Recent Decisions - LOWER FEDERAL COURTS AND STATE COURTS UNIVERSITIES & OTHER INSTITUTIONS OF HIGHER LEARNING

Article excerpt

Faculty and Administration

Professor sued university alleging discrimination. A visiting professor, a native of China, was promoted over another visiting professor, a native of Taiwan. The university stated the reason for the decision was based on the communication and interpersonal skills of the promoted professor. Held: For the university. The professor who was not promoted agreed that his English could be difficult for others to understand. Understandability is a relevant factor when considering the capabilities of a professor who is expected to teach others. Tseng v. Florida A & M U. Bd. of Trustees, 380 Fed. Appx. 908 (11th Cir. 2010)(unpublished), cert denied, 79 U.S.L.W. 3540 (U.S.Apr. 25, 201 1).

Dean of school sued university alleging retaliation. The Dean criticized the university policies and the provost in public. Other members of the faculty expressed that they were unhappy with the leadership under the Dean. Held: For the university. An institution is not required to retain those who publicly oppose its policies, especially when the opposer is in a high-ranking position. Faghri v. U. of Conn., 621 F. 3d 92 (2d Cir. 2010).

Faculty member petitioned to vacate an arbitration award. The university brought a faculty member to arbitration to terminate his employment. The arbitrator ruled that he could be terminated, and he appealed. Held: For the university. The instructor failed to establish any grounds that the arbitration award violated public policy, was irrational, or exceeded the arbitrator's powers under the collective bargaining agreement. Sufficient evidence supported the arbitrator's findings that the instructor's conduct did not constitute academic freedom, that instructor's speech was job-related and sent as a public employee, and that the instructor actually sent the emails which prompted his termination. Therefore, the award was upheld. Kalyanaram v. N.Y. Inst, of Tech., 913 N.Y.S.2d 159 (N.Y. App. 1st Dept. 2010).

Torts

Guest sued fraternity for negligence. A guest was injured when two uninvited guests stabbed him during a fraternity party. Held: For the fraternity. The fraternity did not have a legal duty to protect others from the criminal acts of a third party because the specific harm that occurred was not foreseeable. A party has a legal duty to its guests only when the party knows or should know that a particular crime is probable. Wilder v. Sigma Nu Fraternity, 390 Fed. Appx. 910 (11th Cir. 2010) (unpublished).

Constitutional and Civil Rights Claims

Student sued university alleging violation of the First Amendment. A student charged with violating his university's student code of conduct brought a discrimination claim under 42 U.S.C.A § 1983, alleging that various code provisions violated his First Amendment rights. Held: For the student in part and for the university in part. There was sufficient evidence to show that certain provisions in the student code reached too much protected expression. However, university officials, acting in their official capacities, were not considered persons under § 1983. McCauley v. U. of the V.l., 618 F. 3d 232 (3d Cir. 2010).

Students sued college alleging a warrantless search violation under the Fourth Amendment. After campus police officers were informed that students allegedly possessed a weapon, the officers went to the students' room, found the weapon, and searched the entire premises. Held: For the students. The police officers used coercive tactics, which involved showing their authority and blocking exits. Therefore, even if the students consented, it was not voluntary as required. Commonwealth v. Carr, 936 N.E.2d 883 (Mass. 2010).

Student sued university alleging university's disciplinary procedures violated student's due process and Equal Protection rights. Following an altercation off-campus between the student and an off-duty police officer, the university held a hearing and expelled student for student conduct violations. …