Barry Fenchak served as an alumni-elected member of the Board of Trustees of Pennsylvania State University from 2022 to 2025. Fenchak filed suit after he was removed from the Board following a series of disputes with University leadership over financial transparency and governance. He alleged that the University and certain Board officials defamed him, breached fiduciary duties, and retaliated against him for exercising his First Amendment rights.
During his tenure, Fenchak frequently sought access to detailed financial information, particularly regarding administrative fees associated with the University’s endowment and the terms of a proposed long-term contract with Elevate Collegiate Ticketing, LLC, which was tied to a renovation project for the University’s football stadium. He reviewed publicly available IRS Form 990 filings and became concerned that administrative fees had increased significantly in recent years. Fenchak repeatedly requested underlying data and documentation supporting those figures, but his requests were denied by Board leadership, who cited confidentiality obligations and internal governance rules.
In July 2024, Fenchak filed a lawsuit in Pennsylvania state court seeking to compel the production of financial records related to the endowment and the Elevate contract. Around the same time, the Board continued to consider and ultimately approved aspects of the Elevate-related project during public meetings, even as Fenchak raised concerns about the lack of transparency. He also publicly questioned why certain trustees were granted access to the contract while others were not.
Following these events, tensions between Fenchak and University leadership escalated. In July 2024, shortly after filing his lawsuit, Fenchak attended a Board meeting where he made a remark to University employees comparing a hat to a male body part, which was later characterized as inappropriate and led to a sexual harassment investigation.
As the investigation proceeded, the Board also amended its bylaws to expand the authority of board leadership. The amendments allowed the Board chair to restrict trustees’ access to certain University information and granted leadership broader authority to discipline or remove trustees. After the investigation concluded, it was recommended that Fenchak be removed from the Board for violating the Trustee Code of Conduct.
On June 16, 2025, the Board voted 30 to 4 to remove Fenchak from his position and further determined that he would be ineligible to appear on the ballot in the upcoming alumni trustee election.
Fenchak then filed the present lawsuit asserting multiple claims. His defamation and false light claims were based on the public filing of an August 20, 2024 letter from University officials explaining why his requests for financial information had been denied. He alleged that the publication of the letter portrayed him in a false and damaging light.
The Court dismissed those claims, holding that the statements were protected by Pennsylvania’s doctrine of judicial privilege. Under that doctrine, statements made in the course of judicial proceedings are absolutely immune from defamation claims so long as they are pertinent to the issues in the case. The Court found that the letter was filed as part of the University’s pleadings in Fenchak’s earlier lawsuit and was directly related to the dispute over access to financial information.
The Court also dismissed Fenchak’s fiduciary duty claim. It explained that, under Pennsylvania law, directors of a nonprofit corporation owe fiduciary duties to the corporation itself, not to individual board members. As a result, Fenchak could not bring an individual claim for breach of fiduciary duty based on actions taken by other trustees.
Fenchak’s constitutional claims presented a more complex issue. He alleged that his removal from the Board was retaliation for his speech, including his public criticism of University leadership and his efforts to obtain financial transparency. The defendants argued that his speech was not protected under the First Amendment because he was speaking in his official capacity as a trustee.
The Court declined to dismiss the First Amendment claim at this stage. It explained that existing precedent limits First Amendment protection for public employees speaking pursuant to their official duties. However, the Court noted that it is unsettled whether those principles apply in the same way to elected officials, such as alumni-elected trustees. The Court observed that elected officials are not subject to the same employer control as traditional public employees and that courts have recognized greater protection for their speech. Given this uncertainty and the factual questions surrounding Fenchak’s role and the nature of his speech, the Court allowed the First Amendment retaliation claim to proceed.
Fenchak v. Pa. State Univ. (E.D.Pa. Apr. 17, 2026) 2026 WL 1045065.
Note: LCW covered this case previously. While private school trustees do not have First Amendment protections, this case is a reminder that schools should have clear governance practices around trustee conduct and the process for addressing disputes between board members and school leadership.