Higher Education Legal News: April 2017

Supreme Court Remands Transgender Bathroom Case

The U.S. Supreme Court issued on March 6, 2017 an order in Gloucester County School Board v. G.G., a case arising under Title IX concerning the use of bathrooms and other facilities by a transgender student. The Supreme Court vacated the judgment of the Court of Appeals for the Fourth Circuit and remanded the case to that court for further consideration because of the Dear Colleague Letter issued by the Department of Education and Department of Justice on February 22, 2017, which withdrew the guidance document that had been issued by the Department of Education during the Obama Administration. The most recent DCL takes the position that local school districts should be free to develop their own bathroom and locker room policies without federal guidance.

An Alabama Case Concerning Religious Expression

In Keister v. Bell (N.D. Ala. Mar. 6, 2017), a travelling Christian missionary visited the campus of the University of Alabama and began preaching and handing out bibles. He was advised by campus police that he would need or permit to continue those activities. The missionary city resumed his preaching on sidewalks that were beyond the boundary of the campus, but are nonetheless maintained by the university. Campus police told the missionary that since the school’s Ground Use Policy applied to that location, he would still need a permit before engaging in expressive conduct. The missionary sued, contending that the university’s policy interfered with his First Amendment right to religious expression. The court held that the boundary sidewalk was a limited public forum since “aspects of the intersection [were] embellished by UA markings” and university buildings surround the intersection.  The court further held that the policy’s restrictions on speech by unaffiliated individuals were reasonable and viewpoint neutral, as they preserved the university’s limited facilities and resources for students. The plaintiff’s motion for a preliminary injunction was therefore denied.

Cost of Attendance Class Action Settlement

In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (N.D. Cal. Feb. 3, 2017) is a class action suit that was filed in 2014 by a former West Virginia University student-athlete alleging that the NCAA, by capping the value of athletic scholarships below the full cost of attendance, violated antitrust law. The NCAA recently issued a press release announcing a settlement of the litigation. As a part of the settlement, the NCAA and 11 NCAA Division I conferences will establish a $208.7 million fund to benefit current and former NCAA Division I basketball and Football Bowl Subdivision student-athletes.

Immigration

A Memorandum Opinion was entered in Sarsour v. Trump (E.D. Va. Mar. 24, 2017), denying the plaintiffs’ motion for a temporary restraining order prohibiting the federal government from enforcing Executive Order No. 13,769, which temporarily restricts foreign nationals of certain countries and refugees from entering the United States. The court concluded that the plaintiffs did not demonstrate that they were likely to succeed on the merits of their case. The court reasoned that the Executive Order had a secular purpose, which made it unlikely that the Plaintiffs could prevail on their Establishment Clause claim. The Court went on to distinguished Executive Order No. 13,769 from the President’s earlier Executive Order restricting immigration, by concluding that the Equal Protection infirmities of the prior order did not exist in the instant case.