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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.

Dates
Retaliation; First Amendment & Free Speech; Faculty & Staff; Constitutional Issues

Lamar University v. Jenkins (Tex. App. Jan. 11, 2018)

Memorandum Opinion granting Appellant’s Plea and dismissing Appellee’s Claims with prejudice. Appellee, a non-tenured professor at Lamar University (LU), alleged that LU retaliated against him by denying his application for promotion and tenure after he opposed LU’s use of the Graduate Records Exam (GRE) as a criteria for admission. Appellee argued that the GRE was an “inherently racist test,” and its use would exclude racial minorities and women from becoming paid graduate assistants at LU and from working as professional educators in Texas public schools, which amounted to an unlawful employment practice by LU. The court found that Appellants were entitled to sovereign immunity under the TCHRA because Appellee failed to plead a prima facie case of retaliation, specifically because Appellee could not show that LU’s use of the GRE in its admissions process amounted to an unlawful employment practice. As to Appellee’s remaining due process and First Amendment claims, the court found that Appellee had no protected property interest in continued employment or tenure, and that the speech at issue was within the scope of his employment duties and was not made as a citizen on a matter of public concern. 

1/17/2018
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Authorizations & Regulations; Government Relations

Federal Student Aid Posts Updated Cybersecurity Compliance Frequently Asked Questions (FAQ) (Jan. 12, 2018)

The Federal Student Aid (FSA) has updated its Frequently Asked Questions (FAQ) About Cybersecurity Compliance. The FAQs clarify some of the data security and breach questions that arose during a recent FSA Training Conference by outlining data security requirements, specifying how and when to report a breach, and discussing secure means for transporting personally identifiable information.

1/17/2018
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Real Property, Facilities & Construction

Texas Southern University v. Mouton (Tex. App. Jan. 11, 2018)

Opinion reversing the trial court’s order and dismissing Appellee’s claims. Appellee is a representative of Brent Randall, a college freshman who was killed on Texas Southern University (TSU)’s campus from a gunshot wound outside his dorm. Appellee brought claims of negligence and gross negligence against TSU for its purported failure to warn of the risks of harm on campus, failure to provide adequate security, and failure to make the campus safe after criminal activities. The sole question upon appeal was whether TSU’s governmental immunity was waived under the Texas Tort Claims Act, which establishes liability where a personal injury or death is caused by a “condition or use of tangible personal or real property.” The court found that the use or conditions of TSU’s property did not proximately cause Randall’s death and therefore, under the Act, Appellant had not waived its governmental immunity. Specifically, the court found that the gunshot wounds from a nonstudent that caused Randall’s death were unrelated to inadequate security, failure to warn, or failure to make safe any premise defects. 

1/17/2018
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Sexual Misconduct & Other Campus Violence

John Doe v. The Pennsylvania State University (M.D. Pa. Jan. 8, 2018)

Memorandum Opinion granting-in-part and denying-in-part Defendants’ Motion to Dismiss.  Plaintiff alleged that Penn State University (PSU) suspended him without sufficient due process, discriminated against him based on sex in violation of Title IX, and breached a covenant of good faith and fair dealing when it suspended him following an investigation and hearing that found him responsible sexual misconduct.  The court reserved judgment on Defendants’ claims that individual defendants were entitled to qualified immunity, because the record was not yet clear as to which constitutional rights Plaintiff was asserting, and thus the court could not determine  whether those rights were “clearly established.” The court allowed Plaintiff’s Title IX claim to proceed.  Although the court deemed Plaintiff’s allegations of “bias against the accuser” and “external social and political pressure” to amount only to pro-victim bias, and not gender bias, his allegations that “all students that have been suspended or expelled from [PSU] for sexual misconduct have been male,” and other similar allegations were sufficient to allege possible gender bias at this early stage of the litigation.  The court dismissed plaintiff’s contract and promissory estoppel claims.

1/12/2018
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Contract Administration; Practice of Higher Education Law

Wilson v. Northland College (D. Wis. Jan. 9, 2018)

Opinion and Order granting Defendants’ Motion to Dismiss with prejudice. Plaintiff resigned as athletic director and head women’s basketball coach at Northland College, after he was investigated for two separate sexual harassment complaints.  He brought breach of contract, invasion of privacy, and negligent supervision claims against the College after the College’s radio station broadcast a series of interviews relating to the alleged misconduct and published related content online.  The court dismissed Plaintiff’s contract claim because he failed to identify any term in his separation agreement that would have prevented a university employee from reporting on statements made by students about Plaintiff’s conduct.  The court also dismissed Plaintiff’s tort claims, since the radio broadcasts and online publications did not disclose any public content, and since Plaintiff failed to identify a duty to support his negligent supervision claim.

1/12/2018
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Authorizations & Regulations; Antitrust

NACAC Statement Regarding Cooperation with DOJ Inquiry (Jan. 10, 2018)

Statement from the National Association for College Admission Counseling (NACAC) regarding its cooperation with an inquiry from the Department of Justice (DOJ).  The DOJ inquiry appears to concern various provisions in NACAC’s Code of Ethics and Professional Practice. DOJ has requested documents from the association and steering committee members, apparently to ascertain whether any provisions in the Code of Ethics amount to an unlawful restraint on trade.  NACAC has indicated that it is “cooperating with the Justice Department and remain confident in the values that underpin SPGP: NACAC’s Code of Ethics and Professional Practice and its mission to serve students and our fellow professionals.”

1/12/2018
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Discrimination, Accommodation, & Diversity

Bivines v. Temple University (E.D. Pa. Jan. 8, 2018)

Order denying Defendant’s Motion to Dismiss.  Plaintiff, a housekeeper at Temple University, alleged that Temple maintained a hostile work environment and wrongfully terminated Plaintiff.  The Equal Employment Opportunity Commission denied Plaintiff’s claims as being untimely, though Plaintiff did not specify the exact date of termination on his complaint.  In denying the Motion to Dismiss, the court rejected Defendant’s argument that an untimely filing amounted to a failure to exhaust administrative remedies.  Rather, the court concluded that filing the charge and receiving a right-to-sue letter satisfied the “basic prerequisites for federal jurisdiction.”

1/11/2018
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Retaliation; Disability Discrimination; Discrimination, Accommodation, & Diversity

Zavaglia v. Boston University School of Medicine (D. Ma. Jan. 8, 2018)

Memorandum and Order awarding summary judgment to the Defendant.  Plaintiff, an Instructional Technology Specialist, alleged that the Boston University School of Medicine (BU) denied him a reasonable accommodation when it refused to shift the start time of Plaintiff’s schedule from 10:30am to 11am.  Plaintiff further alleged that BU retaliated against him by terminating his employment, after he was repeatedly warned about chronic tardiness.  In awarding judgment to the Defendant, the court concluded that Plaintiff failed to meet his burden of explaining how the requested accommodation was necessary, when the medical documentation specified only that Plaintiff needed an hour-and-a-half of time each morning to exercise. Even if Plaintiff had satisfied his burden, the court deemed it unreasonable to require the Defendant to create a new shift with a later start time.  The court awarded judgment to the Defendant on Plaintiff’s retaliation claim, because the two-year time period that elapsed between Plaintiff’s request for an accommodation and his employment termination was too remote to support a causal link.

1/11/2018
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