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; Gender Identity & Sexual Orientation Discrimination; Equal Protection; Constitutional Issues

Grimm v. Gloucester County School Board (E.D. Va. May 22, 2018)

Order denying Defendant’s Motion to Dismiss. Plaintiff, a transgender man who was a former student in the Gloucester County School District, alleged that the Gloucester County School Board (GCSB) violated Title IX and the Equal Protection Clause of the U.S. Constitution by enacting a policy that required students to use restroom and locker room facilities according to their biological sex. The court held that Plaintiff’s claim of discrimination on the basis of his transgender status constituted a per se actionable claim of sex discrimination under Title IX. Similar to the logic applied in Price Waterhouse v. Hopkins, the court concluded that the Plaintiff plead an actionable Title IX claim by alleging that the policy unlawfully subjected students to differential treatment based on gender stereotyping. Addressing Plaintiff’s Equal Protection claim, the court found intermediate scrutiny appropriate because GCSB’s policy relied on sex stereotypes and therefore applied sex-based classifications. Moreover, the court held that transgendered individuals constituted a quasi-suspect class because 1) they have been historically subjected to discrimination based on their gender identity, 2) their gender status has little to no bearing on their ability to contribute to society, 3) their status is immutable, and 4) they constitute a minority demographic in society with little political power. Applying intermediate scrutiny, the court concluded that Plaintiff plead sufficient facts to allege that GCSB’s policy was not substantially related to achieving its governmental objective of protecting other students’ privacy rights. 
Equal Protection; Disability Discrimination; Age Discrimination; Discrimination, Accommodation, & Diversity; First Amendment & Free Speech; Constitutional Issues

Committe v. Yen, et al. (N.D. N.Y. May 7, 2018)

Memorandum Decision and Order granting Defendants’ Motion to Dismiss. Pro se Plaintiff, a sixty-six year old man with physical disabilities, alleged under the equal protection clause pursuant to a section 1983 claim that State University of New York (SUNY) discriminated against him based on age and disability when it failed to hire him for a tenure-track position and visiting assistant professor position. Plaintiff further alleged that SUNY violated his “right to academic freedom under the due process clause” by requiring him to participate in a teaching presentation as part of his interview. The court dismissed Plaintiff’s disability discrimination claim because disability is not a protected class under the equal protection clause. The court further dismissed Plaintiff’s age discrimination claim because he failed to allege facts that supported an inference of age discrimination and failed to rebut Defendants’ legitimate, non-discriminatory reason for hiring other younger applicants—namely, that Plaintiff received negative evaluations on his teaching presentation. Plaintiff’s academic freedom claim was dismissed because it was unclear to the court how SUNY’s interview requirement violated any right to academic freedom under First Amendment jurisprudence.

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.

First Amendment & Free Speech; Equal Protection; Political Activity on Campus; Constitutional Issues; Campus Police, Safety & Crisis Management

Kushner v. Buhta, et al. (D. Minn. April 18, 2018)

Memorandum Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, a lawyer and alumnus of the University of Minnesota Law School (UMLS), brought section 1983 claims against Defendants for First Amendment interference and retaliation, excessive force, disparate treatment under the Equal Protection Clause, procedural and substantive due process violations, unlawful arrest, and conspiracy following his removal from an on-campus lecture and subsequent arrest and partial ban from the campus. In awarding judgment to the Defendants, the court concluded that 1) Plaintiff did not have a First Amendment right to record interactions with the police at a lecture in a UMLS classroom, which was a limited public forum, 2) the university police officers had probable cause to arrest Plaintiff for trespassing, and 3) Plaintiff, as an alumni visitor, did not have a constitutionally-protected interest in accessing the UMLS campus. Specific to Plaintiff’s First Amendment claim, the court found that UMLS’s “Rules of Decorum” for campus events—which prohibited unauthorized video-recording, demonstrations, and disruptive activity—were reasonable and viewpoint-neutral restrictions. The court further found that university police officers did not use unreasonable force in arresting the Plaintiff, nor did the evidence Plaintiff proffered suggest that their actions were motivated by intentional discrimination. Noting that the doctrine of official immunity applied to Plaintiff’s remaining state law claims, the court declined to exercise supplemental jurisdiction.
Equal Protection; Due Process; Constitutional Issues

Cannon v. S. Univ. Bd. of Supervisors, et al. (M.D. La. April 18, 2018)

Ruling granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a former student of Southern University Law Center (SULC), alleged that SULC breached its contract and deprived him of due process, equal protection of the law, and a liberty interest under the Fourteenth Amendment following his dismissal from SULC. The court found that Eleventh Amendment sovereign immunity barred Plaintiff’s breach of contract claim. However, Plaintiff’s Fourteenth Amendment claims could proceed because readmission to SULC is a form of prospective relief within the Ex parte Young exception to Eleventh Amendment immunity. Plaintiff’s request for a preliminary injunction was denied because he only addressed irreparable harm and did not discuss his substantial likelihood of success on the merits or how his substantial injury would outweigh the threatened harm of enjoining Defendants.

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

Wilson v. City University of New York, et al. (E.D.N.Y. March 26, 2018)

Unpublished Memorandum & Order adopting the Magistrate Judge’s Report and Recommendation, granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a tenured African-American professor at the City University of New York (CUNY)’s Brooklyn College, alleged that CUNY discriminated against him on account of age and race when it terminated him for misappropriating $100,000 of CUNY funds, using CUNY funds for personal purchases, and submitting false and misleading documents. Before the court were Plaintiff’s objections to the dismissal of his defamation, First Amendment retaliation, Fourteenth Amendment claim for selective enforcement, and Fourth Amendment claims against various Defendants. The court rejected Plaintiff’s defamation claim against Defendant Kotowski because he failed to show that the Defendant’s statement was false, and to the extent that he was alleging “defamation by implication,” failed to make a “rigorous showing” from which one could draw a defamatory inference. The court dismissed Plaintiff’s First Amendment retaliation claim because he failed to show that Defendants knew  about his presentation condemning CUNY to a New York City Council Committee (the protected speech) when they  banned him from campus (the adverse action). Third, Plaintiff’s Fourteenth Amendment claim for selective enforcement under the Equal Protection Clause failed because he did not identify any similarly situated comparators. The court dismissed the remaining discrimination claims because the Plaintiff failed to cure legal and factual deficiencies previously identified by the Magistrate Judge. Last, the court rejected Defendants’ argument that collateral estoppel should bar two of Plaintiff’s remaining claims.  Though, in some instances, arbitration could estop plaintiffs from brining claims, in this instance, the arbitrator examined whether Plaintiff’s termination was justified under a collective bargaining agreement (CBA), whereas the issues brought before the court were not limited to the terms of the CBA. 

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

Mandel, et al. v. Bd. of Trs. of the Cal. State Univ., et al. (N.D. Cal. March 9, 2018)

Order granting Defendants’ Motion to Dismiss. Plaintiffs consist of Jewish community members and San Francisco State University (SFSU) students who alleged under the First Amendment, the Equal Protection Clause pursuant to section 1983, and Title VI, that Defendants discriminated against them based on their Jewish identity and infringed their rights to freedom of association and free speech, when it (1) scheduled a speech by the Mayor of Jerusalem in a venue far from the center of campus, (2) charged a $356.50 fee for the use of that venue, (3) ordered the police to “stand down” from removing hecklers and subsequently declined to discipline the hecklers and (4) excluded  the SFSU Hillel student group from an on-campus “Know Your Rights” (KYR) fair. In dismissing Plaintiff’s First Amendment claims, the court held that denial of a preferred venue does not amount to a violation of the First Amendment, especially when the venue is assigned based on expected protests that could impact classes, and not on content-based determinations. Regarding the fee and the allegations regarding the hecklers, the court noted deficiencies in the Complaint—namely that (1) the Complaint neglected to state whether Plaintiffs ever had to pay the assessed fee, and whether Plaintiffs paid the fee or not, the Complaint failed to allege that the fee substantially burdened Plaintiffs or restrained their ability to Protest and (2) any allegations suggesting that the Defendants chose not to enforce the Code of Conduct against the hecklers due to the content of the speech.  As to Plaintiffs’ equal protection claims, the court determined that Plaintiffs failed to allege that the same defendants had previously acted differently in similar circumstances, such that different conduct could give rise to an inference of disclination.  As to Plaintiffs’ claims regarding their exclusion from the KYR Fair, Plaintiffs could not show that Defendants played any role in denying the Hillel student group’s participation in the fair. Finally, the Court dismissed Plaintiffs’ Title VI claims because the Complaint failed to allege “severe, pervasive, and objectively offensive discrimination” or any facts that would give rise to a claim of deliberate indifference.

Equal Protection; Constitutional Issues; Tenure; Faculty & Staff; Race and National Origin Discrimination; Discrimination, Accommodation, & Diversity

Omachonu v. Shields, et al. (W.D. Wis. March 5, 2018)

Opinion and Order granting Defendants’ Motion for Summary Judgment. Plaintiff, an African American woman of Nigerian national origin who taught in a tenure-track position at the University of Wisconsin-Platteville, alleged under 42 U.S.C. § 1983 that Defendants violated her rights under the equal protection clause when they denied her tenure for purportedly discriminatory reasons. The court found that Plaintiff failed to show that her supervisors or any tenure decisionmakers harbored discriminatory animus. The court rejected Plaintiff’s “cat’s paw” theory of liability since Defendant Bunte, who voiced opposition to Plaintiff’s retention two years before her tenure review, was not personally involved in the Retention & Tenure Committee’s decision to deny Plaintiff tenure. Even if Defendant Bunte’s voiced opposition was motivated by discriminatory animus, which the evidence did not support, the court reasoned that Defendant Chancellor Shields’s independent review of Plaintiff’s tenure file broke any causal link that suggested discriminatory intent. Last, the court held that Plaintiff’s argument for pretext based on Defendants’ reliance on potentially racially-biased student evaluations was unsupported by case law, particularly because Defendants considered other factors beyond Plaintiff’s low student evaluations.