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New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Research; Research Safety & Protection; Government Relations; Authorizations & Regulations

Community Statement on House Science, Space, and Technology Committee Hearing on International Academic Exchanges (April 12, 2018)

Joint Statement issued by the American Council on Education, the Association of American Universities, the Association of Public and Land-grant Universities, and the Council on Governmental Relations, welcoming the opportunity to continue working with Congress and relevant national security agencies to protect “legitimate national security interests associated with scientific research conducted at universities.” Outlining past efforts by the federal government and its relevant agencies to collaborate with the higher education community, the Joint Statement expressed disappointment that the FBI’s National Security Higher Education Board (NSHEB) had been disbanded and asked for a meeting to discuss an alternative forum for continued discussions of the type previously provided by through the NHSHEB.

4/16/2018
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Research; Freedom of Information & Public Record Laws; Practice of Higher Education Law

Uhr v. University of Minnesota (Minn. App. Jan. 16, 2018)

Unpublished Opinion affirming Respondent’s Motion to Dismiss. Appellant brought claims under the Minnesota Government Data Practices Act to obtain training materials, recruiting materials, and the identity of participants in Respondent’s research on illegal alcohol sales to intoxicated individuals. The court found that Respondent was required under its grant application to the U.S. Secretary of Health and Human Services, as consistent with federal regulations, to keep individually identifying data of participants confidential. The court further found that training and recruiting materials requested by Appellant were protected as trade secret information because they had “independent economic value.”

1/22/2018
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Research; False Claims Act

Klee v. McHenry County College (N.D. Ill. July 26, 2017)

Order denying McHenry County College’s Motion to Dismiss. The College terminated Plaintiff, the former Director of the Office of Financial Aid and Veteran Services, for the misuse of the College’s computer systems when he deleted his social security number from his employee records and caused the system to crash. Claiming instead that he was fired in retaliation for reporting that the College was making fraudulent financial aid claims, Plaintiff filed suit alleging violations of the False Claims Act (FCA) and state law. The court found Plaintiff’s reports of financial impropriety sufficient to qualify as a protected activity. Additionally, construing the allegations in the light most favorable to Plaintiff, the court declined to conclude that Plaintiff was a “fraud-alert” employee held to a higher notice standard for informing his employer of potential fraudulent activity. Although Plaintiff was responsible for reporting on matters related to financial aid, none of his alleged duties included fraud detection or investigation. Therefore, Plaintiff sufficiently alleged that the College knew of his protected activity. Finally, Plaintiff provided adequate evidence indicating that the College retaliated at least in part due to his protected activity, which was enough to allow his FCA retaliation claim to survive a Motion to Dismiss. 

7/27/2017
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Government Relations; Authorizations & Regulations; Research

Comments by Higher Education Organizations on Reducing Regulation and Controlling Regulatory Costs of the Department of Energy

Comments submitted by the Association of American Universities (AAU), the Council on Governmental Relations (COGR), and the Association of Public and Land-grant Universities (APLU) to the U.S. Department of Energy regarding of the agency’s implementation of Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” The comments include a series of recommendations from member institutions of each organization on how to carry out the Executive Order’s objectives in the context of Department-sponsored research. Recommendations include standardizing and simplifying certain documents, clarifying solicitations, eliminating or streamlining certain requirements, and providing specific answers to frequently asked questions.

7/17/2017
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False Claims Act; Research

United States ex rel. Cain v. Salish Kootenai College, Inc. (9th Cir. July 10, 2017)

Opinion reversing the district court’s judgment and remanding for further proceedings. Three former employees of Salish Kootenai College (SKC), a Native American tribal college, filed a qui tam action against the College, the Salish Kootenai College Foundation, and eight of the College’s board members, claiming that Defendants submitted to the federal government false student progress reports in order to continue qualifying for grants from the Department of Health and Human Services and the Indian Health Service. The district court dismissed the Complaint against SKC and its Foundation, holding that the College, as an arm of the Confederated Salish Kootenai Tribes, was entitled to the Tribes’ sovereign immunity. On appeal by SKC, the Ninth Circuit panel divided the relevant inquiry into two questions, asking first whether the Tribe is a “person” under the FCA and second whether SKC is an arm of the Tribe. It answered the former question in the negative and remanded the case for further fact-finding on the second question under the standard articulated in White v. University of California.

7/12/2017
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Research Safety & Protection; Research

Final Rule on the Federal Policy for Protection of Human Subjects (Jan. 19, 2017)

Final Rule released by sixteen federal agencies on the federal policy for protection of human subjects in research (commonly referred to as the “Common Rule”). The final rule modernizes the Common Rule by establishing new requirements for the informed consent process, allowing the use of broad consent for unspecified future research, creating new exempt categories of research, requiring US-based institutions engaged in cooperative research to use a single Institutional Review Board for any domestic portion of the research, and eliminates the requirement to conduct continuing reviews of ongoing research for certain types of studies.  It does not adopt the proposal from the earlier draft rule that would have applied informed consent to biospecimens. The rule will largely go into effect on January 19, 2018. 

1/19/2017
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Research Safety & Protection; Research

Final Rule on the Federal Policy for Protection of Human Subjects (Jan. 18, 2017)

Unpublished Final Rule released by sixteen federal agencies on the federal policy for protection of human subjects. The Final Rule modernizes the Common Rule for the protection of human subjects in research by establishing new requirements for the informed consent process, allowing the use of broad consent for unspecified future research, creating new exempt categories of research, requiring US-based institutions engaged in cooperative research to use a single Institutional Review Board for any domestic portion of the endeavor, and eliminates the requirement to conduct continuing reviews of ongoing research for certain types of studies. The Rule is set to be published on January 19, 2017, and will largely go into effect on January 19 and 20, 2017. 

1/18/2017
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Students; Research; Financial Aid; False Claims Act

United States ex rel. Jackson v. University of North Texas

Plaintiff alleged that the University of North Texas violated the False Claims Act with regard to his student loans. The University initially failed to factor in his athletic scholarship in calculating his cost of attendance and, when it realized its mistake, did not relinquish the funds to Plaintiff for fear of violating National Collegiate Athletic Association rules. Had the University accounted for the athletic scholarship, Plaintiff would not have been eligible for student loans. After Plaintiff defaulted on his loan repayments, he sued, asserting that the University violated the False Claims Act by submitting a false claim for payment to the government, given that Plaintiff was not actually eligible to receive the loans. The Fifth Circuit affirmed the district court’s dismissal, finding that Plaintiff’s claim was time-barred.

12/14/2016
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