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Cooper, Brandon

Unisex Bathrooms in Public Schools

Battle Royal Shaping Up Between NC and DOJ on Bathroom Access

Earlier today North Carolina and the U.S. Department of Justice (DOJ) filed dueling lawsuits against each other asking a federal judge to determine rights under Title VII of the Civil Rights Act (prohibits employment discrimination), Title IX of the Education Amendments of 1972 (prohibits sex discrimination), and the Violence Against Women Reauthorization Act of 2013 (VAWA).

The two complaints focus on a recently-enacted NC state law—the Public Facilities Privacy and Security Act (the “Act”) aka HB 2.  That law provides privacy protections for, among others, state employees, by requiring public agencies to require multiple occupancy bathroom or changing facilities be designated for, and only used by, persons based on their biological sex.

In the first complaint, the state of North Carolina seeks a declaration that its state law on bathroom and changing facilities is compliant with Title VII and VAWA.  In thesecond complaint, the United States (through the Department of Justice) contends the state of North Carolina, the North Carolina Department of Public Safety, the University of North Carolina, and the Board of Governors of the University of North Carolina have violated Title VII, Title IX, and VAWA–largely on the grounds the NC law does not allow one to use a public bathroom (or changing facility) in accord with one’s gender identity.  Not discussed here is a third complaint also filed today by the NC President pro tempore of the Senate and NC House Speaker against the federal government.

Once the noise and chatter dissipate, the bottom line for Title VII (enacted in 1964) and Title IX (enacted in 1972) will be—what does the prohibition of discrimination on the basis of “sex” mean?  Does “sex” mean biological sex or does it sweep more broadly to encompass gender identity, regardless of one’s anatomy?  What does the legislative history reveal? Ultimately these will be questions for the Supreme Court.

Title IX, Transgender Students, Locker Rooms and Bathrooms

On both the K-12 and higher education fronts, school districts and institutions of higher education continue to face Title IX lawsuits brought by transgender students or their parents over schools’ policies on bathroom and locker room use.  In the two most prominent cases, G.G. v. Gloucester County School Board (Eastern District of Virginia) and Johnston v. University of Pittsburgh (Western District of Pennsylvania), the school district and university prevailed on Motions to Dismiss.  A close reading  provides a good sense of the classic kind of fact pattern in these cases and the reasoning of at least two courts.

Both cases are on appeal to the U.S. Court of Appeals for the Fourth and Third Circuit, respectively. Multiple amici have weighed in, as have several states and the United States.  Oral argument was held earlier this week in Gloucester County School Board while briefing continues in the University of Pittsburgh case into mid-February.

School districts and institutions would do well to keep close tabs on this aspect of Title IX litigation.

Trump University Scandel

Zeldes Haeggquist & Eck, LLP is court-appointed Co-Lead Class Counsel in two class action lawsuits brought on behalf of consumers duped into paying tens of thousands of dollars for Donald Trump’s real estate investing scheme called “Trump University.” On behalf of these consumers, plaintiffs claim Donald J. Trump and his so-called “university” violated federal and state laws by falsely advertising seminars and mentorships (“Live Events”) as teaching Trump’s “real-estate secrets” through his “hand-picked” “professors” at his “elite” university.

In reality, the instructors were high-pressure salespeople paid on a commission basis to up-sell consumers to even more expensive courses (including the “Gold Elite” course for $34,995), and these salesmen were never trained on Trump’s “real-estate secrets” much less taught them. In 2005, the New York State Education Department told Trump to stop using the word “university” in its title, because it was illegal to do so, but Trump continued to operate illegally until forced to change the name in 2010.

Trump asserts many students gave positive evaluations immediately after the seminar, but over 25% of students got refunds and many more sought (but were denied) refunds for the scam. Plaintiffs seek refunds for all “Live Event” students across the country who have not yet received full refunds, with additional penalties and/or fines for senior citizens in California and Florida, and treble damages in the Cohen RICO case.

Please visit for the latest information on the case and links to important documents, including the Complaints in the Makaeff and Cohen cases, the Orders granting class certification, and Order granting in part and denying in part the motion to decertify the classes, as well as the Long Form Notice and Mailed Notice regarding these class actions.


On February 8, 2016, Plaintiff Tarla Makaeff filed with the court a Motion to withdraw as a class representative and named plaintiff. The matter is fully briefed and pending to be heard by the Court on March 11, 2016. Redacted copies of Plaintiff’s briefing can be found here:

On November 18, 2015, the Court issued an Order primarily denying Donald Trump and Trump University’s Motion for Summary Judgment.  The Court dismissed plaintiffs’ claims for injunctive relief, but otherwise denied Defendants’ motion for summary judgment, holding that the case may proceed to trial on Plaintiffs’ claims for:

(1) Violation of California’s Unfair Competition Law (“UCL”),
(2) California’s False Advertising Law (“FAL”),
(3) California’s Consumers Legal Remedies Act (“CLRA”),
(4) Financial elder abuse under California law, Cal. Welf. & Inst. Code Section 15600
(5) Violation of New York’s consumer protection statute, Section 349 of NY’s General Bus. Law
(6) Violation of Florida’s consumer protection statute and elder abuse law, Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) and Misleading Advertising Law (“MAL”)

On September 21, 2015, Class Notice was mailed to potential class members throughout the country to advise of their rights and provide an opportunity to “opt out” or identify themselves as California or Florida senior citizen class members.  Please see for more information and important documents. You can also click on following to view theMailed NoticeLong-Form Notice, and Postcard for Individuals Over 60.

On September 18, 2015, the Court issued an Order granting in part and denying in part the motion to decertify the classes.

On October 27, 2014, the Court in a RICO class action against Donald Trump issued an Order granting class certification of a nationwide class of all students who purchased live event seminars from Trump University from January 1, 2007 to the present. For more information regarding this Order, please visit our blog here.

On June 17, 2014, the Southern District Court issued an Order granting Plaintiff Tarla Makaeff’s Anti-SLAPP motion against Trump University, LLC (“Trump”), thereby dismissing Trump’s specious $1 million defamation counter-claim against Makaeff. While the victory came more than four years after Trump filed its counterclaim, Makaeff’s case resulted in an important reaffirmation of the applicability of the anti-SLAPP law in federal court. Because Makeaff’s statements arose from protected activity and Trump could not show a probability of prevailing on its defamation claim, the court granted Makaeff’s anti-SLAPP motion. The California Anti-SLAPP Project, a leader in protecting First Amendment Rights, published a thorough article discussing Makaeff’s Anti-SLAPP motion, which can be found by visiting their website here.

On February 21, 2014, the Southern District Court issued an Order granting in part Plaintiffs’ Motion to Certify a class action against Trump University, LLC and Donald J. Trump. The Court certified a class on behalf of all persons who purchased a Trump University three-day live “Fulfillment” workshop and/or “Elite” program (“Live Events”) in California, New York and Florida. The Court appointed Zeldes Haeggquist & Eck, LLP and Robbins Geller Rudman & Down, LLP as class counsel.

Also on February 21, 2014, the Southern District Court issued an Order denying Donald J. Trump’s motion to dismiss Plaintiff Art Cohen’s RICO complaint against Trump asserting violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO Statute”), 18 U.S.C. § 1962(c).

On November 27, 2013, the Ninth Circuit Court of Appeal issued an Order denying Trump University’s petition for re-hearing en banc in regard to the Ninth Circuit’s Order reversing the dismissal of Plaintiff’s Anti-SLAPP motion.

On October 18, 2013, Plaintiff Art Cohen filed a RICO complaint against Donald Trump, asserting violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO Statute”), 18 U.S.C. § 1962(c).

On April 17, 2013, the Ninth Circuit Court of Appeal issued an Order reversing the district court’s denial of Plaintiff Tarla Makaeff’s Anti-SLAPP motion. The Court held that Trump University is considered a “limited public figure,” due to its extensive advertising campaign, and thus would have to prove that Makaeff acted with actual malice when she accused it of fraud, in order to prevail on its defamation claim.

On September 26, 2012, Plaintiffs filed a Third Amended Complaint.

On September 24, 2012, Plaintiffs filed a Motion for Class Certification.

On October 12, 2010, the Southern District of California issued an Order upholding our first amended class action complaint against Trump University as to nearly all claims, including claims for breach of contract, false advertising, violation of California’s Unfair Competition Law (finding Plaintiffs stated a claim that Trump University’s conduct was unlawful, unfair and… fraudulent) and Consumer Legal Remedies Act (CLRA), with leave to amend as to the other claims.

Second Amended Complaint was filed on December 16, 2010.

Trump University has also been named “Rogue of the Week” by the Willamette Week.

On October 12, 2010, the Southern District of California issued an Order upholding our first amended class action complaint against Trump University as to nearly all claims, including claims for breach of contract, false advertising, violation of California’s Unfair Competition Law and Consumer Legal Remedies Act (CLRA), with leave to amend as to the other claims.

We are happy to report that the Court on May 17, 2011 issued and Order Denying Donald Trump’s Motion to Dismiss and Order denying Trump University’s Motion to Dismiss, upholding Plaintiffs claims for against both Donald Trump and Trump University for Fraud, Misrepresentation, Violation of the Unfair Competition Law, Consumer Legal Remedies Act, and False Advertising.

School Choice

School Choice on Agenda for House Committee on Education and the Workforce

School Choice will be on the front burner on Wednesday, February 3, 2016, as the House Committee on Education and the Workforce holds a hearing (“Expanding Educational Opportunity Through School Choice”) at 10:00 AM in Room HVC-210 of the Capitol Visitors Center.   Witnesses are yet to be announced.  Stay tuned for updates as available.

UPDATED 2/2/16, 3:30 PM EST:  Witnesses are:

Mr. Gerard Robinson, Resident Fellow at the American Enterprise Institute, Washington, DC

Hon. Rob Bryan, N.C. House of Representatives, Charlotte, NC

Dr. Luis Huerta, Assoc. Prof. of Education and Public Policy, Teachers College, Columbia University, New York, NY

Ms. Denisha Merriweather, Student at the University of South Florida, Tampa, FL

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