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January 2, 2008
Some new higher ed cases...
... compliments of NACUA and Westlaw:
Good day NACUA members and Happy New Year. NACUA is pleased to send you
this update of higher education cases reported during the weeks of
December 17- 21 and 24 - 28, 2007. To access the complete text of the
highlighted cases, click on the case name and enter your NACUA username
and password. If you have forgotten your NACUA website password,
please click here
and it will be sent to you via email. If you have any problems logging
into the cases, contact us at techsupport@nacua.org
always be accessed on NACUAWEB
page is updated daily by the NACUA staff. NACUA thanks West for
assisting us in making this service available to NACUA members. (Note:
this message is best viewed in HTML format. If you have difficulty
viewing the message or using the links, click here
text on the NACUA web page).
Civil Rights
Peirick v. Indiana University-Purdue University Indianapolis Athletics
Dept., (C.A.7 (Ind.))
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 31, 2007: Civil Rights - A state university's male soccer and
tennis coaches were similarly situated to a terminated female tennis
coach, and thus their disparate disciplinary treatment supported the
female coach's Title VII claim of sex discrimination. The male coaches
had received progressive discipline, while the female coach had been
terminated without receiving progressive discipline. Although the male
coaches had not engaged in the exact same misconduct as alleged against
the female coach, they had violated the same university rules. Those
rules required coaches to treat others with dignity and respect, and
required a "higher standard of behavior."
Nguyen v. William Joiner Center for Study of War and Social
Consequences, (Mass.)
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 26, 2007: Civil Rights - Persons accepted for research
fellowships at a state university were essentially temporary employees
having faculty privileges rather than students or prospective students.
Thus, such persons could not bring suit under a Massachusetts
educational discrimination statute which protected persons seeking
admission to a program or course of study leading to a degree beyond a
bachelor's degree.
Cuzze v. University and Community College System of Nevada, (Nev.)
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 18, 2007: Civil Rights - The University of Nevada and the
University and Community College System of Nevada (UCCSN) were not
"persons" under 1983 and, thus, could not be sued by university police
officers under that statute for the alleged violation of their civil
rights. The State of Nevada was not a "person" for purposes of 1983, and
the university and the UCCSN were state entities. Thus, the district
court had a valid legal basis for determining that the university police
officers' claim lacked foundation and that 1988 attorney fees were
available to the university and UCCSN after the district court granted
summary judgment in their favor.
Carr v. Board of Regents of University System of Georgia, (C.A.11 (Ga.))
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 17, 2007: Civil Rights - An African-American nursing student,
who was suspended for two-years for selling stolen textbooks back to the
university bookstore, failed to establish a violation of equal
protection in a Title VI racial discrimination action. There was no
evidence that she was similarly situated to white students accused of
theft who received lesser sanctions. The circumstances of the offenses
committed by the white students receiving lesser sanctions involved
pranks, a lack of intent to steal, displays of contrition, and mental
illness. Further, the board of regents presented evidence that several
white students who were alleged to have engaged in theft actually were
treated similarly to the nursing student.
Compensation and Benefits
West Virginia University Bd. of Governors v. West Virginia Higher Educ.
Policy Com'm, (W.Va.)
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 19, 2007: Compensation and Benefits - The authority granted to
the Higher Education Policy Commission to establish and maintain a
personnel classification system did not encompass the right to set and
control compensation and salary requirements for classified staff
employed by the state university. The specific authority granted by
statute regarding the university board of governor's right to establish
a uniform and equitable salary policy took precedence over the general
grant of authority to the Higher Education Policy Commission to
establish rules impacting the boards' administration of a system for
managing personnel matters. Therefore, the board of governors had
authority to establish a uniform and equitable salary policy for its
classified staff that could not be overridden by the Commission.
Evidence
Schaefer v. Brookdale University Hosp. and Medical Center, (N.Y.A.D. 2
Dept.)
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 17, 2007: Evidence - Quality assurance documents relating to
the accreditation status of a university hospital's urology residency
program were privileged. Therefore, the documents were inadmissible in a
resident's action against the hospital and its chairman, seeking to
recover damages for breach of contract and defamation.
Finance
Foothill-De Anza Community College Dist. v. Emerich, (Cal.App. 6 Dist.)
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 31, 2007: Finance - A community college district bond measure
met the accountability requirements of Proposition 39, and therefore
needed only a 55 percent vote rather than the two-thirds voter approval
normally required for bond measures to be repaid by property taxes. The
measure included the requisite certification stating that the district
board had evaluated the district's facility needs, the measure
adequately met the constitutional requirement of an annual audit
notwithstanding that the measure did not identify the auditor, and the
measure clearly identified the types of projects to be funded by listing
repair or replacement of leaky roofs, wiring classrooms for computers
and other technology, and installation of fire safety doors and
sprinklers. There was no need to specifically identify which buildings
would be improved.
Labor and Employment
Somoza v. University of Denver, (C.A.10 (Colo.))
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 28, 2007: Labor and Employment - Various alleged actions
against two Mexican-American professors by co- workers at a state
university, including negative comments, condescending looks,
eye-rolling, and snickering, as well as alleged actions of the
university, including changes to the Spanish section of the language
department, if proven, were not, in the aggregate, sufficiently material
and adverse to be actionable as retaliation under Title VII. The Supreme
Court's decision in Burlington Northern did not alter the legal
landscape of employment retaliation claims so as to create a general
civility code for the American workplace.
Nicholas v. Board of Trustees of University of Alabama, (C.A.11 (Ala.))
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 28, 2007: Labor and Employment - A male assistant women's
basketball coach at an Alabama state university established a prima
facie case of gender-based disparate treatment through evidence he
applied and was qualified for the head coach position, that he was not
hired, and that the position was filled by a female applicant. However,
the university's articulated reason for not hiring him, that the female
applicant it hired for position was more qualified, was legitimate and
nondiscriminatory, and he failed to show that reason was a pretext for
gender discrimination. The female candidate had worked for ten years as
an assistant coach at a Virginia university and been promoted to the
position of recruitment coordinator and her candidacy was recommended by
the head women's basketball coach at a Tennessee university, whereas he
had less than three years of experience at the Alabama university and
ten years of experience as an assistant coach at a community college.
Taher v. Wichita State University, (D.Kan.)
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 23, 2007: Labor and Employment - A Kansas state university was
entitled to summary judgment on an associate physics professor's
retaliation claims under Title VII. The professor, an Asian from
Bangladesh, failed to adequately exhaust his administrative remedies
before bringing those claims, where he did not mark the box for
retaliation or mention retaliation in the narrative portion of his
administrative complaint to the Kansas Human Rights Commission (KHRC).
The professor also failed to establish a prima facie case of
retaliation, absent a showing he engaged in protected activity. Although
he claimed the department chair took adverse action against him and
harassed him because he complained of national origin discrimination,
the record contained no reference to such a complaint by him during the
relevant time period.
Elam v. Board of Trustees of University of District of Columbia,
(D.D.C.)
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 21, 2007: Labor and Employment - Ethnicity discrimination could
not be inferred under the District of Columbia Human Rights Act (DCHRA)
from the mere fact that decision-makers at a university concluded that
an assistant professor's scholarship was not worthy of promotion to the
highest academic rank after two university committees had recommended
the assistant professor for such a promotion. Instead, the assistant
professor had to demonstrate that the proffered explanation was not the
university's true reason for denying his promotion, which he could not
do because the university's misgivings were grounded in fact that his
portfolio contained neither peer-reviewed material nor detailed research
regarding the discipline of journalism. The court had to respect the
promotion assessment undertaken by the university absent clear evidence
that a forbidden consideration such as ethnicity tainted the decision.
Magnetti v. University of Maryland, (Md.)
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December 21, 2007: Labor and Employment - A writing instructor at a
state university was required to file his breach of contract claim
against the university within one year of completion of his contract or
of the date his claim arose as a condition precedent for waiver of the
university's sovereign immunity. The amendments to the statute regarding
the powers of the university board of regents did not render the
condition precedent for waiver of sovereign immunity inapplicable to the
university. Therefore, the instructor's claim was precluded by sovereign
immunity since he filed it nearly three years after it arose.
Carter v. Univ. of Toledo, (Ohio Com.Pl.)
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December 20, 2007: Labor and Employment - A hearing officer's
determination that the claimant, a benefits specialist for a state
university in Ohio, was terminated for just cause relating to the
failure to improve her performance, thereby making her ineligible for
unemployment compensation, was against the manifest weight of the
evidence. There was no evidence that the university made its
expectations known to the claimant when it hired her or that the
claimant's job requirements did not change substantially after the
university hired her. The university's director of benefits admitted
that the claimant's job duties and priorities changed periodically and
that she did not know whether the performance improvement plan (PIP)
called for the claimant to perform more extensive duties than when she
was hired four years earlier. The claimant denied that her job remained
the same throughout her employment and maintained that her duties and
priorities were constantly changing.
Torts
Clark Atlanta University, Inc. v. Williams, (Ga.App.)
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estlaw%2Fnewcases%2Fwestredirect%2Easp&rs=WNL2.0&vr=1.0>
December 26, 2007: Torts - A genuine issue of material fact existed as
to whether a shooting victim, who was a consortium student, was an
"invitee" of the university, precluding summary judgment on the issue of
duty in the student's premises liability case against the university.
The student had attended a consortium activity hosted by the university,
and had stopped for 45 minutes to socialize on a lawn in front of the
university's faculty housing at the time he was shot.
Other New Documents and Cases on NACUA.WEB:
ADEA: Coordination of Retiree Health Benefits with Medicare
Complete text (8 pages) of final rule issued by the Equal Employment
Opportunity Commission (EEOC) and published in the December 26 Federal
Register. The rule exempts from coverage by the ADEA the practice of
coordinating retiree health benefits with retiree eligibility for
Medicare or a comparable State health benefits program.
GAO: Higher Education Tuition and Enrollment Trends and Patterns
Complete text (32 pages) of U.S. Government Accountability Office (GAO)
to Chairman of U.S. House of Representatives Committee on Education and
Labor on trends and patterns in higher education enrollments, tuition
and fees, and institutional expenditures on education services. The
report is composed primarily of slides presented by GAO in testimony
before an October 31, 2007 hearing of the Committee.
Export Control: Report of Deemed Export Advisory Committee
Complete text (153 pages) of the report to the Secretary of Commerce of
the Deemed Export Advisory Committee (DEAC). The DEAC was appointed to
review current deemed export policy and ensure it continues to protect
the national security of the United States while promoting continued
leadership in technological innovation by U.S. academic institutions and
industry. The report concludes that the current deemed export policy and
regulations no longer effectively serve their intended purposes and
proposes a new deemed export licensing process that the committee
believes will enhance both national security and economic
competitiveness.
Taxation: Re-Designed Form 990 and Schedules
Link to Internal Revenue Service (IRS) web page with information on the
release of the re-designed Form 990 Return
tax-exempt organizations for the 2008 tax year (returns filed in 2009).
The web page includes links to an overview of the new Form 990
a more detailed background paper
Labor Relations: Bowen and Cohen v. Goldstein, et al.
Complete text (13 pages) of decision by U.S. District Court (S.D.N.Y)
denying request by plaintiff union officials for a preliminary
injunction requiring City University of New York (CUNY) to permit the
union to continue using the university's email system to carry on union
business in violation of the university's policy on the acceptable use
of computer resources.
Undocumented Resident Alien Students: Day et al. v.Bond et al.
Complete text (36 pages) of decision by U.S. Tenth Circuit Court of
Appeals denying plaintiffs' petition for re-hearing of the Court's
earlier decision affirming dismissal of plaintiffs suit by the U.S.
District Court. In 2004 Kansas enacted a statute permitting certain
resident undocumented alien students to attend state institutions while
paying the resident tuition rate. Plaintiffs, legal out-of-state
residents attending Kansas public universities, had challenged the
Kansas statute on grounds of Equal Protection and federal pre-emption.
The court holds that plaintiffs lack standing for both their federal
pre-emption claims and Equal Protection claims. The court also holds
that to the extent plaintiffs sought to enforce substantive rights
conferred by federal law, specifically 8 U.S.C. Section 1623
("Limitation on eligibility for preferential treatment of aliens not
lawfully present on the basis of residence for higher education
benefits"), the statute includes no provision of a private right of
action to enforce its terms.
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