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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; Race and National Origin Discrimination; Discrimination, Accommodation, & Diversity; Due Process; Constitutional Issues

Udeigwe v. Texas Tech University, et al. (5th Cir. May 11, 2018)

Per Curiam Opinion affirming-in-part and dismissing-in-part the district court’s order to dismiss Plaintiff’s Complaint. Plaintiff, a black male professor at Texas Tech University (TTU) who proceeds pro se, alleged that his non-reappointment to a tenure-track faculty position following a negative mid-tenure evaluation constituted discrimination, harassment, and retaliation based on race in violation of Title VII; deprived him of procedural due process under the Fourteenth Amendment; deprived him of an “equal right to work and/or” resulted in “retaliation due to protected speech because of his race”; and resulted in tortious interference with his employment contract under state law. The court found that Plaintiff’s Title VII claims failed because he did not timely appeal the decision of the district court, while his “equal right to work” claim failed because it lacked a constitutional basis. Noting that Texas did not recognize a property right in continued employment or the promise of tenure, the court dismissed Plaintiff’s procedural due process claim for lack of a recognized property or liberty interest. Acknowledging that “a party cannot tortuously interfere with its own contract,” the court dismissed Plaintiff’s tortious interference claim, since he was not able to show that Defendants “acted in a fashion so contrary to the corporation’s best interests that [their] actions could only have been motivated by personal interests.”  Last, the court found no allegations to support a First Amendment retaliation claim. 

5/15/2018
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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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Equal Protection; Due Process; Constitutional Issues

Rombough v. The University of Texas System, et al. (5th Cir. May 4, 2018)

Per Curiam Opinion affirming Defendants’ Motion to Dismiss. Plaintiff, a tenured professor at the University of Texas Pan-American (UTPA), was terminated from her position when UTPA merged with another Texas institution to form the University of Texas Rio Grande Valley (UTRGV). Plaintiff alleged that her dismissal from UTPA and UTRGV’s subsequent failure to hire her deprived her of a constitutionally protected property interest without due process and deprived her of equal protection under the law. Adopting the court’s reasoning in Edionwe v. Bailey, another wrongful termination suit arising as a result of the institutional merger, the court concluded that Plaintiff neither had a constitutionally protected interest in employment at UTRGV, nor were her due process rights violated when her employment ended with UTPA. The court further found that UTRGV’s policy of first hiring faculty members without a disciplinary history or poor performance reviews was rationally related to the State’s legitimate interest in promoting quality public education. Last, the court held that the Texas legislation that abolished UTPA was not unconstitutionally vague because it simply provided the State “light guidance” in exercising its discretion in hiring decisions.

5/8/2018
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Litigation, Mediation & Arbitration; Due Process; Constitutional Issues

Madden v. Jones (W.D. Pa. May 2, 2018)

Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiff, a California University (CU) employee, alleged under section 1983 that Defendant violated his procedural and substantive due process rights by declining to credit “seniority points” he purportedly earned while working in a number of CU administrative roles prior to returning to his academic faculty position. Plaintiff argued that as a result, he “remains in a ‘precarious’ position” in the event of faculty retrenchment, which CU initiated in March of 2017 but withdrew within four months. The court found that Plaintiff did not have Article III standing to pursue his claim because the injury he alleged was merely conjectural or hypothetical. Moreover, Plaintiff failed to exhaust administrative remedies available to him under his collective bargaining agreement—namely, submitting a written appeal to the Chancellor and engaging in binding arbitration. Even if Plaintiff had standing and had exhausted his administrative remedies, Plaintiff’s claim was time-barred because more than two years had elapsed from his first knowledge of the dispute and Plaintiff’s filing of his section 1983 claim.

5/7/2018
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Litigation, Mediation & Arbitration; Due Process; Constitutional Issues

Cohen v. Bd. of Trs. of the Univ. of the Dist. of Columbia (D.D.C. April 24, 2018)

Memorandum Opinion granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a tenured professor at the University of the District of Columbia (UDC), alleged that Defendants deprived him of due process and engaged in tortious conduct when UDC terminated his employment  for failing to submit teaching evaluations for three years, despite repeated warnings, a suspension without pay, and a final opportunity to submit the evaluations. As an initial matter, the court held that Plaintiff’s claims were not time-barred because the statute of limitations was tolled when he filed his original complaint. However, Plaintiff could not proceed with his state law claims because he failed to exhaust the administrative remedies available to him under his collective bargaining agreement. Specifically, Plaintiff did not properly appeal his union’s decision not to represent him in arbitration before filing his claims in court. The court allowed Plaintiff’s section 1983 due process claim for municipal liability to proceed against all Defendants except Defendant Steadman. Last, the court declined to expand Bivens liability to cover Plaintiff’s claim.

5/1/2018
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First Amendment & Free Speech; Due Process; Constitutional Issues

Groenewold v. Kelley, et al. (8th Cir. April 24, 2018)

Judgment affirming dismissal. Plaintiff, the former Director of the Energy and Environmental Research Center (EERC) at the University of North Dakota (UND), alleged that UND retaliated against him for exercising his free speech rights and deprived him of due process when UND terminated him for submitting false information about the EERC, creating an inappropriate and abusive work environment, being insubordinate to the President of the University, and other related reasons. Applying Garcetti, the court found that Plaintiff’s expressions about EERC’s costs, financial matters, and business opportunities did not amount to protected speech; rather, these expressions were made pursuant to Plaintiff’s duties as a public employee, and not as a private citizen on matters of public concern. The court further found that the President’s letter of intent, detailing 7 reasons for termination and 25 examples of misconduct, provided sufficient notice to Plaintiff of his impending termination, and his pre-termination hearing satisfied the due process requirement that he have an “opportunity to be heard.” Plaintiff’s withdrawal from his post-termination appeal precluded him from bringing a post-deprivation procedural due process claim, since he neglected to exhaust administrative remedies. Plaintiff’s substantive due process claim failed because his termination was neither “conscience shocking,” nor violated a deeply rooted fundamental right. Without a constitutional violation to support Plaintiff’s section 1983 claim, the court affirmed the dismissal of claims against UND’s President in his individual capacity and Individual defendants in their official capacities.

5/1/2018
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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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