of sexual misconduct, especially since Notre Dame received notice of two separate reports of sexual misconduct by the same assailant. The court declined to exercise supplemental jurisdiction on Plaintiff’s remaining state law claims.

5/16/2018
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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.

5/11/2018
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First Amendment & Free Speech; Title IX; Sexual Misconduct & Other Campus Violence; Sex Discrimination; Due Process; Discrimination, Accommodation, & Diversity; Constitutional Issues

Doe v. Distefano (D. Colo. May 7, 2018)

Order granting in part and denying in part Defendant’s motion to dismiss.  Plaintiff, a male student at the University of Colorado, Boulder (University), sued after he was expelled for sexually assaulting two female students, claiming that the University’s investigation and its outcome violated Title IX because both were “motivated by pervasive anti-male bias amounting to sex discrimination.” Plaintiff also claimed a procedural due process violation and requested the Court order Defendant to purge an adverse notation from his transcript.  The court granted Defendants’ motion on the portion of Plaintiff’s claim based on the assertion that “[a] person has a protected liberty interest in his good name, reputation, honor and integrity” because Plaintiff failed to contest Defendant’s counterarguments in his reply and because “[h]arm to reputation alone is not the sort of harm that supports a procedural due process claim…[under] the so-called ‘stigma plus’ test.” However, the court denied the motion as to the portion of Plaintiff’s claim based on a property interest because Defendant failed to engage the question raised by Plaintiff “whether this context—wherein a plaintiff is accused of conduct which may form the basis for criminal prosecution—changes the Mathews v. Eldridge [due process] calculus in a manner requiring more than minimal notice and an opportunity to respond” and because “Plaintiff’s accusations, taken together, create a plausible inference of bias against those accused of sexual misconduct.” 

5/11/2018
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Sexual Misconduct & Other Campus Violence

North v. Catholic Univ. of Am., et al. (D.D.C. April 30, 2018)

Memorandum Opinion granting Defendants’ Motion to Dismiss. Plaintiff, a former student at Catholic University of America (CUA) who was accused of sexual misconduct, alleged that CUA deprived him of due process, intentionally inflicted emotional distress (IIED), and breached a duty of “basic fairness” in administering its conduct proceedings.   Defendants argued that the conduct Plaintiff alleged did not support an IIED claim, the tort of breach of “basic fairness” did not exist under state law, and claims against Individual Defendants were duplicative of claims brought against CUA. The court found CUA’s arguments persuasive, concluding that the high bar for an IIED claim in the context of a sexual harassment investigation was not met. Citing state law precedent in Kerrigan v. Britches of Georgetowne, Inc. (where allegations of a targeted sexual harassment investigation, manufactured evidence, leaked information from the investigation, and an alleged unjustifiable demotion were not legally sufficient to state a claim for IIED), the court stated that “the equivalent in this case would be if [CUA] or its administrators sought to initiate a criminal investigation of [Plaintiff], knowing him to be not responsible for the conduct alleged,” and no such allegations were made by Plaintiff. The court further found no common law claim for “basic fairness” in D.C., while Plaintiff’s claims against Individual Defendants in their official capacities were dismissed because the claims merged with those brought against CUA.

5/4/2018
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Title IX; Sexual Misconduct & Other Campus Violence

John Doe v. George Washington University (D.D.C. April 25, 2018)

Memorandum Opinion denying Plaintiff’s Motion for a Preliminary Injunction.  After a George Washington University (GWU) hearing panel found Plaintiff Doe responsible for sexual assault, GWU sanctioned Plaintiff to a 1-year suspension, which delayed the conference of his degree, though Plaintiff had completed all coursework.  Plaintiff Doe sought a preliminary injunction to enjoin his suspension until his Title IX, D.C. Human Rights Act, breach of contract, and negligence claims could be resolved.  In denying the injunction, the court concluded that Doe was unlikely to succeed on the merits of all but one claim--his breach of contract claims with respect to his appeal.  On that claim, GWU neither considered a new witness affidavit nor expert report, because these documents were not “brand-new [and] previously unavailable evidence.” The Court characterized GWU’s interpretation of the “new evidence” provision in the Code to be a “strict lawyer’s interpretation” that “contradicts the plain language of the Code.”  Though finding Plaintiff was likely to succeed on his breach of contract claim, the court denied the injunction since the one-year gap between the completion of Plaintiff’s coursework and the start of graduate school did not amount to irreparable harm, since such gaps “happen normally in the lives of students.”  While the court found that both parties asserted strong public interests, the court found that the balance of harms weighed in favor of GWU.

5/3/2018
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Title IX; Sexual Misconduct & Other Campus Violence; Retaliation; Sex Discrimination

Jane Doe v. Prairie View A&M University and Johnson (S.D. Tex. April 25, 2018)

Memorandum and Order granting-in-part and denying-in-part Defendant Prairie View A&M University’s Motion to Dismiss and granting Defendant Johnson’s Motion to Dismiss. Plaintiff, a student at Prairie View A&M University (A&M) who worked as a researcher at the A&M Agricultural Research Center (ARC), alleged that A&M violated Title VII, Title IX, and Texas tort law in its handling of her report of sexual assault by her supervisor at ARC. At issue was whether Plaintiff’s sexual harassment claims could proceed under both Title VII and Title IX because, as Defendants argued, Plaintiff interacted with her supervisor as an employee of ARC and Title VII afforded her an exclusive remedy for employment discrimination under 5th Circuit precedent in Lakowski v. James.  Distinguishing Lakowski, the court allowed Plaintiff’s Title IX claim to proceed because as a student employed in a job tied to her education, she sufficiently alleged that she was denied the benefits of her educational program and “Title VII alone would not account for all these harms.” The court advanced Plaintiff’s Title IX retaliation claim under the same analysis. Consistent with Texas law, the court dismissed Defendant Johnson since Plaintiff’s claims against him arose from the same subject matter as claims brought against Defendant A&M.

4/30/2018
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Due Process; Constitutional Issues; Sexual Misconduct & Other Campus Violence

John Doe v. Ohio State Univ., et al. (S.D. Ohio April 24, 2018)

Opinion and Order denying Defendants’ Motion for Summary Judgment. Plaintiff, a fourth-year medical student at Ohio State University (OSU) who was expelled after a first-year medical student, Jane Roe, accused him of sexual assault, alleged that OSU deprived him of due process in denying him the opportunity to effectively cross-examine Jane Roe on her motive to report the purported sexual assault. Faced with conflicting witness testimony, the outcome of the disciplinary hearing hinged on a credibility assessment of the two parties.  In that context, the court found it to be probative that after failing the first year of medical school twice, which would normally result in dismissal under OSU policies, OSU permitted Jane Roe to restart her first year of medical school as an accommodation for the newly reported assault.  Weighing whether OSU owed Plaintiff the additional safeguard of providing Doe with necessary impeachment evidence, the court stated that Doe’s private interest in continuing his education was substantial, the risk of erroneously disciplining Doe and the probative value of the additional safeguard was high, and the government interest in meeting the fiscal or administrative burden of providing this safeguard was low. On those grounds, the court allowed the due process claim to proceed to trial and declined to make a determination that qualified immunity shielded from liability the assistant director of OSU’s Sexual Civility and Empowerment program. The court further re-examined its application of the Mathews test in deciding whether due process required OSU to admit John Doe’s live expert testimony on Jane Roe’s intoxication and memory impairment. Again finding John Doe’s private interest high, the value of allowing the live expert testimony substantial, and the government’s interest in providing the additional safeguard  substantial, the court vacated its prior dismissal of the claim and allowed the claim to advance to discovery.

4/30/2018
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Sexual Misconduct – Employment; Sexual Misconduct & Other Campus Violence

Johnson v. Regents of the University of California (Cal. App. April 24, 2018)

Unpublished Opinion affirming the denial of Appellant’s Petition for Writ of Administrative Mandate. Appellant, a former employee of the University of California San Francisco (UCSF), challenged his termination for violations of UCSF’s Sexual Harassment Policy.  Plaintiff was found by UCSF to have engaged in a course of troubling behavior over a 2-year period, that centered around Plaintiff’s infatuation with a hospital employee named S.M. The court found no abuse of discretion by the administrative hearing officer who oversaw Appellant’s post-deprivation hearing, particularly because there was substantial evidence of “severe or persistent” conduct by Appellant that resulted in a hostile work environment—namely, over the course of two years, Appellant “asked S.M. out on a date, gave her unwanted cards and gift cards, stared or leered at her, over-assigned himself to her work areas, constantly appeared in areas of the hospital where she was working or taking a break, sent her emails and notes expressing his affection for her, took steps to buy a condominium in the development where she lived, persisted in this effort even after she yelled at him and told him to leave her alone, and asked coworkers to intercede on his behalf.” The court further found no abuse of discretion in UCSF’s decision to immediately terminate Appellant rather than pursue progressive disciplinary actions. Last, the court found that Appellant failed to show deprivation of a fair hearing or a prejudicial abuse of discretion in UCSF’s investigation of the matter.
4/27/2018
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