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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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Litigation, Mediation & Arbitration; Practice of Higher Education Law; Sex Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Pierotti v. Bd. of Regents of the Univ. of Cal. (N.D. Cal. May 11, 2018)

Order granting Defendant’s Motion for Partial Summary Judgment. Plaintiff, a senior administrator at the University of California (UC) Berkeley who proceeds pro se, alleged under Title VII and state law that 1) a UC immediate supervisor subjected her to sexual harassment and 2) Defendant retaliated against her by demoting and terminating her after she pursued a whistleblower complaint. Defendant alleged that Plaintiff was terminated for “engaging in a lengthy sexual relationship with a subordinate and by abusing her position with the University to provide that subordinate promotions, pay raises and bonuses.” Looking to the scope of conduct alleged in Plaintiff’s EEOC charge, the court found that Plaintiff’s sexual harassment claim was not “reasonably related” to the general allegations of age and sex discrimination set forth in the EEOC charge. Further, equitable excuse could not save Plaintiff’s sexual harassment claim because her inquiry to the EEOC about adding claims that accrued “since the time” she initiated her charge did not encompass harassing conduct by her supervisor that occurred before her EEOC filing. As a result, Plaintiff could not show that but for her reliance on a mistaken response by an EEOC employee, she would have been able to file her sexual harassment claims. The court further found Plaintiff’s retaliation claim time-barred, since Plaintiff filed her cause of action outside the three-year statute of limitations. Moreover, Plaintiff’s retaliation claim could not proceed under equitable tolling because doing so denied Defendant timely notice of the claim.

5/15/2018
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Distressed & Suicidal Students; Disability Discrimination; Discrimination, Accommodation, & Diversity

Resolution Agreement Between the Office for Civil Rights and Rutgers University-New Brunswick

Voluntary Resolution Agreement entered into between the Department of Education’s Office for Civil Rights and Rutgers University regarding the involuntary withdrawal of a student who posed a substantial risk of harm.  The cover letter and accompanying Resolution Agreement deemed Rutgers’ “Safety Intervention Policy” (“the Policy”) to be facially neutral.  This Policy authorizes Rutgers to intervene or involuntarily withdraw students “who pose a credible substantial risk of harm to individuals within the University or to the University community; or substantially impede the lawful activities, the educational process, or the proper activities or functions of other members of the University Community.”  It also sets forth criteria for university officials to conduct individualized assessments based on “reasonable judgment,” calls on a case-by-case basis for medical and psychological evaluations to be conducted by independent and objective health professionals, and allows reasonable conditions to be placed on a student’s return to campus. The terms of the Resolution Agreement require Rutgers to conduct an individualized assessment, pursuant to its existing Policy, to ascertain whether the complainant can safely return to campus, and whether Rutgers deems her eligible to return to campus or not, specifies how missed coursework will either be made up or denoted on the student’s transcript. 

5/15/2018
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Age Discrimination; Disability Discrimination; Discrimination, Accommodation, & Diversity

Main v. Tulane Univ. (E.D. La. May 7, 2018)

Order granting Defendant’s motion for summary judgment.  Main (Plaintiff), a 60-year old former employee of Defendant with a PTSD diagnosis, sued claiming age discrimination, disability discrimination, and retaliation after her position as a Senior Curator was terminated as the result of a restructuring of museum staff at Tulane University (Defendant).  The court found that Plaintiff did not create an issue of fact related to Defendant’s argument that she was not qualified for the newly created curator position and that, notably, there was “no evidence in the record to support any causal connection between the elimination of Plaintiff's position and her age.”  Regarding her disability discrimination claim, the Court noted that Plaintiff admitted she did not request a disability accommodation, found no merit to her confidential medical information disclosure claim, and found that Plaintiff’s “contention that she was discharged because of her PTSD diagnosis is even more bereft of evidence than her age claim.” The court similarly rejected Plaintiff’s claim of retaliation due to “the complete absence of any evidence whatsoever to suggest that retaliation played any role in the decision to eliminate Plaintiff's position.”

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; 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.

5/10/2018
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Discrimination, Accommodation, & Diversity; Retaliation; Race and National Origin Discrimination; First Amendment & Free Speech; Constitutional Issues; Faculty & Staff

Patra and Vaz v. Pennsylvania State System of Higher Education, et al. (M.D. Pa. May 8, 2018)

Order granting Defendants’ motion for summary judgment on all counts. After their teaching contracts at Bloomsburg University were not renewed, Plaintiffs sued, citing eleven allegations, including retaliation and race, national origin, and religious discrimination. The court concluded that Plaintiffs’ brief “utterly fail[ed] to explain” why the Court should not grant summary judgment to the Defendants on all claims. As examples, the court highlighted Plaintiffs’ failure to: (i) explain how their termination was “under circumstances that raise an inference of discriminatory action” under Title VII, (ii) explain what “adverse employment actions” were taken by Defendants; and (iii) provide evidence that they engaged in constitutionally-protected speech to support their First Amendment retaliation claims.

5/10/2018
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Litigation, Mediation & Arbitration; Practice of Higher Education Law; Disability Discrimination; Discrimination, Accommodation, & Diversity

Ticer v. Young, et al. (N.D. Cal. May 4, 2018)

Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a disabled student who was prone to “debilitating fear and anxiety related to other people,” alleged under the Americans with Disabilities Act, the Rehabilitation Act of 1973, and state law that San Jose State University (SJSU) discriminated against him and intentionally inflicted emotional distress (IIED) while he attended its engineering program. Specifically, Plaintiff alleged that Defendant Young—a professor in the Biomedical, Chemical, and Material Engineering department—refused to reasonably accommodate his disability and subjected him to years of disparaging and discouraging remarks, which resulted in his taking a medical leave of absence, his diagnosis of post-traumatic stress disorder, and his disqualification from the engineering program without notice. At issue was whether Plaintiff’s disability discrimination and tort claims were subject to equitable tolling due to his mental disability and lack of notice about his disqualification. After reviewing the relevant case law, the court distinguished Plaintiff’s circumstances from the high bar of “incapacitation” required to benefit from equitable tolling. Namely, Plaintiff did not assert in his complaint that despite knowing his legal rights, he failed to bring his claims because of his mental disability. However, the court allowed Plaintiff’s claim based on his disqualification without notice to proceed since it was not challenged by Defendants, while also allowing Plaintiff to amend his IIED claim to clarify that he wished to hold SJSU vicariously liable. 

5/9/2018
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