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.
Former EEOC Commissioner Drops Lawsuit Challenging Termination by Trump Administration
Jocelyn Samuels, a former Equal Employment Opportunity Commission (EEOC) commissioner terminated by the Trump administration, has voluntarily dropped her lawsuit challenging the president’s authority to do so, following a Supreme Court decision favoring broad presidential power to terminate independent agency personnel. Samuels stated that she disagreed with the Supreme Court decision in Trump v. Slaughter but had no viable legal path to contest her termination in the wake of the decision (Samuels v. Trump (No. 1-25-cv-01069, notice of dismissal 7/6/26)).
Samuels had been appointed to a five-year term and claimed the president did not have the power to terminate her midterm. However, Title VII of the Civil Rights Act, which created the EEOC, does not have specific provisions protecting the term of office of each commissioner.
Florida Ban on Teaching About Race and Gender Issues Declared Unconstitutional by Appeals Court
The 8th U.S. Circuit Court of Appeals ruled in a split 2-1 decision that the Florida law, the Individual Freedom Act (also referred to as the Stop W.O.K.E. Act), which banned state college and university professors from teaching eight specific concepts dealing with race, color, national origin, and sex, violated the First Amendment. The appeals court said the state can set curriculum for state-run universities but does not have unlimited authority to ban viewpoints it deems offensive (Pernell v. Florida State Board of Governors of State University System (11 Cir. No. 22-13992, 7/6/26)).
The appeals court affirmed the decision of the federal district court trial judge who had ruled that the law as applied to state universities violated the Constitution’s First Amendment free speech provisions. The provisions of the Stop W.O.K.E. Act, which had banned private sector employer-mandated diversity training, had previously been struck down as an unconstitutional restriction of private employers’ First Amendment free speech rights in separate litigation in 2024.
University Sued by AAUP and AFT Chapters for Enforcing Alleged Policies Restricting Professors’ Free Speech Teaching Rights
The Texas AAUP and AFT chapters at Texas Tech University have filed suit in federal court against the Texas Tech University System, alleging that its policies restricting classroom teaching on subjects concerning gender, race, and sexual orientation violate the First Amendment of the Constitution. The lawsuit alleges that the university’s policies restricting teaching in these sensitive areas “create an educational environment replete with fear and confusion” and have chilled free thought and expression (Texas AAUP-AFT, et al. v. Creighton, et al. (W.D. Tex. No. 3:26-cv-01845, Comp Filed 7/8/26)).
Two memoranda issued last December require all faculty to submit their course material for advance approval to make sure that any content related to sexual identity or race meets applicable university standards. Among other allegations, the complaint alleges that the university policies restrict teaching about intersex and transgender people. The university policy allegedly prohibits most undergraduate teaching on the subjects of gender identity and sexual orientation.
University Prevails in Race and Gender Discrimination Case Where Individual Was Terminated Because of Alleged Antisemitic Comments
A federal district court judge dismissed the complaint filed by a former director of multicultural affairs who alleged she was terminated because of her race and/or gender. The University of Michigan prevailed in the case as the judge concluded that the plaintiff raised no evidence of race or gender discrimination. The court dismissed the case, concluding that the only evidence the plaintiff brought forward of race and gender discrimination were her own conclusions (Dawson v. Board of Regents of the University of Michigan (E.D. Mich. No. 4-25-cv-12123, 7/28/26)).
The court commented, however, that the plaintiff’s allegations that other university officials allegedly made anti-Palestinian comments and were not disciplined could give rise, not to a claim of race or gender discrimination, but rather to a claim of discrimination based on the group who the alleged comments offended.
Appeals Court Ruled Plaintiff Must Arbitrate Sexual Harassment Claims Because the Alleged Actions Occurred Before the Effective Date of the Statute Ending Forced Arbitration of Sexual Harassment
The 9th U.S. Circuit Court of Appeals ruled in favor of an employer, dismissed a sexual harassment lawsuit, and sent it to arbitration holding that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act does not apply retroactively before its effective date on March 3, 2022 (Combs v. Netflix Inc. (9th Cir. 25-3164, pub decision 7/8/26)). The decision of the 9th Circuit is consistent with a previous decision of the 3rd Circuit on the issue.
The plaintiff raised allegations of sexual harassment that occurred from 2017 to 2021. The plaintiff had been terminated in December 2021.
State Court Judge Issues an Injunction Altering the Terms of the NCAA 5-Year Eligibility Rule
An Ohio state court judge granted a preliminary injunction in favor of a group of college basketball players who had graduated high school in 2022, holding that the NCAA’s five-year eligibility rule is arbitrary and capricious (Borovicanin v. NCAA (Ohio Ct of Com Pleas No. A2603552 Prel Inj. 7/9/26)). The group of college basketball players had played at colleges including Xavier University, Utah State University, Cleveland State University and the University of Dayton.
The plaintiffs argued successfully that the NCAA rules unfairly provided a fifth year of eligibility to players who graduated high school in 2023 and later and did not provide the fifth-year eligibility to players who graduated high school in 2022. They further alleged that players who graduated high school in 2022 bore the burden of COVID-19 eligibility waivers. The NCAA has stated it will appeal this decision.
NLRB Rules in Favor of Employer and Sustains Termination of Employee for Wearing “Black Lives Matter” Messaging on Clothing and Accessories During Work Hours
The National Labor Relations Board (NLRB) recently dismissed charges filed against Whole Foods, who terminated an employee for wearing “Black Lives Matter” messaging on their clothing during working hours. The NLRB ruled that the clothing message was not protected under federal labor law as it did not have a goal related to the employee’s job terms or their lot as employees (Whole Foods Markets, Inc. (N.L.R.B. Case 01-CA-263079, 7/31/26)).
The NLRB, with jurisdiction over private colleges and universities, has issued varied decisions on labor law protection for employees on social justice issues over the years with many of the decisions varying given the facts of each case. Care should be taken on these issues and counsel consulted given the facts of each individual circumstance.
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.