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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Sex Discrimination; Discrimination, Accommodation, & Diversity; Retaliation; Due Process; Constitutional Issues

Kirby v. State of North Carolina (E.D.N.C. Feb. 9, 2018)

Order granting Defendant’s Motion to Dismiss. Plaintiff, whose enrollment in North Carolina State University (NCSU)’s College of Veterinary Medicine was terminated in 1994 and who now proceeds pro se, brought claims against Defendant for deprivation of due process; violations of Title IX, specifically sex discrimination, continuing patterns or practice of discrimination by the state, and retaliation; and breach of contract based on allegations that NCSU unlawfully changed her grades from passing to failing. Plaintiff sought to bypass Title IX’s three-year statute of limitations by asserting that her claims accrued in 2017, upon discovery of tuition overpayments to NCSU by the U.S. Department of Education. Rejecting Plaintiff’s theory, the court found that Plaintiff’s claims based on her 1994 termination were either time-bared or precluded by a prior 2013 action against NCSU, which was dismissed for failure to state a claim. Last, the court dismissed Plaintiff’s breach of contract and deprivation of due process claims because they failed to state a plausible claims for relief. 

Due Process; Retaliation; Constitutional Issues

Robinson v. Wichita State University (D. Ka. Feb. 13, 2018)

Memorandum and Opinion granting-in-part and denying-in-part Defendants’ Motion on the Pleadings.  Plaintiff, former Vice President for Campus Life & University Relations at Wichita State University (WSU), alleged that WSU threatened his employment, demoted him, and terminated his employment in retaliation for initiating Title IX investigations.  Plaintiff also alleged that WSU deprived him of a liberty interest and defamed him when it published statements to third parties about his credentials, financial improprieties, and his termination.   The court allowed Plaintiff’s Title IX retaliation claim to proceed.  Although “[a]n employee cannot engage in protected activity while performing his job duties,” the court reasoned that Plaintiff went above and beyond the scope of his duties by “help[ing] other assert rights under Title IX.”  The court also found that Plaintiff sufficiently alleged that WSU deprived him of a liberty interest without due process, based on purportedly false statements that impugned Plaintiff’s reputation and good name, and allowed this count to proceed both against WSU and the WSU President in his individual capacity.  The court allowed some of Plaintiff’s defamation claims to proceed on similar grounds.

Sexual Misconduct & Other Campus Violence; Due Process; Equal Protection; Constitutional Issues

John Doe v. Miami University, et al. (6th Cir. Feb. 9, 2018)

Opinion affirming-in-part and reversing-in-part the district court’s grant of Defendants’ Motion to Dismiss. Plaintiff was suspended from Miami University (MU) after a hearing panel found him responsible for violating MU’s Student Conduct Regulations. Plaintiff brought Title IX claims against Defendants under theories of erroneous outcome, selective enforcement, deliberate indifference, and hostile environment, and section 1983 claims alleging deprivations of substantive due process, procedural due process, and equal protection. The court found that Plaintiff’s erroneous outcome claim could proceed, reasoning that Plaintiff plead facts to (1) cast “some articulable doubt on the accuracy” of the proceedings and (2) implicate gender bias.  The court also allowed Plaintiff’s equal protection claim to proceed based upon the inferences of gender discrimination and allowed Plaintiff’s procedural due process claim to proceed based on allegations of bias and a lack of access to the evidence.   

Due Process; Constitutional Issues

Childers v. Florida Gulf Coast University Board of Trustees, et al. (M.D. Fla. Jan. 30, 2018)

Opinion and Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a student at Florida Gulf Coast University (FGCU), alleged that Defendants violated his free speech and due process rights under the First and Fourteenth Amendments when they suspended him for purportedly posting a “vulgar communication” on a Facebook page. The court found that Defendants raised factual issues that were better addressed at a later stage in the litigation—such as whether Plaintiff’s speech was protected, whether the communication substantially disrupted other students’ abilities to pursue an education in a safe environment, whether FGCU’s interest in protecting students outweighed Plaintiff’s rights under the First Amendment, whether Plaintiff had a fundamental constitutional right to continuing his graduate education, and whether actions taken by Defendants were arbitrary or capricious. The court found that qualified immunity did not protect Defendants in their individual capacities because their monitoring or policing of a private social media page was outside their discretionary authority. Last, the court dismissed Plaintiff’s section 1983 claims because FGCU is a state agency and not a “person” within the meaning of section 1983. 

Equal Protection; Due Process; Constitutional Issues

Elansari v. Pennsylvania State University Dickinson School of Law, et al. (M.D. Pa. Jan. 26, 2018)

Memorandum granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a former law student at Pennsylvania State University (PSU)’s Dickinson School of Law, who proceeds pro se, alleged a class-of-one equal protection claim and violations of his substantive and procedural rights under the Fourteenth Amendment following his two-year suspension from PSU for recreational and medicinal use of marijuana, which Plaintiff now alleges PSU has altered to an indefinite ban from the campus. Adopting the magistrate judge’s report and recommendation in its entirety, the court dismissed: 1) Plaintiff’s class-of-one equal protection claim because he did not proffer a similarly-situated individual, 2) Plaintiff’s substantive due process claim because “continued enrollment in a graduate level program at an academic institution is [not] a protected property interest,” and 3) Plaintiff’s claims under the Pennsylvania Human Relations Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act because they were beyond the scope of the amended pleadings the court granted. The court further adopted the magistrate judge’s recommendation that Plaintiff’s procedural due process claim—relating to his indefinite ban from PSU’s campus—should proceed. 

Due Process; Discrimination, Accommodation, & Diversity; Students; Academic Misconduct; Constitutional Issues

Behne v. Union County College, et al. (D.N.J. Jan. 26, 2018)

Unpublished Opinion granting-in-part and denying-in-part Defendants’ Motion for Summary Judgment. Plaintiff, who was enrolled in Union County College (UCC)’s Physical Therapy Assistant Program, was dismissed after an affiliated clinical site terminated him for “setting up a patient” without authorization and lying about his authorization to do so. Prior to this termination, Plaintiff signed a learning contract with UCC arising from inappropriate behavior he exhibited at a different clinical site that led to UCC’s issuing an academic integrity violation. Among his claims, Plaintiff alleged that his dismissal from the Program violated the First, Fifth, Fourth, and Fourteenth Amendment of the Constitution and analogous provisions of the New Jersey Constitution; violated contract law, most notably, breach of contract; amounted to discrimination under New Jersey law; aided and abetted discrimination under New Jersey law; created a hostile educational environment; and amounted to tortious conduct. The court found that Plaintiff’s breach of contract claim could proceed because he raised genuine issues of material fact regarding “the scope of [the] learning contract, the propriety of the dismissal from the [second clinical site] as a justification for his dismissal from the Program, UCC’s notice to him and his ability to be heard, and… whether he was provided an appropriate appeal.” As a corollary to Plaintiff’s breach of contract claim, the court allowed Plaintiff’s procedural due process claims, negligence, and fraudulent misrepresentation claims to proceed. Plaintiff’s remaining claims were denied. 
Due Process; Constitutional Issues

Van Ert v. Blank, et al. (W.D. Wis. Jan. 26, 2018)

Decision and Order granting Defendants’ Motion to Dismiss. Plaintiff had a romantic relationship with the head coach of the University of Wisconsin-Madison (UW)’s men’s basketball team that ended poorly, leading Plaintiff to contact UW administrators via email to report accusations of manipulation and deception and  questioning the head coach’s ability to coach and mentor young men on the basketball team. Plaintiff subsequently brought section 1983 claims against Defendants for allegedly violating her constitutional rights under the First and Fourteenth Amendments by conducting a “sham” investigation of Plaintiff’s complaints and by releasing the email, with Plaintiff’s identifying information, in response to public records requests and media inquiries. The court found that Plaintiff’s due process claim was not cognizable because Plaintiff failed to show a change in status or right as a result of Defendants’ alleged conduct.  Plaintiff also failed to allege a cognizable privacy claim because Defendants disclosed information of significant public interest—namely, alleged misconduct by a public employee—and Plaintiff did not have a reasonable expectation of privacy or confidentiality. Plaintiff’s free speech retaliation claim failed because Defendants’ suggestion that Plaintiff’s complaint lacked merit did not “rise to the level of threat, coercion, intimidation, or profound humiliation” necessary to support a retaliation action, when the alleged retaliation is itself speech. Last, the court dismissed Plaintiff’s equal protection claim because, among its reasons, Defendants showed a “rational and proper purpose” for their actions. The court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state-law claims. 

Sexual Misconduct – Employment; Sexual Misconduct & Other Campus Violence; First Amendment & Free Speech; Due Process; Constitutional Issues

Buchanan v. Alexander, et al. (M.D. La. Jan. 10, 2018)

Ruling granting Defendants’ Motion for Summary Judgment and denying Plaintiff’s Cross-Motion. Plaintiff, a tenured professor at Louisiana State University (LSU), alleged that Defendants infringed upon her freedom of speech, academic freedom, and procedural and substantive due process rights when LSU’s Board of Supervisors terminated her employment after finding that her remarks about marriage and sex to students—made while training students for preschool to third-grade instruction—violated the University’s Policy Statements on Sexual Harassment. Plaintiff also brought a facial and as-applied constitutional challenge to LSU’s sexual harassment policy, arguing that it was overbroad and lacked an objective test for offensiveness. The court found that Plaintiff’s First Amendment claims failed either because they were time-barred or because qualified immunity protected Defendants’ objectively reasonable actions, notwithstanding the fact that Plaintiff failed to show that her remarks were protected speech or germane to a legitimate pedagogical purpose. The court further found that LSU’s sexual harassment policy was constitutional, both facially and as-applied to Plaintiff, since its language required conduct to be objectively severe and examples provided in the policy illustrated that conduct must be sufficiently severe and pervasive. Last, the court found that Plaintiff was afforded procedural and substantive due process to satisfy constitutional standards leading up to her termination.