Supreme Court Opinion Released: Fry, IDEA, FAPE and Administrative Remedies

chris-mcintire-photoA school district refuses to allow the service dog of a student with disabilities into the classroom because the student was assigned a one-on-one instructional aide by the school district, rendering the service dog superfluous. The parents remove their child from the school district and ultimately sue the school district and the school’s principal for violations of Title II of the American’s With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). The parents did not sue the defendants under the Individuals with Disabilities Education Act (IDEA), nor did they allege in their lawsuit their child was denied a Free Appropriate Public Education (FAPE) under the IDEA. The question remains: Do the parents have to satisfy the administrative requirements of IDEA, even though they are not alleging an IDEA violation?

In this case, the Supreme Court said yes. On February 22, 2017, the Supreme Court published its ruling in Fry et vir, as Next Friends of Minor E.F. v. Napoleon Community Schools et al Fry 580 U.S. __ (2017), in which the court sought to clear up confusion about how the IDEA, ADA, and Section 504 interact. Five justices signed off on the majority opinion, with Justices Alito and Thomas writing a separate concurrence.

The court’s opinion dealt with the confusion that occurs when a violation of a disability right is alleged in the educational setting.  In addition to the IDEA, in 1986 Congress passed the Handicapped Children’s Protection Act, 20 U.S.C. §1415(l), establishing a “carefully defined exhaustion provision” indicating that a person seeking relief under the ADA, Section 504 or similar laws available under the IDEA must first exhaust IDEA’s administrative remedies. The issue in Fry was when does §1415(l) actually come into play. Fry helps clear up when the IDEA administrative remedies must be satisfied.

First, where the gravamen of the lawsuit does not involve a denial of a FAPE under the IDEA, there is no requirement to satisfy the IDEA’s administrative requirements. If the lawsuit alleges the student was denied a FAPE, then IDEA’s administrative requirements apply, even if the lawsuit is brought under the ADA or Section 504 – and does not cite an IDEA violation.

The court noted that there is some overlap between the statutes.  It is important to look at the central issue of the case, and the nature of relief being sought. The court offers a suggested diagnostic test in the form of two hypothetical questions to determine whether the IDEA and FAPE are at play. First, could the plaintiff have brought the same claim against another public facility that was not a school? Second, could an adult at the school have brought essentially the same claim? If the answer is yes to these questions, it is unlikely the complaint involves a claim under the IDEA.

In addition, the court notes that prior actions by the plaintiff should be considered. If the IDEA administrative remedies were pursued earlier in the process, those efforts may be, in the court’s words, “strong evidence that the substance of the plaintiff’s claim concerns a denial of FAPE, even if the complaint never explicitly uses that term.” Fry at Page 3 ¶1(b).

The partial concurrence by Justices Alito and Thomas gives an insight into how plaintiffs may attempt to counter the holding in Fry. Justices Alito and Thomas disagree with the majority’s suggested diagnostic test. The hypothetical questions are based on a claim that there may be some overlap between the IDEA, ADA, and Section 504. Justices Alito and Thomas do not see any overlap, therefore there is no need for the diagnostic test, and, accordingly, plaintiffs may seek to challenge any associated analysis. Secondly, Justices Alito and Thomas note parents may begin the investigation process thinking they should pursue an IDEA cause of action, only to learn they are going down the wrong path towards relief or decide they want a different form of relief, something the IDEA does not provide.

Justices Alito and Thomas’ concern about using pre-litigation efforts to establish whether a case’s core issues involve a FAPE violation under the IDEA is reasonable. There does, however, appear to be interconnections between the IDEA, ADA, and Section 504 from the way the term “disability” is defined to the way the laws interact. For example, Section 504 addresses the concept of FAPE, which the IDEA and the 1986 Handicapped Children’s Protection Act build upon.

No solution is perfect, but the Fry decision does give defense attorneys a stronger hand when faced with education-related lawsuits that try to avoid the administrative requirements outlined under the IDEA.

Christopher A. McIntire is an attorney in our Riverside, CA office where he focuses his practice on public entity defense, employment law, premise liability and mass tort defense. He may be reached at (951) 276-4420 or

An Overview for Termination Decision Making

Patrick R. Patrick Sturdy 2016Sturdy is a partner in our Livonia office where he concentrates his practice on education law, intellectual property, business law, and employment and labor law. He may be reached at (734) 261-2400 or

An Overview for Termination Decision Making

employee-termination-photoThe following overview should be considered in making the decision to terminate an employee legally defensible. The overview is limited to the information which should be considered during the decision making process for terminating an employee. Each employment decisions rests upon its own facts and may require independent analysis. Reliance upon this overview is not a substitute for legal advice from qualified counsel familiar with the specific facts and circumstances.

With that said, the decision making process should include review of the following documents prior to making any decision:

  • The employment contract;
  • The employee’s personnel file;
  • Relevant policies and procedures, including employment policies;
  • The discipline history of other employees for similar conduct; and
  • Any documentation surrounding the current issue, including performance issues.

Decision makers should personally review the above documents as opposed to relying upon a summary provided by another employee or legal counsel.

In reviewing the above documents, the decision maker should also ascertain what type of employment relationship exists between the College and the employee. If the employee has no written contract, they are generally considered an at-will employee who can be terminated with or without cause so long as the employment decision is not based upon an illegal reason, such as: discrimination, whistleblowers protection activity or exercising other legal rights such as Family Medical Leave. See Note 1 below.
If the employee has a satisfaction contract, then the employee can be terminated if the employee is dissatisfied with the employee’s performance. A jury is not permitted to concern itself with whether the employer’s dissatisfaction is reasonable, but it may decide whether the dissatisfaction is insincere, in bad faith, dishonest, or not the real reason.

If the employee has a just cause employment contract, then the employee can be terminated if the decision maker can answer yes to all of the following questions:

1.    Was the employee aware of the College’s expectation and forewarned of the consequence for not meeting those expectations?

2.    Was the rule or policy at issue reasonably related to the orderly, efficient and safe operation of the College?

3.    Was the matter investigated fairly and objectively before discipline was issued?

4.    Was the employer given the opportunity to tell his/her side of the story?

5.    Has the College obtained substantial evidence of the employee’s violations or inappropriate conduct?

6.    Has the College applied its policies/procedures consistently and fairly?

7.    Is the degree of discipline imposed reasonably related to the offense, taking into account the employee’s work record and length of service.

After review the relevant documents and speaking with the employees involved, decision makers should be able to clearly articulate the rational for their decision. Answering the following questions will assist decisions makers in accomplishing this:

1.    State every act or omission of the employee that shows why an employment decision is necessary. This would include stating:

  • What did the employee do or not do that constitutes a failure to perform their job;
  • Is there a history of performance issues/behavior for this employee;
  • Is there a history of similar performance issues/behavior by other employees, and if so, how were they disciplined;
  • What Policy/Procedure did the employee violate and how did they violate it.

2.    Identify each and every document relied upon to make the decision, along with the information contained within each document which would support the employment decision. At a minimum, this should include:

  • The Employment Contract;
  • Employee’s Job Description;
  • Employees Personnel File;
  • Each College Policy or Procedure which applies;
  • Any other documents evidencing the acts or omissions of the employee; and

3.    Articulate the specific statements from each witness which the decision maker relies upon to make the employment decision.

4.    Identifying the notice the employee had regarding the rule or requirement that was violated.

5.    Explain the investigation that was conducted and why no further investigation was necessary.

6.    Is a Performance Improvement Plan possible? In other words, could the employee, given the chance, correct the employment problems?

7.    Verify that the decision is not based on, nor motivated by, race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history).

8.    Ensure that the decision is not based upon an employee’s reporting or threatening to report discrimination or some other suspected improper activity by the College, or participation in an investigation or lawsuit.

9.    Ensure that the employment decision is consistent with the College’s past employment decisions to make sure that all employees are treated the same;

10.    Finally, Determine that the College has complied with all requirements and procedure that might be imposed by the employment contract or the College’s policies.

Taking the time to answer these question during the decision making process will go a long way toward helping the College develop a legally defensible position should the termination decision be challenged in Court or before a federal or state Agency.  Please feel free to contact me should you have any further questions regarding this overview.

NOTE 1: The above analysis should include review of the following statutory schemes protecting employees:

Americans with Disabilities Act
•    Is the employee physically or mentally disabled?
•    If so, were attempts made to reasonably accommodate the employee’s disability?
•    Were reasonable accommodation measures well documented?

Title VII / California’s Fair Employment and Housing Act
•    Is the employee being treated in the same manner as other employees in similar situations?
•    Have other employees been given more chances before being terminated for the same or similar reasons as this employee?
•    If so, are there legitimate, non-discriminatory reasons for treating this employee differently than other employees?

•    Is the employee pregnant? Employees are entitled to four months off for pregnancy related disabilities.
Workers’ Compensation
•    Has the employee filed a workers’ compensation claim? Terminating an employee who has filed a claim, intends to file a claim, or has testified in a worker’s compensation hearing could be considered workers’ compensation discrimination.

•    Has the employee reported any illegal activity of the company to a state or federal agency? Even if the company is not in fact acting illegally, the termination could be seen as retaliation for “whistle-blowing.”
•    Has the employee participated in any official investigation of the employer (i.e., wage or safety violation) or testified against the employer in an unemployment insurance or other hearing?
•    Is the termination in retaliation for the employee’s exercise of protected personal rights, such as freedom of speech or political activity?


Department of Education and Transgender Facilities

all-gender-restroom-photoMay 13, 2016 the U.S. Department of Justice and the U.S. Department of Education issued a “Dear Colleague” letter to all schools in the country receiving money from the federal government directing that “when a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.” Gender identity refers to an individual’s internal sense of gender.  A person’s gender identity may be different from or the same as the person’s sex assigned at birth.  The Department of Education says schools cannot require a medical diagnosis or other documentation to prove transgender status.

Although the “Dear Colleague” letter is not a congressional statute, executive order, or even a regulation, it is a directive that the federal government refers to as “significant guidance.”  School districts, including the country’s 16,500 public school districts, post-secondary colleges, 7,000 universities and trade schools, charter, and for-profit schools are now on notice regarding how the federal government interprets Title IX, the 1972 law that prohibits sex discrimination in education, as it relates to the rights of transgender individuals.  As a condition of receiving federal funds, a school must agree that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX.  The “Dear Colleague” letter noted that as consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.  The directive carries with it the implied threat that failure to follow the federal government’s interpretation could result in the loss of federal education funding.

The directive noted that when a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

From a practical standpoint, the directive states that schools cannot require transgender students to use their own private bathrooms unless it does the same for all students.  A school may come up with alternate facilities, for example a single-user restroom, as long as these options are available for all students who voluntarily seek additional privacy.  Other practical solutions could include putting up curtains in locker rooms for more privacy or allowing differing schedules by transgender students to use facilities as long as these differing schedules are not required.

Additional considerations addressed in the directive include that teachers and staff cannot use a transgender student’s birth name or pronoun and school records must reflect the student’s chosen name and gender identity.  Schools with sex-segregated accommodations for overnight field trips must allow transgender students to sleep with students of their chosen gender.  Schools may offer single-occupancy sleeping rooms, but transgender students may not be required to use them unless all students have access to them.  Athletic teams are allowed to segregate by sex, as long as they provide equal opportunity for both sexes.

Additionally, on April 19, 2016, the U.S. Court of Appeals for the Fourth Circuit deferred to the U.S. Education Department’s position that transgender students should have access to bathrooms that match their gender identities rather than being forced to use bathrooms that match their biological sex.  This case is entitled G.G. v Gloucester County School Board, No. 152056, and concerns a high school junior’s complaint that transgender students should have access to bathrooms that match their gender identities not their biological sex.  In a 2-1 decision, the Fourth Circuit ordered the lower court to rehear the student’s claims that the school board’s policies, which restricted transgender students to using a separate unisex bathroom, violated Title IX.  The Court also ruled that the lower court should reconsider a request that would have allowed the teen to use the boy’s bathroom at the high school while the case was pending.  The Fourth Circuit is the highest Court in the country to address the question of whether bathroom restrictions constitute sex discrimination and could be persuasive for the Sixth Circuit, which includes Michigan.  CMDA will continue to monitor this issue.

EliBeth Rae ODonnellzabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or

Case Law Update: LCC-MAHE v LCC Board of Trustees


higher-education-photoThe following Case Law Update summarizes a recent important case.  It is provide to help clients stay up-to-date on recent case law developments in education law. For further information, please contact Patrick Sturdy.

Lansing Community College Chapter of Michigan Association for Higher Education v. Lansing Community College Board of Trustees
January 21, 2016;  2016 WL 300954

This case concerns the applicability of the Michigan Uniform Arbitration Act (MUAA), MCL 691.1681 et seq.  The MUAA became effective July 1, 2013 and repealed the Michigan Arbitration Act (MAA), MCL 600.5001 et seq.  The trial court found that the plaintiff association failed to comply with the MUAA and granted summary disposition to the College.  However, the LCC Board of Trustees filed their claim for arbitration before July 1, 2013, making the MUAA inapplicable.  The Court of Appeals found that the trial court erred when it found the MUAA applied and it vacated the award of the trial court in favor of the College.

Patrick Sturdy 2016Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on education law, intellectual property, business law, and employment and labor law. He may be reached at (734) 261-2400 or

Case Law Update: Cass v. Michigan State University and Coalition of Labor Organization at MSU


breach-of-contract-photoThe following Case Law Update summarizes a recent important case.  It is provide to help clients stay up-to-date on recent case law developments in education law. For further information, please contact Patrick Sturdy.

Cass v. Michigan State University and Coalition of Labor Organization at MSU
(February 18, 2016; 2016 WL 683145)

This was a breach of contract action between plaintiff Cass, a former employee and member of the union making up part of the coalition/labor organization, the labor organization, and Michigan State University (MSU).  The plaintiff’s claim was that he, a former employee, accrued certain benefits under a contract between MSU and the coalition, and that the coalition’s decision to disburse those benefits to a group of employees that did not include him, improperly divested him of this benefit.  The Court of Claims dismissed Cass’s breach of contract claims and Cass appealed.

The gravamen of Cass’s complaint concerned healthcare benefits.  During the 2011-12 plan year, when the plaintiff was still employed, it was agreed that the coalition would pay, on a pro rata basis, any costs that exceeded the annual 5% increase in the health care plan cost.  It was also agreed that any amount of healthcare cost less than 5% would accrue to the benefit of the employees represented by the coalition, but in no case would employees receive a cash benefit for the 2011-12 plan year.  The plaintiff retired in August of 2012.  During the plan year, the employees successfully kept healthcare plan increases below 5%.  Effective January 1, 2014 through December 31, 2017, a successor memorandum of understanding (MOU) provided that two distributions would be made to employees under savings realized with the earlier agreement.  The first distribution occurred on January 1, 2014 and the second distribution occurred on January 1, 2015.  The plaintiff, who retired in 2012, stated he helped negotiate the prior agreement and that he had a vested right to the healthcare savings that accrued under the prior agreement.  The Court of Appeals affirmed the dismissal of Cass’s complaint.  The Court found that Cass failed to establish any type of promise that breached his right to receive disbursements and that the contract clearly specified that employees, under the prior agreement, were not entitled to cash payments.

Patrick Sturdy 2016Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on education law, intellectual property, business law, and employment and labor law. He may be reached at (734) 261-2400 or

Case Law Update: Dyshawn Pierre v. University of Dayton


student-suspended-photoDyshawn Pierre v. University of Dayton

(2015 WL 6125303, United States District Court, S.D. Ohio, Western Division) October 19, 2015

In this case, the student Plaintiff claimed that his rights under Title IX and the Americans with Disabilities Act (ADA) were violated. The Plaintiff requested a temporary restraining order to prevent his one semester suspension from the University from taking effect. The Plaintiff further sought to vacate the University Hearing Board’s (UHB) decision that he violated the College’s sexual harassment policy. The facts of the case revealed that the Plaintiff and the complaining female student were voluntarily in the Plaintiff’s dorm room and had sexual intercourse. The female complaining student filed a complaint ten (10) days later with the University as well as a police report.

The Plaintiff was notified of the complaint and was advised that the University’s Title IX Officer would be investigating. The Plaintiff was given a copy of the complaint and a description of procedures and protocols regarding the investigation. The Plaintiff chose to supply a written statement to the Title IX investigations because of the pending criminal investigation. Two University Law School Professors who had completed specialized training by the Association of Title IX Administrators conducted the investigation. The Investigators took a statement from the complaining witness and interviewed witnesses identified by her as having relevant knowledge. The Investigators also received the Plaintiff’s statement and text messages, University Student Health Center records and University of Dayton Police Report. The Plaintiff was given the opportunity to submit additional information. Ultimately, the Investigators recommended that the entire matter be sent for an Accountability Hearing to determine if the Plaintiff was responsible for violating the sexual harassment section of the Code of Conduct. The Plaintiff had an attorney for the hearing who was only allowed to serve in an advisor capacity. The Hearing Board found that the Plaintiff violated the Student Code of Conduct and issued a one semester suspension of the Plaintiff.

The Plaintiff then sued in Federal Court and requested a temporary restraining order to prevent his suspension. The Plaintiff’s Motion for a Temporary Restraining Order was denied. The Court found that because the Plaintiff only brought up his alleged disability and any need for accommodation after his hearing, the University did not have proper notice of the Plaintiff’s need for an accommodation. The Court further found that the Plaintiff had received adequate due process protections and that the disciplinary process was fundamentally fair. Finally, the Court found that the Plaintiff was not irreparably harmed because he could re-enroll after the suspension was served.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or

Case Law Update: Stolle v. Kent State University

Stolle v. Kent State University

stack-of-papers610 Fed. Appx. 476, United States Court of Appeals, 6th Circuit, May 1, 2015

Dr. Ronald Stolle, a non-tenure track faculty instructor in the Department of Finance for Kent State University (KSU) sued the College and several administrators alleging retaliation for exercising his First Amendment Rights. The facts of the case show that on January 8, 2011, Dr. Stolle wrote a three page letter to the Speaker of the Ohio House of Representatives and other legislators on KSU Department of Finance letterhead. The letters addressed reform measures on higher education. Dr. Stolle said that these letters constituted his personal opinions. Dr. Stolle’s use of the College’s letterhead was actually a violation of University policy as any and all dealings with government had to be approved under the direction of the president of the University. The Dean of the College of Business requested that the Chair of the Finance Department have a meeting with Dr. Stolle to advise him of the breach of University policy by use of the KSU letterhead. The meeting took place. Dr. Stolle maintains that he was advised to cease and desist all communications with legislators. The Finance Dean disagreed that this was stated and indicated Dr. Stolle was told to no longer use KSU letterhead for such communications. Dr. Stolle wrote additional letters to the Columbus Dispatcher and Cleveland Plain Dealer advocating the abolition of tenure at state universities. Dr. Stolle’s appointment was still renewed for the 2011-12 academic year.

In January of 2012, the University, citing budget deficits, did not renew Dr. Stolle’s academic appointment in 2012. The University denied that Dr. Stolle’s letters to legislators or letters to the editor had anything to do with the non-renewal of his position.

The Court granted the College and several administrators Motion for Summary Judgment but did not dismiss the case against the Chair of the Department which went to trial. The trial against the Chair of the Department was confined to the issue of whether the Chair retaliated against Dr. Stolle in the exercise of his First Amendment rights. After a four day trial, a unanimous jury found that Dr. Stolle failed to prove the Department Chair’s decision not to renew his employment contract was retaliatory for exercising his First Amendment rights.

On appeal, the United States Court of Appeals for the Sixth Circuit found that Dr. Stolle failed to prove that he suffered an adverse action and that he did not make out a prima facie case of First Amendment retaliation. The Court found that the primary focus of the meeting where Dr. Stolle was notified of policy violations concerned his use of the College’s letterhead to communicate with legislators. Dr. Stolle also admitted that no one ever told him his job was in jeopardy.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or

Case Law Update: Silk v. Board of Trustees, Moraine Valley Community College


college-classroom-photoSilk v. Board of Trustees, Moraine Valley Community College

795 F.3d 678 (July 30, 2015)

Mr. Silk was an adjunct professor at the College and he began working there in 1986. As an adjunct professor he was non-tenured and an at-will employee. Mr. Silk’s typical teaching load included four courses during the fall and spring semester and two or three classes during the summer.

In March of 2010, the Dean of the Liberal Arts Department sent Mr. Silk an offer to teach two Sociology courses in the summer term and Silk accepted. In April, however, Silk had triple bypass surgery. Silk was on medical leave through the remainder of the spring semester and did not inform the College of an anticipated return to work date. Other faculty members had to cover Silk’s course load during his absence. During visits with the classes, the Dean discovered troubling information about Silk’s teaching including low student turn out, problems with course syllabi and the textbook listed was not the textbook used for the course. Silk’s summer courses were transferred to other instructors because the College did not receive a return to work date from him. Following his return from medical leave the College met with Mr. Silk and his union representative regarding problems with his course syllabi, course objectives and lack of contact information. Silk was only assigned two courses for the fall 2010 semester. In the fall of 2010, the College began to monitor more closely Silk’s classroom performance and they found many instances of poor instruction, but this was not shared with Silk. In December of 2010, several students filed complaints against Silk. Silk was informed that no further courses would be available to him in Liberal Arts.

Silk sued the College in February of 2012 alleging Age and Disability Discrimination and Retaliation. The trial court dismissed Mr. Silk’s case and he appealed to the Seventh Circuit Court of Appeals. The Court of Appeals affirmed in part and reversed in part the findings of the trial court. The Court found that there was a question of fact on the issue of whether the department chair said Mr. Silk’s course load should be reduced because they did not think he was physically capable of handling his work following his bypass surgery. The Court of Appeals upheld the dismissal of Silk’s age discrimination claim finding that he had not articulated a claim for relief under the ADEA. Finally, the Court of Appeals found that Silk had presented an insufficient case of retaliation under the ADA and the ADEA. The case was remanded for further proceedings on the issue of whether the College reduced Silk’s fall course load as a result of a perceived impairment in violation of the ADA.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or

Case Law Update: Minnis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College


HDRtist HDR -

Minnis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

2015 WL 3941846 (June 29, 2015)

Mr. Minnis, the former coach of the LSU women’s tennis team sued the University claiming Title VII and Title IX discrimination when the University failed to renew his contract in June of 2012. Minnis was hired in 1991 and was the first African-American coach of any sport in the school’s history. Minnis coached at the University for 21 years. Although Minnis received coaching awards, the women’s tennis team struggled during his 21 years, and only achieved a winning record on three occasions during the 21 year period. In the three years prior to his termination, the team had a losing season. Additionally, Minnis received performance evaluations during his tenure which were generally mixed. When Minnis was terminated, he was replaced by a white female at a higher salary.

In affirming the dismissal of the Plaintiff’s case, the Court noted that Minnis was a member of a protected class but that he was not able to rebut the University’s non-discriminatory reasons for his termination where he failed to meet established goals, he had a losing record and his team had morale issues. Further, the Court found that his reprimand because he was aware that a student had been drinking before a charity event and negative performance evaluations were not enough to establish a race-based hostile work environment claim. Finally, the Court held that Minnis failed to establish a Title XI retaliation case because both the men’s coach and Minnis complained about the off campus practice facility, thus disproving a case of gender inequality.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or

Michigan Case Law Update: ESPN v Michigan State University


ESPN v. Michigan State University

Court of Appeals Docket No. 326773 (August 18, 2015)

In September of 2014, ESPN submitted a request under FOIA to the University asking it to provide ESPN with incident reports involving a list of student-athletes over a specified period of time. The University produced two sets of records but redacted the names and identifying information of the suspects, victims and witnesses. The University cited the privacy exemptions set forth in the FOIA statute. In February of 2015, ESPN sued the University to disclose the names of the suspects if they were one of the 301 student-athletes identified by ESPN. After a hearing, the trial court ordered the University to disclose the names of the suspects if they were one of the 301 student-athletes identified in the ESPN request. The Court agreed that the privacy exemption applied to the names of the victims and witnesses, even if victims and witnesses were identified as one of the student-athletes identified in the request. The University appealed to the Court of Appeals.

On August 18, 2015, the Michigan Court of Appeals issued an unpublished decision affirming the decision of the trial court to release the names of the student-athletes at issue. The Court found that releasing the names of the suspect student-athletes serves the public’s understanding of the operation of the University’s Police Department. The Court further noted that ESPN sought the information to learn whether policing standards are consistent and uniform at a public institution of higher learning and that the disclosure of the names is necessary for that purpose. The University appealed this finding to the Michigan Supreme Court. On October 16, 2015, the Supreme Court stayed the release of the names of the 301 students identified by ESPN and indicated that the University’s application for Leave to Appeal remains pending.

Patrick R. Sturdy is a partner in our Livonia office where he concentrates his practice on intellectual property, business law, education law, and employment and labor law. He may be reached at (734) 261-2400 or