Matt Wright

Law Final

1. Kim’s attorney should inform her that the issues presented against Nadal College (NC) are

focused on Title VII and negligence. These are appropriate claims for Kim to question

pursuing, as she feels sexually harassed in her current role, and that the school has not taken

positive actions to alleviate this conduct. Since Nadal College is a private institution, it will

be assumed that the school does not receive federal funding, so Title IX is not in play.

Title VII

Kim’s attorney needs to find whether Andre, Kim’s supervisor, or other employees are

responsible for sexual harassment. Title VII covers workplace sexual harassment and these

claims need to be taken up with the Equal Employment Opportunity Commission (EEOC). The

two types of harassment under Title VII observed could be quid pro quo or hostile environment.

The quid pro quo sexual harassment or discrimination could come from how Kim was not given

the promotion to oversee the new community, which Kim attributed to her rejection of Andre’s

advances. However, Nadal College is able to defend themselves with Bona fide occupational

qualifications (BFOQ), which would allow them to claim that they needed a male employee for

this role as it oversaw the men’s football and basketball teams. For these reasons, Kim should not

seek a claim for quid pro quo harassment through Title VII.

The hostile environment claim could come from the homophobic cartoons that are put in

Kim’s mailbox and on her car, as well as the comments Andre makes to her. In Alston v. North

Carolina A&T State University, a female police officer, Alston, was consistently the victim of

sexual harassment comments and conduct. These comments were made to instigate sexual

actions occurring, however Alston kept reporting this conduct to supervisors. This is similar to
Kim’s case, as the comments made by Andre are suggesting that sexual actions take place

between the two of them.

In Oncale v. Sundowner Offshore Services, a male employee is harassed for the way he

acted, and how he carried himself. This case determined that sexual harassment can occur

between two same-sex individuals and set the precedent for how sexual harassment continues to

be harassment in the work place when it is in regards to someone’s sexual orientation. This

connects to the cartoons that Kim was receiving and how this continues to be signs of a hostile

environment being created by sexual harassment. Kim would be successful if she sought claims

for a hostile environment being created by fellow employees due to these court precedents, and

was able to prove that this harassment was on the basis of sex.

Negligence

In Kim’s situation, Nadal College’s HR department should have taken steps to alleviate

the hostile situation and take action against the offenders, however that is not what happened.

When the sexual harassment in Oncale v. Sundowner Offshore Services was reported to higher

authorities, the supervisors did not take action to defend Oncale, but instead insulted him, which

is similar to how Kim did not receive support from her HR department. The HR department

needs to provide assistance to workers who are facing a type of harassment or discrimination to

ensure the workplace remains a neutral environment.

In Faragher v. City of Boca Raton, a lifeguard was sexually harassed by supervisors and

the harassment was not formerly reported, but was shared with other supervisors. In these

situations where a supervisor is committing the harassment, it can be difficult for an employee to

take appropriate claims, when they may fear backlash from the supervisor in future actions. In

this case, it was acknowledged that a supervisor was made aware of the harassment, similar to
how Kim shared her harassment to the HR department, and action was not taken. In this case, it

was found that the employer (the city) was still at fault, so through this precedent, Kim should

take a claim in the negligence of the company.

2. As the Dean of Students had the copies of the Sunny News newspaper pulled, limited

demonstrations, and prevented a speaker coming to campus, he was violating students’ rights

granted by the 1st Amendment. The ACLU would be correct in this situation for how the

Dean of Students is at fault for this behavior that limits free speech and does not allow

students to fully demonstrate their own views and opinions on topics.

Free Speech

Students are allowed to distribute their ideas to other students, and this is upheld in Bazaar v.

Fortune when Ole Miss canceled a student’s work because the administration was scared of the

reactions from other students. The courts found that the school was unable to stifle speech, based

on what the possible reaction could be. This is a violation of the 1st Amendment and how people

have the right to free speech. Speech is protected as long as it does not include words meant to

start a fight, threats, defamation, or sexual harassment.

The Dean of Students also messed up, as he required that the students pack up their

demonstration and did not allow them to access the open forum created in the “Free Speech

Alley.” Students are allowed to share their opinions in a public manner and this is demonstrated

in Tinker v. Des Moines Independent Community School District. In that case, students wore a

wristband that demonstrated a stance on the Vietnam War, and they were suspended because of

this activity. The court found that this was a breach of the students’ 1st Amendment rights, and

this applies in this same situation with the demonstration by the DREAMERS. The school’s
speech code remains to be very vague and does not offer specifics in regards to speech that is

meant to upset students. According to Doe v. University of Michigan, these codes need to be

specific or non-existent at all, as students are allowed to express their 1st Amendment right of

free speech.

Through not allowing the DREAMERS to bring Mr. Hammer on campus, the Dean of

Students is acting in fear of something bad happening on campus, even when the speaker may

not be planning to be a disruption. This is symbolized in Stacy v. Williams, where there were

limitations on speakers coming on campus as the faculty was scared of the disruption. The fear

of the Dean of Students translates as a “heckler’s veto,” where he is scared of an opposing view

being the cause of the disruption. This is not an acceptable reason to limit someone’s 1st

Amendment rights.

The Dean of Students made a big mistake in how the situation was handled with the

DREAMERS, Sunny News, and Mr. Hammer. In all of the acts, the Dean of Students was

censoring free speech and restricting students’ ability to achieve appropriate demonstrations and

expressing themselves. The ACLU has many claims that it will be able to hold against the Dean

of Students, and this is supported by case precedent.

3. There are many issues presented in this case, but they mostly center on negligence and Title

IX claims that could have been avoided. Many University officials were involved in this

situation and through many different actions or lack thereof, this situation escalated to an

unsafe point.
Negligence

When looking at the university’s responsibility in this case, the first topic will be the

university. In Tanja H. v. University of California, a student was raped on campus and the school

was not at fault, as the student had contributory negligence, as she chose to get drunk and have

the effects of alcohol affect her. This relates to the case with Colette, as she is at fault for

contributory negligence for drinking alcohol and taking prescription medication.

The next topic will be the RA in the residence hall at the university. The RA in this case was

aware of the situation and simply lectured the students on how they should be acting. This is

similar to Freeman v. Busch, where a student was intoxicated and passed out, and claimed to be

sexually assaulted by another student. In that case, the RA’s attention was brought to the issue of

the intoxicated student, but the RA just told the student to share more information throughout the

night. The RA was found not responsible in the situation, as there was no special relationship or

“custodial duty” between the RA and the plaintiff, which would reflect the same results in the

case with Colette’s claims, as Colette also had contributory negligence in consuming alcohol

(Student would be “adult”). The university would not be responsible for the battery and sexual

assault through negligence of the RA.

Based on Booker v. Lehigh, the advisor in Colette’s situation is not at fault, because the

student is the one who chose to drink and assumed the risks involved with it. In that case, the

student was at fault for their fall and this was caused by the drinking of alcohol. The family

would not be wise to pursue a claim against the advisor, as they did not have “custodial duty”

over the student.

Title IX

The family would not be able to pursue a claim under Title IX against the school, as the

school had no way to predict that this violence would occur. The school did not have any

evidence that would have led them to believe something would happen to Colette, and therefor is

not required to protect the student from the actions. The school also quickly reacted to the

situation as they called police and Colette moved off campus.

FERPA

In Gonzaga University v. Doe, it was determined that schools are not able to share students’

educational records when they are receiving federal funding. In Colette’s case, the address

information shared was public directory information, so it was allowed to be shared, unless

Colette notified the school that she did not want this information to be publically available. The

family would not benefit from seeking a FERPA claim against the school for the actions.

4. There are many claims that could be made by the family and it is surrounding how the

university handled the situation of notifying Jude of his status and checking in on his health

and safety.

Search and Seizure

The family will not have luck in pursuing a claim of the entry into the room by the hall

director, as this process is supported through case proceedings. In State v. Hunter, a health/safety

check of a room was supported, as it did not serve the purpose of finding criminal activity. This

health/safety was the purpose of the entry by the hall director, so this entry by the university is

protected.
 However, the criminal evidence of the bullets, cocaine, and pistol was not allowed to be

discovered as there was no permission to search through belongings of the student. For criminal

outcomes to follow a room check, the materials must be in plain view of the University official.

This protection from unlawful search without a warrant is supported by Commonwealth v.

Neilson where the 4th Amendment was upheld as a student’s room was searched for criminal

purposes without the student’s consent. The court supports these materials as long as the search

has a benefit as supported through a housing contract (Health/Safety).

The Ambien and scotch were in plain view of the hall director, so these materials would be

allowed to be used for criminal case proceedings, as supported by State of Washington v.

Chrisman. In that case, drug materials were visible from a simple gaze in the room, and therefor

are allowed to be used in future case hearings. This relates these cases together as the hall

director found the Ambien and scotch on the bed.

ADA

The family of Jude would not be successful in pursuing a claim in regards to the

treatment of their son, based on ADA compliance, as this had not proven to cause earlier issues

in the residence halls.

Due Process

Jude’s family would be successful in following a claim in regards to the due process granted

by the school. The school conducted the hearing to be 3 days after the incident; however that is

not enough time for a student to adequately defend himself and prepare all of the information

they wish to present. In Goss v. Lopez, students were suspended without having a full hearing,

even though they are supposed to have the right to a hearing. This relates to the standards created

to allow for students to have an adequate ability to defend themselves, and information on
punitive sanctions placed on students. The case also set that students have an invested property

interest in their education and are able to attempt to protect this privilege.

Jude’s family would not succeed in making a claim against how Jude was dismissed from the

residence hall, as the school is able to temporarily ban a student, in order to prevent future

incidents occurring. This prevents the school from being at fault when they saw this event could

happen again.

To be attached to student’s answers:

I, _______Matthew Wright______________________, attest that I did not receive any

assistance on this exam other than class notes, the textbook, and other scholarly sources. I did not

discuss this exam or my answers with classmates or any other person. I attest that this work is

solely my own. I understand the University’s academic dishonesty policy and am subject to

appropriate sanctions should it be found that I received unfair assistance on this exam.

Signature: ______Matthew Wright___________________________

Date: ______________5/1/2019_______________________________