Education

• Pages: 275-308

275

Education*

CHAPTER 7

* By Will Creeley, Senior Vice President of Legal and Public Advocacy, Foun-

dation for Individual Rights in Education (FIRE), J.D., New York Univer-

sity School of Law, and Caroline B. Newcombe, Adjunct Professor of

Administrative Law, Southwestern Law School, J.D., University of Virginia

School of Law, LL.M (Government) American University, Washington Col-

lege of Law (Committee Co-Chairs). Professor Newcombe prepared the

state law portion of this chapter, while Mr. Creeley prepared the introduc-

tion and the federal section of this chapter.

INTRODUCTION

In 2020, courts continued to navigate and clarify the intersection of fed-

eral anti-discrimination law and civil liberties in the educational context,

issuing rulings addressing freedom of expression, religious liberty, and due

process rights following student and faculty complaints under Titles VI and

IX. The President of the United States issued an executive order concerning

institutional obligations with regard to student expressive rights, as well as an

order intended to address anti-Semitism on campus via Title VI and the pro-

vision of a specific definition and list of examples of anti-Semitism.

PART I. JUDICIAL DEVELOPMENTS

A. Title IX

1. A terminated public university professor’s First Amendment challenge

to her institution’s sexual harassment policies both as-applied and on their

face was dismissed because the professor’s speech at issue did not serve an

academic purpose and her lawsuit named the wrong institutional parties.

Buchanan v. Alexander, 919 F.3d 847 (5th Cir. 2019).

276 Developments in Administrative Law and Regulatory Practice

1. Buchanan v. Alexander, 919 F.3d 847, 851 (5th Cir. 2019).

2. Id. at 851, 852.

3. The lawsuit was coordinated by FIRE, Committee Co-Chair Creeley’s em-

ployer.

4. Buchanan v. Alexander, 284 F. Supp. 3d 792 (M.D. La. 2018).

5. Buchanan, 919 F.3d at 852 (emphasis in original).

Dr. Teresa Buchanan was a tenured professor at Louisiana State Univer-

sity (LSU) teaching in the Early Childhood Program for teacher education.

Buchanan was terminated from her position in June 2015 by LSU’s Board of

Supervisors on the recommendation of LSU President F. King Alexander

following findings by a Human Resources investigation and a Faculty Com-

mittee hearing that she had violated LSU’s policies on sexual harassment

“through her use of profanity, poorly worded jokes, and sometimes sexually

explicit ‘jokes.’”1 Specifically, LSU had received complaints from a local

school district superintendent about Buchanan’s “professionalism and behav-

ior” and complaints from students, including “a letter in 2012 from a group

of students complaining that Dr. Buchanan made offensive classroom com-

ments, such as (1) ‘a woman is thought to be a dike if she wears brown

pants’; (2) ‘it was a choice to be in the program and it was not the fault or

problem of the professors if any of us chose to be mommies or wives and not

to expect to get an A in the class’; and (3) use of ‘extreme profanity on a

regular basis.’”2

Buchanan filed suit against Alexander and other LSU administrators in

January 2016, alleging, inter alia, that her firing violated her free speech and

academic freedom rights under the First and Fourteenth Amendments, and

challenging LSU’s sexual harassment policies as violative of the First Amend-

ment on their face.3 The district court granted LSU’s motion for summary

judgment in January 2018,4 finding that “(1) for purposes of these Defen-

dants’ qualified immunity, liability for retaliation in violation of the First

Amendment based on a defendant’s merely causing an adverse employment

action was not clearly established, (2) there was no evidence of a violation of

Dr. Buchanan’s First Amendment right to academic freedom, (3) LSU’s sexual

harassment policies were not facially overbroad, (4) LSU’s sexual harass-

ment policies as applied to Dr. Buchanan did not violate her First Amend-

ment rights, and (5) Defendants did not violate Dr. Buchanan’s right to

procedural due process.”5

On appeal, the U.S. Court of Appeals for the Fifth Circuit first reviewed

Buchanan’s as-applied First Amendment claim. Noting that “[s]tudents, teach-

ers, and professors are not permitted to say anything and everything simply

277Chapter 7: Education

6. Id. at 852–54.

7. Id. at 855.

8. Id.

9. Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 61 (1st Cir. 2019).

10. Id. at 62.

11. Id.

because the words are uttered in the classroom context,” and finding that

“speech that does not serve an academic purpose is not of public concern,” the

court concluded that “Dr. Buchanan’s use of profanity and discussion of her

sex life and the sex lives of her students was not related to the subject matter

or purpose of training Pre-K-Third grade teachers.”6

With regard to Buchanan’s facial challenge to LSU’s sexual harassment

policies, the Fifth Circuit panel ruled that Buchanan had named the wrong

defendants by suing “only employees and officials with individual and lim-

ited roles in administration of LSU’s polices, but with no ultimate authority

to enforce them.”7 Instead, the panel declared, “the only proper party defen-

dant to a facial challenge to LSU’s policies” would be LSU’s Board of Super-

visors, “which is responsible for the creation and enforcement of the policies.”8

Accordingly, the Fifth Circuit vacated the lower court’s dismissal on this

claim, dismissing it instead for this alternate reason.

2. After

Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019).

University of Massachusetts at Amherst students James Haidak and Lauren

Gibney were involved in a “tumultuous romantic relationship.”9 While the

two were studying abroad in Barcelona, they engaged in a physical alterca-

tion on April 16, 2013, that each later recalled differently: per Gibney, Haidak

attacked her; per Haidak, Gibney hit him first, and he restrained her to de-

fend himself. Gibney’s mother contacted the university to alert administra-

tors to the incident that same day, and Gibney herself submitted a formal

written complaint to the university three days later, alleging a violation of the

Code of Student Conduct. On April 19, Haidak was charged with “(1) Physi-

cal Assault and (2) Endangering Behavior to Persons or Property,” and issued

a no-contact order.10 Haidak denied Gibney’s allegations in a meeting with an

associate dean of students a few weeks later.

Haidak and Gibney continued to communicate with each other despite

the no-contact order; indeed, Gibney’s mother “discovered hundreds of calls

and thousands of text messages from Haidak on the family’s phone bill.”11 (In