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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Distressed & Suicidal Students; Campus Police, Safety & Crisis Management

Principles for Students Who Pose a Risk of Self-Harm (Feb. 12, 2018)

Principles for Students Who Pose a Risk of Self-Harm compiled by the National Association of College and University Attorneys (NACUA).  These principles are derived from Acting Assistant Secretary of Education  Candice Jackson’s remarks during NACUA’s January 26, 2018 Briefing on “Students Who Pose a Threat of Self-Harm:  What Can Institutions Do?”  The principles describe lawful practices, consistent with the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, that institutions may adopt to assist students who pose a risk of self harm.  The principles emphasize individualized assessments and fair processes, while allowing institutions to execute behavior contracts, review medical information, and utilize involuntary separations as a last resort.  A complimentary recording of the Briefing is available to NACUA members in NACUA’s Online Learning Center.

Employee Discipline; Faculty & Staff; Campus Police, Safety & Crisis Management

Whitehurst v. East Carolina University (N.C. App. Feb. 6, 2018)

Order affirming the Final Decision of the Administrative Law Judge. Appellant, East Carolina University (ECU), dismissed Appellee—an officer in ECU’s Police Department—after he failed to properly investigate and document an assault incident on campus. After terminating Appellee for “unacceptable personal conduct for which no reasonable person should expect to receive a prior warning,” Appellee sought review by the Office of Administrative Hearings before an Administrative Law Judge (ALJ), who did not find just cause for dismissal. Instead, the ALJ demoted Appellee one pay grade below his rank. Appellant contends that the ALJ erred in concluding that ECU did not have just cause to dismiss Appellee and the ALJ lacked authority to order the alternative sanction of demotion. The court found that under state law, ECU did not have just cause to dismiss Appellee because his conduct was mitigated by his misunderstanding of who the assault victim was, the relatively light sanction imposed on a different responding officer for a similar violation, and Appellee’s lack of prior disciplinary actions. The court also  concluded that the ALJ had authority to impose the less severe sanction of demotion. 

Title IX; Sexual Misconduct & Other Campus Violence; Campus Police, Safety & Crisis Management

Gischel v. University of Cincinnati, et al. (S.D. Ohio Feb. 5, 2018)

Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a male student at the University of Cincinnati (UC) who was expelled following a UC finding that he sexually assaulted a female student, brought Title IX claims against UC under theories of selective enforcement, erroneous outcome, and deliberate indifference; section 1983 claims against UC officials for violations of the equal protection clause, substantive due process, and procedural due process; and a malicious prosecution claim against a UC Police Department detective. After dismissing Plaintiff’s deliberate indifference and selective enforcement claims for failing to plead facts that would amount to harassment or identify a similarly-situated female student who was treated more favorably than Plaintiff, the court allowed Plaintiff’s erroneous outcome claim and procedural due process claims to proceed because Defendants denied Plaintiff the opportunity to cross examine the complainant on her level of intoxication and on alleged police bias stemming from a purported relationship between the complainant and the UC detective.   The court also found  plausible gender bias, in part, arising from a pending OCR Title IX investigation and also from the alleged romantic relationship between the detective and the complainant. The court also allowed Plaintiff’s malicious prosecution claim to proceed, based on the same allegations of a romantic relationship between the complainant and the detective. 

Campus Police, Safety & Crisis Management

Freeman v. The University of Illinois at Chicago, et al. (N.D. Ill. Jan. 29, 2018)

Memorandum Opinion granting-in-part and denying-in-part Defendants’ Partial Motion to Dismiss. Plaintiff brought section 1983 claims against the University of Illinois of Chicago (UIC) after UIC officers used physical force to restrain him in response to a call about an altercation outside a restaurant. The court found that sovereign immunity barred Plaintiff’s claims against UIC, the UIC Police Department, the UIC Board, and a responding officer in his official capacity. However, the court found that sovereign immunity and Eleventh Amendment immunity did not shield the same responding officer in his individual capacity because Plaintiff alleged that the officer violated either statutory or constitutional law when he purportedly acted outside the scope of his authority by throwing Plaintiff to the ground, striking him, punching him, kneeing him, and stepping on him. 

Retaliation; Faculty & Staff; Campus Police & Relationships with Local Law Enforcement; Campus Police, Safety & Crisis Management

Hackbarth v. University of Texas at Dallas (Tex. App. Jan. 4, 2018)

Memorandum Opinion affirming the trial court’s award of summary judgment to the University of Texas at Dallas (UTD).  Appellant, a former UTD police officer, alleged that UTD retaliated against him under the Texas Whistleblower Act by terminating his employment after the University of Texas System’s Office of Director of Police (ODOP) concluded that Appellant inadequately responded to a domestic violence incident,  improperly handled public records, and failed to accept responsibility for his actions. The court found that Appellant failed to establish a causal link between his termination and the filing of his whistleblower reports, especially since UTD decisionmakers harbored no negative attitudes toward Appellant and adhered to established policies regarding the termination, and since no evidence suggested that similarly-situated employees were treated differently than Appellant. 

Guns on Campus; Campus Police, Safety & Crisis Management

Amicus Brief in Glass et al. v. Paxton et al. (Nov. 20, 2017)

Amicus brief by the American Association of University Professors (AAUP) and two non-profit organizations dedicated to reducing gun violence.  In this Fifth Circuit case, amici argue on behalf of Plaintiffs-Appellants that the Texas concealed carry statute, which permits concealed handguns in classrooms, infringes on academic freedom and jeopardizes institutional efforts to “provide [an] atmosphere which is most conducive to speculation, experiment and creation” by deterring faculty from prompting students to challenge each other.

Disaster Planning & Response; Campus Police, Safety & Crisis Management; Government Relations; Authorizations & Regulations

Department of Education Guidance for Helping Title IV Participants Affected by a Major Disaster (August 29, 2017)

Guidance issued from the Department of Education’s Postsecondary Education Office regarding the impact of a “major disaster” on the administration of Title IV student assistance programs. The letter provides guidance for regulatory relief to all recipients of Title IV financial aid and their families who reside at, are employed, or attend institutions located in a federally declared disaster area in the United States, as well as financial lenders and related institutions in affected areas. Affected participants of Title IV should refer to the attachment prepared by the Acting Assistant Secretary for Postsecondary Education for additional information.

Authorizations & Regulations; Government Relations; Campus Police, Safety & Crisis Management; Disaster Planning & Response

Department of Education Activates Emergency Response Contact Center (August 29, 2017)

Announcement from the Department of Education noting that the Department has activated its emergency response contact center in reaction to Hurricane Harvey. In light of the federally declared “major disaster,” the Department seeks to assist school districts and higher education institutions in their recovery efforts. Institutions in the affected region should refer to the guidance letter prepared by the Federal Student Aid Chief Operating Officer for local assistance and resources.