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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Title IX; Sexual Misconduct & Other Campus Violence; Campus Police, Safety & Crisis Management

Gischel v. University of Cincinnati, et al. (S.D. Ohio Feb. 5, 2018)

Order granting-in-part and denying-in-part Defendants’ Motion to Dismiss. Plaintiff, a male student at the University of Cincinnati (UC) who was expelled following a UC finding that he sexually assaulted a female student, brought Title IX claims against UC under theories of selective enforcement, erroneous outcome, and deliberate indifference; section 1983 claims against UC officials for violations of the equal protection clause, substantive due process, and procedural due process; and a malicious prosecution claim against a UC Police Department detective. After dismissing Plaintiff’s deliberate indifference and selective enforcement claims for failing to plead facts that would amount to harassment or identify a similarly-situated female student who was treated more favorably than Plaintiff, the court allowed Plaintiff’s erroneous outcome claim and procedural due process claims to proceed because Defendants denied Plaintiff the opportunity to cross examine the complainant on her level of intoxication and on alleged police bias stemming from a purported relationship between the complainant and the UC detective.   The court also found  plausible gender bias, in part, arising from a pending OCR Title IX investigation and also from the alleged romantic relationship between the detective and the complainant. The court also allowed Plaintiff’s malicious prosecution claim to proceed, based on the same allegations of a romantic relationship between the complainant and the detective. 

Title IX; Investigations; Sexual Misconduct & Other Campus Violence

John Doe v. Rider University (D.N.J. Jan. 17, 2018)

Unpublished Opinion granting-in-part and denying-in-part Defendant’s Motion to Dismiss. Plaintiff, a Rider University (RU) student who was expelled for sexual assault, brought claims against RU for sex discrimination in violation of Title IX under the theories of erroneous outcome, selective enforcement, and deliberate indifference; negligence and intentional infliction of emotional distress; and a number of contract claims, arising from RU’s investigation and adjudication of a sexual assault complaint against Plaintiff. The court found that all of Plaintiff’s Title IX claims failed because he did not sufficiently show that gender bias motivated Defendant’s conduct, either in statements made by administrators or through any patterns of RU’s decision-making. However, the court allowed Plaintiff’s breach of contract and breach of the covenant of good faith and fair dealing claims to proceed, based on two provisions in RU’s Policy and Student Handbook. In support of these claims, Plaintiff posited that the investigator assigned to his case did not follow-up on the complainant’s inconsistent statements and the Board members overseeing his case directly reported to the Dean of Students, who stated to Plaintiff that he was “going against” him. 

Title IX; Sexual Misconduct & Other Campus Violence

Jane Doe v. Brown University, et al. (D.R.I. Jan. 16, 2018)

Memorandum and Order denying-in-part Defendant Brown’s Motion for Judgment on the Pleadings and denying-in-part Defendant John Smith’s Motion to Dismiss. Plaintiff Jane Doe, a female student who reported to Brown University that she was drugged and sexually assaulted at Phi Kappa Psi (PKP) fraternity house, brought claims against Defendants for deliberate indifference and retaliation under Title IX, negligent supervision and control of Alpha Chapter fraternity, negligent handling of physical evidence related to her case, premises liability, assault, and battery. The court found that Doe presented a plausible claim against Brown for deliberate indifference, based on her theory that Brown had mishandled physical evidence and caused additional harassment that affected her educational opportunities. The court further found that Plaintiff presented a prima facie Title IX retaliation claim, since Brown denied Plaintiff a medical school interview after she complained that Brown had mishandled her complaint. The court dismissed all of Plaintiff’s other claims, with the exception of a claim against PKP for negligently failing to take reasonable steps to control the dangerous behavior of its Alpha Chapter and a battery claim against Defendant Smith arising from the sexual assault.   

Title IX; First Amendment & Free Speech; Sexual Misconduct & Other Campus Violence; Due Process; Constitutional Issues

Yeasin v. Durham, (10th Cir. Jan. 5, 2018)

Order and Judgment affirming the dismissal of Plaintiff’s Complaint based on qualified immunity. Plaintiff, a former University of Kansas (UK) student, brought a section 1983 claim against the Vice President for Student Affairs at UK, for allegedly violating his First and Fourteenth Amendment rights when UK expelled him for physically restraining his ex-girlfriend and posting demeaning tweets about her online. The court found that Plaintiff failed to show that Defendant violated clearly established rights under either the First or Fourteenth Amendments and therefore, Defendant was entitled to qualified immunity. Notably, the court acknowledged that First Amendment doctrine regarding the intersection of free speech and harassment was unsettled, but distinguished precedent-setting cases from Plaintiff’s conduct, largely because Plaintiff was charged with a crime and Defendant acted on a reasonable belief that Plaintiff’s sexually demeaning tweets disrupted the complainant’s education. Regarding Plaintiff’s Fourteenth Amendment claim, the court found that Defendant’s non-academic reasons for expelling Plaintiff were dissimilar to the clearly established, substantive due process rights owed to students expelled for academic reasons.

Title IX; Sexual Misconduct & Other Campus Violence; First Amendment & Free Speech; Equal Protection; Due Process; Constitutional Issues

Radwan v. University of Connecticut Board of Trustees, et al. (D. Conn. Dec. 14, 2017)

Order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiff, a female University of Connecticut (UConn) student and recipient of an athletic scholarship proceeding pro se, alleged that UConn violated Title IX, her First Amendment rights, the equal protection clause, and procedural due process—as well state law violations for breach of contract and negligent infliction of emotion distress—after UConn revoked her scholarship for an “obscene gesture” she made to a television camera after winning a game. In particular, Plaintiff argued that similarly situated male athletes engaged in similar acts without having their scholarships revoked.  The court found that the Eleventh Amendment protected UConn and Individual Defendants in their official capacities from Plaintiff’s claims under section 1983 and protected UConn from Plaintiff’s state law claims. However, the court allowed Plaintiff’s Title IX claim against UConn and Plaintiff’s section 1983 claims against Individual Defendants in their individual capacities to proceed. 

Title IX; Sexual Misconduct & Other Campus Violence; Sex Discrimination; Discrimination, Accommodation, & Diversity

Workman v. University of Akron (N.D. Ohio Dec. 11, 2017)

Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, who became pregnant while enrolled in the University of Akron (AU)’s Marriage and Family Counseling/Therapy Master’s Program, alleged under Title IX that AU discriminated against her due to her pregnancy and was deliberately indifferent in its response to her claim of pregnancy discrimination following her dismissal from the program for failing to pass a required examination. Looking to the undisputed facts of the case, the court found that Plaintiff could not establish a prima facie case of discrimination or d­eliberate indifference, nor could she establish pretext for any of Defendant’s legitimate, non-discriminatory reasons for Plaintiff’s dismissal. The court found that Plaintiff’s poor performance on the required examination was not attributable to pregnancy discrimination. Plaintiff’s remaining allegations regarding insufficient opportunities to fulfill clinical requirements and Plaintiff’s pre-practicum field experience failed because Plaintiff was assigned clinical hours in the same manner as other non-pregnant students, and AU declined to approve Plaintiff’s preferred internship site  because the site did not comply with the program’s policy of requiring supervisors to be located in the same building as the student intern.

Title IX; Retaliation

Niesen v. Iowa State University, et al. (S.D. Iowa Nov. 3, 2017)

Order granting in part and denying in part Defendants’ Motion to Dismiss. Plaintiff, an Iowa State University (ISU) student who alleged that she was sexually assaulted by an ISU fraternity member, brought a Title IX claim against ISU seeking to hold ISU liable for the sexual assault and for purported deliberate indifference in ISU’s response to the assault and to subsequent peer-on-peer retaliation. As to Plaintiff’s “pre-alleged liability” claim, the court found that Plaintiff failed to show that ISU had prior knowledge of a substantial risk of sexual assault by her assailant or the fraternity. Also, because ISU issued a no-contact order, temporarily shut down the fraternity, and reopened a sexual misconduct investigation following positive rape kit results, the court partially dismissed Plaintiff’s deliberate indifference claim. However, the court allowed Plaintiff’s deliberate indifference retaliation claim to proceed.  Relying on the U.S. Supreme Court decision in Jackson v. Birmingham Bd. of Educ., which held that retaliation against a person because he complains of sex discrimination amounts to intentional discrimination in violation of Title IX, the court allowed Plaintiff to proceed with a private right of action alleging that ISU was deliberately indifferent in responding to peer-on-peer harassment.  In so doing, the court found that Plaintiff sufficiently alleged that ISU had knowledge of severe, pervasive and offensive student-on-student retaliation against Plaintiff; that the alleged retaliation had the effect of denying Plaintiff equal access to institutional resources and opportunities; and that ISU officials made insufficient or no effort to respond to the retaliation. The court declined to address ISU’s argument as to the First Amendment limitations on its ability to control peer-on-peer speech and association, concluding that it was too early in the litigation “to chart the path between protected speech and association on the one hand and unprotected retaliatory conduct on the other.” 

Race and National Origin Discrimination; Title IX; Sexual Misconduct & Other Campus Violence; Discrimination, Accommodation, & Diversity

Saravanan v. Drexel University (E.D. Pa. Nov. 24, 2017)

Memorandum and Order granting in part and denying in part Defendant’s Motion to Dismiss. Plaintiff, a South Asian male and former student of Drexel University (DU), was granted leave from the court to amend his initial complaint and presently pleads erroneous outcome, selective enforcement, and deliberate indifference under Title IX; discrimination on the basis of his race, color, or national origin in violation of Title VI and section 1981 of the Civil Rights Act; breach of contract; and deceptive trade practices, following his expulsion from DU for stalking and sexually harassing a female student. The court found that Plaintiff’s erroneous outcome claim could proceed because allegations supporting the claim – namely, statements made by DU’s Office of Equality and Diversity (OED) staff, purported inaction by DU’s OED office in response to Plaintiff’s cross-complaint of sexual misconduct against the female student, and a DU publication that portrayed women as sexual victims and men as sexual perpetrators – plausibly showed a culture of gender bias. The Court dismissed Plaintiff’s Title VI and §1981 claims because Plaintiff failed to plead circumstances giving rise to an inference of discrimination or facts amounting to purposeful discrimination. The court exercised supplemental jurisdiction over Plaintiff’s state law claims for breach of contract and unfair and deceptive trade practices.