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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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Retaliation; Sex Discrimination; Race and National Origin Discrimination; First Amendment & Free Speech; Equal Protection; Discrimination, Accommodation, & Diversity; Constitutional Issues

Smith v. Mississippi State University, et al. (N.D. Miss. Feb. 16, 2018)

Memorandum Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, an African-American woman who worked for Mississippi State University (MSU) as a Family Consumer Science Extension Agent, brought against MSU and Individual Defendants in their official and individual capacities a Title VII claim for retaliation and section 1983 claims for 1) sex discrimination, 2) race discrimination, 3) violations of the First and Fourteenth Amendment, and 4) conspiracy. The court found that Plaintiff could not bring section 1983 claims against MSU because it was not a “person” within the meaning of the statute, while Eleventh Amendment immunity protected Individual Defendants in their official capacity. Dismissing Plaintiff’s individual capacity claims under section 1983—which included conspiracy, failure to investigate sexual harassment, First Amendment retaliation, and a violation of the Fourteenth Amendment Equal Protection Clause—the court found that Plaintiff either failed to allege requisite facts to establish each claim or Individual Defendants were protected by qualified immunity. Last, Plaintiff’s Title VII claim failed because Individual Defendants were employees and not employers within the meaning of the statue. 

2/20/2018
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First Amendment & Free Speech; Constitutional Issues

College Republicans of the University of Washington and Swanson v. Cauce, et al. (W.D. Wash. Feb 9, 2018)

Order granting Plaintiff’s Motion for a Temporary Restraining Order (TRO). Plaintiffs, the University of Washington (UW) College Republicans and its student president, alleged a First Amendment constitutional challenge to UW’s Safety and Security Protocols for Events Policy, which requires student groups to pay the anticipated costs of security for on-campus events. In awarding the TRO, the court found that Plaintiffs established a substantial likelihood of success on the merits because the policy did not utilize a “definite and objective process.” Specifically, administrators had broad discretion to decide which events were charged for enhanced security and how much based on factors such as the estimated response of others to the content of the speech, the number of police necessary to meet that response, and past protests for or against the controversial speakers. Of particular note, the court said, “Administrators relying on instances of past protests, either for or against a student organization or speaker, will inevitably impose elevated fees for events featuring speech that is controversial or provocative and likely to draw opposition.  Assessing security costs in this manner impermissibly risks suppression of ‘speech on one side of a contentious debate.’” Plaintiffs also sufficiently showed immediacy and irreparable harm and that the balance of equities and the public interest supported entering a TRO. 

2/13/2018
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Retaliation; First Amendment & Free Speech; Constitutional Issues

Boglin v. The Board of Trustees of Alabama University, et al. (N.D. Ala. Feb. 6, 2018)

Memorandum Opinion and Order granting Defendants’ Motion to Dismiss. Plaintiff, a senior secretary in the Career Development Services Office at the Alabama Agricultural & Mechanical University (AU), alleged that AU retaliated against her by dismissing her for reporting that employees within the department had been manipulating AU’s leave system by filing fraudulent leave and reimbursement requests. The court found that because the Board of Trustees’ authority did not include reinstating her employment, the Ex parte Young exception did not apply, and Individual Defendants were entitled to sovereign immunity. The court further found that Plaintiff’s speech was made pursuant to her professional duties, rather than as a citizen, and its purpose was not to raise matters of public concern. 

2/9/2018
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First Amendment & Free Speech; Constitutional Issues

Roemer v. Booth, et al. (2nd Cir. Jan. 30, 2018)

Order affirming the dismissal of Plaintiff’s complaint. Plaintiff, a retired high school science teacher proceeding pro se, brought First and Fourteenth Amendment claims against Columbia University’s General Counsel (GC) and President after they declined his offer to lecture on “the cosmological argument for God’s existence.” When the GC informed Plaintiff that continued efforts to contact University members could be considered harassment, Plaintiff filed an ethics complaint with the New York Attorney Grievance Committee. Upon reviewing Plaintiff’s request for injunctive relief against Defendants, the district court dismissed sua sponte Plaintiff’s Complaint as frivolous. Plaintiff then motioned for the district court judge’s recusal and for default judgment against the University’s President.  The court found Plaintiff’s claims to be without merit and r found no bias by the district court judge in reviewing Plaintiff’s Complaint.  

2/1/2018
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Race and National Origin Discrimination; Retaliation; First Amendment & Free Speech; Discrimination, Accommodation, & Diversity; Constitutional Issues

El-Bawab v. Jackson State University, et al. (S.D. Miss. Jan. 24, 2018)

Opinion and Order granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff alleged that various officials at Jackson State University (JSU) discriminated and retaliated against him based on his “color” and national origin, and created a hostile work environment when JSU declined to promote him to full professor and purportedly engaged in a series of retaliatory actions after her reported discriminatory conduct.  Plaintiff also alleged that Defendants retaliated against him for protected speech, by appointing to his promotion review committee several professors whom he had personally criticized.  The court awarded judgment to the Defendant on all of Plaintiff’s First Amendment claims, reasoning that the 11th Amendment barred actions against Defendants in their official capacities and, regarding Plaintiff’s claims against Individual Defendants, that Plaintiff’s criticisms of fellow faculty members were made within the scope of his employment and not made as a citizen on a matter of public concern.  The court dismissed Plaintiff’s “color” discrimination claim because he did not check the “color” box on his EEOC charge, and thus failed to put Defendants on notice that he intended to pursue such claims.  The court allowed Plaintiff’s retaliation and hostile environment claims to proceed.

1/29/2018
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First Amendment & Free Speech; Constitutional Issues

Bradley v. West Chester University of the Pennsylvania State System of Higher Education, et al. (3rd Cir. Jan. 26, 2018)

Opinion affirming Defendant West Chester and Defendant Pennsylvania State System of Higher Education’s Motion to Dismiss, and affirming Defendant Mixner’s Motion for Summary Judgment. Plaintiff, the Director of Budget and Financial Planning at the West Chester University of Pennsylvania (WCU), alleged that Defendants retaliated against her for protected speech under the First Amendment and violated the Pennsylvania Whistleblower Law when WCU terminated Plaintiff, allegedly in retaliation for expressing her objection to directives from the Pennsylvania State System of Higher Education (PASSHE) and the Vice President of Finance and Administration (Defendant Mixner) to present budgets that showed deficits, rather than surpluses, to WCU’s Administrative Budget Committee and WCU’s Enrollment Management Committee. The court found that the First Amendment did not protect Plaintiff’s speech because her concerns about the budget document were relayed  as a government employee pursuant to her official duties, and thus not protected under Garcetti. The court further determined that PASSHE and WCU were protected by Eleventh Amendment immunity. 

1/29/2018
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First Amendment & Free Speech; Constitutional Issues

U.S. Dep.’t of Justice Statement of Interest in Young Americans Foundation and Berkeley College Republicans v. Napolitano (Jan. 25, 2018)

U.S. Department of Justice (DOJ) Statement of Interest in Young America’s Foundation and Berkeley College Republicans v. Janet Napolitano. The case concerns two conservative student groups’ attempts to bring “high-profile” campus speakers to the University of California (UC) Berkeley under its High-Profile Speaker Policy and its Major Events Policy. Plaintiffs alleged that the policies afford UC administrators too much discretion to determine which speakers are subject to the additional restrictions imposed by the policies, which include date, venue, and timing restrictions, determined by the administration based on a security assessment. In its Statement of Interest, the DOJ contends that UC’s speech policies amount to prior restraints on protected speech and invite viewpoint discrimination, and UC’s interest in campus safety did not outweigh Plaintiff’s First Amendment rights. 

1/26/2018
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First Amendment & Free Speech; Constitutional Issues

Keister v. Bell, et al. (11th Cir. Jan. 23, 2018)

Order affirming the denial of Plaintiff’s Motion for a Preliminary Injunction. Plaintiff, a traveling Christian evangelist who sought to proselytize to students at the University of Alabama (UA), a state-funded public university, appealed the district court’s finding that the UA intersection in which Plaintiff wanted to preach was a limited public forum. Plaintiff argued that the intersection was a traditional public forum because its physical appearance looked like a public sidewalk, and any individual could walk unimpeded from the city onto UA’s campus. The court found Plaintiff’s argument unpersuasive, noting that the intersection was at the “heart of campus” with visible UA signage and landscaping. More importantly, the court explained that “[t]he relevant inquiry is whether UA intended to open this area up for non-student use.” Answering this inquiry in the negative, the court cited the educational justifications UA had for placing restrictions on public discourse within its campus. 

1/26/2018
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