Tag: Courts

  • HR and the Courts — March 2025

    HR and the Courts — March 2025

    by CUPA-HR | March 11, 2025

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Federal Judge Orders a Halt to Part of the Trump Administration’s Executive Orders Targeting DEI Plans It Considers Illegal and Discriminatory

    A federal district court judge in Baltimore issued a preliminary injunction that temporarily halts enforcement of the Trump administration’s executive orders targeting government contractors’ DEI plans. The judge granted in part the petitioner’s request for an injunction, holding that several provisions of the executive orders are unconstitutionally vague. Other executive order provisions were held to violate the Constitution’s free speech provisions. The lead plaintiff is the National Association of Diversity Officers in Higher Education, who was joined by the American Association of University Professors, the Restaurant Opportunities Centers United, and the City of Baltimore (National Association of Diversity Officers in Higher Education, et al v. Trump, et al (D. Md., No. 1:25-cv-00333. 2/21/25)).

    The judge concluded that the challengers are likely to prevail on their allegations that the executive orders’ threatened enforcement, including contract termination, is “unconstitutionally vague on their face.” The injunction does not block the attorney general from pursuing investigations into allegedly illegal DEI programs.

    Education Department “Dear Colleague” Letter Broadly Interprets the Supreme Court Decision in SFFA v. Harvard to Apply to All Campus Activities

    The acting assistant secretary for the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter late Friday, February 14, that broadly interprets the Supreme Court decision outlawing the use of race in college admissions in Students for Fair Admissions v. Harvard to apply to all campus policies and activities. The letter warns colleges and universities against using race as a preference in any policy and activity, and encourages anyone believing that an institution has violated civil rights laws to contact the Office for Civil Rights (OCR).

    The letter directly criticizes the development of DEI activities on campus and warns that the department will not tolerate overt or covert race discrimination, which, it concluded, has become “widespread at our nation’s educational institutions.” The letter asserts that educational institutions have “toxically indoctrinated” students with the false premise that the U.S. is built upon “systemic and structural racism.” The letter indicates that the department would take appropriate steps to assess compliance with the civil rights laws no later than 14 days after the letter was issued.

    On March 1, the Education Department released an FAQ offering further guidance.

    Disparate Impact Legal Liability Being Targeted as Unlawful in Anti-DEI Litigation

    The disparate impact legal theory of employer liability allows plaintiffs to prevail in discrimination litigation without proving discriminatory intent. Under the disparate impact liability theory, an employer can be held liable for unlawful discrimination if a neutral policy applied to all employees has a statistically adverse impact on a minority group. In such a circumstance, the employer is held liable without the necessity to prove that the employer intended to discriminate against any particular group.

    The Supreme Court adopted the disparate impact liability theory in the landmark case Griggs v. Duke Power in 1971. Conservatives have long held that the disparate impact liability theory unfairly punishes employers for unintentional practices and overemphasizes protected traits in HR decision-making. It will take a Supreme Court decision to reverse current precedent. The Trump administration may adopt an enforcement position at the Department of Justice and elsewhere in which they do not prosecute disparate impact cases. Such an enforcement decision, should it be made, would likely be subject to court challenge.

    Collegiate Baseball Player Sues NCAA for Anti-Trust Violation Regarding Four-Year Eligibility Restriction

    A collegiate baseball player has sued the NCAA, claiming its four-year eligibility restriction on Division I baseball violates anti-trust laws (Sanchez v. NCAA (E.D. Tenn., No. 3:25-cv-00062 Comp Filed 2/12/25)). The plaintiff is seeking to play baseball at the University of Tennessee this spring. He previously played one year at a junior college and then the last three years at the University of North Carolina. Under NCAA rules, he is not allowed to play this spring because his junior college playing year used up one of his four eligibility years.

    In response to a similar lawsuit (Pavia v. NCAA), the NCAA granted a limited waiver of the four-year eligibility rule for the 2025-26 season for Division I football. That waiver, however, does not apply to spring sports such as baseball.

    Civil Rights Groups Sue Trump Administration to Stop Anti-DEI Initiatives and Elimination of Transgender Protection of Federal Government Employees

    A group of civil rights organizations lead by the National Urban League have sued the Trump administration in an attempt to stop the administration’s anti-DEI initiatives and its elimination of protection of transgender federal government employees (National Urban League v. Trump (D.D.C. 1:25-cv-00471, Complaint 2/19/25)). The lawsuit seeks to halt the enforcement of three Trump executive orders: “EO 14151: Ending Radical and Wasteful DEI Programs and Preferencing,” “EO 14168: Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” and “EO 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

    The lawsuit alleges that the executive orders are unconstitutional because they suppress free speech. The groups allege that the executive orders target specific “content” and “viewpoints” and use “vague and subjective terms.” The plaintiffs argue that this makes them “constitutionally void for vagueness” under past Supreme Court precedent.

    OFCCP Is Preparing to Cut Staff by Approximately 90% and Reduce Offices from 55 to 4

    The acting director of the Department of Labor’s Office of Federal Contract Compliance Programs announced on February 25 in a memo it is preparing to cut employees from 479 to 50 and reduce offices from 55 to four. The OFCCP has already halted audits and investigations of government contractors’ affirmative action plans pursuant to direction from the Trump administration’s executive orders. As a result of these executive orders eliminating much of the OFCCP’s responsibilities, the OFCCP will have statutory authority to enforce only Section 503 of the Rehabilitation Act and the Vietnam War Veterans Readjustment Act.

    Under the OFCCP reduction plan, the office would eliminate its Division of Enforcement, which is comprised of labor economists and statisticians who worked on enforcement and analysis of systemic cases, which will no longer be part of the OFCCP enforcement responsibilities.

    Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.



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  • HR and the Courts — February 2025

    HR and the Courts — February 2025

    by CUPA-HR | February 12, 2025

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    EEOC Reports That It Collected a Record $700 Million for Workers in 2024 in Discrimination Claims

    The Equal Employment Opportunity Commission collected nearly $700 million for workers in 2024, eclipsing the previous record of $660 million collected in 2023. The agency reported that almost $470 million was collected for private sector, state and local workers through mediation, conciliation and administrative settlements. Nearly $200 million was collected through mediation, conciliation and administrative settlements for federal workers. An additional $40 million was collected for employees through litigation.

    Of the 111 lawsuits filed by the agency in fiscal year 2024, 40% involved claims under the Americans with Disabilities Act and 6% involved claims under the Age Discrimination in Employment Act. Most of the remainder involved Title VII claims of race, color, religion, sex, or national origin discrimination. More than a dozen of these lawsuits involved systemic allegations raised for multiple employees.

    Trump Administration Firing of NLRB and EEOC Members Leaves Agencies Without a Quorum to Do Business

    The Trump administration discharged, in unprecedented fashion, sitting members of the National Labor Relations Board and the Equal Employment Opportunity Commission, leaving both agencies without a quorum to do business. The Supreme Court has ruled that the NLRB cannot issue decisions without a quorum. This means that the NLRB cannot decide unfair labor practice cases or decide appeals of union election cases until it regains three members confirmed by the Senate. In addition, the Trump administration terminated the sitting independent NLRB general counsel who makes decisions on what cases to prosecute before the board.

    Without a quorum, the EEOC cannot issue new regulations or guidance, nor revoke or edit existing ones. In addition, without a quorum, the EEOC cannot vote to initiate new class action cases and is limited in taking on new enforcement litigation.

    Court of Appeals Revives Challenge to Fellowship Program — Case Dismissed After Mutual Settlement

    The 2nd U.S. Circuit Court of Appeals (covering Connecticut, New York and Vermont) reversed a trial judge’s decision dismissing a challenge to a fellowship program at Pfizer. To address challenges in recruitment, retention and promotion of diverse employees, Pfizer created and reserved its fellowship program for Black/African American, Latino/Hispanic, and Native American students. The plaintiffs contended that the fellowship program unlawfully discriminated against non-minority individuals (Do No Harm v. Pfizer Inc. (2nd Cir. No. 23-15, Opinion 1/10/25)). The three-judge panel remanded the case back to the trial judge to review whether the dismissal was proper.

    This case is another example of increased scrutiny of DEI programs in the wake of the Supreme Court’s decision on Students for Fair Admissions v. Harvard, which curtailed the use of race in college admissions. Bloomberg reported that the parties reached an agreement to settle the case. The full settlement is not available but it appears the fellowship program will end with the induction of the current year’s recipients.

    NLRB’s Authority to Impose Employee Remedial Orders for “Consequential” Damages Trimmed by Court of Appeals

    The 3rd U.S. Circuit Court of Appeals recently trimmed the scope of permissible remedial orders granted by the NLRB to employees who win unfair labor practice cases. The appeals court drew a distinction between traditional make-whole remedies for employees who are fired as a result of an unfair labor practice and traditional back pay and reinstatement. The latter continues to be permissible, but the NLRB’s authority to order “consequential” damages for reimbursement for late credit card fees, medical expenses and the like are not permissible (NLRB v. Starbucks (3rd Cir. No. 23-1953, 12/27/24)).

    As a practical matter, absent a decision on this issue by the Supreme Court, the NLRB will continue to assert its authority to render consequential damage awards, but the awards will not be enforceable in the states covered by the 3rd Circuit, which includes Delaware, New Jersey and Pennsylvania.

    Hostile Work Environment Challenges to DEI Training Pass Summary Judgment Stage — First Amendment Claims Have Been Filed on Both Sides

    Bloomberg reports that a number of challenges to DEI training — on the grounds that they create a hostile work environment for White employees — are surviving the summary judgment stage of initial litigation. Nonetheless, commentators conclude that most of that litigation will ultimately fail to clear the hurdle that requires the action to be “pervasive” in order to prove a hostile work environment case. Commentators also point out that the anti-DEI movement is likely to grow during the new Trump administration.

    In addition to hostile work environment cases, public employees have challenged public employers under the First Amendment for forcing the employee to listen to and affirm DEI concepts. However, employers that support DEI training have successfully used the First Amendment to challenge a Florida law restricting the use of certain workplace DEI training concepts (Honeyfund.com Inc. v. Florida (11th Cir. No. 22-13135, 3/4/24)).

    ACLU, NAACP and Professors Raise First and Fourteenth Amendment Challenge to Alabama Law Barring Public Funding of DEI Programs

    The Alabama chapter of the American Civil Liberties Union, the NAACP, and a group of Alabama professors have filed suit in federal court, alleging that the new Alabama state law barring public funding of DEI programs violates the First and Fourteenth Amendments of the U.S. Constitution (Simon v. Ivey (N.D. Ala. No. 2:25-cv-00057, complaint 1/14/25)). The complaint alleges that the Alabama law restricts the funding of teaching “academic viewpoints” deemed to be “divisive” and prohibits funding of student groups espousing such views in violation of the First and Fourteenth Amendments.

    The complaint further alleges that such viewpoint bans disproportionately affect Black students and Black faculty members. The complaint also alleges that the Alabama law violates minority students’ and professors’ right to equal protection from intentional discrimination and freedom of association under the First Amendment. The complaint further argues that the Alabama law should be struck down as “void for vagueness” under the applicable constitutional standard.

    U.S. Supreme Court Eases Standard for Employers to Prove Employees Are Not Entitled to Overtime Pay

    The U.S. Supreme Court rejected a heightened standard of proof needed to show that employees are exempt from the Fair Labor Standards Act overtime requirements (E.M.D. Sales v. Carrera (U.S. No. 23-217 Opinion 1/15/25)). This will make it somewhat easier for employers to show that employees are not entitled to overtime pay. The Supreme Court held in a unanimous decision written by Justice Kavanaugh that employers are subject to the regular “preponderance of the evidence” rule in proving that an employee is not subject to the applicable overtime rules rather than the higher “clear and convincing” standard.

    Justice Kavanaugh concluded on behalf of a unanimous court that, where a law is silent on the applicable standard of proof, as the FLSA is, the regular preponderance of the evidence rule applies. Under this standard, an employer must show that it is more likely than not that the employee is exempt from the overtime requirements.



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  • FIRE statement on Supreme Court’s ruling in TikTok v. Garland

    FIRE statement on Supreme Court’s ruling in TikTok v. Garland

    The Supreme Court today ruled that a federal law compelling TikTok’s parent company, ByteDance, to sell the social media platform or cease operations in the United States does not violate the First Amendment. The law functionally requires TikTok to shut down its operations by Jan. 19 absent some other accommodation.

    FIRE issued the following statement:

    Our unique national commitment to freedom of expression requires more caution than today’s ruling delivers. The unprecedented ban of a communication platform used by 170 million Americans demands strict judicial scrutiny, not the rushed and highly deferential review the Supreme Court instead conducted. 

    The Court explicitly notes the “inherent narrowness” of today’s decision. FIRE will hold it to that promise, and fight to contain the threat the ruling poses to our First Amendment rights. 

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  • The courts are slowly clarifying universities’ duty of care

    The courts are slowly clarifying universities’ duty of care

    Imagine you’re a student, a member of staff, a parent or even an MP trying to work out what type, level or nature of “duty of care” is owed by a university to students.

    The other day Janet Daby, whose day job is Minister for Children, Families and Wellbeing but who also moonlights as a kind of spokesperson for HE given that Jacqui Smith is in the Lords, was asked about duty of care.

    Her answer was as follows:

    The department’s position is that a duty of care in HE may arise in certain circumstances. Such circumstances would be a matter for the courts to decide, based on the specific facts and context of the case being considered, and will be dependent on the application by a court of accepted common law principles.

    That’s unhelpful enough – but the courts don’t seem to be very clear either. Of relevance down this rabbit hole, there’s a fairly lurid bit of press coverage doing the rounds on a case involving a law student at Cambridge who has sued the university for its refusal to award him a PhD.

    The Mail, with its usual insinuative air quotes, runs the headline as follows:

    Cambridge law student sues university after he failed his PhD, claiming it held up his career as a barrister because he was “less able” to write a thesis.

    The case itself is interesting because of the way in which the judge in a recent appeal has differentiated between different bits of law that are supposed to protect students.

    And in a context of disabled students routinely reporting problems with the way in which reasonable adjustments are delivered, there could be significant implications, depending on what happens next, for practice in the future.

    Background

    Jacob Meagher is a disabled PhD student at Cambridge who alleges that he was not provided with an adequate supervisor or advisor, and was denied certain scholarships – acts which he claims were acts of victimisation.

    He previously brought a claim against the university on those issues in 2017, and reached a settlement in 2019 which involved him restarting his PhD. But he alleges he was subjected to a number of detriments after the settlement – crucially, that in connection with his PhD examination, the university was aware of the adjustments he needed to avoid a disadvantage because of his disability, but failed to provide them.

    That’s partly because they had been recommended by the university’s Accessibility and Disability Resource Centre (ADRC) in a plan, but not implemented in the department, which is the sort of scenario that Disabled Students UK’s research suggests is common.

    That, Meagher claims, led to a suicide attempt and hospital admissions – things he claims the university was made aware of but refused to help or support him. Then following complaints, the university recognised the issues with the initial viva and is working to ensure a fair process for his re-examination.

    But even though the university agreed to let the student re-defend his thesis and implement reasonable adjustments, he took the university to court for several reasons:

    • The case includes additional claims beyond the failure to implement reasonable adjustments during the initial viva. He alleges various breaches of the Equality Act 2010, including victimisation and discrimination, stemming from incidents throughout his PhD program. These include claims of inadequate supervision, vetoing of scholarships, and mishandling of complaints.
    • Meagher is seeking compensation for damages already incurred. He claims that the university’s actions have caused him financial losses, including missed opportunities for a tenancy as a barrister due to the delay in completing his PhD. He is also seeking general damages for the distress and harm to his mental health caused by the university’s alleged actions.
    • He is seeking a legal declaration that the university unlawfully discriminated against him, validating his claims and potentially influencing future practice at the university. He is also seeking to clarify legal issues concerning the university’s obligations ahead of that agreed re-examination.

    The university or individuals?

    When he initially brought his claim in August 2023, he included six individuals as defendants in the case – all senior employees of the university that held specific leadership roles within the departments and committees relevant to his complaints.

    He argued that in addition to the liability of their employer under section 109, section 110 of the Equality Act 2010 allows individuals to be held personally liable for acts of discrimination committed in the course of their employment.

    Meagher’s argument was that these individuals, by virtue of their positions, were responsible for the university’s decisions and actions that he alleged were discriminatory and caused him harm. So he sought a declaration from the court that these individuals had discriminated against him, in addition to the declaration sought against the university.

    The university’s legal team argued that including these individuals as defendants provided no tangible benefit to Meagher as the university had acknowledged its liability for discriminatory acts committed by its employees, and that the claims against them were duplicative and unnecessarily increased the cost and complexity of the legal proceedings.

    The County Court Judge hearing the initial applications in the case agreed with the university’s arguments and struck out the claims against the individuals, citing the “Jameel principle” that allows the courts to strike out claims that are technically valid but considered an abuse of process due to the disproportionate costs and burden they impose on the defendants compared to the potential benefit to the claimant.

    And on appeal, a High Court judge has now agreed – hence the headlines. But it’s where the High Court has disagreed with the County Court where things get interesting.

    Breach of contract?

    In the County Court, Meagher argued that the university’s failure to implement adjustments recommended by the ADRC for his viva constituted not just breaches of the Equality Act 2010, but also breaches of contract and tort – and once you’re in that space the legal principles of foreseeability of harm, and the duty of care in providing services with reasonable skill and care, kick in.

    On the duty to avoid foreseeable harm, the principle basically means that individuals and organisations have a legal responsibility to take reasonable steps to prevent harm that is reasonably foreseeable as a consequence of their actions or omissions. If the Court determines that the harm Meagher experienced (e.g. psychological distress, academic setbacks) was a foreseeable consequence of the university’s failure to implement the adjustments, that would strengthen his claim for breach of contract and tort.

    Then there’s the duty of care in carrying out a service with reasonable skill and care issue. That’s enshrined in section 49 of the Consumer Rights Act 2015, and also applies under common law principles of negligence – and requires service providers, in this case, the university, to exercise reasonable skill and care in the provision of their services to consumers, in this instance, Meagher as a student.

    The question in this case is whether the university, by failing to implement the adjustments recommended by its own ADRC, breached this duty of care by not conducting his PhD viva with the requisite skill and care, considering his disability. Meagher argues that the university’s failure to implement the ADRC’s recommendations, which he says were specific to his needs and aimed at ensuring a fair and accessible assessment process, constitutes a breach of this duty.

    And at the heart of all that is the question of competence standards and how they intersect with reasonable adjustments for disabled students under the Equality Act 2010.

    Competence standards

    Competence standards are essentially the academic benchmarks used to assess whether a student has attained the necessary knowledge, skills, and abilities for a particular qualification. You’ll recall from the Natasha Abrahart case that there was disagreement about whether presenting in-person to a lecture theatre was itself a required competence, or merely a way of assessing competence that could be (reasonably) adjusted.

    The Equality Act doesn’t require universities to adjust competence standards to accommodate disabled students – but it does require universities to make reasonable adjustments to the assessment processes used to evaluate a student’s competence.

    This distinction is crucial in Meagher’s case because he argues that the university’s failure to implement certain adjustments, specifically those recommended by the ADRC, resulted in him being disadvantaged in demonstrating his competence during his viva.

    He argues that requiring him to take the viva in a standard format, without the recommended adjustments, placed him at a substantial disadvantage due to his disabilities, and that they were necessary to enable him to fairly demonstrate his understanding of the subject matter and meet the PhD competence standard.

    Meagher proposed that his PhD assessment be based on an analysis of his published academic papers, a method already used for university staff, rather than a traditional thesis. He requested a legally-qualified editor to proofread his thesis for aesthetic and presentation standards, along with significant restructuring or adjustments to the viva process. His proposed adjustments included written feedback from examiners on areas needing improvement, followed by revisions and reassessment, as well as receiving written questions and a detailed agenda seven days prior to the viva to reduce anxiety.

    To further support his needs, Meagher requested oral questions be linked to specific thesis sections in active voice, pauses and breaks after oral questions for cognitive processing, and the ability to write down questions for clarity. He also sought the option to clarify ambiguous questions with examiner explanations and breaks of at least ten minutes every hour to manage fatigue and maintain focus during the viva.

    The Student Support Document (SSD) created by the ADRC included much of that – but Meagher says that the university failed to provide it to the examiners before the viva, leaving them unaware of his disabilities and the necessary adjustments – only providing a list of adjustments. He also alleges that adjustments to the viva format were not made – the examiners, he says, failed to avoid unnotified topics, clearly signpost questions, and accommodate the thesis format.

    He was then granted an interim injunction against the university in July 2024 preventing it from taking any action over his PhD course or examination without consent from both parties pending the conclusion of the legal proceedings.

    Two big issues

    In other words, there are two things going on. On the one hand, in the discrimination arguments the student wants clarity over the reasonable adjustments/competence standards issue before that re-examination issue goes ahead.

    Depending on what happens next, there could be significant implications across the sector as it continues to try to wrangle reasonable adjustments to assessment and the differences between competence standards in a subject that shouldn’t change, and mere methods for assessing them that could.

    On the other hand, the potential compensation would be higher if Meagher was able to make the contract/tort arguments for a breach of contract and the implied duty to act with reasonable skill and care. Crucial there is whether, once it was agreed, the plan from the ADRC became part of the contract with the student – where if so we’re into avoiding foreseeable harm and so on. And that matters because it looks like it could create a form of duty of care.

    On that issue, in the County Court Meagher argued that the failure to implement adjustments for his viva constituted breaches of contract and tort – but the judge reasoned that that was an attempt to improperly import the statutory duty to make reasonable adjustments under the Equality Act 2010 into contractual and duties of care.

    But on appeal in the High Court, the contract and tort claims have been reinstated – the judge found that the County Court judge had got it wrong on “you’re trying to use two bits of law on one issue,” and argued that once it had agreed them, the university had separate contractual and tortious duties to implement the recommendations, irrespective of whether those recommendations aligned with the reasonable adjustments duty under the Equality Act.

    And so that’s where things now get very interesting – because of who the pressure goes on now in any tug of war between professional services and academics that disabled students often find themselves in.

    Where will the pressure fall?

    It is possible that the pressure goes onto academic departments. If universities face potential legal liability for breaches of contract or tort when they fail to implement their reasonable adjustment plans, that could strengthen the hand of frustrated disabled students, and strengthen the authority of disability services departments within universities to ensure that their recommendations are given due weight and followed through.

    It could also mean better training for academic staff on disability law, or clearer procedures for communicating and implementing reasonable adjustments so academic departments are aware of their obligations.

    But it’s also possible that the risk of legal action causes universities to pressure their professional disability staff to be more cautious in creating and publishing reasonable adjustment plans that they could later be held to account over. They may put in steps like ensuring relevant academics agree first, slowing down already slow processes. There may also be a chilling effect on adjustments that beleaguered staff know will be hard to get academic staff to agree to.

    And of course there’s more to run here – in the eventual potential outcome of the case – on what is and isn’t a reasonable adjustment to a PhD viva as a method of assessment.

    What is clear is that the chances of an individual student having the money, time or smarts to take a case as far as Meagher has so far are slim. It also remains the case that disabled students’ rights in areas like this are desperately unclear, that the legal frameworks surrounding them interact in potentially unhelpful ways, and their access to support is heavily restricted once at the end of their course.

    Someone, somewhere – perhaps OfS’ Disability in Higher Education Advisory Panel – needs to grip these issues properly. And next time Janet Daby is forced to issue an answer like “well it’s for the courts to decide”, perhaps she could remind herself and her boss in the other place that she’s a lawmaker.

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  • HR and the Courts — January 2025

    HR and the Courts — January 2025

    by CUPA-HR | January 15, 2025

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Dartmouth Men’s Basketball Team, SEIU Withdraw Union Petition

    In March 2024, the Dartmouth College men’s basketball team voted 13-2 in favor of joining the Service Employees International Union Local 560 after the National Labor Relations Board regional director ruled that the players were employees eligible to vote in an NLRB-supervised representation election. On December 31, 2024, Local 560 pulled back its representation petition, and the NLRB will dismiss the case (Trustees of Dartmouth College (N.L.R.B. No. 01-RC-325633, Petition Withdrawn 12/31/24)).

    An SEIU spokesperson stated that they withdrew the petition to preserve the legal precedent of the NLRB regional director’s decision holding that the basketball players were employees of Dartmouth. While SEIU will no longer participate as the collective bargaining representative, the union claims it will pursue its goals via a change in tactics. Dartmouth maintains that the regional director’s decision ruling that the basketball players are employees is legally erroneous.

    The employee status of student-athletes is still subject to NLRB litigation in the University of Southern California and Pac-12 case. The NLRB is pursuing unfair labor practice charges against USC and the Pac-12 as joint employers following their refusal to bargain with a union on the grounds that basketball and football players are students and not employees. We will continue to follow developments in this area as they unfold.

    Federal Court Allows Muslim Professor to Proceed With Religious Discrimination Claim — Dismisses Age Discrimination Claim

    The plaintiff professor, an immigrant from Bosnia and a Muslim, has had a non-tenure-track position for more than a decade with Teachers College, Columbia University. She alleged in federal court that she was discriminated against because of her religion and age when the university did not offer her a tenured position. While the court allowed the religious discrimination and retaliation portions of the complaint to proceed, it dismissed her allegations that she was also denied the tenure-track position because of age and age-related comments (Sabic-El-Rayess v. Teachers College (S.D.N.Y. No.-24-cv-2891, 12/5/24)).

    The plaintiff alleged that no Muslim professor has ever received a tenure-track position in Teachers College, despite many being qualified, and that university leaders made remarks that could be construed as anti-Muslim. The plaintiff claims that the university’s rationale for its decision — that she lacked peer-reviewed publications — is false. The court also allowed the plaintiff’s allegations that she was retaliated against by a salary reduction after she made her religious discrimination complaints to proceed, notwithstanding the university’s denial of such allegations.

    Employer Sued in Class Action for Allegedly Mismanaging Pension Fund

    An employee group has filed a class action lawsuit against a national sports retailer alleging that the employer violated pension plan rules. The employee group alleges REI used non-vested pension fund employee forfeitures to reduce contributions otherwise owed to other employees, rather than adhere to plan provisions requiring the employer to use the funds to pay amounts owed for rehired participants or to pay administrative expenses (Smith v. Recreational Equipment Inc. (W.D. Wash, No. 3:24-cv-03062, complaint, 12/17/24)). Plaintiffs propose to represent a class of 24,000 participant employees.

    Plaintiffs claim that the employer used more than $5.8 million in forfeitures incorrectly from 2018 to 2023. Similar claims along these lines have been litigated in other courts, with some courts dismissing the claims in favor of the employer and others allowing the litigation to continue. It appears to be an unsettled issue at this time.

    Judge Rules Terminated Athletic Director Entitled to Jury Trial Over Allegations of Sex and Age Discrimination — Case Dismissed Subject to a Confidential Settlement

    A university’s first woman athletic director, who was terminated for alleged poor athletic team performance, is entitled to have her claims of age and sex discrimination heard by a federal court jury. The plaintiff alleged that she was discriminated against on the basis of age and sex when she was replaced by a man who was 27 years younger. The judge pointed to this in ruling that a jury could find in the plaintiff’s favor (Ford-Kee v. Miss. Valley State University (2024 BL 460757 N.D. Mis. No. 4:23-cv-00107, 12/17/24)).

    The university president testified that hundreds of people recommended that the athletic director be fired, but he refused to identify people calling for the termination. The court concluded that this did not evidence any discriminatory intent by the president, but it did raise the question of whether the president was influenced by discriminatory views of others. The plaintiff alleged that the poor team performance was an after-the-fact rationalization and that the university president was swayed by the “sexist” views of the athletic foundation and key alumni. The plaintiff claimed the president did not raise poor team performance as a reason for the termination during her final meeting, but rather stated it was time for a change.

    Bloomberg later reported that the parties reached a confidential settlement dismissing the case, which will no longer go to trial.

    Federal Appeals Court Rules No Private Right to Sue Under Law Prohibiting Employment Discrimination Against Marijuana Users

    Under the New Jersey Cannabis Regulatory, Enforcement Assistance, and Market Place Modernization Act (CREAMMA), employers are specifically prohibited from discriminating against workers over the age of 21 for their use or non-use of cannabis. The 3rd U.S. Circuit Court of Appeals recently affirmed the decision of the federal trial court, dismissing the case in which the plaintiff alleged cannabis use employment discrimination (Zanetich v. Walmart Stores East Inc. (0:23-cv-01996, 3rd Cir. 12/9/24).

    The plaintiff alleged that his job offer was rescinded after he tested positive for cannabis use. Nonetheless the appeals court dismissed the case, holding that the CREAMMA statute contains no language creating or suggesting a private remedy. The appeals court also denied the plaintiff’s request to remand the case to the New Jersey Supreme Court so that the New Jersey court could interpret the statute. The appeals court concluded that the absence of an express remedy providing a private right to sue under CREAMMA was a deliberate choice of the legislature rather than an oversight.

    University Prevails in Gender Bias Claim Raised by Former Athletic Director

    The 11th U.S. Circuit Court of Appeals, in a split 2-1 decision, held that a university was entitled to a dismissal of a gender-based pay discrimination claim brought by the university’s former athletic director. The former athletic director claimed that her male successor was discriminatorily paid $170,000 annually compared to her last salary of $135,000. The court concluded that the university raised legitimate factors other than gender which led to its decision to pay the male athletic director more (Williams v. Alabama State University (11th Cir., No. 23-121692, unpublished, 12/23/24)). The majority of the three-judge appellate panel concluded that the university was justified in paying the male athletic director more because of his 10 years of experience in athletic administration leadership and because of his Ph.D. This compared to the plaintiff’s two years of relevant experience and a master’s degree.

    The appeals court pointed out that this is not a case of two employees being employed contemporaneously at different salaries to perform the same job. Rather, the court concluded that the employer met the salary demands of a more experienced leader for the job in order to secure him. One judge dissented from the decision to dismiss the case. The dissenting judge concluded that university leaders made a number of comments concerning this selection that a jury should be able to hear and consider.



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  • HR and the Courts — December 2024

    HR and the Courts — December 2024

    by CUPA-HR | December 10, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Terminated Professor May Pursue Title IX, Anti-Male Bias Claim as John Doe

    A former Boston University professor may anonymously pursue his Title IX claim that the university’s sexual harassment investigation leading to his termination was itself biased against males. The court noted that the use of pseudonyms is strongly disfavored in civil litigation. The judge nonetheless allowed it in this case for the following reasons: the plaintiff’s strong and realistic fear of reputational damage, the chilling effect that name disclosure could have on future litigants, the public interest in disclosing Doe’s identity does not appear significant, and the use of a pseudonym will not prejudice the university’s defense. The case will move forward without disclosure of the professor’s name (Doe v. Trustees of Boston University (2024 Bl 399572 D. Mass. No. 1:24-cv-10619, 11/6/24)).

    Division I Tennis Player Narrows Lawsuit Against NCAA Following Dismissal of Initial Complaint

    A Division I tennis player at the University of North Carolina at Chapel Hill has narrowed her class action complaint against the NCAA a month after her request for an injunction was denied. The federal judge did not view her claim as being ultimately successful because of its breadth. The plaintiff made it to the third round of the U.S. Open tennis tournament in 2021 and was entitled to $48,913 in prize money. NCAA rules allowed her to accept only $10,000 in prize money from all competitions that year. Accepting more would have jeopardized her ability to play on the women’s tennis team at UNC. She was also forced to forfeit other prize money she won in 2021.

    Her initial complaint sought to represent a class of all Division I student-athletes in all individual sports, including swimming and golf. Her amended complaint limits the class to Division I tennis players (Brantmeier v. NCAA (M.D. N.C. No. 1:24-cv-00238, 11/8/24)).

    Federal Court Dismisses Professor’s Claim That DEI Statement on University Application Screening Process Would Render His Application Futile

    A plaintiff’s claims that a university’s required DEI statement on its initial applicant screening process made his application futile or put him a disadvantage to other parties have been dismissed. A California federal trial court dismissed the claims for lack of standing, as the plaintiff professor never actually applied for the position in question. The court concluded that the professor, who had amended his complaint three times, did not include an actual allegation that he applied for the position.

    In dismissing the case against the University of California, Santa Cruz, the court concluded that the professor’s “futility” claim failed because he may well have passed the initial screening stage notwithstanding the DEI statement (Haltigan v. Drake (N.D. Cal. No. 5:23-cv-02437, 11/15/24)).

    House Committee on Education and the Workforce Investigating “Information Sharing Agreement” Between DOL and a Plaintiff’s Law Firm

    Republicans on the House Committee on Education and the Workforce have called upon the Department of Labor’s inspector general to investigate the DOL’s Employee Benefits Security Administration (EBSA) after it shared confidential material with a law firm suing a company that had been the target of a prior agency audit. The material was provided to the plaintiff’s law firm Cohen Milstein Sellars & Toll PLLC under a DOL “information sharing agreement” between the department’s division and the law firm.

    Common interest agreements are standard in litigation when two parties in active litigation share plaintiff or defense interest on the same side of the litigation. In this case, however, the DOL was not a party to the litigation nor had it filed a lawsuit against the defendant involved in this private litigation. The request to the DOL’s inspector general also asks how many other common interest agreements the EBSA has with other plaintiff law firms.

    Coach Denied Injunction Reinstating Him Following Alleged Use of Slur Involving Transgender Athletes

    A high school coach who filed a First Amendment lawsuit against his school district is denied a court-ordered injunction reinstating him while he litigates the propriety of his alleged statements. The coach claims his First Amendment rights were violated when he was terminated following his email critical of the school district’s position on transgender athletes. The school district defended, stating that he would have been terminated regardless of the email because another coach reported that he used a slur in referring to transgender athletes.

    In denying the coach’s request for an injunction, the court concluded that the plaintiff did not show irreparable harm that could not be compensated by monetary damages. The court ruled that the school district’s responsibility to ensure that all students feel safe and are not harassed outweighs the coach’s personal interests in this matter (Parks v. Lake Oswego School District (D. Or., No.3:24-cv-0119, 11/25/24)).



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  • HR and the Courts — November 2024

    HR and the Courts — November 2024

    by CUPA-HR | November 13, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    More Than 35,000 University of California Service Employees Vote to Strike

    The union representing over 35,000 service and patient care employees at all 10 campuses and five medical centers of the University of California reports that the membership has voted overwhelmingly to strike if collective bargaining contracts cannot be reached. The American Federation of State, County and Municipal Employees (AFSCME) Local 3299 is the union representing the service and patient care employees. The contract covering 25,000 patient care employees expired on July 31, 2024, and the contract covering 11,000 service employees expired November 7, 2024. The union stated it would provide the university with 10 days advance notice of any strike.

    The union claims higher costs, especially for housing, has led to a major crisis for its members. The union has filed charges with the California Public Employee Relations Board alleging that the university has not shared information on UC finances as part of the bargaining process.

    University Sues NLRB, Claims Requirement to Turn Over Information Violates FERPA

    Vanderbilt University has sued the National Labor Relations Board in federal court, claiming that the agency’s requirement to turn over student information violates its obligations under the Family Educational Rights and Privacy Act. The NLRB and the United Auto Workers (UAW), the union seeking to organize the unit of graduate student employees, have requested information on about 2,200 graduate student employees, including work locations, shifts, and job classifications. Vanderbilt claims that providing such information would jeopardize the university’s ability to receive federal funds due to FERPA.

    Vanderbilt is seeking an injunction requiring the NLRB to vacate the rules as applied so the university will not have to violate FERPA. Vanderbilt asserts that the NLRB’s rules are arbitrary and capricious and contrary to law given the conflict with the university’s obligations under FERPA (Vanderbilt University v. NLRB (M.D. Tenn. No. 3:24-cv-01301, Comp filed, 10/29/24)). Vanderbilt has asserted more than 80 students have objected to the disclosure of the information. We will follow developments in the case as they unfold.

    Educator’s Anti-Male Bias Title IX Claim Can Go to Trial

    The 2nd U.S. Circuit Court of Appeals ruled that an educator’s Title IX claims can go to trial. The educator alleges that a New York state school district’s harassment probe, which resulted in a ruling against him, violated his Title IX rights. He was accused by a student of inappropriate conduct and touching in his mobile agricultural education trailer. The 2nd Circuit noted that the alleged perpetrator was not given timely notice of the allegations, was not told what was specifically alleged, and was denied the chance to review the evidence and present evidence of his own.

    The appeals court reversed the decision of the trial court, thereby giving the alleged perpetrator the right to a trial over the claim that the Title IX investigation was flawed and biased against him as a male (Schiebel v. Schoharie Central District (2nd Cir., No. 23-01080, 11/1/24)). The appeals court also noted that only one other student was interviewed, despite other students and adults allegedly being present, and that student did not confirm the allegations of the alleged victim.

    Union Election Petitions Filed With NLRB Have Doubled Since Fiscal Year 2021

    The NLRB reports that union election petitions for the most recent fiscal year have totaled 3,286, or more than double the amount in fiscal year 2021. The number of election petitions also amounts to a 27% increase over the previous fiscal year of 2023. The NLRB reported a 7% increase in the number of unfair labor practice filings it has received since fiscal year 2023.

    The NLRB has jurisdiction over private colleges and universities. Public college and universities in most states are subject to state-based rules in conducting union election matters. Commentators generally report anecdotally that state-based union election petitions are also increasing. There have been increased reports of union organizing among higher ed student employee work groups.

    NLRB General Counsel Says New College Athlete Employment Legislation Unnecessary  

    NLRB General Counsel Jennifer Abruzzo stated that there is no need for special legislation concerning student-athlete employment status, since there is existing legislation under the Fair Labor Standards Act, minimum wage laws, and the National Labor Relations Act (NLRA). No new laws, such as those promoted by the NCAA, are necessary, she said. Abruzzo made these remarks at a symposium hosted by Temple University in October. The general counsel pointed out that the situation under the FLSA is currently being played out in the courts.

    Court of Appeals Reverses NLRB Order for Elon Musk to Delete Tweet That Workers Will Lose Stock Options if They Unionize

    The 5th U.S. Circuit Court of Appeals reversed an earlier decision that affirmed the NLRB’s order against Musk and Tesla. In 2021, the NLRB ordered that Musk delete a tweet saying that employees of Tesla would lose stock options if they were to unionize. The appeals court ruled 9 to 8 that the NLRB order was not enforceable. The appeals court declined to rule one way or the other whether the tweet violated the NLRA, rather holding that the NLRB’s proposed remedy was not enforceable.

    Bloomberg reported that the decision was a “blow” to the NLRB’s authority to enforce the labor law’s prohibitions on an employer’s allegedly coercive anti-union statements, particularly when they appear on social media.



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  • HR and the Courts — October 2024

    HR and the Courts — October 2024

    by CUPA-HR | October 15, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    NCAA & Power Conferences Receive Preliminary Approval of Name, Image and Likeness and Anti-Trust Settlement — Ivies Win Dismissal of Anti-Trust Lawsuit

    A federal district court judge has given preliminary approval to the NCAA and Power Conferences’ revised $2.8 billion settlement proposal to be paid to college athletes over 10 years. The judge set a fairness hearing for April 2025, with all objections to be filed by January 31, 2025. The federal judge in the Northern District of California concluded that the revised settlement was “fair, reasonable and adequate” (In Re College Athlete NIL Litigation (N.D. Ca. No. 4:20-cv-03919, 10/7/24)).

    Commentators immediately voiced concerns that the settlement addresses a small group of male athletes in specific sports to the disadvantage of female athletes. In addition, a number of Division I athletes may express objection on the grounds that the settlement continues to give the NCAA too much control over the free market compensation for student-athletes.

    Separately, the eight Ivy League institutions won a dismissal of a federal lawsuit that claimed their ban on athletic scholarships violated anti-trust laws. The federal district court judge assigned to the case granted the Ivy League’s motion for summary judgement, holding that the plaintiffs failed to allege any properly defined market and therefore failed to allege market wide anti-competitive effects (Choh v. Brown University, et. al. (D. Conn. No. 3:23-cv-00305, 10/10/24)).

    University of Louisville School of Medicine Loses First Amendment Retaliation Claim Brought by Terminated Professor

    A former professor at the University of Louisville School of Medicine will receive a trial over his First Amendment retaliation claims regarding statements he made about gender dysphoria to a conservative think tank. Following comments he made during an event sponsored by the Heritage Foundation, the former medical school professor was demoted and his annual contract was not renewed. The professor expressed the view that gender dysphoria in children “is a sociocultural, psychological phenomenon that cannot be fully addressed with drugs and surgery.”

    The 6th U.S. Circuit Court of Appeals ruled unanimously that the university officials who terminated Allan M. Josephson should have known that he was engaged in protected speech, and that terminating him would violate his First Amendment rights. Moreover, the court ruled that the professor’s outside speech was not part of his professorial duties, and therefore subject to his First Amendment claims. The court concluded that a trial is necessary, as there are facts in dispute regarding the rationale for the actions taken against the professor (Josephson v. Ganzel (6th Cir., No. 23-05293, 9/10/24)).

    Tenured Professor Loses Defamation Case Against Harvard

    A federal district court judge partially dismissed a noted behavioral scientist’s $25 million defamation and breach-of-contract lawsuit against Harvard University. Professor Francesca Gino was placed on administrative leave following claims of data fraud in her research. Gino claimed that the university’s notice on her faculty page that she had been placed on administrative leave after conducting an investigation of her research was libelous because the university acted with ill will.

    The court concluded that the professor was a “public figure” and therefore faces a higher standard for proving defamation. A public figure in these circumstances can only prove defamation if the alleged defamer had knowledge that their statement was untrue or acted with reckless disregard for the truth. Moreover, the court concluded that the issue of “research integrity and potential misconduct” is one of public concern, adding to the reason for the dismissal of the defamation claim (Gino v. Presidents and Fellows of Harvard College (D. Mass. No. 1:23-cv-11775, 9/11/24)).

    Regarding the professor’s breach-of-contract claims, the professor alleged that the university’s decision to place her on administrative leave and its related disciplinary sanctions were the same as tenure removal. The judge concluded that it is premature to rule on the breach-of-contract claims.

    Public School Employees Lose Free Speech Case Challenging Anti-Racism Training

    In a case with possible application to public higher ed training, the 8th U.S. Circuit Court of Appeals affirmed the dismissal of a case brought by two Missouri public school employees who claimed that anti-bias employee training violated their First Amendment rights. The lawsuit failed because the court concluded that they were never asked to leave nor were they disciplined for expressing contrary views and that they received professional development credit for attending the anti-racism training (Henderson v. Springfield R-12 School District (8th Cir No. 2301374, 9/12/24)).

    The decision provides some clarity on such training, as the court noted that the employees were not compelled to express certain views or refrain from expressing certain views during the training. The appellate court did reverse the trial judge’s ruling requiring the plaintiffs to pay $300,000 in attorney fees for filing a frivolous claim.

    Former Student’s Title IX Claim Dismissed as Alleged University Internship Did Not Exist

    A federal district court judge dismissed allegations of a sexually abusive internship at the University of Michigan because the plaintiff could not prove the internship actually existed. The court noted that none of the usual formalities, such as an application or a university authorization of an internship, were established.

    In light of this, the court dismissed the Title IX claims and allegations of failure to investigate sex harassment and abuse allegations as the plaintiff did not allege discrimination while “participating in or at least attempting to participate in” a university program or activity, as the internship did not exist. The University of Michigan prevailed in the case (Doe v. Baum ((2024 BL 340244 E.D. Mich. No. 4-21-cv-12492, 9/26/24)).

    University of Texas Professor Loses First Amendment Complaint

    A federal district judge dismissed a University of Texas professor’s First Amendment claim that his speech was “chilled” by unspecific threats following comments critical of “critical race theory and DEI-based ideology.” The judge dismissed the case, holding that the unspecific threats did not rise to the level of an adverse employment action (Lowery v. Mills ((W.D. Tex. No. 1:23-cv-00129, 10/2/24)).

    The judge ruled in favor of the University of Texas McCombs School of Business. The judge noted in a footnote, however, that the dismissal was not meant to approve of the university’s actions and that “in the context of a world-class university like UT, differences of opinion should be tolerated by those in authority, no matter that they are uncomfortable, so long as they do not incite violence or disrupt the school’s ability to function as a teaching institution.”

    Supreme Court to Review Split in Circuits Regarding Higher Ed ERISA Lawsuit

    The Supreme Court has agreed to hear arguments over the split in circuit courts of appeals as to when a university may be sued by employees under the Employee Retirement Income Security Act (ERISA). Employees of Cornell University alleged that improper service provider fees were charged to their pension fund. They are appealing an adverse 2nd Circuit decision stating employees must plead that the alleged “prohibited transaction” by the service provider involved either “unnecessary services” or the fees were “unreasonable” (Cunningham v. Cornell University (US No. 23-1007 cert granted 10/4/24)).

    The 2nd U.S. Circuit Court of Appeals, the 3rd Circuit, the 7th Circuit, and the 10th Circuit all require the additional pleading that alleges some kind of fraud or impropriety in order to allow the case to move forward. This contrasts with the 8th Circuit and the 9th Circuit, which apply the “ERISA-as-written” rule. That rule allows a plaintiff to simply allege that a transaction between an employer and a pension or welfare plan service provider occurred and proceed with discovery over whether fraud or some other impropriety exists. We will follow developments in this case as it proceeds.



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  • HR and the Courts — September 2024

    HR and the Courts — September 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Fired Professor Who Praised Hitler Loses Free Speech Retaliation Lawsuit

    The New Jersey Institute of Technology prevailed in a federal lawsuit brought by a former philosophy lecturer alleging retaliatory discharge. The professor’s employment agreement was not renewed after a New York Times article exposed his involvement in the “alt-right” (a far-right, white nationalist movement), including his praising Adolph Hitler as a “great European leader” and linking IQ to race. In dismissing the lawsuit, the U.S. District Court for the District of New Jersey held that the professor’s speech disrupted, and would likely continue disrupting, the university’s administration and interfered with the university’s mission (Jorjani v. N.J. Inst. of Technology ((D.N.J. No. 2:18-cv-11693, Jud entered 7/31/24)).

    The judge held that public employers can restrict the speech of employees without violating the First Amendment when necessary to maintain effective and efficient operations. The judge also emphasized that the university did not need to wait for protests and demonstrations in order to show disruptions in operations before acting.

    NLRB: Private Colleges and Universities Must Bargain With Unions Representing Student Employees Over FERPA-Protected Information

    On August 6, 2024, the general counsel of the National Labor Relations Board (NLRB) issued a memo acknowledging the potential conflict between the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA) regarding union requests for personal information about student employees. The NLRB general counsel concluded that colleges and universities in this situation must bargain with the applicable union over disclosure of such information and explain why the information request would violate FERPA.

    Further, the NLRB concluded that the college or university can bargain with the union over the distribution of FERPA waivers to applicable student employees but that asking the union to hand out such waivers would be unreasonable and a violation of the employer’s duty to bargain in good faith because the union does not have the student contact information. The general counsel concluded that the college or university should hand out the waivers when the union does not have the student employees’ contact information.

    Proposed $2.8 Billion NCAA Settlement on Hold as Some Student-Athletes Object

    Some student-athletes claiming the NCAA artificially capped the size of college athlete scholarships too low, as well as those pursuing fair-pay claims, objected to the $2.8 billion proposed settlement of the NCAA and the Power Five conferences antitrust case. Plaintiffs in these two areas are asking the Northern District of California court to carve out their claims from the proposed settlement so that they can pursue individual claims in further litigation. The federal judge overseeing the matter questioned the proposed settlement and concluded that the settlement needed a better explanation of damages and a clearer understanding of how much each class member can expect to gain (In re College Athlete NIL Litigation (N.D. Cal. No. 4:20-cv-3919. Brief filed 8/9/24, Fontenot v. NCAA D. Colo. No. 1:23-cv-03076, and Cornelio v. NCAA D. Colo. No. 1:24-cv-02178)).

    Two former Brown University student-athletes have dropped their objection, concluding it will not preclude them from proceeding separately in an antitrust claim against the Ivy League. The two former men’s and women’s basketball players have alleged separately that the Ivies have engaged in an illegal agreement which raised the price of an Ivy League education by illegally suppressing compensation for their services. They alleged that Brown only provided them with need-based assistance that did not cover the full cost of their education.

    Boston University Graduate Workers Strike Is Longest in the Last Decade

    Lasting over 150 days, the Boston University graduate workers strike is the longest student employee strike in the last decade, according to the National Center for the Study of Collective Bargaining in Higher Education and the Professions, located at the City University of New York’s Hunter College. The BU strike, which began on March 25, eclipses a similar work stoppage of 147 days at the University of Michigan in 2023. An unauthorized “wildcat” strike at the University of California, Santa Cruz may have lasted longer but the National Center points out that strike was unauthorized by the applicable union. The center concludes that this is part of the significant increase in unionization of both undergraduate and graduate student workers that has occurred over the past few years.

    The Boston University graduate workers formed their union in December 2022. The union is still engaged in efforts to secure their first collective bargaining agreement. September 3 will be the beginning of the second semester in which the grad student workers are striking. Teaching and regular higher education functions have continued at the university, though some interference with regular activities has been reported.

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