Cases and Documents
To see cases and documents selected by the NACUA LRS staff and posted to the NACUA website within the last 12 months
To see cases and documents posted more than 12 months ago
link to the Monday morning email messages
link to full archive of cases involving colleges and universities
Governance: Tishok v. Dep't of Educ. (Pa. Commw. Ct., Feb. 4, 2016)
February 9, 2016
Opinion from the Commonwealth Court of Pennsylvania dismissing a petition to appeal the Pennsylvania Department of Education's decision to allow Wilson College to amend its Articles of Incorporation to become fully co-educational. The Court concluded that the Petitioners, alumnae of Wilson College, lacked standing because they were not directly affected by Wilson's decision to become co-educational. Neither "the ties and devotion that alumnae feel for their alma mater" nor the fact that some of the Petitioners had made charitable donations to the College, amounted to "the type of actual, direct interest necessary to confer standing."
Decision from the New York Court Appellate Division, modifying a decision from the New York Supreme Court to award summary judgment to the Defendant and dismiss Plaintiff's Breach of Contract Claim in its entirety. Plaintiff, who was dismissed from Cornell University after she was twice denied tenure, was initially appointed as an Associate Professor "with tenure," subject to the Defendant's review process. The Supreme Court held that the ambiguous language of the appointment created a dispute of fact as to whether the letter should be construed to "reflect an intent to assure plaintiff that she would be granted tenure." Although the Court agreed with the Supreme Court's analysis, the Appellate Division nonetheless modified the Order, reasoning that the parties had mutually modified the contract when in 2003, Plaintiff accepted an offer for extended appointment "without tenure."
Litigation: Theidon v. Harvard Univ. (D. Mass., Feb. 4, 2016)
February 9, 2016
Decision from the U.S. District Court for the District of Massachusetts, denying Defendant Harvard University's Motion for a Protective Order. This case arose when Plaintiff alleged that she was denied tenure because she made comments regarding Harvard's response to sexual misconduct allegations. Harvard sought a protective order to redact names and identifying information of various scholars who participated in Plaintiff's tenure evaluation process. In denying Harvard's Motion, the Court reasoned that the identities of the individuals who participated in Plaintiff's tenure evaluation process were essential to the Plaintiff's effort to acquire probative evidence regarding her discrimination and retaliation claims. The Court also granted-in-part and denied-in-part Plaintiff's Motion to Compel Discovery of electronically stored information.
ADA: Kirby v. S. Utah Univ. (D. Utah, Jan. 14, 2016)
February 9, 2016
Report and Recommendation to the U.S. District Court for the District of Utah Central Division, recommending that the District Court dismiss with prejudice Plaintiff's claim to recover damages from Southern Utah University for alleged violations of the Americans with Disabilities Act because the Eleventh Amendment shielded the University from liability for damages.
Decision from the Court of Claims of Ohio, awarding liquidated damages and pre-judgment interest to the Plaintiff for Defendant's breach of contract. In this bifurcated proceeding, the Court had previously determined that Defendant Kent State University breached its contract with the Plaintiff by reassigning him from his position as Defensive Coordinator of the Kent State Football Team. The contract was for a fixed period of 28 months and contained a stipulated damages clause for early termination that required the Defendant to pay "the balance then in effect base salary due for the remaining term" if the Defendant initiated the termination. Applying Ohio law, the Court determined that the liquidated damages clause was valid and enforceable.
Title IX; Sexual Misconduct & Other Campus Violence: Howe v. Pa. State Univ. Harrisburg (M.D. Pa., Feb. 2, 2016)
February 4, 2016
Decision from the United States District Court for the Middle District of Pennsylvania, denying Plaintiff's Motion for a Temporary Restraining Order. The Plaintiff sought to enjoin Penn State from suspending him after he violated a no-contact order that issued pursuant to a sexual misconduct investigation. The Court concluded that especially in light of Plaintiff's criminal harassment conviction, Plaintiff was unlikely to succeed on the merits; Plaintiff had not demonstrated irreparable harm; and the issuance of an injunction would harm Penn State and would not be in the best interest of the public.
Opinion from the U.S. District Court for the Western District of Oklahoma, denying Defendant's Motion to Dismiss and allowing Plaintiff's disability and retaliation claims to proceed. The Court held that although Plaintiff did not check the retaliation box on the EEOC form, he had exhausted his administrative remedies insofar as he noted retaliation on an EEOC intake questionnaire and notified EEOC officials that he intended to bring an action that implicated retaliatory animus. The Court also concluded that even though Plaintiff's broken scapula was a temporary injury, it nonetheless qualified as a disability.
Decision from the Supreme Court of Georgia, affirming that the Board of Regents of the University System of Georgia was immune from liability in an action brought by a group of individuals, who sought a declaration that they qualified as in-state residents. The students were lawfully in the U.S. as beneficiaries of the Deferred Action for Childhood Arrivals program. They sued the Board after being classified as out-of-state residents for the purpose of tuition charge differentials. The Court held that the Board was entitled to sovereign immunity since it had not waived immunity in actions concerning "interpretive rules."
Opinion from the U.S. District Court for the Southern District of Indiana, granting in part and denying in part Defendant's Motion to Dismiss constitutional and tort claims arising out of alleged police brutality and the erasure of video footage. The Court dismissed the constitutional claims against Ball State based on Eleventh Amendment Immunity. The Court dismissed constitutional claims against any individual defendant who did not participate in the alleged misconduct that gave rise to the purported constitutional violation. The Court allowed Plaintiff's IIED and Defamation claims to proceed, even though the Plaintiff had not filed notice of the claim under the Indiana Tort Claims Act, because such notice "does not affect the jurisdiction of this Court when exercising its supplemental jurisdiction over the tort claims at issue pursuant to 28 U.S.C. § 1367(a)."
Decision from the New York Superior Court dismissing Plaintiff's employment discrimination claims in their entirety. After the Plaintiff took a leave of absence to recover from a car accident, he alleged that the College discriminated against him by refusing to assign him classes for the Summer 2010 term and rejecting his application to participate in the Early Retirement Incentive (ERI) Program. The Court concluded that the Plaintiff was not a "qualified individual" under federal discrimination law because he did not meet the eligibility requirements of the ERI program. Also, because he returned to work after the teaching schedules had been set for the 2010 Summer term, he could not argue that his omission from the teaching schedule was motivated by discriminatory animus. The Court dismissed the remaining claims because they were filed outside of the limitations period.
Invitation to submit comments on Draft EEOC Enforcement Guidance on Retaliation and Related Issues. The draft guidance defines concepts related to retaliation, offers examples of retaliatory conduct, and proposes best practices. The deadline to submit comments is February 24, 2016.
Opinion from the United States District Court for the District of Columbia granting Defendant UDC's Motion to Dismiss. Plaintiff, a former UDC law student, alleged that UDC retaliated against her by suspending her for making false accusations, acting erratically, and threatening to kill the President of the United States. In dismissing Plaintiff's retaliation claims (which were brought under the ADA, the Rehabilitation Act, Title VII, and the First Amendment), the Court concluded that the Plaintiff failed to show a causal connection between a protected activity and her suspension because the officers who presided over her student conduct hearing were unaware that the Plaintiff had engaged in a protected activity. Regarding Plaintiff's Due Process claim, the Court concluded that the Plaintiff received ample process during the student conduct investigation. The Court dismissed Plaintiff's breach of contract claims because the UDC Student Handbook was not a contract. Finally, the Court dismissed all remaining claims, including claims that the University "violated ABA standard 512," unreasonably restricted Plaintiff's participation in school activities, and defamed her.
Decision from the U.S. District Court for the Northern District of Indiana, dismissing Plaintiff's Complaint. Plaintiff, a former police officer at Indiana University, alleged that he was deprived of a property interest when the university terminated his employment without affording him due process. The Court held that the Plaintiff did not have a constitutionally-protected property interest in his job, because he served at the will of the Board of Trustees.
Trial Decision from Magistrate Judge in the Court of Claims of Ohio, concluding the Plaintiff failed to establish by a preponderance of the evidence that OSU Medical Center (OSU) had retaliated against her after she disclosed to a fellow nurse her plan to file a Title VII law suit against OSU. OSU terminated the plaintiff for attendance problems. The Court concluded in a bench trial that Plaintiff failed to establish causation between the protected activity and the adverse employment action because the employee solely responsible for the employment decision was unaware that Plaintiff had engaged in a protected activity.
Negligence: Perryman v. Bellevue College (Wash. Ct. App., Feb. 1, 2016)
February 3, 2016
Opinion from the Court of Appeals of the State of Washington, affirming the trial court's decision to dismiss Plaintiff's tort claim for failing to establish cause-in-fact or proximate cause relating to injuries sustained during a college sponsored self-defense class.
Decision from Magistrate Judge in the Court of Claims of Ohio that Defendants Johnson and Brown, Columbus State Community College employees, throughout all interactions with the Plaintiff, acted within the scope of employment without malicious purpose, bad faith, or a wanton or reckless demeanor. The Court therefore concluded that Defendants Johnson and Brown were entitled to statutory immunity.
First Amendment &Free Speech; Student Organizations; Trademark and Licensing: Gerlich and Furleigh v. Leath, et al. (S.D. Ia. Jan. 22, 2016)
February 3, 2016
Order by the U.S. District Court for the Southern District of Iowa Central Division granting in part and denying in part Plaintiffs' Motion for Summary Judgment, granting in part and denying in part Defendants' Motion for Summary Judgment, and permanently enjoining Iowa State University from enforcing its Trademark Licensing Policy in a viewpoint discriminatory manner. Plaintiffs, members of a student advocacy group supporting the legalization of marijuana, alleged that the named Defendants, employees at Iowa State University, violated their First and Fourteenth Amendment rights by denying their application to use the university's trademark on pro-marijuana t-shirts. Citing political motivation, as well as the Defendants' selective application of the policy, the Court found that the Defendants applied the institution's Trademark Policy in a constitutionally-impermissible, viewpoint discriminatory manner, and further that the Defendants were not entitled to qualified immunity. The Court denied Plaintiffs' claims that the trademark policy was overbroad or unconstitutionally vague.
Discrimination; Retaliation: Jinadasa v. University-Hawaii (D. Haw., Jan. 25, 2016)
February 2, 2016
Opinion from the District Court for the District of Hawaii granting in part and denying in part Defendant's Motion to Dismiss. The pro se complaint raises multiple claims under the U.S. Constitution and federal law pertaining to discrimination based on sex, race, color, national origin, and pay equity, as well as retaliation claims, and a state law claim of IIED.
Title IX; Sexual Misconduct and Other Campus Violence: John Doe v. Ohio State Univ. (S.D. Ohio, Jan. 22, 2016)
February 2, 2016
Opinion from the U.S. District Court for the Southern District of Ohio, denying Plaintiff's request to enjoin a preliminary meeting with OSU officials to discuss allegations that he violated the Code of Conduct by posting nude photos of his ex-girlfriend to a public web site. The Court concluded that (1) the Plaintiff failed to show a strong likelihood of success on the merits; (2) no irreparable harm was likely to befall the Plaintiff; (3) an injunction would harm OSU insofar as it would limit the institution's ability to regulate student behavior; (4) an injunction would harm OSU because it would frustrate their ability to comply with Title IX guidance; and (5) an injunction would disserve the public interest.
Sex Discrimination (Pregnancy Discrimination): Laverty v. Drexel Univ. (E. D. Pa., Jan. 21, 2016)
February 2, 2016
Memorandum Opinion by the U.S. District Court for the Eastern District of Pennsylvania granting Defendant's Motion for Summary Judgment. Plaintiff – a former employee of Drexel University – sued the University for violating Title VII and Pennsylvania state law by discriminating against her on the basis of sex and pregnancy. The Court concluded that the Plaintiff failed to establish a prima facie case of pregnancy discrimination because the Plaintiff offered no evidence to support an inference that her employer knew that she was pregnant. Even if she had, Plaintiff's job performance deficiencies were well-documented, and Plaintiff did not identify any evidence suggesting that her termination was motivated by pregnancy-based animus. The Court also dismissed Plaintiff's claim of sex discrimination because she could not establish that the University treated male employees more favorably than female employees.
Title IX; Sexual Misconduct & Other Campus Violence: Spencer v. Univ. of New Mexico Bd. of Regents (D.N.M., Jan. 11, 2016)
February 2, 2016
Memorandum Opinion and Order by the U.S. District Court for the District of New Mexico denying Defendant's Motion to Dismiss. Plaintiff – a student at University of New Mexico – alleged that the university exhibited deliberate indifference in investigating an allegation of sexual misconduct. The Court held that the Plaintiff's complaint alleged sufficient facts to defeat the Defendant's Motion to Dismiss because the allegations, if true, could allow a reasonable jury to conclude that the university's response was "clearly unreasonable in light of known circumstances."
Memorandum and Order by Supreme Court of the State of New York Appellate Division, Fourth Judicial Department, affirming respondent, State University of New York at Geneseo's decision to expel the Plaintiff for violating the Code of Conduct. The Court rejected Plaintiff's due process arguments, concluding that the University substantially adhered to its published rules and guidelines and thus did not act in an arbitrary and capricious manner when it expelled the Plaintiff.
Race Discrimination, Retaliation: Hampton v. Snead State Cmty. Coll. (N.D. Ala., Jan. 29, 2016)
February 1, 2016
Opinion from the Northern District of Alabama dismissing Plaintiff's Title VII claims of race-based discrimination and retaliation. Although Plaintiff demonstrated that his lateral transfer from Head Basketball Coach and Athletic Director to Academic Support Services Academic Coordinator was an adverse employment action, he could not (1) identify a similarly situated comparator or (2) demonstrate that the transfer was motivated by race since he "admitted to engaging in the bulk of the conduct Snead State cited as justification [for the transfer]." These two deficiencies were fatal to the Plaintiff's discrimination claim. The Court also dismissed the retaliation claim because 9 months was too long in time to demonstrate temporal proximity between his internal claim of discrimination and the adverse employment action.
Unreported opinion from the U.S. District Court for the Western District of Oklahoma, granting in part and denying in part Defendant's Motion to Dismiss. The Court dismissed Plaintiff's disability claim because the Plaintiff failed to exhaust administrative remedies and plead facts sufficient to show that at the time he was terminated from his position, he was qualified, with or without accommodation, to perform the essential duties of the job. The Court allowed plaintiff's race and national origin discrimination claims to proceed because the allegation that "non-Hispanic employees who were injured on the job were not terminated" was sufficient to "nudge his claims across the line from conceivable to plausible."
Unreported opinion from the U.S. District Court for the District of Idaho, awarding $33,677.84 in attorneys' fees to Plaintiff Evans for prevailing on the merits of her due process claim against Idaho State University. Plaintiff claimed that the University violated her due process rights in the course of investigating an allegation of academic dishonesty. Pursuant to a TRO that was issued in the early stages of the lawsuit, the Defendant proposed an amended appeals' process, which was adopted by the Court. Because the litigation "modif[ied] the defendant's behavior in a way that directly benefit[ted] the plaintiff," Plaintiff was entitled to recover reasonable attorneys' fees.
Decision from the First Circuit Court of Appeals, affirming District Court's decision that the University of Massachusetts Medical School is an arm of the State and thus exempt from claims under the False Claims Act.
Disability Discrimination, Race Discrimination: Hawthorne-Burdine v. Oakland Univ. (E.D. Mich., Jan. 27, 2016)
February 1, 2016
Granting Defendant Oakland University's Motion to Dismiss, or in the Alternative Motion for Summary Judgment, on Plaintiff's race, disability, and age discrimination claims. The Court dismissed Plaintiff's ADA and ADEA claims (for monetary damages) on the grounds of Eleventh Amendment Immunity. The Court dismissed Plaintiff's ADA claim for equitable relief because she did not satisfy the Ex Parte Young exception. The Court dismissed Plaintiff's ADA claims against 28 named defendants in their individual capacities because the ADA does not imposed individual liability. The Court dismissed Plaintiff's race discrimination claims because she did not identify a similarly situated comparator, and even if she had, she could not demonstrate that the Board's decision not to renew her contract was predicated on a racially-motivated pretext, since she had not published in a decade and since she had been disciplined for confrontational behavior, verbal abuse, and threats.
Disability Discrimination, Retaliation, Academic Misconduct: Thompson v. Ohio State Univ. (6th Cir., Jan. 26, 2016)
February 1, 2016
Unpublished opinion from the 6th Circuit Court of Appeals, affirming District Court's award of summary judgment to Ohio State University on Plaintiff's §1983 (Equal Protection), Title VI, and First Amendment Retaliation claims. Plaintiff alleged that she was subjected to discrimination based on her race, and retaliation based on protected speech, when the University suspended her for academic dishonesty. Regarding Plaintiff's §1983 Claim, the Court affirmed the District Court's award of judgment in the Defendant's favor because even though the professor who referred Plaintiff to a conduct board for academic dishonesty had only before referred African American students to the board (3 students in total), Defendant's non-discriminatory explanation, namely that the Plaintiff had plagiarized a portion of a paper, undercut the importance of Plaintiff's statistical proof and extinguished Plaintiff's argument of pretext. Regarding Plaintiff's Title VI Deliberate Indifference Claim, the Court, without ruling whether Deliberate Indifference was an actionable claim under Title VI, affirmed the District Court's award of judgment to the Defendant because OSU had conducted a thorough and fair investigation in response to Plaintiff's discrimination complaint. Finally, the Court affirmed the District Court's decision that Plaintiff had not pled sufficient causation to show a nexus between protected speech and her suspension from the University.
Decision from the United States District Court for the Northern District of Illinois provisionally granting parties' Joint Motion for a Preliminary Approval of Amended Class Settlement and Certification of Settlement Class. This class action matter arose when former collegiate athletes filed lawsuits over the NCAA's management of concussion-related risks over a period of years. The NCAA entered into settlement negotiations with the plaintiffs in an effort to resolve all claims. A number of plaintiffs were able to reach an agreement with the NCAA, but some Plaintiffs objected, and the Court ultimately refused to approve the initial settlement proposal. The parties submitted an Amended Settlement Agreement, but again, some plaintiffs objected. It is this Amended Settlement Agreement that is before the Court. The Court has preliminarily approved a proposed Amended Settlement Agreement, subject to certain modifications, including (1) a limitation on the scope of the settlement class's release of class-wide personal injury claims, (2) modification to the notice program, and (3) modifications to the manner in which settlement funds are utilized.
Student Conduct: Rockwell v. William Paterson Univ. (N. J. Super. App. Div., Jan. 25, 2016)
February 1, 2016
Opinion from the Superior Court of New Jersey Appellate Division, affirming public university disciplinary board's finding that the Plaintiffs had violated the Hazing provision of the Student Code of Conduct by engaging in "cult-like" activities. The Court denied as moot plaintiffs' request that sanctions of disciplinary probation and housing suspension be reversed, since the probationary and suspension period had already expired. The Court rejected plaintiffs' Procedural Due Process claims because the record showed that the University afforded the students more process than was required by the Constitution. Finally, affording deference to state university judicial decisions, the Court rejected plaintiffs' argument that the board's findings were arbitrary, capricious, and unsupported by sufficient, credible evidence.
Opinion from the U.S. District Court for the Eastern District of Kentucky holding that the Younger Abstention applied when a student sought to stop an on-going Title IX sexual misconduct disciplinary hearing. The Younger Abstention is a legal doctrine that prevents federal courts from interfering with pending state judicial proceedings. The Court, concluding that the student conduct proceeding at issue was "state proceeding" under the doctrine, granted the Defendants' Motion for an Abstention. The Court also dismissed Defendant Simpson in her individual capacity based on qualified immunity.
Legislation introduced in the U.S. House of Representatives by Representative Kyrsten Sinema (D-AZ) titled the "Servicemember Higher Education Act" to provide increased access and protection for members of the armed forces in Higher Education. The Act includes provisions altering the current Higher Education Act of 1965 to improve loan deferment for borrowers on military leave, provide for improved disability determinations, and allow for public service loan forgiveness.
The Sports Science Institute at the National Collegiate Athletics Association (NCAA) published a Best Practices for Understanding and Supporting Student-Athlete Mental Wellness. The publication's Best Practices are designed to provide athletics and sports medicine departments with recommendations for supporting and promoting student-athlete mental health. Best practices identified in the report include protocol development for mental health emergencies with student-athletes, pre-participation mental health screening, and creating health–promoting environments that support mental well-being and resilience.
Announcement by the National Association of College Athletics (NCAA) adopting a proposal that changes the date by which a student must remove his name from the NBA draft. The proposal enables students to attend multiple NBA draft related events while retaining NCAA eligibility. The flexibility embedded in the rule is designed to assist college basketball players make better informed decisions on pursuing professional basketball.
Settlement entered into between the University of Washington and the Department of Health and Human Services (HHS) to resolve a HIPAA security breach stemming from unsecured electronic protected health information. HHS determined that UW Medicine failed to implement policies and procedures to prevent, detect, contain, and correct security violations. The University agreed to pay $750,000 as part of the resolution and enter into a corrective action plan set forth by the HHS.
Ruling by the U.S. District Court of Middle District of Louisiana granting defendant's motion for summary judgment on Title VII Retaliation and Age Discrimination Claims. Plaintiff- a former employee and legal advisor to the President of the Southern University System (SU) – sued the University following her employment discharge, claiming the University violated Title VII and the Age Discrimination in Employment Act of 1967 (ADEA). To support her Title VII claim, the plaintiff alleged that the University fired her in retaliation for testifying at a TRO hearing pertaining to Title VII litigation. The Court held that, though she did in fact engage in a "protected activity" under Title VII's "participation clause", she could not establish temporal proximity, since two years separated the testimony and the employment termination. With respect to the Plaintiff's ADEA claim, the Court concluded that the University's proffered reasons for her termination – (1) budgetary pressures and (2) that the plaintiff's replacement was more qualified – were sufficient to show that no reasonable jury could conclude that the University's explanation was pretext for terminating the plaintiff due to her age.
Due Process: Anyadike v. Vernon Coll. (N.D. Tex., Jan. 11, 2016)
February 1, 2016
Order by the U.S. District Court for the Northern District of Texas Wichita Falls Division denying Plaintiff's Motion for a Temporary Restraining Order (TRO). Plaintiff – a former student at Vernon College's Licensed Vocational Nursing (LVN) Program– filed a complaint against the College alleging §1983 claims (Due Process), Title VI claims, and §1981 claims. The claims arose from the Plaintiff's dismissal for violating the LVN attendance policy. The Court denied Plaintiff's Motion on the grounds that the Plaintiff failed to establish that he had a substantial likelihood of success on the merits and irreparable harm.
Opinion by the U.S. Court of Appeals for the Third Circuit on September 21, 2015 affirming the district court's summary judgment order for defendants. Plaintiff – a former employee of Delaware State University and member of American Federation of State and County Municipal County Employees Local 1007 (Union) – sued the University following her termination from employment. The University terminated her employment after learning of the plaintiff's plea agreement in a criminal case. The plaintiff brought claims under 42 U.S.C. § 1983 for deprivation of due process and First Amendment rights. The court of appeals, agreeing with the district court, held that the plaintiff received the required procedural due process because the University provided the plaintiff with notice of its intent to terminate her contract as well as an opportunity to be heard. The court also ruled that her First Amendment claim was correctly dismissed, because her speech, which was related to "working conditions and other issues in union members' employment," was unprotected as it did not touch on a matter of public concern.
Statement by Vanita Gupta, Head of the Civil Rights Division of the U.S. Department of Justice, commenting on the Department's report titled, "Campus Climate Survey Validation Study Technical Report." Gupta's comments emphasize the significance of the report's findings and the Justice Department's approach to addressing sexual assault.
Settlement agreement reached between Florida State University and Erica K. Kinsman. Kinsman sued the University alleging violations of Title IX resulting from the University's alleged failure to respond to her allegations of sexual assault by another student. The U.S. District Court for The Northern District of Florida Tallahassee Division denied the University's motion to dismiss the complaint. Under the agreement, Florida State University does not admit liability and will pay $250,000 for Kinsman's alleged damages and $700,000 for Kinsman's attorney fees.
Memorandum by the U.S. District Court Middle District of Tennessee Nashville Division granting defendant's motion for summary judgment on January 12, 2016. Plaintiff – a former nurse at the Vanderbilt University Medical Center (VUMC) – sued the University alleging violations of the Age Discrimination in Employment Act (ADEA). The plaintiff filed this action following her termination by the University for violating VUMC's controlled substances and medication administration policies on multiple occasions creating a risk of patient harm. Citing the gravity of the plaintiff's conduct and her inability to produce evidence showing that the University terminated her due to her age, the court granted the defendant's motion for summary judgment.
Announcement by the Association of American Universities Board of Directors stating its concern with gun violence in America the importance of conducting research to evaluate how the country can address this issue. AAU's Board also expressed its backing of President Obama's recent directive to the Justice Department and the Departments of Defense and Homeland Security to conduct research on technology that can improve gun safety. Lastly, the Board asks that Congress act to remove its prohibition on federally funded public health research on gun violence.
As infographic brief from the American Council on Education's Center for Policy Research and Strategy. The brief, using data and descriptive statistics, seeks to illuminate patterns of bias to help increase the number of women in higher education leadership. Also included are action steps recommended by the University of Denver's report, Benchmarking Women's Leadership in the United States.
Settlement Agreement reached between the University of Colorado and former employee Kimberly Parker. Following the University's decision to terminate Parker's employment, she sued the University claiming she was terminated in retaliation for filing a sexual harassment complaint against a University Professor. Under the settlement agreement, the University admits no liability, will pay Parker $80,000 and costs related to mediation, and will assist Parker in finding a job.
Principal Deputy Director Bea Hanson of the Office on Violence against Women provided an overview and summary posted on the Department of Justice's website regarding the Campus Climate Survey Validation Study (CCSVS) Final Technical Report – a key deliverable of The White House Task Force to Protect Students from Sexual Assault. Deputy Director Hanson explains the results of the survey while also noting the report demonstrates that schools can successfully conduct valid and reliable campus climate surveys and that the report includes a set of best practices to assist in designing/implementing a climate survey. Lastly, Deputy Director Hanson detailed the measures being taken by the Department as well as initiatives to provide resources on the CCSVS study.
Notice from the Department of Education proposing an extension of information collection related to annual data on college athletics. The Department seeks to use the data collected from institutions to increase transparency in college athletics for students, prospective students, parents, employees, and the general public. Interested persons are invited to submit comments on or before March 21, 2016.
Announcement by the Department of Education providing the deadlines for the submission of applications, reports, waiver-requests, and other documents for the Federal Perkins Loan, Federal Work Study and Federal Supplemental Grant Programs. These requests can be submitted through the Fiscal Operations Report and Application to Participate (FISAP) at the eCampus-Based Website: https://cbfisap.ed.gov.
Letter from Assistant Secretary for Civil Rights Catherine Lhamon responding to a December 18, 2015 letter from Senator Ron Wyden (D-OR) which expressed concern about discrimination against LGBT students and requests greater transparency from the Office of Civil Rights with respect to the waiver process under Title IX. Assistant Secretary Lhamon's reply notes the increase in requests that the Department has received for Title IX religious exemptions and that the Office of Civil Rights is currently in the process of preparing institutions' requests for Title IX waivers and the Department's responses for posting on the Department's website.
Letter from Representative Jackie Speier (D-CA) to Assistant Secretary for Civil Rights Catherine Lhamon requesting that the Office of Civil Rights (OCR) clarify whether universities that find a Title IX violation by faculty or staff are required to disclose the results of their investigation to other educational institutions.
Order by the U.S. District Court Western District of Washington at Seattle granting defendant's motion for partial summary judgment on January 14, 2016. Plaintiff – a former University of Washington employee – sued the University for breach of contract following her termination from employment. The University argued the plaintiff was precluded from bringing the claim because she failed to exhaust the administrative remedies as set forth by her Union's Collective Bargaining Agreement (CBA). The court concluded that the plaintiff's failure to appeal the Union's decision not to arbitrate her grievance – a necessary step in the CBA's administrative remedy process – was sufficient evidence to show that as a matter of law, the plaintiff's claims for breach of contract must fail for having not exhausted the administrative remedies available to her.
Memorandum and Judgment by the Appellate Division of the Supreme Court of the State of New York on January 14, 2016 confirming State University of New York at Binghamton's (SUNY) disciplinary determination. Petitioner – a student at SUNY – received a two-year suspension following an investigation and hearing by the University. The proceedings began after a student at Cornell University notified SUNY that the petitioner sexually assaulted her. Following the investigation and hearing, which included testimony from the victim, petitioner, and witnesses, SUNY determined that the petitioner violated the Code of Student Conduct and imposed a two year suspension. The petitioner argued against SUNY's findings and claimed he was denied due process. The court rejected these claims, finding that SUNY's determination was supported by substantial evidence and that, although the Conduct board did not immediately release certain internal documents used to make its determination, SUNY sufficiently detailed its factual findings, the testimony, and evidence that it relied upon in its determination.
Settlement Agreement reached between Arizona State University ("ASU") and Professor Matthew Whitaker. The University demoted and then placed Whitaker on probation following a finding of plagiarism by a University-commissioned investigation. Under the terms of the settlement agreement, neither party admits to wrong-doing or liability. ASU will continue to pay Whitaker's salary of $153,500 and benefits in addition to $25,000 to cover Whitaker's attorney's fees.
Announcement by Acting Secretary of the Department of Education, John King Jr., of President Barack Obama's intention to expand Pell Grant funding as part of his upcoming budget proposal. Acting Secretary King added that the changes to the Pell Grant program would provide an additional $ 2 billion in Pell Grants for the 2017 fiscal year.
Order by the U.S. District Court for the Western District of Oklahoma granting defendant's motion to dismiss on January 13, 2016. Plaintiff – a former employee at the University of Central Oklahoma (UCO) – sued the University in state court alleging, among other claims, that UCO discriminated against him due to a physical impairment. The state court granted the University summary judgment on each claim. Following the state court's decision, the plaintiff filed suit in federal district court asking that the court remand the case, arguing the state court's ruling was incorrect and denied him due process. Citing the Rooker-Feldman doctrine, the district court held that the plaintiff was barred from bringing his claim to a federal court to "undo the state court judgment" because appellate jurisdiction over such claims belongs to the U.S. Supreme Court.
Opinion by U.S. Court of Appeals for the Sixth Circuit on January 6, 2016, reversing district court's judgment. The Plaintiffs – a group former employees of the Vanderbilt University Medical Center – sued the University claiming the University violated the Worker Adjustment and Retraining Notification Act (WARN) by failing to provide employees the required 60 days written notice prior to a mass lay off. The district court agreed with the plaintiffs holding that the University "terminated" a prior group of employees without adequate notice resulting in a "mass layoff" – violating the WARN Act. On Appeal, the Sixth Circuit determined the district court erred in ruling the University "terminated" the prior group of employees. The University's actions toward those workers did not fall within the WARN Act's definition of "terminate" because, at the time of notice, the employees continued to be paid and accrue benefits. Consequently, the University's actions did not constitute a "mass layoff" or trigger any WARN Act provisions.
Order from the U.S. District Court for the Middle District of Pennsylvania on January 7, 2016, fully adopting the Magistrate Judge's Report and Recommendation ("Report") in full and dismissing the complaint. Plaintiff – Alson Alston, a former law student at Pennsylvania University's Dickinson School of Law ("PSU") – sued PSU claiming violations of substantive due process, procedural due process, equal protection, disability discrimination, and state tort law. The plaintiff's claims stem from his requests to obtain additional financial aid to take care of his elderly mother. The court dismissed plaintiff's substantive and procedural due process claims for failure to articulate a fundamental or protected interest to trigger the protections of substantive or procedural due process, noting that the pleadings indicated that the process by which plaintiff sought additional financial aid was interactive and sufficiently met procedural due process's minimum mandate. The equal protection and discrimination claims failed because the complaint lacked supporting factual allegations. Lastly, the court declined to exercise pendant jurisdiction over the state claims having dismissed all the federal claims.
Report released by EDUCAUSE outlining the primary issues that higher education institutions should expect in 2016. Report includes interviews with IT professionals at member institutions on the topics facing colleges and university and offers advice on how to effectively address IT issues on a University level.
Report by the Delta Cost Project at the American Institutes of Research detailing spending at colleges from 2003 – 2013. Using information compiled by U.S. Department of Education's Integrated Postsecondary Education Data System (IPEDS), the Trends in Spending report centers its observations on the flow of money and purchasing power at colleges and universities.
Notice issued by the U.S. Department of Education proposing an extension for an existing information collection. The Department was granted an emergency clearance to allow for a revision in the data collected as part of Integrated Postsecondary Education Data System (IPEDS). The comment request is in response to a change in the Government Accounting Standards Board's (GASB) reporting standards that also impacts institutions reporting in IPEDS. As part of the emergency clearance, questions were added to assess the changes institutions' pension liabilities as result of the GASB change. Interested parties are invited to submit comments on or before February 11, 2016.
The Federal Intern Protection Act of 2016 (H.R. 3231) passed the House of Representatives by unanimous vote. The legislation seeks to guarantee unpaid federal government interns receive protection against race, gender, age, and other forms of discrimination.
Letter from Catherine Lhamon, Assistant Secretary for Civil Rights, to the National Women's Law Center and Women's Sports Foundation regarding treatment of full cost of attendance athletic financial aid awards dated November 12, 2015. This letter reiterates standards provided previously regarding Title IX compliance in the award of athletic financial assistance with the exception of a footnote stating that post-eligibility financial aid and summer school aid is no longer excluded from the overall financial aid calculation so long as the aid was awarded in a non-discriminatory manner.
Announcement by the American Council on Education of national campaign asking presidents of colleges, universities, and related associations to commit to helping achieve the goal that by 2030, half of U.S. college and university chief executives are women. One hundred nine presidents and chancellors have joined the campaign as inaugural signers.
Decision by the National Collegiate Athletic Association (NCAA) Committee on Infractions related to its investigation of NCAA violations by the University of Louisiana Lafayette (ULL). Following the investigation of the ULL's football program, the Committee found that a former assistant football coach violated NCAA rules. According to the Committee, the assistant coach helped recruits obtain fake test scores and committed unethical conduct by providing false and misleading information. The Committee accepted ULL's self-imposed sanctions and added additional penalties, including a $5000 fine, two-year probation, and other recruiting limitations.
In a letter to Acting Secretary of the Department of Education, John B. King, Jr., Oklahoma Senator James Lankford questions the Department's use of "Dear Colleague" letters to create substantive and binding regulatory policies without being subject to the notice-and-comment procedure. Lankford specifically mentions the Department's "Dear Colleague" letters on harassing and bulling (DCL 2010) and sexual violence (DCL 2011) as examples of such overstepping by the Department. Further, Senator Lankford asks the Department to clarify the statutory and legal authority underpinning DCL 2010 and DCL 2011.
Report from the Congressional Research Service on the legal landscape surrounding unauthorized aliens and access to higher education. The report discusses the limitations of the application of Plyler v. Doe in higher education. The Report examines federal laws along with measures taken by states to restrict or grant access to higher education for unauthorized aliens - primarily through eligibility for in-state tuition and financial aid. The Report concludes with trends to expect in the upcoming year.
Report by the University of Texas System working group to the University of Texas System Chancellor and Presidents outlining its recommendations on the implementation of Senate Bill 11 in Texas and concealed-carry on campus. The Report examines the law, pointing out campus locations where firearms are excluded by law or rule, other locations where exclusion is recommended, and other suggestions that should be considered in the creation of campus carry policies. The report is in not binding, but intended to be used as a tool to help UT Campus Presidents build effective policies concerning handguns on campus.
Consent Decree and Order by the U.S. District Court for the Eastern District of Tennessee at Knoxville on January 4, 2016 approving the settlement agreement reached between the University of Tennessee and three former employees of the University's women's athletics program. The employees filed a complaint alleging they were compensated less than employees in the men's program for no other reason than their sex and/or affiliation with women's athletics. The complainants also alleged that they were retaliated against by the University and suffered from adverse employment decisions. As part of the settlement the University admits no liability and agrees to pay $750,000 and attorney's fees.
Settlement agreement between Southern Oregon University and the Oregon Bureau of Labor Industries stemming from a wage claims dispute affecting 325 workers who were part of a University construction project. The Bureau demanded payment from the University in December 2014 for unpaid prevailing wages pursuant to Oregon law. Under the terms of the agreement, the University has agreed to pay $2.5 million in unpaid wages to the group of workers but does not admit any guilt or liability.
Memorandum and Order by the U.S. District Court Middle District of Tennessee Nashville Division denying defendant's motion to dismiss plaintiff's amended complaint on January 6, 2016. Plaintiff – a student at Piedmont Business Colleges, Inc. F/K/A Miller Motte Technical College (Miller Moite) – sued Miller Moite under Title IX alleging Miller Moite negligently mishandled her case after she was sexually assaulted. The defendants sought to dismiss the plaintiff's amended complaint, arguing that it was missing important elements. Denying the defendant's motion, the Court ruled that, although the amended complaint continued to lack certain details, the plaintiff presented sufficient allegations to allow the action to proceed.
Comment submitted by a group of ten higher education associations to the Centers for Medicare and Medicaid Services on the agency's annual rule that sets out policy for the Patient Protection and Affordable Care Act (ACA) (Pub. L. 111-148). The comment expresses support for the proposed regulations that would permit insurance issuers to establish separate risk pools for student health insurance coverage, in addition to the proposed exemption of student health insurance coverage from the general actuarial value requirements under Section 1302(d) of the ACA, stating that the proposals "will help ensure that students and their families have sufficient information about the value and benefits offered in a [Student Health Insurance Coverage] plan to make informed decisions about a student's health insurance coverage." The comment concludes by urging the agency explore ways to prevent insurance issuers from passing the costs of these requirements onto colleges and universities.
Exposure draft on fiduciary activities was issued by the Governmental Accounting Standards Board (GASB). The would establish criteria for identifying and reporting fiduciary activities of all state and local governments. Under the proposed criteria, public institutions with single-employer defined benefit pension plans or other post employment benefit (OPEB) plans subject to the requirements of Statements 67 and 74, respectively, will have fiduciary fund reporting requirements on the pension or OPEB trusts. Interested parties are invited to comment on the draft by March 31.
Annual report to Congress by the Consumer Financial Protection Bureau (CFPB) on agreements between credit card issuers and institutions of higher education. The Credit Card Accountability, Responsibility, and Disclosure Act (Pub. L. 111-24) requires CFPB to submit a report to Congress every year detailing agreements between credit card issuers and colleges and universities, as well as certain affiliated organizations. The report includes data from credit card issuers on the number of credit card accounts covered by these agreements, the amount of payments made by the issuers to institutions, the number of new accounts opened, and any memorandums of understanding between the issuers and institutions. According to the most recent report, the number of agreements is down 65 percent from 2009, when CFPB began tracking such agreements, and payments from card issuers to institutions have decreased nearly proportionately.
Safe Student Account Toolkit was released by the Consumer Financial Protection Bureau (CFPB) to assist colleges and universities in entering arrangements with banks to provide institution-sponsored financial accounts. The toolkit includes a scorecard that institutions can opt to include in requests for proposals from potential banking partners, as well as an administrator handbook designed to guide college and university officials in selecting these accounts. The scorecard and handbook include certain minimum protections outlined in the U.S. Department of Education's cash management rules, which were finalized in October 2015.
Announcement issued by the Internal Revenue Service (IRS) that it will not penalize institutions that timely file or furnish 2015 Forms 1098-T with missing or inaccurate taxpayer identification numbers (TINS) during 2016. Section 6050S(a)(1) requires eligible educational institutions to file information returns (Form 1098-T) with the IRS, which must contain the TINs of any individuals enrolled at the institution. The penalty relief is limited to the 2015 returns required to be filed by eligible educational institutions by February 29, 2016 or, if filed electronically, by March 31, 2016.
Order by Superior Court of California, County of San Diego Central denying defendant Thomas Jefferson School of Law's (TJSL) motion for summary judgment on December 28, 2015. Plaintiffs – three TJSL graduates – sued asserting fraud, negligence, negligent misrepresentation and other state law claims stemming from their alleged reliance on TJSL's inflated employment figures in deciding to attend TJSL. Rejecting TJSL's argument that the plaintiffs' could not show that the alleged misrepresentations were a material, substantial factor in their decisions to attend TJSL, the court noted the plaintiffs' explicit declarations that they would not have attended the law school if they knew of the inflated employment figures. The court concluded that "representations regarding employment statistics [are] material misrepresentations to applicants for law school" and that "reasonable reliance is an inherently factual inquiry."
Order granting motion to dismiss by U.S. District Court for the District of New Jersey on December 28, 2015. The plaintiff—former head coach of the women's basketball team at Kean University – sued the University, NCAA, and other individuals asserting violations of state and federal laws, including Title IX, 42 U.S.C. § 1983, and 42 U.S.C § 1985, following the University's decision to demote her after an NCAA investigation found that the plaintiff and the University violated NCAA regulations. The court dismissed each of the plaintiff's claims with prejudice and declined to exercise jurisdiction over a counterclaim for unpaid legal fees by the plaintiff's lawyer. Specifically, the court held that the plaintiff failed to sufficiently allege Title IX or § 1983 and § 1985 violations against the University and that the Title IX claim against the NCAA failed as a matter of law because of its inapplicability to individuals and non-federally assisted organizations.
Memorandum Opinion and Order from U.S. District Court for the Northern District of Ohio Western Division entering judgment for defendant Ohio Northern University (ONU) on December 18, 2015. Following ONU's decision to terminate his employment for violating its sexual harassment policy, the plaintiff—a former tenured law professor—sued ONU alleging the University breached his employment contract by applying the faculty dismissal process prescribed by the University Handbook instead of the process described in the Law School's Bylaws. Rejecting the plaintiff's argument, the court concluded that the University Handbook, as incorporated by the contract's "applicable rules" catch all provision, controlled. The court further held that ONU's decision to suspend Traster without making a particularized finding that his continued presence posed a threat of immediate harm to others was a "nominal, trifling or technical departure from the terms of the contract but not a breach of the contract."
Memorandum Opinion and Order by the U.S. District Court for the Northern District of Illinois Eastern Division denying defendants' motion to dismiss on December 30, 2015. Plaintiff – a former tenured professor at University of Illinois – resigned from the University as a result of a plagiarism investigation initiated and directed by Defendants Dr. Sarah Rusch and Dr. Dmitri Azar. After the investigation commenced, the University informed Rao that if he did not resign then the University would terminate his employment and the plagiarism allegations would likely become public. Soon thereafter, the plaintiff resigned and sued the University as well as Azar and Rusch for claims including discrimination, retaliation, denial of due process and equal protection under 42 U.S.C. 1983. Rusch and Azar moved to dismiss the due process and equal protection claims, arguing that Rao did not have a property interest in his employment and that he voluntarily resigned. The court denied the motion to dismiss and held Rao alleged sufficient facts to plead violations of his due process rights resulting from constructive discharge or coerced resignation.
Decision by Department of Education (Department) Acting Secretary John B. King on January 5, 2016. The Accrediting Commission for Community and Junior Colleges (ACCJC) appealed the Department's 2014 Decision Letter finding ACCJC noncompliant with certain criteria for recognition as an accreditor. The Secretary agreed with the 2014 Decision Letter's findings and ordered that it be adopted as the agency's Final Decision. As part of the order, ACCJC will continue to be recognized by the Department pending the submission of a compliance report within 12 months.
Order by the U.S. Court of Appeals for the Fifth Circuit issued on September 1, 2015 affirming the district court's grant of summary judgment in favor of defendants. The plaintiff– a former research scientist at the University of Mississippi – sued the University and individual defendants, alleging violations of Title VII of the Civil Acts Right of 1964, the Americans with Disabilities Act, §1983, and claims under state law after the University's denied her request to be reinstated to her former position following her return from medical leave caused by injuries she sustained during an explosion, which left her permanently partially disabled and unable to work in her prior capacity. The district court dismissed all claims against the University and held that the individual defendants were entitled to summary judgment on the remaining claims because, the Court summarized, "[the plaintiff] could not establish a prima facie case nor show that the proffered legitimate, non-discriminatory reasons for the failure to reinstate  were pretextual." The plaintiff appealed the district court's summary judgment ruling on her claim for national origin discrimination. The Fifth Circuit affirmed the district court's decision, adopting its reasoning in full.
Settlement agreement reached between The University of Colorado and Professor Daniel Kaufman. Kaufman sued the University after being placed on leave and barred from campus in response to his reported threats and disruptive behavior. The federal district court dismissed all the Kaufman's federal law claims but declined to exercise supplemental jurisdiction on the professor's state law claims of defamation and intentional infliction of emotional distress. Under the settlement agreement, the University does not admit liability and will pay Kaufman $25,000 as partial reimbursement of attorney's fees.
Announcement from the U.S. Department of Education (Department) that it has published an updated list of institutions subject to Heightened Cash Monitoring (HCM). The Department also published lists in March 2015 and June 2015. HCM is a step that the Department's Federal Student Aid office can take with institutions to provide additional oversight on financial or federal compliance issues.
Dear Colleague Letter (DCL) from Secretary of Education Arne Duncan to educational leaders emphasizing the need to ensure that schools and institutions of higher education are free from discrimination and harassment on the basis of race, religion, or national origin. The DCL suggests methods of engaging in exchange of ideas while also maintaining a safe environment for students and provides governmental resources on bullying and harassment and resources on how education stakeholders can promote a more positive school climate.
First Amendment & Free Speech; Due Process: Oyama v. University of Hawaii (9th Cir., 2015)
January 4, 2016
Opinion by the U.S. Court of Appeals for the Ninth Circuit on December 29, 2015 upholding the district court's grant of summary judgment to defendant University of Hawaii. The University denied secondary education candidate Mark L. Oyama's application to become a student teacher, a prerequisite for recommendation to Hawaii's teacher certification board, based on statements he made regarding sexual relationships with minors and students with learning disabilities. The Ninth Circuit held that the University did not violate Oyama's First Amendment right to freedom of speech because its decision "related directly to defined and established professional standards, was narrowly tailored to serve the University's core mission of evaluating Oyama's suitability for teaching, and reflected reasonable professional judgment." In addition, the Court concluded that the University provided adequate procedural protections in denying Oyama's application and therefore neither the University nor its agents violated Oyama's procedural due process rights.
Opinion by the New Hampshire Supreme Court on December 23, 2015 affirming the superior court's decision to vacate an arbitrator's decision that appellants University of New Hampshire and its Board of Trustees (UNH) had violated their collective bargaining agreement by terminating respondent Associate Professor Marco Dorfsman. After Dorfsman admitted to altering a colleague's student evaluations, UNH determined that this conduct constituted an act of "moral turpitude" within the meaning of the collective bargaining agreement and terminated Dorfsman. An arbitrator agreed with UNH that Dorfsman's conduct constituted an act of "moral turpitude" but remanded the matter after concluding that Dorfsman's termination did not comport with principles of just cause. The trial court held that the arbitrator had exceeded its authority under the collective bargaining agreement. In upholding the trial court, the state Supreme Court held that because the contract specifically allows dismissals for moral turpitude and because the arbitrator did not contest that the altering of evaluations met that standard, there was no basis to question the University's decision. "In rejecting UNH's chosen penalty for moral turpitude," the Court wrote, "the arbitrator substituted his views of the proper industrial relationships for the provisions of the contract. The arbitrator may not rewrite the labor contract in such a way."
Order from the U.S. Court of Appeals for the Sixth Circuit on December 16, 2015, reversing in part the district court's decision and remanding for further proceedings. Plaintiff – Contract Design Group (CDG) – was a contractor for Wayne State University (WSU). In 2008, concerned with CDG's compliance status with state labor laws, WSU suspended and ultimately terminated its contract with CDG. At trial a jury found for CDG on claims for procedural due process, accounts stated (awarding $200,000), and breach of contract (awarding $250,000). On appeal, the Sixth Circuit held that district court erred in denying WSU's motion for judgment as a matter of law. Under Michigan law, plaintiff's claims for accounts stated and breach of contract merged and the trial court erred in permitting double recovery on these claims. The court also reversed the denial of WSU's motion for a new trial or remitter, holding that remittal was the more appropriate than a new trial. Defendants other arguments on appeal were denied.
Order from Court of Appeals of the State of New Mexico on December 14, 2015 reversing the Northern New Mexico College Labor Management Relations Board's (Board) Decision and Remanding for further proceedings. Northern New Mexico Federation of Educational Employees (Union) filed suit against Northern New Mexico Community College (College) with the Board (Board) alleging that the College's terminated of two Union employees in retaliation for participating in union-related activities. The court reversed the Board's grant of the College's motion to dismiss and remanded for further proceedings, citing the Board's failure to address the complaint's allegations of retaliatory termination.
Opinion by the U.S. Court of Appeals for the Sixth Circuit on December 4, 2015 affirming the district court's decision to grant defendant's motion for dismissal. Plaintiff – a former Assistant Professor at Wayne State University (WSU) – brought a qui tam action for alleged violations of the False Claims Act (FCA) in addition to a defamation claim under Michigan state law. The plaintiff alleged that WSU deliberately engaged in a scheme to defraud the federal government in order to inflate the funding that the University received for various federal grants and contracts. Upholding the lower court's analysis, the Sixth Circuit held that WSU is an 'arm of the state' and, thus, not a 'person' subject to liability under the FCA. It placed heavy emphasis on the fact that "any judgment against WSU will be paid out of the state's tax revenues." The court further affirmed the district court's denial of the plaintiff's motion to amend his defamation claim due to its futility.
Order by the U.S. District Court District of New Jersey granting defendant's motion to dismiss the complaint on December 15, 2015. Plaintiff – a former student in Seton Hall University's Physician Assistant program – sued the University asserting claims under Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act, The Rehabilitation Act, and the Sherman Antitrust Act. The plaintiff's claims stemmed from his allegations that the University's Program director altered the plaintiff's transcripts, resulting in his dismissal from the program. The plaintiff filed suit in 2013 against the University, over 12 years from the date of his dismissal. Citing the plaintiff's delay in filing the suit, the court held that each of the plaintiff's claims were time-barred and granted the University's motion to dismiss.
Order by State of Michigan Court of Appeals on December 15, 2015 affirming trial court's decision to grant defendant Delta College's motion for summary disposition. Delta College terminated plaintiff Michael Wiltse – the college's former Director of Public Safety at Delta College – after Wiltse admitted to violating Delta's confidentiality policies by sharing details of an investigation into a professor's relationship. Wiltse sued Delta alleging violations of the state Whistleblowers' Protection Act (WPA) and state law discrimination claims. The court dismissed his WPA claim because his disclosure of the details of the professor's investigation did not fall under any category of protected activity. Wiltse's discrimination claims also failed since he was unable to allege sufficient evidence to give rise to an inference of unlawful discrimination.
Dear Colleague Letter (DCL) released by the Department of Education's Office of Civil Rights outlining the circumstances under which Title IX permits school districts to provide significant assistance to "voluntary youth service organizations" whose membership is limited to students of one sex. The DCL notes that this guidance also applies to postsecondary institutions.
Amicus brief submitted to the National Labor Relations Board (NLRB) by six higher education associations (the American Council on Education (ACE), the Association of American Medical Colleges (AAMC), the Association of American Universities (AAU), the Association of Jesuit Colleges and Universities (AJCU), the College and University Professional Association for Human Resources (CUPA-HR), and the National Association of Independent Colleges and Universities (NAICU) in the case of The New School and Student Employees at The New School – Sens UAW. The brief asserts that a decision in favor of the petitioners "will unsettle fundamental relationships in higher education in the U.S. and adversely impact the ways in which universities address basic issues in graduate student education," in addition to interfering with academic freedom and intruding upon the relationship between professors and their students.
Order by the U.S. Court of Appeals on December 3, 2015 affirming the district court’s order granting summary judgment in favor of defendant. Plaintiff – a former student at The State University of New Jersey (Rutgers) – sued Rutgers alleging violations of his substantive and procedural due process rights following his dismissal from a joint degree program at the Robert Wood Johnson Medical School (RWJMS). After receiving an academic warning for failing three courses and subsequently failing two portions of a clerkship, RWJMS notified the plaintiff that the Academic Standing Committee (ASC) was considering his dismissal. At his dismissal hearing, the plaintiff presented a statement and responded to questions, but the committee ultimately dismissed him due to his persistent academic difficulties and for exceeding the number of failed courses permitted under the Academic Rules and Regulations. In affirming the district court’s decision, the court of appeals held that, even assuming plaintiff had a substantive due process right to continued enrollment in the RWJMS program, “his challenge nonetheless fails because he was dismissed for legitimate academic reasons.” The court further held that the plaintiff received greater procedural due process than is required under the circumstances.
As part of the Higher Education Extension Act of 2015, Congress passed legislation temporarily extending the authority of higher education institutions to make loans to new borrowers under the Federal Perkins Loan Program through September 30, 2016. Institutions will be able to disburse Perkins Loans through March 31, 2018. President Barack Obama signed the bill into law on December 18, 2015.
Notice of a request for additional nominations for the negotiated rulemaking committee on federal student aid was issued by the U.S. Department of Education. The Department announced its intention to establish a negotiated rulemaking committee on October 25, 2015, to prepare proposed regulations for the Federal Student Aid programs authorized under Title IV of the Higher Education Act of 1965 and solicited nominations for individual negotiators. This notice requests additional nominations for negotiators who represent specific stakeholder constituencies, including state higher education officers, two-year public institutions, as well as national, regional, or specialized accrediting agencies, to serve on the committee. Nominations must be received on or before December 28, 2015.
Notice of a request for a new information collection package for the Educational Quality through Innovative Partnerships (EQUIP) project was published by the U.S. Department of Education. The package would provide for a series of questions that are components of the selection process for EQUIP, a new Federal Student Aid experimental site project designed to to improve the Department's understanding of how to increase access to high quality, innovative programs in higher education, which will provide guidance for future policy measures. Interested persons are invited to submit comments on or before January 20, 2016.
Statement issued by the Association of American Universities (AAU) Board of Directors on behalf of AAU's member universities on the importance of student diversity at research universities. The statement reaffirms the Association’s "commitment to achieving a diverse student body through a comprehensive process using race as one of many factors in making individual admissions decisions." It also points to research showing successful outcomes for underrepresented minority students who benefit from admissions policies designed to create diverse student bodies.
Order by the U.S. Court of Appeals for the Ninth Circuit on appellee Edward O'Bannon's petition for rehearing en banc issued on December 16, 2015. O'Bannon filed a class-action suit alleging that the National Collegiate Athletic Association's (NCAA) amateurism rules constituted an unlawful restraint of trade in violation of the Sherman Antitrust Act. A three-judge panel of the Ninth Circuit vacated the district court's judgment and injunction insofar as it required the NCAA to allow its member institutions to pay student-athletes up to $5,000 per year in deferred compensation, but upheld the district court on all other matters. The Ninth Circuit denied appellees' petition for rehearing en banc.
Order by the U.S. District Court Eastern District of Louisiana denying defendant’s motion for summary judgement on December 11, 2015. Plaintiff – a former tenured Associate Professor at the University of New Orleans (UNO) – sued the Board of Supervisors for the University of Louisiana System asserting due process and breach of contract claims. The plaintiff alleged that after moving abroad to teach in Brazil, UNO’s Dean of Business pressured him into resigning from the University. He further alleged that these actions by the Dean breached the contract created between the plaintiff and the University when he was granted tenure and denied him due process. The Court held that the promotion to tenure created a contract and also denied the defendant’s motion for summary judgment because the plaintiff sufficiently demonstrated that disputed material facts existed with respect to his breach of contract and due process claims.
The Consumer Financial Protection Bureau (CFPB) sent letters to 17 colleges and universities warning them that they may have violated the Credit Card Accountability, Responsibility and Disclosure Act (“CARD Act”) by not properly disclosing their credit card agreements with financial institutions. In the letter, the CFPB notes that it has not made any determinations and urges the institutions to reconsider their approach to public disclosure on this issue.
Guidance issued by the U.S. Department of Justice designed to help law enforcement agencies (LEAs) prevent gender bias in responding to incidents of sexual assault and domestic violence. The guidance aims to examine how gender bias undermines LEA response to sexual assault and domestic violence. It also lays out a set of principles that, if implemented, aim to prevent gender bias from undermining efforts to keep victims safe and hold offenders accountable.
Order from the U.S. District Court of Nevada on December 15, 2015, adopting in part the Magistrate Judge’s report. Plaintiff – a former nursing student at the University of Nevada, Reno (UNR) – sued the University after being dismissed from UNR’s Nursing School. The plaintiff filed an objection to the Magistrate Judge’s dismissal of her claims for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, and fraud. The district court agreed with the Magistrate’s report on the claims of fiduciary duty and fraud, noting that the plaintiff failed to establish that any fiduciary relationship existed between the parties and that he had not stated any facts to support a claim for breach. However, the court held that the plaintiff’s claim for breach of the covenant of good faith and fair dealing should proceed because the plaintiff’s complaint sufficiently stated that there was a contractual relationship between him and the University and alleged facts supporting bad faith behavior by the University.
Announcement of the availability of the Revised Pay As You Earn (REPAYE) Plan for eligible Federal Direct Loan (Direct Loan) Program borrowers was issued by Federal Student Aid (FSA). The REPAYE Plan caps a student loan borrower's monthly payment amount at 10% of the borrower’s discretionary income and is available to all Direct Loan borrowers regardless of income or when they took out their loans. Eligible Direct Loan borrowers can be placed on the REPAYE Plan beginning on December 17, 2015.
Order by the U.S. Court of Appeals for the First Circuit issued on November 25, 2015. Chidiebere Nwaubani, the director of the African American Studies Program at the University of Massachusetts at Dartmouth and tenured Associate Professor in the University's History Department, filed suit against University Chancellor Divina Grossman pursuant to 42 U.S.C. Section 1983 for alleged violations of his First and Fourteenth Amendment rights stemming from the University's decision to terminate him. Nwaubani filed his original complaint on in October 2013, then later filed two amended complaints in January 2014 and March 2014 along with a separate motion for preliminary injunction requesting that the district court order the ongoing termination proceedings be halted and that he be reinstated. On June 18, 2014, the University terminated Nwaubani. The district court consolidated Nwaubani's trial over his First and Fourteenth Amendment claims with his separate request for an injunction to end the termination proceedings and reinstate him, then denied Nwaubani's motions to reconsider its order. The First Circuit held that Nwaubani failed to show that the district court's order could effectively be challenged only through immediate appeal because Nwabani had been terminated by the time the district court issued its order, meaning that any damage to his property interest in continued employment at the university had already occurred. It thus dismissed his interlocutory appeal for lack of jurisdiction.
Order granting in part, denying in part, defendant’s motion to dismiss by the U.S. District Court for the Eastern District of Pennsylvania on December 9, 2015. Plaintiff – a former custodial employee of Delaware Community College – injured his knee and was diagnosed with a torn meniscus. The plaintiff informed the College that he was unable to work and submitted notes from his physician excusing him from work. In response, the College placed him on FMLA leave for 12 weeks. At the end of his FMLA leave, the plaintiff needed surgery but failed to inform the College of the change in his status. As a result, the College terminated the plaintiff for not returning at the end of his scheduled leave. The plaintiff then sued the College for FMLA and ADA violations. Citing the plaintiff’s injury, physician’s note, and the College’s lack of communication with the plaintiff after he was on leave, the court held that the complaint alleged sufficient facts to sustain the claims for disability discrimination as well as FMLA interference and retaliation. The court dismissed the plaintiff’s claim for ADA retaliation because he failed to request an accommodation until after he had been terminated by the College.
Order by the U.S. District Court Eastern District of Washington denying the defendant’s motion to dismiss complaint on December 9, 2015. Plaintiff – Dr. Lee Sanning – sued the Board of Trustees of Whitman College asserting multiple claims of discrimination. Plaintiff alleged that the College treated him improperly during an investigation into his relationship with another doctor and treated him differently based on his sex. This differential treatment allegedly led to a process which violated the College’s Grievance Policy and ultimately led to the plaintiff’s termination. The court held that the plaintiff alleged sufficient facts to survive the defendant’s motion to dismiss.
Opinion by Court of Appeal of the State of California Second Appellate District Division Three on February 6, 2015 affirming in part and reversing in part the lower court’s decision. Plaintiff – former University of Southern California (USC) assistant football coach Todd McNair – filed a lawsuit alleging multiple causes of action including defamation and interference with contract against the National Collegiate Athletic Association (NCAA) after the NCAA published the results of its investigation into whether a student-athlete received improper benefits while playing for USC. The NCAA’s published investigation report stated that the plaintiff had knowledge of the NCAA violations and attested falsely concerning his knowledge. The NCAA filed a special motion to strike the plaintiff’s complaint under California’s anti-strategic lawsuits against public participation (anti – SLAPP) statute. The lower court denied the motion and held that the plaintiff had met his burden and demonstrated a probability of prevailing on the merits of his causes of action. The court of appeal reversed part of this decision, ruling that the plaintiff could not meet his burden on his claims for interference with contract and economic advantage because the plaintiff’s contract expired on its own terms and the plaintiff had not shown that there was any existing contract or coaching job prospects the NCAA had knowledge of and interrupted. The court of appeal, however, affirmed the lower court’s holding that the plaintiff demonstrated a probability of prevailing on the merits of his defamation causes of action.
Legislation (H.R. 4223) introduced in the U.S. House of Representatives by Representative Judy Chu (D-CA) entitled the "Protecting Our Students by Terminating Graduate Rates that Add to Debt (POST GRAD) Act." If enacted, the legislation would reinstate the authority of the Secretary of Education to make Federal Direct Stafford Loans to graduate and professional students. The bill was referred to the House Committee on Education and the Workfor ce.
Litigation; Title IX; Faculty & Staff - Discrimination: Waters v. Drake (S.D. Ohio, 2015)
December 16, 2015
Order granting motion to compel documents from Defendant by the U.S. District Court for the Southern District of Ohio Eastern Division on December 8, 2015. Plaintiff – former Director of the Ohio State Marching Band, Jonathan Waters – sued The Ohio State University asserting a Title IX claim and alleging that the University applied different standards and procedures in his termination than it did with similarly situated female employees. During discovery, the University withheld various documents from the plaintiff as protected under the attorney-client privilege. These documents included correspondence between the University Counsel and its public relations firm as well as communications between non-lawyers that copied the University’s counsel. The court held that the communication between the public relations firm and University counsel did not fall under the attorney-client privilege; however, the court also said the University did not have to produce them because they were not relevant to the plaintiff’s claim under Title IX. With respect to the correspondence between non-attorneys, after inspecting the documents in camera, the court held that the “communication cannot be insulated from discovery just by sending a copy of it to a lawyer.” Because the documents did not involve elements of the attorney-client relationship the court found that they were not privileged and ordered their production.
Order reversing and remanding case for dismissal by the U.S. Court of Appeals for the Eighth Circuit on April 13, 2015. Defendants, members of Linn State Technical College (Linn State), appeal this case following the district court’s decision on remand granting plaintiffs – student Michael Barrett and named individuals – a permanent injunction against the use of a mandatory drug-testing policy for students at the college while allowing the policy for certain programs. Linn State is a public institution in Missouri that specializes in offering technical degrees, with an emphasis on technical and vocational programs that are not traditionally offered at vocational schools. After instituting a school-wide a drug-testing policy for students with the purpose of providing a, “safe, healthy and productive environment for everyone who learns and works” at the College, plaintiffs sued the university alleging that the drug-testing policy violated the Fourth Amendment. On appeal, the court weighed the Fourth Amendment concerns of a suspicionless drug testing program and concluded that given the unique nature of the Linn State’s educational mission, which was preparing students for a workplace with technologies and equipment that by their nature create numerous risks, the drug-testing program was a reasonable and effective means of addressing the institution’s interest in providing a safe learning environment. The court determined that this was sufficient to permit a school-wide policy, reversing the district court’s permanent injunction restricting the policy to only to certain programs.
Order by the U.S. District Court for the Southern District of Illinois on cross motions for summary judgment granting defendant’s motion and denying plaintiff’s motion on December 9, 2015. Plaintiff – a former student at Southern Illinois University – filed suit against Defendant Southern Illinois University and several individual employees in their official capacities alleging that in expelling him, the University and the individual defendants violated his due process property interest and liberty interest. The University suspended the plaintiff on an interim basis after the police charged him with attempted murder and other crimes related to a fight at an off-campus location. Following a full disciplinary hearing, the University expelled the plaintiff for Student Conduct Code violations. The court granted the defendants’ motion for summary judgment after finding that the plaintiff was not entitled to any property interest under law as a student in secondary education and that the University’s disciplinary process and decision- making did not meet the constitutional standard of “shock the conscience.”
Order issued by the U.S. District Court for the Central District of California on December 14, 2015 denying defendant Pepperdine University's motion to dismiss. Haley Videckis and Layana White, two former college basketball players at Pepperdine, claimed that they were harassed and discriminated against by their coach and other University officials on the basis of their perceived sexual orientation. The Court held that the plaintiffs stated an actionable Title IX claim under the theory of sexual orientation discrimination, concluding that "sexual orientation discrimination is not a category distinct from sex or gender discrimination" and that such a distinction "is illusory and artificial." It added that even if Title IX does not cover sexual orientation discrimination, the actions alleged plausibly constitute prohibited gender stereotype discrimination under the gender nonconformity theory. Finally, the Court held that the plaintiffs had stated a straightforward claim of sex discrimination under Title IX, in line with a recent Employment Opportunity Commission (EEOC) decision holding that sexual orientation discrimination is covered under Title VII and will be treated the same as other sex discrimination claims under Title VII. "If Plaintiffs had been males dating females, instead of females dating females," the Court stated, "they would not have been subjected to the alleged different treatment." It thus denied Pepperdine's motion to dismiss the plaintiffs' Title IX claims.
Comment signed by the Association of American Universities (AAU), the Association of Public Land-grant Universities (APLU), the Association of University Technology Managers (AUTM), and the Council on Governmental Relations (COGR) on recently proposed changes to the open licensing requirement for direct grant programs. The Department of Education's proposal would require recipients of Department grants to license all copyrightable intellectual property to the public. The organizations express concern that the changes would limit the ability of higher education institutions to transfer educational technologies to the private sector, would frustrate the government’s commercialization initiative, and would jeopardize the quality of any derivatives of the educational tools developed with Department funding. They also question the Department's legal authority to issue the open licensing requirement in the first place.
Notice issued by the Department of Education announcing its semiannual agenda of federal regulatory and deregulatory actions. Pursuant to federal regulations, the Secretary of Education is required to publish a semiannual agenda of federal regulatory and deregulatory actions to encourage more effective public participation in the regulatory process.
Joint report released by Student Affairs Administrators in Higher Education (NASPA) and the Education Commission of the States (ECS) containing in-depth analyses of state legislation designed to address campus sexual misconduct. The report identifies four primary policy themes embedded in the twenty-two actions that state have undertaken during the 2013-2015 legislative sessions. It also presents key issues for higher education and political leaders across the states to consider as they continue to deliberate the merits of proposed policy actions on the subject.
Order by the U.S. District Court for the Northern District of California on defendant Regents of the University of California's motion to dismiss for failure to state a claim issued on December 11, 2015. Plaintiffs Sofie Karasek, Nicoletta Commins, and Aryle Butler claimed that the University responded with deliberate indifference when they reported their alleged sexual assaults to University officials. Plaintiff Butler alleged that she reported repeated sexual assaults by a researcher and frequent guest lecturer affiliated with the University's research center, but that University officials failed to undertake an investigation or otherwise respond. She was forced to drop several classes in fear of encountering the guest lecturer. A reasonable jury, the Court held, could conclude that the potential for further encounters between Butler and her attacker could create an environment sufficiently hostile to deprive her of access to educational opportunities provided by the University, and therefore that Butler's Title IX cause of action could proceed. Plaintiff Karasek claimed that the University was deliberately indifferent in its response to her report that she was sexually assaulted by another student but did not include details to establish the purportedly insufficient length of time taken by the University to respond to her complaint. Plaintiff Commins alleged that the University did not respond to her complaint of sexual assault by a fellow student on a club trip for over eight months and did not discipline the student beyond probation despite having found him responsible. However, she did not allege that the University's failure to discipline the student rendered her vulnerabile to further harassment. The Court granted the University's motion to dismsiss pursuant to the latter two plaintiffs' claims, leaving them sixty days to amend their complaint.
Order by District Court of Northern California granting plaintiffs’ joint motion for class certification on December 4, 2015. Plaintiffs — student athletes who played Division I football and men’s and women’s basketball — sought class certification in two separate suits against the National Collegiate Athletic Association (NCAA). Plaintiffs’ suits challenged the restrictions set by the NCAA on the amount student-athletes may be compensated. The Plaintiffs alleged that the NCAA’s cap on the grant-in-aid (GIA) that students may receive is in violation of federal antitrust law and sought injunctive relief. As an initial matter, Defendants argued that the case was moot because the plaintiffs were no longer eligible to participate in NCAA sports. The court, noting that, “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion before the proposed representative’s individual interest expires,” applied the “inherently transitory” exception to mootness and rejected defendants’ argument. Defendants also argued that the plaintiffs not meet the adequacy requirement for class certification because there were members of the class who had an interest in the maintenance of the current GIA structure due to the “substitution effect” and the “economics of superstars.” The court disagreed, finding that defendant’s theories relied on speculation and lacked sufficient support to show an intra-class conflict. After reviewing the remaining procedural requirements, the court granted the plaintiffs’ motion for class certification and certified three separate classes.
Decision by the 11th Circuit Court of Appeals on December 7, 2015 affirming the district court’s order grant of Defendant’s motion to dismiss. Plaintiff – a former employee of Emory University and Georgia Regents University – filed suit against the Board of Regents of the University System of Georgia, Emory University, and Georgia Regents University. Plaintiff alleged that defendants retaliated against her for voicing her concerns about the legality of clinical trials she was working on while at Georgia Regents University. Georgia Regents fired the plaintiff in 2004 shortly after voicing concerns that some of the clinical trials violated state and federal law. In 2005, Emory University also fired the plaintiff for allegedly making a racist remark to a colleague. The plaintiff alleged that the defendants conspired to “attack” her as a result of her continued complaints related to the clinical trials at Georgia Regents University. The trial court dismissed the plaintiff’s retaliation claims under the Georgia Whistleblower Act (GWA) and the federal False Claims Act (FCA) as being time-barred. The plaintiff’s ¬¬§ 1983 claim for a First Amendment retaliation claim was also dismissed because the plaintiff failed to establish a nexus between the alleged “attacks” and her speech. The Circuit Court affirmed and also dismissed the § 1985(3) claim (which the trial court did not discuss in its opinion), explaining that the plaintiff’s alleged “class of whistleblowers” is not the type of class protected under § 1985(3).
Judgment by the Court of Appeals of the State of Mississippi on December 8, 2015 affirming the trial court’s decision to grant the Defendant’s motion for summary judgment. Plaintiff – a former student at the College of Osteopathic Medicine (COM) at William Carey University – filed a suit alleging breach of contract after being dismissed by the University. On numerous occasions during his time at the University, COM staff warned the plaintiff about his behavior and ultimately placed him on probation after he attempted to enter a surgical room without permission. He later violated the terms of his probation and the university dismissed him from the COM and denied his appeal of the dismissal. At the trial court level, the court granted the defendant’s motion for summary judgment. The court of appeals affirmed, holding that the plaintiff failed to show any disputed material facts related to the disciplinary actions. Further, the court of appeals held that the university’s decision was not arbitrary and capricious even though it deviated slightly from the procedures in the student handbook.
Compliance report by the Accreditation and State Liaison division of the U.S. Department of Education on the Accrediting Commission For Community and Junior Colleges (ACCJC), an accrediting agency that oversees the accreditation of California community colleges. The report's authors recommended that the Department extend the ACCJC's recognition to allow the accreditor to submit a compliance report within the next twelve months. However, they also recommended that the Department revoke ACCJC's existing federal authority to approve certain four-year degree programs at the state's community colleges and to deny its request for broader authority to approve bachelor’s degree programs.
Memorandum and Order by the Commonwealth of Massachusetts Appeals Court affirming lower court’s decision to dismiss plaintiff’s complaint on December 2, 2015. Plaintiff – an employee of the University of Massachusetts at Amherst – was excluded from teaching at the University’s graduate level after making comments to a colleague that questioned a student’s academic credentials and demonstrated prejudice against individuals from the People’s Republic of China. The University’s decision to revoke the professor’s teaching privileges was based on his statements being “inconsistent with the fundamental values of this University expressed in its non- discrimination policy.” Plaintiff filed suit alleging that the University violated his right to free speech under the Massachusetts Declarations of Rights and the Massachusetts Civil Rights Statute. The lower court dismissed the complaint, stating that the plaintiff’s speech was not protected by either the Declaration of Rights or the First Amendment because the statement was not made in a setting which would tend to concern the community and, further, was not made in his capacity as a citizen. On appeal, the plaintiff waived his state civil rights claim, pursuing only the free speech claim and arguing that that the Massachusetts Declaration of Rights afforded more protection for his speech than the First Amendment. The University contended that the plaintiff’s waiver of the state civil rights claim entitled the University to dismissal for lack of subject matter jurisdiction on the grounds of sovereign immunity. The court agreed, noting that the Declaration of Rights did not create an independent cause of action.
Order by the Appellate Court of Illinois First Judicial District Third division affirming the trial court’s decision to dismiss the plaintiff’s complaint on December 2, 2015. Plaintiff was Director of Financial Aid at the University of Chicago’s Pritzker School of Medicine. The University terminated the plaintiff from her position following an evaluation from her supervisor which cited numerous deficiencies in her work product as well as mistakes made by the plaintiff that “negatively impacted [the university’s] reputation” and the supervisor’s later recommendation of termination. Upon being terminated, plaintiff brought suit for defamation (which was time-barred at the time of filing) and tortious interference. The lower court dismissed the tortious interference claim with prejudice because the plaintiff could not plead the elements of the claim she asserted. The appellate court agreed with the lower court, noting that the plaintiff’s failure to allege with specificity that her supervisor’s actions were taken “without justification or maliciously” was fatal to her claim.
Memorandum decision by the Arizona Court of Appeals Division Two on lower court’s decision, affirming in part and vacating and remanding in part. Plaintiff – the Energy and Environmental Legal Institute – brought suit against the Arizona Board of Regents, among others, seeking disclosure of certain e-mails from two University of Arizona professors. After providing the plaintiffs with a portion of the emails they requested, the Board withheld certain emails, “to protect either the confidentiality of information, privacy of persons, or a concern about disclosure detrimental to the best interests of the state.” Pursuant to Arizona law, the plaintiff filed a special action, requesting that the lower court compel the Board to release the emails. The lower court denied the plaintiffs request, holding that upon review the Board did not abuse its discretion or act arbitrarily or capriciously in withholding the records. On appeal, the Arizona court of appeals determined that the lower court used the incorrect standard in arriving at its decision to deny the disclosure of the records. The court’s role is to determine whether a denial of the request for records was the correct decision and whether the records must be produced. As such, the review must be de novo. The appeals court vacated and remanded that portion of the decision for further proceedings under the de novo standard.
Memorandum opinion and order by the U.S. District Court for the District of Columbia granting in part and denying in part Defendant’s motion to dismiss on November 24, 2015. Plaintiff, Seabern Hill, worked in various capacities for the University of the District of Columbia (UDC) for 38 years. In 2010, plaintiff was demoted to a less significant position within a different department. Two years later, the plaintiff discovered that student interns within his office were allowed to access student records, which was a violation of DC privacy laws. After reporting this matter to his superior and being ignored, the plaintiff informed an outside official within the government. Shortly thereafter, the plaintiff was terminated from his job. After obtaining a Right to Sue letter from the EEOC, the plaintiff brought this suit against UDC alleging age and gender discrimination as well as a claim under § 1983 for retaliation against his exercise of free speech. Defendants moved to dismiss the complaint. The court dismissed the plaintiff’s gender discrimination claim because the plaintiff failed to file a charge based on gender discrimination to the EEOC and, thus, had failed to exhaust his administrative remedies. The court, however, denied the defendant’s motion to dismiss the age discrimination and § 1983 claims. Noting the Circuit’s liberal pleading requirements for employment discrimination, the court held that the plaintiff had pled sufficient facts to give rise to a claim of age discrimination. With respect to the § 1983 claim, the court held that under a Garcetti and Pickering analysis of the plaintiff’s speech, the facts alleged were sufficient to survive the motion to dismiss stage.
Letter from the Association of Public and Land-grant Universities (APLU), American Council on Education (ACE), and Association of American Universities (AAU) to U.S. Secretary of Education Arne Duncan on differential accreditation. In their letter, the organizations express support for differential accreditation, which would allow the U.S. Department of Education to apply varying levels of scrutiny to different institutions. They add that, according to independent legal analysis, the Department has the authority to implement differential accreditation unilaterally.
Memorandum Opinion and Order by the U.S. District Court for the Northern District of Illinois Eastern Division granting in part and denying in part Defendant’s motion for judgment on the pleadings on November 30, 2015. Plaintiff, Ayesha Khan, was enrolled in Midwestern University’s medical program. After becoming pregnant she suffered from a variety of related medical conditions and asked for accommodations. Soon after informing her professor of her pregnancy and its complications, the plaintiff asked to postpone her final exam when she arrived late and was experiencing anxiety, nausea and light-headedness as a result of her pregnancy. Her request was denied and she subsequently failed the course and was dismissed from the program. Khan filed suit against the University claiming racial discrimination under Title VI and disability discrimination under Section 504 of the Rehabilitation Act for failure to provide reasonable accommodations during her pregnancy. The University filed a motion for a judgment on the pleadings. Citing the conclusory nature of Khan’s allegations, the court dismissed plaintiff’s Title VI claim alleging that the University acted discriminatorily when refusing to provide her with reasonable accommodations because she was of “American of Indian descent.” In response to the Section 504 claim, the University argued that the Khan did not have a ‘’disability’’ as defined by the statute because her condition was temporary and that she not plead facts sufficient to show that any limitation she suffered was substantial. The court rejected the University’s position noting that the relevant regulations stated that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.” Finding that the plaintiff had sufficiently pled that her limitations were substantial, the court placed heavy emphasis on the documentation she provided to the University from her physician in support of her allegations.
Opinion and order in the United States District Court Southern District of Ohio Eastern Division granting defendant’s motion to dismiss on November 17, 2015. Plaintiff, Michael Marshall, a student at Ohio University, sued the University and two employees after being suspended for a semester following a disciplinary hearing and finding of sexual harassment. Marshall alleged that the University and its employees violated Title IX, as well as his substantive and procedural due process rights pursuant to § 1983. Using the Yusaf framework, the court analyzed plaintiff’s claim of Title IX gender bias in the disciplinary proceeding under two standards: erroneous outcome and selective enforcement. The court ruled that Marshall’s claim under erroneous outcome must fail citing, among other things, that Marshall did not allege facts sufficient to cast doubt on the accuracy of the hearing and that there was no doubt cast as to whether he violated the University’s conduct policy. The court also rejected the selective enforcement claim because Marshall failed to allege either facts demonstrating the University targeted male violators but not female violators or that the penalty imposed was due to his gender. The court also declined to broaden two other Title IX standards — archaic assumption and deliberate indifference —to Title IX claims related to gender discrimination in disciplinary proceedings. In addition, the court dismissed the § 1983 claims. The court rejected Marshall’s substantive due process claim, pointing out that his right to continue his education was not a fundamental right, and therefore, was not subject to strict scrutiny. It further held that a semester long suspension did not shock the conscience. On the issue of procedural due process, Marshall failed to allege any facts that if true would establish that he was deprived of fairness in the proceedings. Lastly, the court determined that the individual defendants were entitled to immunity in their capacity as actors of the state.
Decision by the Court of Appeals of North Carolina affirming trial court’s dismissal of plaintiff’s complaint on November 17, 2015. North Carolina Central University terminated its head football coach following his multiple arrests and legal issues, and the coach (plaintiff) then sued the University for breach of contract. The University moved to dismiss the complaint arguing that the plaintiff had failed to exhaust his administrative remedies under North Carolina’s Administrative Procedure Act (APA) by choosing not to pursue judicial review of the University’s decision. The trial court agreed with the University’s position and granted the motion to dismiss. On appeal, the court rejected the plaintiff’s argument that the APA was inapplicable, noting that the plaintiff’s contract did not explicitly state that the APA did not apply. It also rejected plaintiff’s claim that the prescribed administrative remedies were not adequate since they could not provide for the damages he was seeking. The court agreed with the lower court that the complaint failed to adequately allege this claim.
Opinion and Order granting Defendant’s Renewed and Revised Motion for Summary Judgment on November 28, 2015. In 2011, the plaintiff, a professor at the University of Illinois at Springfield of Iranian heritage, made an offhand reference to machine guns. After an investigation of the remarks, the University decided to serve the plaintiff with a notice of trespass and to not bestow the status of Professor Emeritus to the plaintiff despite having previously informed the plaintiff that it planned to do so. In January 2013, the plaintiff signed a charge of discrimination and was issued a Right to Sue letter by the EEOC that same month. The plaintiff subsequently filed a complaint in the district court alleging that defendant’s adverse employment actions were discriminatory on the basis of race and national origin and in violation of Title VII. The University argued that the plaintiff’s Title VII claim was time-barred because he filed his charge with the EEOC in 2013 – beyond the statutory limit of 300 days from the alleged adverse employment act, which occurred in 2011. Plaintiff claimed that his filing was timely since the actions of the defendant were continuing violations; each day he was being denied the benefits associated with being a Professor Emeritus he was suffering from an adverse employment act by the University. The court rejected plaintiff’s argument, conceding that the exact date the school made the decision to deny granting him emeritus would be difficult to identify. However, it was clear that the latest that the decision had been made was when the plaintiff retired in 2011 and was not granted emeritus status. It was from that moment when the 300 day limit to file a charge with the EEOC began to run, making his current suit time barred. The court also determined that the plaintiff did not provide evidence permitting a claim of equitable tolling.
Practice of Higher Education Law - Freedom of Information & Public Record Laws: Lieberman v. Aronow
December 7, 2015
Opinion by the Connecticut Supreme Court affirming the judgment of the trial court dismissing plaintiff Jay Lieberman’s appeal from the decision of the Connecticut Freedom of Information Commission issued on December 8, 2015. Defendant Michael Aronow sought the release of reports relating to the resolution of a formal grievance alleging misconduct against a University of Connecticut Health Center faculty member under the Connecticut's Freedom of Information Act. The Commission concluded that the reports did not constitute a ‘‘record of the performance and evaluation’’ within the meaning of the Act's disclosure exemption for such records and, therefore, that the University Health Center was required to disclose the reports. Plaintiff Lieberman's appeal was subsequently dismissed by the trial court. The Connecticut Supreme Court refused to establish a "bright line test" that would exempt records containing any form of performance evaluation from public disclosure, reasoning that adopting this sort of rule "would make the exception so broad that it would threaten to swallow the general rule of disclosure under the act, as it applies to university faculty and professional staff members.” It thus affirmed the trial court's dismissal, holding that the reports did not fall within the exemption from disclosure contained in the Act.
Second report of the Special Master to the U.S Department of Education regarding student loan borrower defense issues. The report covers the Department's progress in granting defense and relief to student loan debtors who attended closed institutions, details on such claims that are currently under review, the standards under which relief has been granted to these borrowers, and the development of additional rules under which further relief may be granted.
Memorandum opinion and order by the U.S. District Court for the District of Minnesota granting the defendants' motion to dismiss on October 20, 2015. Rodney Raymond, a student at the University of Minnesota, was fired from his job at the University after an investigation found that just cause existed to discipline him for violations of University policy. Raymond filed suit against the University and its Board of Regents, both individually and in their official capacities, based on alleged due process violations during the investigation and subsequent hearing. The Court dismissed Raymond's Section 1983 claims against the University as well as those against the Board of Regents, insofar as they sought damages, after finding that they were entitled to immunity under the Eleventh Amendment. However, the Court held that Raymond's claims against the Regents in their official capacities for prospective injunctive relief were not similarly barred and that Raymond successfully alleged conduct that would provide a basis for injunctive relief. Yet because Raymond was afforded notice, an explanation of the employer's evidence, an opportunity to present his side of the story, and an opportunity for review, the Court held that both the pre- and post-termination processes were adequate to survive due process challenges and that Raymond failed to meet exhaustion requirements. It thus dismissed his remaining claims.
Opinion and order by the U.S. District Court for the Southern District of New York granting defendants' motion to dismiss on November 2, 2015. Plaintiff Ayshea Dunn, an employee of the City College University of New York (CCNY), filed suit against CCNY's human resources personnel and her supervisor, alleging retaliation under the Fair Labor Standards Act (FLSA). Dunn claimed that, after she complained orally about unpaid compensation for overtime work hours to her her supervisor and human resources personnel, defendants retaliated against her. On remand, the district court held that these oral complaints were not sufficient to put the defendants on notice that she was asserting a violation of her rights under the FLSA, and thus they did not amount to “protected activity” as required to support an FLSA retaliation claim.
Gender Discrimination: Knapp v. Ruser
December 2, 2015
Memorandum and order from the U.S. District Court for the District of Nebraska granting the defendants' motion for summary judgment on November 10, 2015. Plaintiff Patricia Knapp, a female instructor at the University of Nebraska, filed a gender pay discrimination suit against the University Board of Regents and the Director of the clinical program at the University’s law school, alleging that her male colleagues were hired for better-paying positions than she was. The Court ruled, however, that Knapp failed to identify any similarly situated male instructors who were treated differently than her. While she was hired for a non-tenure-track position, the male comparators she identified were hired for tenure-track positions that required academic research and community service that were not requirements for the instructor’s position. Thus, she could not establish a prima facie inference of discrimination under Title VII or the Equal Pay Act.
Letter sent to the U.S. Department of Education Office for Civil Rights (OCR) from the Foundation for Individual Rights in Education (FIRE) regarding affirmative consent, or "yes means yes" standards. The letter urges OCR to ask that colleges and universities to avoid using affirmative consent standards, which require participants in sexual activity obtain "unambiguous and demonstrable" consent throughout a sexual encounter, in their sexual misconduct policies. FIRE argues that such standards violate the due process rights of students accused of sexual misconduct by failing to give students proper notice of what is required of them and impermissibly placing the burden of proof on the accused.
Notice published in the Federal Register by the U.S. Department of Education extending the comment period on the amendment of the uniform administrative requirements, cost principles, and audit requirements for Federal awards. On November 3, 2015, the Department published a notice of proposed rulemaking (NPRM) amending these requirements and principles in order to require that all Department grantees awarded direct competitive grant funds openly license to the public all copyrightable intellectual property created with Department grant funds. That NPRM established a comment period beginning on November 3, 2015, and closing on December 3, 2015. The Department is extending the public comment period for fifteen days so that it will now close on December 18, 2015.
Final regulation published by the U.S. Department of Education providing additional information about the final regulations issued on October 29, 2010 regarding program integrity improvement measures involving recruitment-based compensation. The original regulations implementing the statutory ban on enrollment-based compensation to recruiters of students (20 U.S.C. 1094(a)(20)) do not contain a ban on graduation-based or completion-based compensation, yet the Department issued final regulations banning compensation to an educational institution's recruiters of students based on the students' graduation from or completion of educational programs offered by the institution. After reconsidering its interpretation in light of the decision in Association of Private Sector Colleges & Universities v. Duncan, 681 F.3d 427 (D.C. Cir. 2012) and the district court's 2014 decision on remand, the Department has now decided that it will not interpret the regulations to forbid compensation for recruiters that is based upon students' graduation from or completion of educational programs.
Report issued by the Congressional Research Service (CRS) entitled, "Cybersecurity: Legislation, Hearings, and Executive Branch Documents." The report summarizes congressional hearings, federal legislation, and executive branch policies designed to address cybersecurity vulnerabilities since April 2011.
Order denying defendant’s motion to dismiss by the U.S. District Court of the Eastern District of Louisiana on November 14, 2015. Plaintiffs – two former employees for Southeastern Louisiana University – asserted various employment discrimination claims against the University for sexual and racial harassment, wrongful termination and retaliation including a 42 U.S.C. § 1985(3) claim for conspiracy to create a hostile work environment. Defendants motion to dismiss argued that the § 1985(3) claims were time barred because the plaintiffs brought the action after the applicable one-year statute of limitations. As an initial mater, the court concluded that the plaintiffs alleged sufficient facts to invoke §§ 1981 and 1983 claims even though they did not specifically reference those statutes in the complaint. Thus, the primary issue before the court was the length of the statute of limitations for the underlying § 1981 claim and whether that statute of limitations extended to the §1983 and §1985(3) claims. It concluded that a four year statute of limitations applied to the underlying § 1981 claim based on Congress’s passage of a “catchall” four-year statute of limitations in 1990 for actions arising under post-1990 statutes, and the 1991 amendment to § 1981 to permit claims of racially hostile work environment. The court further reasoned that this statute of limitations applied to the § 1983 and § 1985(3) claims, rejecting defendants arguments that the state law statute of limitations applied.
Memorandum opinion in the United States District Court for the Eastern District of Pennsylvania granting summary judgment in favor of defendant on November 16, 2015. Ms. Davis – a former supervisor at Temple University Hospital – suffered from a variety of medical conditions and as a result took medical leave from her job over seventeen times from 2005 – 2013. Following a patient complaint, the university suspended Ms. Davis and transferred her to a new department. Subsequently, the university terminated Ms. Davis for theft when she removed a cot from her old office. Although Ms. David maintained that the cot was not university property, she did not tell anyone this until her unemployment hearing. Ms. Davis sued for the university for ADA, and Pennsylvania Human Rights Act violations and for interfering with her FMLA rights and retaliation. The court granted summary judgment in favor of the university on all claims. Focusing largely on the fact that Ms. Davis did not tell anyone the cot was not university property until well after her termination, the court held that there was insufficient evidence to permit a jury to reasonably find for Ms. Davis on any of her claims.
Letter to the U.S. Department of Education signed by fifty-eight members of Congress on the potential issuance of guidance on the reimbursement of federal capital contributions to the Federal Perkins Loan Program, which expired on September 30. The letter asks the Secretary of Education to refrain from issuing guidance to institutions on the reimbursement of their federal capital contributions because, as the letter claims, existing departmental guidance "is sufficient for schools and further actions may undermine the future viability of this critical program."
Comment letter from twelve higher education associations to the Department of Homeland Security (DHS) regarding its proposed rule for the STEM Optional Practical Training (OPT) program. The letter commends the Department for taking steps to finalize the rule before the deadline imposed by Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, which vacated the current OPT rule. It also expresses support for the Immigration and Customs Enforcement’s efforts to "mitigate court-created uncertainty" and to make improvements to the program.
Motion to dismiss amended complaint by defendants, granted in part, denied in part by the U.S. District Court for the District of Colorado on November 5th, 2015. The University of Colorado excluded Plaintiff – a current professor– from campus for 12 weeks and required him to undergo a risk assessment after a series of reported threats and disruptive behavior. Plaintiff alleged that he was humiliated by the exclusion, which was reported in a local newspaper, and sued the University of Colorado and two University employees for retaliation and discrimination under the Rehabilitation Act. The court dismissed the claims with prejudice citing the plaintiff’s failure to show a causal connection. Additional claims against the defendant employees were also dismissed with prejudice and the court declined to exercise supplemental jurisdiction over the remaining state law claims of defamation and intentional infliction of emotional distress.
Decision and order on November 10th, 2015, by the U.S. District Court, Northern District of New York granting defendant’s motion to dismiss certain claims in an employment discrimination action. Plaintiff – a former manager at Broome Community College (BCC) who was terminated in January 2013 – alleged that defendants BCC, the Board of Trustees, and the President discriminated against him under Title VII, ADA, ADEA, New York Human Rights Law, and the Rehabilitation Act, among other claims. Defendants moved to dismiss all claims made against President and Board of Trustees in their individual and official capacity, arguing the claims were redundant in light of the plaintiff’s suit against the defendant BCC. Moreover, Defendants argued that claims under Title VII, ADA, ADEA, and the Rehabilitation Act did not give rise to individual liability. The motion also sought to dismiss the Plaintiff’s ADA claim in total for failure to allege sufficient facts. The court agreed and granted the dismissal on the claims included in the defendant’s motion. The remaining claims against defendant BCC under Title VII, the Rehabilitation Act, ADEA and 42 U.S.C. § 1983 claims were not included in the motion to dismiss and consequently survived the court’s order.
Order by U.S. District Court, Southern District of Texas, granting in part, denying in part defendant’s motion to dismiss on November 10th, 2015. Plaintiff – a former videographer for Prairie View A&M University – brought suit against the University as well as its Athletic Director, Ashley Robinson, in both his individual and official capacity. Plaintiff asserted that while under the employment of the University, Robinson required the plaintiff to work 70-80 hours a week and would not compensate him for overtime worked. Citing the University’s policy of complying with the FLSA, plaintiff sued seeking damages for failure to pay minimum wage, failure to pay overtime, breach of contract and failure to keep adequate records. The court, noting that both the University and Robinson (in his official capacity) were entitled to sovereign immunity, dismissed all claims against the defendants on that basis. However, the court refused to dismiss the FLSA violation claims against Robinson in his individual capacity.
Order by the U.S. District Court for the District of Arizona granting defendant’s motion to dismiss on November 10th, 2015. Plaintiff – a student at the Arizona State University – sought a temporary restraining order and preliminary injunction alleging that the disciplinary proceedings that resulted in his suspension from the university were unconstitutional. In granting the motion to dismiss, the court applied the “Younger abstention,” which determines when federal courts must refrain from exercising jurisdiction based on the “strong federal policy against federal-court interference with pending state judicial proceedings.” Because the university’s disciplinary system constituted an “ongoing state judicial proceeding,” implicated important state interests, and provided sufficient opportunity for Plaintiff to raise constitutional challenges, the court held that Younger applied and precluded the court from exercising jurisdiction.
Contract Administration: Langenkamp v. Olson
November 19, 2015
Summary order issued by the U.S. Court of Appeals for the Second Circuit on October 15, 2015. Plaintiff Lucinda Langenkamp, who had been hired as a non-tenured clinical instructor for a twelve-month-per-year position at New York University (NYU), was terminated after two months of employment. She filed suit against her former employer for alleged breach of contract, arguing that the NYU Faculty Handbook granted her the right to a disciplinary hearing before termination and the right to appeal an adverse decision to the chancellor. The lower court dismissed her claim on the grounds that she was an at-will employee and that she had no entitlement to the protections of the Handbook. While the Second Circuit agreed that Langenkamp’s termination, standing alone, did not breach the parties’ employment contract, it held that her complaint plausibly alleged a breach of contractual protections in the Handbook because NYU’s offer of employment confirmed that the provisions of the Handbook were contractual and because Langenkamp detrimentally relied on the protections of the Handbook by relocating to New York and signing a twelve-month lease in anticipation of employment for the entire duration stated in the contract. Accordingly, the Court remanded the case back to the trial court to determine whether the plaintiff had been denied the rights stated in the Handbook.
Order and opinion by the U.S. Court of Appeals for the Eleventh Circuit issued on October 29, 2015. The case arose after five psychologists of the Georgia State University (GSU) Counseling Center submitted a written memorandum to the Counseling Center’s director and the director’s supervisor criticizing the director’s leadership and management, which they claimed “created an unstable work environment” and prevented the staff from being effective in their work. Soon afterward, the director laid off all of the staff psychologists and outsourced their services for purported budgetary reasons. The five psychologists who had signed the memo filed suit, alleging that they were fired in retaliation for complaining about the program’s leadership and that their speech--as citizen speech on a matter of public concern--was protected by the First Amendment. The University responded by asserting that the speech was not protected by the First Amendment because it related to “ordinary job duties” and was an internal complaint about the Center’s director. In upholding the district court's grant of summary judgment to the University, the Eleventh Circuit held that while the memo made some “vague and sweeping references” to matters of public concern, the majority of it discussed the employees’ personal grievances and frustrations with their supervisor. As such, it was not protected First Amendment speech.
Race Discrimination; Sex Discrimination; Retaliation: Chen v. City University of New York
November 19, 2015
Plaintiff Ya-Chen Chen, a Taiwanese woman and former assistant professor of Asian Studies in the Department of Foreign Languages and Literatures at the City University of New York (CUNY), brought suit against her former employer and four of its employees for allegedly discriminating against her on the basis of her gender, race, and national origin in violation of Title VII and the New York Human Rights Act, and for allegedly retaliating against her for a complaint that she filed against those employees, by failing to renew her year-to-year employment contract. The district court granted summary judgment to CUNY and its employees on all claims after finding that Chen produced no evidence that the University’s stated reason for not renewing her contract—her abrasive treatment of a student and other incidents leading to complaints by professors regarding her “over-aggressiveness and lack of tact”—was a pretext for discrimination. The Second Circuit affirmed, holding that, based on the evidence presented, no reasonable jury could find that either CUNY’s or the employees' actions were motivated by a desire to discriminate or retaliate against Chen.
Legislation (S. 2272) introduced in the U.S. Senate by Senators Dick Durbin (D-IL), Jack Reed (D-RI), Elizabeth Warren (D-MA), and Richard Blumenthal (D-CT) entitled, "Protecting Our Students and Taxpayers (POST) Act of 2015." Currently, the federal 90/10 rule bars for-profit colleges and universities from deriving more than 90 percent of their revenue from the U.S. Department of Education’s federal student aid programs. The Act would re-instate the original ratio of 85/15 and change the definition of what counts as federal revenue so that it includes all federal funds. It would also increase penalties for noncompliance and would allow only actual student payments to be counted as revenue for the purposes of the rule.
Athletics; Disability Discrimination: Class v. Towson University
November 16, 2015
Opinion by the U.S. Court of Appeals for the Fourth Circuit issued on November 13, 2015. Gavin Class, a Towson University student and Division I football player, collapsed with exertional heatstroke during practice. After his recovery, Class returned to classes at Towson University and attempted to return to the football team. Applying its “Return-to-Play Policy,” however, Towson University refused to clear Class to play because the Team Physician concluded that allowing Class to participate presented an unacceptable risk of serious reinjury or death. Class filed suit against Towson, alleging that its decision to exclude him from the football program amounted to a violation of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. The district court agreed with Class, concluding that Class’ proposed accommodations were reasonable and that that the University had violated the ADA and the Rehabilitation Act by refusing to allow him to play. It entered judgment against Towson University and issued a permanent injunction prohibiting the University from preventing Class from participating in the football program. The Fourth Circuit reversed. "While we recognize that the question of whether Class had a disability, as defined by the Acts, is a close one," the Court stated, "we nonetheless conclude that Class was not 'otherwise qualified' to participate fully in Towson University’s football program because the University reasonably applied its Return-to-Play Policy." In giving due deference to the University's judgment on Class' ability to participate in the football program, the Fourth Circuit upheld the University's decision and vacated the district court's injunction.
Revised version of Form 1098-T was released by the Internal Revenue Service (IRS). The revised form implements a recent statutory change that allows colleges and universities to certify that they have met the regulatory requirements for soliciting student taxpayer identification numbers (TINs) at least once during the year. The IRS has added a check box for filers to certify that they have complied with these solicitation requirements, instructing filers that if they are not able to obtain the student's taxpayer identifying number through the use of Form W-9S, Request for Student's or Borrower's Taxpayer Identification Number and Certification, or other substitute form, to check the box.
Settlement agreement between the University of Illinois and Steven Salaita was approved by the University Board of Trustees. Salaita filed two lawsuits against the University after it revoked his tenured-job offer at the Urbana-Champaign campus. As part of the settlement, the University has agreed to pay Salaita $600,000 in addition to $275,000 in legal fees, and Salaita will drop his pending legal claims against the University. The agreement also stipulates that Salaita "neither seek nor accept employment at the university now or in the future.” The University released a written statement announcing that it "believes that reaching a settlement with Dr. Salaita is the most reasonable option to fully and finally conclude all of the pending issues."
Joint statement issued by four higher education groups (American Association of University Professors, the American Federation of Teachers, the Association of American Colleges and Universities, and the Association of Governing Boards of Universities and Colleges) criticizing state "campus carry" laws that permit people to carry concealed weapons on campus. The statement asserts that colleges and universities consider the presence of concealed firearms on campus as incompatible with their educational missions. "College campuses are marketplaces of ideas," it states, "and a rigorous academic exchange of ideas may be chilled by the presence of weapons."
Notice of request for comments issued by the U.S. Department of Education on the Recent Graduates Employment and Earnings Survey (RGEES) Standards and Survey Form. The RGEES form was developed by the National Center for Education Statistics (NCES) to support gainful employment (GE) program evaluations and can be used in a debt-to-earnings (D/E) ratio appeal under the GE regulations as an alternative to the Social Security administration earnings data. Interested persons are invited to submit comments on or before December 14, 2015.
Opinion by the Court of Appeals of Georgia. David Schick, a student journalist at the University of Georgia, filed a lawsuit against University system leaders after they delayed and withheld records he had requested related to the University’s $25 million budget shortfall and subsequent staff layoffs. The trial court found, among other things, that the Board was entitled to withhold certain documents under a state Open Records Act exemption for "law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity" based on “the Board’s unique situation and wise use of resources." Schick appealed, and the Court of Appeals held that the trial court erred by finding that the exemption applied to the case. It determined that the trial court's order contradicted the intent of the legislature in passing the Open Records Act and noted that, according to the state supreme court, “any purported exemption from disclosure under the Open Records Act must be narrowly construed." It thus reversed the trial court's order and remanded the case for reconsideration of whether Schick is entitled to an award of attorney fees.
Memorandum opinion by the U.S. District Court for the Western District of Virginia issued on November 6, 2015. Plaintiff Sarah Butters filed a Title IX claim against defendant James Madison University (JMU), alleging that while she was a student at JMU and on a spring break trip in March 2013, she was sexually assaulted by three male JMU students, a recording of which was subsequently disseminated to other JMU students. Butters asserted that she complained to JMU about the assault and the continued dissemination of the recording, and that JMU failed to redress the situation adequately. JMU moved to dismiss for failure to state a claim upon which relief can be granted, arguing that while Butters first elected not to initiate a formal complaint after making JMU officials aware of the assault and the recording a few weeks after the incident, once she filed a formal complaint in January 2014, the University undertook an investigation, conducted disciplinary proceedings, and ultimately imposed sanctions on all three men involved. The Court determined that even in the absence of a more formal complaint by Butters, JMU’s initial failure to conduct any investigation or take any action after learning about the assault and the existence of the video amounted to more than “a sheer possibility" that the defendant acted unlawfully. It thus denied the defendant's motion to dismiss.
Plaintiffs Nefertiti Takla and Kristen Hillaire, female graduate students at the University of California Los Angeles (UCLA), filed suit against the Regents of the University for allegedly failing to adequately respond to reports of sexual harassment by a male professor, Gabriel Piterberg. In Takla's case, UCLA settled her harassment complaint through an internal Early Resolution process and later concluded an investigation of the alleged harassment without making any formal findings. Takla filed a Title IX suit against the University. UCLA moved to dismiss, arguing that Takla was not subject to any further harassment after she had complained about the professor and therefore that she failed to satisfy the deliberate indifference element of the claim. The Court noted, however, that a plaintiff is not required to show further harassment as a way of demonstrating the University's deliberate indifference and thus denied UCLA's motion. Glasgow also alleged that she had been sexually harassed by Piterberg but that when she informed other faculty members of the harassment, she was informed of the results of Takla's case and asked not to pursue the matter. Glasgow filed suit against UCLA, claiming that the University was vicariously liable for the negligent supervision, training, and retention of Piterberg by multiple employees, who could have prevented the harassment that occurred after she filed her report. The Court dismissed her claim after finding that, under California law, UCLA was immune from vicarious liability arising from its employees’ discretionary acts.
Gainful Employment Operations Manual was posted by Federal Student Aid. The updated manual contains guidance regarding implementation and compliance with each aspect of the gainful employment regulations, including disclosures, debt measures, and challenge operations.
Legislation (S. 2253) introduced in the U.S. Senate by Senator Richard Blumenthal (D-CT) and ten bipartisan co-sponsors entitled the "Department of Veterans Affairs Veterans Education Relief and Restoration Act of 2015." The Act would provide veterans affected by closures of educational institutions certain relief and restoration of their educational benefits. Specifically, it would expand the U.S. Department of Veterans Affairs’ (VA) authority to restore the Post-9/11 GI Bill benefits of veterans who are affected by the permanent closure of postsecondary educational institutions. Currently, the VA cannot fully restore a veterans’ benefits if an institution he or she attended permanently closes.
Notice of request for comments issued by the U.S. Department of Education on the collection of information on Enhanced College Advising in Upward Bound. The study will test the effectiveness of providing Upward Bound projects with a professional development package and tools to provide semi-customized college advising to students participating in the program. This notice, which represents the second of two information collection requests that will be submitted to the Office of Management and Budget on the study, requests approval for the remaining data collection activities, including a project survey, a follow-up student survey, and administrative records. Interested persons are invited to submit comments on or before December 10, 2015.
Ruling granting defendants’ motion to dismiss by the U.S. District Court, Middle District of Louisiana on November 5, 2015. Plaintiff – a former employee of Louisiana State University – brought suit against LSU and certain LSU employees (Defendants) alleging racial discrimination in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 1983. The court dismissed the claims against LSU as precluded by sovereign immunity. As to the claims again the LSU employees, the court held that sovereign immunity applied to the § 1983 complaint because the employees acted in their official capacity and were not “persons” under § 1983. The court also dismissed the plaintiff’s § 1981 claim because such claims can only be brought through a § 1983 action (which the court had already dismissed) and it dismissed the claims against the defendants acting in their individual capacity for failure to plead facts in support of those claims.
November 5th, 2015 ruling by the U.S. Court of Appeals for the Fifth Circuit affirming the district court’s grant of summary judgment in favor of Jackson State University. Plaintiff — a former assistant professor at Jackson State University — alleged retaliation and sex discrimination under Title VII as well as First and Fourteenth Amendment violations after being denied tenure by the University and terminated at the expiration of her contract. The district court dismissed all claims except plaintiff’s Title VII retaliation claim, and subsequently granted summary judgment in favor of Jackson State on the retaliation claim. On appeal of the grant of summary judgment, the Fifth Circuit concluded that Jackson State provided a legitimate business justification for plaintiff’s termination — she did not submit an application to extend her contract and she was not recommended for tenure — and there was not an issue of material fact as to whether this justification was pretext.
Motion to dismiss amended complaint by defendants, granted in part, denied in part by the U.S. District Court, Northern District of California on November 5th, 2015. Plaintiffs – a group of current and former employees of Lawrence Berkeley National Lab, – alleged that, in response to pressure from the Regents of the University of California, the Lawrence Berkeley National Lab implemented a plan to force out older employees. The plaintiffs’ second amended complaint asserted age harassment and retaliation claims under the California Fair Employment and Housing Act (FEHA). Court granted defendant’s motion to dismiss claims made by certain plaintiffs on the basis that they did not meet the age requirement necessary to bring the claim. The court also granted defendant’s motion to dismiss all plaintiffs’ claims related to Intentional Infliction of Emotional Distress but granted two plaintiffs leave to amend. It denied, however, the motion to dismiss plaintiffs’ harassment and retaliation claims under the FEHA for failure to exhaust administrative remedies.
Memorandum opinion and order granting defendant’s summary judgment in the U.S. District Court for the Northern District of Illinois Division on November 5th, 2015. Plaintiff – a former manufacturing engineer employed by the University of Illinois – alleged that the University violated Title VII of the Civil Rights Act through retaliatory discharge, discrimination based on age, national origin, race, religion, and disparate pay. Because plaintiff failed to make arguments in support of the majority of his claims, the court waived all claims with the exception of racial discrimination in support of his disparate treatment. In granting summary judgment on the retaliatory discharge, the court weighed the plaintiff’s low employment evaluations and the university’s budget cuts and found that plaintiff had not produced evidence to permit a reasonable inference that but-for his filing of an earlier EEOC charge he would have kept his position. Under similar reasoning, the court also granted defendant’s motion for summary on the racial discrimination and disparate pay claims.
Order by the Superior Court of Pennsylvania on November 9th, 2015 upholding the trial court’s order granting Pennsylvania State University (Penn State)’s motion for summary judgment. Appealing pro se, the Appellant – a former graduate student at Penn State – brought suit alleging sexual discrimination under the Pennsylvania Human Relations Act (PHRA) after being dismissed from her graduate program for not meeting the program’s requirements. Appellant claimed that her dismissal from the graduate program resulted from gender discrimination by her advisor. In reviewing the record, however, the court found that Appellant failed to create a genuine issue of material fact as to whether her advisor’s actions were a pretext for discrimination. The court, therefore, concluded that the trial court did not abuse its discretion or commit an error of law and affirmed the order granting summary judgment.
Press release issued by the Department of Education regarding the Obama administration's accreditation agenda. The press release announces a series of executive actions aimed toward improving accreditors' and the Department's oversight activities and moving toward a new focus on student outcomes and transparency. The Department is also offering several legislative proposals to guide Congress in improving and reforming accreditation.
Settlement reached between Westwood College and the Attorney General of Illinois. The Attorney General sued the College in 2012 for allegedly making a variety of misrepresentations and false promises to students regarding the accreditation status of its criminal justice program. Under the terms of the agreement, the College has agreed to forgive the institutional student-loan debt of the program's graduates but does not admit any guilt or liability.
Order granting motion to dismiss in U.S. District Court for the Western District of Louisiana - Monroe Division issued on October 29, 2015. Plaintiff asserted claims under Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and a state law breach of employment contract claim. The court had previously dismissed the Plaintiff's ADA and Title VII claims. The court analyzed the remaining ADEA, FMLA, and breach of contract claims under Eleventh Amendment sovereign immunity. Citing case law, the court that Congress did not abrogate the states’ immunity from suits under the ADEA nor the provision of the FMLA under which plaintiff brought her claim. The Plaintiff's state law claim was also barred under sovereign immunity.
Order on Motion to Dismiss granted in part and denied in part by the U.S. District Court of the Southern District in New York on October 30, 2015. Plaintiff, a former student at Walden University (Defendant), alleged that a breach of contract and negligence of the Defendant faculty and Staff caused her to incur over $200,000 in student loan debt. Plaintiff sought one million dollars in damages. Defendant moved to dismiss. Noting the deference that New York shows in reviewing university academic decisions, the court stated that it limits judicial review to determining only whether the institution abided by their own rules and acted in good faith or whether the action was arbitrary and capricious. Here, the court concluded that Plaintiff made no allegations suggesting arbitrary or capricious behavior on the part of the Defendant and dismissed the breach of contract claims. The court concluded that the Plaintiffs claim in negligence, which sought $163, was not subject to the same deference as the breach of contract claim and that the Plaintiff's allegations were sufficient for further proceedings.
Order by the U.S. District Court for the Southern District of Texas issued on November 3, 2015. Plaintiff Belinda Fernandez filed suit against her former employer, Defendant Coastal Bend College (CBC), alleging that CBC violated her right to free speech in violation of 42 U.S.C. § 1983 by firing her after she spoke out publicly against certain CBC breaches of safety protocols. After finding that Fernandez's pleading "did not articulate what actual information or argument was presented to the CBC Board of Directors during her grievance hearing, how CBC's inaction demonstrated deliberate indifference, or how any such inaction was the moving force in her termination," the Court held that Fernandez's complaint was formulaic and did not rise above being speculative. It therefore granted the defendant's motion to dismiss with respect to the issue of municipal liability. It further held that CBC was immune from exemplary damages due to the plaintiff's failure to address the argument in her complaint and dismissed this claim as well.
Order by the U.S. District Court for the Southern District of
Order denying in part and granting in part defendant’s motion for summary judgment in U.S. District Court, District of Nevada issued on November 4, 2015. Plaintiff - a former employee of the University Medical Center of Southern Nevada - brought suit against the University, its trustees and certain medical staff (Defendants) under 42 U.S.C. § 1983. Plaintiff alleged a violation of his procedural due process rights, breach of contract, and breach of the covenant of good faith and fair dealing under the Health Care Quality Improvement Act of 1986 (HCQIA). Defendants moved for summary judgment, arguing that they were immune from damages under HCQIA, suing the trustees was redundant, and the medical staff could not be held liable for damages for the breach of contract claim. The court accepted the latter two arguments and granted summary judgment as to the trustees and medical staff, dismissing those parties from suit. As to Defendant’s immunity claim, however, the court denied the motion for summary judgment. It found both that § 1983 claims are excluded from immunity under HCQIA and that a material dispute of fact existed as to whether the plaintiff voluntarily resigned.
Court of appeals in the 1st district of the State of Florida issued a decision on October 30, 2015 affirming trial court's summary judgment order. Appellant, Florida Carry Inc, originally brought suit against University of Florida challenging UF's prohibition of firearms in university housing and in parked vehicles on UF property under Florida Law and under Constitutional Law. The court affirmed the judgment stating that under Heller the Supreme Court expressly stated that the Second Amendment right is not unlimited and that laws prohibiting arms from places like schools was not in doubt. In its analysis of Florida state law and case law, the court also agreed that UF did not preempt the state's authority by enacting a prohibition on firearms policy from residences and motor vehicles on campus.
Unpublished opinion in the Court of Appeal of the State of California Third Appellate District issued on November 4, 2015 affirming the trial court’s denial of a special motion to strike by the Regents of the University of California (Defendants). Plaintiff - a chemistry professor at University of California, Davis - sought an injunction to prevent the Defendants from destroying compounds from the plaintiff’s lab, which were seized after they were deemed a safety hazard. Defendants filed a special motion to strike under California Code of Civil Procedure section 425.16 (called an anti-strategic lawsuits against public participation (SLAPP) motion). The court affirmed the trial court’s denial of the special motion to strike because Defendants failed to meet the threshold burden of an anti-SLAPP motion that the acts identified by Plaintiff were taken in furtherance of a right of petition or free speech. Although the Defendants’ actions – the abatement process associated with closing and emptying Plaintiff’s lab – were an official proceeding subject to anti-SLAPP motion, Plaintiff’s claims did not arise from those proceedings but were merely prompted by the abatement process.
Comment released by the Association of American Universities (AAU) and the Council on Governmental Relations (COGR) on the Interim Defense Acquisition Regulations System (DFARS) Rule. The Comment expresses two main concerns with the interim rule: that the rule imposes substantial compliance burdens on institutions who handle controlled defense information, and that the rule does not include a clear exemption for fundamental research funded by the Department of Defense. The two organizations urge the Department and the Office of Management and Budget "to recognize the burden and cost implications of the new requirements and to provide assurance that they are not applied inappropriately."
A proposed rule issued by the EEOC provides guidance on the circumstances under which employers that offer employee wellness programs as part of a group health plan may offer limited incentives to employees when an employee's spouse provides information about current or past health status as part of participating in the wellness program. The objective of the proposed regulations is to clarify that GINA does not prohibit employers from offering limited inducements as long as “the provision of genetic information [is] voluntary and the individual from whom the genetic information is being obtained provides prior, knowing, voluntary and written authorization.” Interested parties are invited to submit comments by December 29, 2015.
Notice of Proposed Rulemaking by the Department of Education to establish an open licensing requirement for copyrightable works created using funds from direct competitive grants programs. The proposed regulations “would allow the public to access and use copyrightable intellectual property created with direct competitive grant funds for any purpose, provided that the user gives attribution to the designated authors or copyright holders of the intellectual property.”
Order by the U.S. District Court for the Northern District of California. In 2007, plaintiff Ivy Bridge, a California company, entered into a joint venture with Tiffin University, an accredited university based in Ohio, to create an online degree program. Defendant Higher Learning Commission (HLC), a regional accreditor for a group of states that includes Ohio but does not include California, reviewed the partnership between Ivy Bridge and Tiffin. Upon review, HLC issued a very negative report on the partnership and allegedly threatened Tiffin with sanctions if it did not completely sever its ties with Ivy Bridge, then made similar threats against two other Ohio universities after Ivy Bridge sought to partner with them. Ivy Bridge filed suit against HLC, arguing five claims for relief based on theories of contractual interference and breach of contract, negligent interference with prospective business interests, and unfair competition under California state law. HLC moved for dismissal of each claim for lack of personal jurisdiction and improper venue. The Court held that Ivy Bridge failed to make a prima facie showing of specific personal jurisdiction over HLC because HLC's allegedly tortious conduct was not purposefully directed at California and because Ivy Bridge's claims did not arise out of HLC's California-related activities. It thus granted the defendant's motion to dismiss for lack of specific jurisdiction and denied the motion to dismiss for improper venue as moot.
Amicus brief submitted to the U.S. Supreme Court by thirty-eight higher education organizations on the Court's upcoming rehearing of Fisher v. University of Texas (Fisher II). Abigail Fisher, an unsuccessful applicant to the University of Texas at Austin (UT), originally filed suit against the University in 2008, claiming that its race-conscious admissions policy was inconsistent with Grutter v. Bollinger. In Fisher I, the Supreme Court reaffirmed Grutter, holding that obtaining the educational benefit of a diverse student body is a compelling interest that can justify narrowly tailored consideration of race in admissions. It then remanded the case to the Texas district court to consider whether UT's admissions policy complied with the narrow-tailoring requirement of Grutter. Both the district court and the U.S. Court of Appeals for the Fifth Circuit upheld the policy, and the case is now back in the U.S. Supreme Court for reconsideration. The organizations' amicus brief emphasizes the state's interest in fostering student diversity, which the brief argues is compelling due to the benefits that diversity brings to students' educational experience. “Although selective higher education institutions express student body diversity in various ways based on their respective educational missions," the brief asserts, "their basic objectives are the same--to admit and support a cohort of students whose ‘chemistry,’ individually and collectively, fosters exceptional learning.” The brief also focuses on the need for colleges and universities to craft their admissions policies and to build student bodies free from judicial interference. Additional amicus briefs were submitted by the Association of American Law Schools, and a group of four admissions organizations, and a group of thirty-eight small, private institutions expressing similar sentiments.
Supplemental decision and order of the Regional Director of the National Labor Relations Board (NLRB) for Region 2 regarding the petition of graduate students at Columbia University to form a union. The Regional Director originally dismissed the petition administratively in February after finding that graduate students are not employees within the meaning of the National Labor Relations Act based on the Board's decision in Brown University. Upon rehearing, the Regional Director affirmed the original dismissal of the petition, concluding that she remains "constrained by Brown."
Memorandum opinion and order by the U.S. District Court for the District of Minnesota issued on October 20, 2015. Plaintiff Rodney Raymond filed suit against the University of Minnesota and the members of its Board of Regents--both individually and in their official capacities--for allegedly violating his due process rights based on his liberty interest in his good name and reputation, as well as his property interest in his employment at the University. The University fired Raymond after a hearing found him guilty of sexual harassment. Raymond later withdrew from a post-termination panel hearing "based on the futility of the process and its inherent unfairness and bias towards him, and because of the University's bad faith in its dealings with him." The Court dismissed the claims against the University after concluding that it is a state agency and therefore not subject to suit. In terms of the claims against the Board for injunctive relief, the Court held that the pre- and post-termination processes were sufficient to satisfy due process because the plaintiff was provided with notice of the charges against him, an explanation of the evidence upon which the charges were based, and an opportunity for a post-termination proceeding. It therefore dismissed the claims against the Board.
Final regulations adopted by the U.S. Department of Education on uniform administrative requirements, cost principles, and audit requirements for federal awards. On December 19, 2014, all federal award-making agencies published a joint Interim Final Rule (IFR) in the Federal Register, implementing the Office of Management and Budget's (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance). The final regulations give regulatory effect to the OMB guidance and supplements that guidance for the Department of Education. They are also designed to reduce administrative burden as well as the risk of waste, fraud, and abuse for the funds awarded by the Department through grants and cooperative agreements.These regulations will go into effect on December 2, 2015.
Notice issued by the U.S. Department of Education requesting comments on the revised form and instructions for the Perkins Discretionary Grant Performance Report. The Department has designed a new Performance Report form because the existing form is not compatible with the Office of Career, Technical and Adult Education (OCTAE) Division of the Academic and Technical Education (DATE) discretionary grant program's new Perkins Information Management System. Interested persons are invited to submit comments on or before January 4, 2016.
Opinion by the Florida Court of Appeal. Appellant Florida Carry, Inc., a nonprofit corporation whose members “seek to protect and exercise their right to keep and bear arms,” sued the University of Florida (UF) in 2014, challenging UF’s prohibition of firearms in university housing and certain policies which, according to the appellant, prohibited firearms in vehicles parked on UF’s property in violation of Florida state law and the state constitution. The trial court found that there existed no actual case or controversy in need of adjudication and granted summary judgment in favor of the University. The appeals court affirmed the lower court's ruling. "Given the factual nuances that can exist in the firearms-on-campus debate, and the lack of a clear, justiciable controversy on the sparse record presented," the Court asserted, "judgment in favor of the University is the correct result and would thereby avoid the difficult statutory interpretation questions for which no clear construction exists." The Court also concluded that this result "avoids having to make abstract judgments about how those statutes might fare under constitutional scrutiny."
Letter of findings issued by the U.S. Department of Education Office for Civil Rights (OCR) in which OCR concluded that the District violated a transgender student’s rights under Title IX by prohibiting her from using the girls’ locker room. OCR noted that by denying the student access to the girls’ locker room in favor of providing her with a separate, private changing facility, the school “subject[ed] her to different rules of behavior and different treatment on the basis of sex.” OCR concluded that the District could have taken measures to satisfy its Title IX obligations as well as protect any student privacy concerns. Under the terms of the letter, the school district has 30 days to enter an agreement with OCR or face enforcement actions which include loss of federal funding.
Notice of request for comments issued by the U.S. Department of Education on the National Postsecondary Student Aid Study (NPSAS) student data collection for 2015-2016. The data collection, which is being submitted to the Office of Management and Budget for review and approval, is for the ninth cycle in the series and will be conducted from January through September 2016. Data will be collected from roughly 2,000 institutions and 128,000 students. Interested persons are invited to submit comments on or before November 30, 2015.
Final regulation published by the U.S. Department of Education on program integrity and improvement. The regulation amends the cash management regulations and other sections of the Student Assistance General Provisions regulations to grant the Secretary of Education the right to establish a method for directly paying credit balances to student aid recipients. The regulation also establishes two different types of arrangements between institutions and financial account providers, which distinguish those arrangements between an educational institution and a third-party servicer ("tier one (T1) arrangements") from those between an educational institution and a financial institution/entity that offers and markets financial accounts directly to students (“tier two (T2) arrangements”). Finally, the regulations clarify how previously-passed coursework is treated for Title IV eligibility purposes and streamline the requirements for converting clock hours to credit hours.
Opinion and order by the U.S. Court of Appeals for the Eleventh Circuit. Appellants -- clinical psychologists and former full-time staff employees at the Georgia State University (GSU) Counseling and Testing Center -- were terminated in 2012 through a purported reduction-in-force effort. The appellants filed suit against the University and two of its officials, alleging that they were fired in retaliation for submitting a memorandum to the University complaining about what they perceived to be poor leadership within and mismanagement of the Center. The district court rejected appellants’ First Amendment argument and granted summary judgment to the appellees, finding that the appellants’ memorandum constituted employee speech on an issue related to their professional duties. The Eleventh Circuit Court affirmed after concluding that both the form and the context of the memorandum indicated that it contained private employee grievances that did not relate to a matter of public concern.
Order granting motion to dismiss with prejudice in U.S. District Court for the Middle District of Florida – Orlando Division. Plaintiffs — former Sonography Program students at Valencia College — sued the college and several employees. The plaintiffs alleged First and Fourth Amendment violations and a civil conspiracy arising out of the Sonography Program’s policy of having students perform transvaginal ultrasound probes on each other. The court dismissed the claims against Valencia College under Eleventh Amendment immunity, and dismissed the § 1983 First Amendment, Fourth Amendment and civil conspiracy claims against the individual employees. In its First Amendment analysis, the court found that the Plaintiffs complaints to Defendants did not constitute protected speech and cited the Hazelwood line of decisions.
Pursuant to a statutory rulemaking proceeding in Section 1201(a) of the DMCA, the Librarian of Congress has issued the 2015 edition of exemptions to the DMCA’s circumvention provision. Many of the 2012 exemptions on circumventing technological protection measures have been renewed for higher education institutions. The Rule also grants the DMCA exemption to massive online open courses (MOOCs), creating the opportunity for professors to use copyrighted video for the purposes of teaching MOOCs.
Order by U.S. District Court for the Middle District of Pennsylvania. Plaintiff, a student at Pennsylvania State University (Penn State) and a Syrian national, was suspended for two semesters after he was found responsible for sexual misconduct. The student filed suit against Penn State, claiming that its use of a single-investigator model violated his due process rights. The Court granted a temporary restraining order prohibiting Penn State from enforcing the student's suspension. It concluded that the plaintiff had adequately demonstrated that he was reasonably likely to succeed on the merits of his claim "in light of the potential inadequacy of the procedure afforded him by the University during a disciplinary hearing," and that he would likely suffer "immediate, irreparable harm" if the sanctions were enforced due to his status as an immigrant and the potential for his deportation to Syria, which is currently in the midst of a civil war.
The Department of Education issued final regulations that amend regulations governing the William D. Ford Federal Direct Loan (Direct Loan) Program, Federal Family Education Loan (FFEL) Program, and Direct Loan cohort default rates (CDR). Among other things, the regulations: (1) amend the Direct Loan Program to implement the Revised Pay As You Earn (REPAYE) plan, (2) amend the Student Assistance General Provisions to expand circumstances under which an institution may challenge or appeal a draft or final CDR based on the institution’s participation rate index , and (3) amend the FFEL Program to require guaranty agencies to inform borrowers rehabilitating defaulted loans of repayment options and streamline the process of identifying individuals who may be eligible for benefits under the Servicemembers Civil Relief Act. Regulations related to the REPAYE Program go into effect in December 2015. All other regulations, with the exception of the CDR appeals process implementation, will be effective July 1, 2016.
Order issued by the National Labor Relations Board (NLRB) on the petitioner's request for the review of a regional director's dismissal of a representation petition filed by by Student Employees at the New School, SENS/UAW. The union seeks to represent "all student employees who provide teaching, instructionally-related, or research services . . . at the Parsons School." The Board voted three-to-one to grant the petitioner's request, noting that it "raises substantial issues warranting review." Board Member Philip Miscimarra dissented, stating that, rather than arguing that the Regional Director’s supplemental decision departed from existing law, that her decision on a substantial factual issue was “clearly erroneous,” or that she committed “prejudicial error” in any of her rulings or in the conduct of the hearing, the petitioner's sole rationale for requesting review is to overturn the Board's 2004 ruling in Brown University, which held that graduate students are not employees entitled to collective bargaining rights.
Age Discrimination; Disability Discrimination; Free Speech: Epstein v. Suffolk County
October 22, 2015
Memorandum and order issued on August 26, 2015 by the U.S. District Court for the Eastern District of New York. Plaintiff Steven Epstein, a tenured professor and former director of the Suffolk Community College honors program, filed suit against the County of Suffolk, Suffolk County Community College, and various College officials, alleging that the defendants instituted a "discriminatory and retaliatory campaign" against him during the 2011-2012 school years based upon his age, disability, and in retaliation for making statements concerning the disparity of resources afforded to the three college campuses, the allegedly racist overtones of the College's advertisements, and the racially-disproportionate demographic makeup of the honors program and the disparate impact of its admissions criteria. The Court granted the defendants' motions to dismiss each of these claims. In regard to his disability discrimination claim, the Court concluded that Epstein did not plausibly allege that he is disabled or that the College regarded him as being disabled. The Court also found that Epstein failed to plead that he is a member of a protected class, as is required for a claim of age discrimination, because his complaint was devoid of any suggestion as to his age and because the mere allegation that “a younger individual” was appointed to the coordinator position was insufficient to support an inference of age discrimination. As to his retaliation claim, the Court concluded that, even assuming that Epstein had plead sufficient facts, his claim would nonetheless fail because he did not satisfactorily demonstrate that he was speaking as a citizen on a matter of public concern due to the fact that his speech was inherent to his role as a professor, a means to fulfill his responsibilities as director of the honors program, and undertaken in the course of performing his job.
Order and opinion issued by the U.S. Court of Appeals for the Fourth Circuit. Dr. Jon H. Oberg filed suit against the Pennsylvania Higher Education Assistance Agency (PHEAA) under the False Claims Act (FCA), 31 U.S.C. §§ 3729-33, alleging that from 2002 through 2006, the defendant fraudulently claimed hundreds of millions of dollars in federal student-loan interest-subsidy payments to which it was not entitled. Under the "arm-of-the-state" analysis used in the Eleventh Amendment context, the Court concluded that even though PHEAA was established by Pennsylvania, it is not an “arm of the state,” and therefore subject to civil liability under the FCA, because it is financially independent of the state, generates its own commercial revenue, and makes its own fiscal and policy decisions. The Fourth Circuit thus reversed the district court’s order granting summary judgment in favor of PHEAA and remanded for further proceedings on the merits of Oberg’s FCA claims against PHEAA.
Notice of request for comments issued by the U.S. Department of Education on applications for grants under the Educational Opportunity Centers (EOC) Program. The Department is requesting a reinstatement of the Program with changes to the application for grants, as the previous EOC application expired in March 2014 and a new application will be needed for the Fiscal Year 2016 competition for awards. The Fiscal Year 2016 application will incorporate new competitive preference priorities and remove the previously-used invitational priorities. Interested persons are invited to submit comments on or before November 23, 2015.
Order and opinion by the U.S. Court of Appeals for the Seventh Circuit issued on September 23, 2015. Gregory Rahn, a white visiting professor at Northern Illinois University (NIU), alleged that his employer and its officials engaged in reverse discrimination in violation of Title VII of the Civil Rights Act of 1964 when it failed to hire him for a tenure-track assistant professor position based on his race and instead chose to hire Dr. Gary Chen. Conflicting testimony indicated that the Dean of the College of Engineering, Promod Vorha, may have stated during a search committee meeting that he would not hire a white man into the department if qualified minority candidates were available. The district court granted summary judgment in favor of the defendants, holding that Rahn had failed to contest the defendants’ claim that it had a non-pretextual reason for hiring Chen that was unrelated to race. Rahn appealed. The Seventh Circuit affirmed, holding that the defendants set forth a legitimate reason for choosing Chen based on the metric evaluation of his qualifications, that no evidence in the record contradicted the claim by NIU that Chen was more qualified for the position than Rahn, and Rahn had waived any argument that the University's reason for hiring Chen was pretextual. In regard to the alleged statement by Vohra, the court determined that Rahn had been eliminated from the pool of applicants before Vohra had a chance to select his preferred candidate, so the statement was not direct evidence “without resort to inference” that the hiring decision was based on his race.
Call to Action issued by leaders of American industry, higher education, science, and engineering urging Congress to enact policies and make investments that will ensure the United States remains the global leader in scientific innovation. The Call to Action implores Congress to take such steps as ending sequestration's cuts to discretionary spending caps and providing steady, sustained funding to scientific research; making a strengthened federal research and development tax credit permanent; increasing funding of programs that promote student achievement in science, technology, engineering, and mathematics (STEM) fields; among others.
Report by the Department of Veterans Affairs (VA) on overpayments made under the Post-9/11 GI Bill. Overpayments most often occur when the VA pays benefits based on a student's enrollment at the beginning of the academic term and the student later drops one or more classes, or withdraws from the institution altogether. The report identified $416 million in Post-9/11 GI Bill overpayments during the fiscal year of 2014, affecting approximately one in four veteran beneficiaries and about 6,000 postsecondary institutions. The report offers recommendations for effectively communicating program policies to veterans, improving enrollment verification processes, and providing college and university officials with a minimum level of training to reduce overpayments.
Press release issued by the Pac-12 Conference announcing that the Conference will include the ac-12 Student-Athlete Leadership Team (SALT) in its formal governance process. SALT will be made up of two student-athletes from each institution (total of 24), with 12 members attending every Pac-12 Council meeting. According to the press release, the Pac-12 is the first major conference to formally integrate the student-athlete perspective into its official voting governance structure.
Opinion by the Commonwealth Court of Pennsylvania. Dr. John Freeman, a former assistant professor at East Stroudsburg University of Pennsylvania, was denied tenure by the University President. Freeman appealed the decision through his union, and the case eventually went to arbitration. The arbitrator determined that the President had violated terms of the collective bargaining agreement by unilaterally denying Freeman tenure without reviewing the recommendations of the Department Chair or the university-wide Tenure and Promotion Committee, and by improperly consulting with the Provost before issuing her decision. The University challenged the arbitrator's decision in court. The Court found that the agreement “prescribes a detailed procedure by which faculty committees and department chairpersons are to submit written tenure recommendations to the president within specific time frames," and that the President cannot make a decision without first considering those recommendations, unless they are submitted outside the specified time limits. The Court also rejected East Stroudsburg’s claim that limiting the President’s authority to make employment decisions would violate public policy. It thus affirmed the arbitrator's order that Freeman be reinstated and allowed to reapply for tenure.
Resource Guide created by the U.S. Department of Education to assist state and local efforts to support undocumented students at the secondary and postsecondary education levels. The Department compiled the resources, tips, and questions and answers contained in the Guide based on a review of research and recommendations from stakeholders to "help educators, counselors, and others support student academic and social success, and to work collaboratively with youth and their families to find creative ways to finance college costs."
Dear Colleague Letter from Secretary of Education Arne Duncan to college and university leaders providing information on the Deferred Action for Childhood Arrivals (DACA) process and access to higher education for undocumented youth, including those who have received DACA. The Letter includes links to resources from the U.S. Department of Homeland Security on requesting DACA, navigating the DACA process, and assisting undocumented students (including DACA recipients) in applying to college. An enclosure to the Letter, the Resource Guide: Supporting Undocumented Youth, provides information to assist educational institutions in supporting undocumented students at the secondary and postsecondary education levels.
Study conducted by Vanderbilt University on the cost of federal regulatory compliance at higher education institutions. The findings of the study indicated that the cost of federal compliance varied from 3 percent to 11 percent of total nonhospital operating expenditures at the 13 institutions studied, and that these costs were largely driven by the extent of research and the scale of expenditures at a given institution. Based on the results from the 13 sample institutions, the researchers estimated that the total cost of federal regulatory compliance across the entire U.S. higher education sector is approximately $27 billion.
Updated guidelines for determining qualified faculty under the Higher Learning Commission's (HLC) Criteria for Accreditation and Assumed Practices were released by the Commission. The guidelines, which were revised on October 1, 2015 based on the adoption of policy revisions by HLC's Board of Trustees on June 26, clarify HLC's expectations regarding the minimal faculty qualifications required for institutions accredited the Commission. The revised guidelines are designed to ensure that faculty members have appropriate expertise in the subjects they teach.
Announcement issued by Federal Student Aid in response to questions about how an institution determines whether a student is eligible for a Direct Subsidized Loan when the student's Remaining Eligibility Period is less than one year, and, if the student is eligible, for what period and in what amount. The announcement explains the special considerations that an institution must take into account under such circumstances.
Notice of request for comments issued by the U.S. Department of Education regarding the Integrated Postsecondary Education Data System's (IPEDS) 2015-2016 pension liabilities update. The Department is requesting an emergency review due to the changes to the reporting standards for pensions implemented by the Government Accounting Standards Board (GASB), which require unfunded pension liabilities to be included in financial statements as of 2015. To accommodate this change, the National Center of Education Statistics (NCES) is proposing the addition of a new screening question and three new fields related to the unfunded pension liabilities to the IPEDS Finance survey. For the emergency processing, comments are requested on or before November 10, 2015. For the regular clearance processing, interested persons are invited to submit comments on or before December 21, 2015.
Letter from the U.S. Department of Education to ITT Educational Services, Inc., identifying the stricter financial oversight and reporting requirements to which ITT will be subject in order to continue participating in Title IV programs under its current heightened cash monitoring status. The Department cited federal fraud allegations against two ITT officers and the company’s “failure of the general standards of financial responsibility” to justify the enhanced oversight and reporting requirements.
Fiscal Year 2016 Work Plan of the Tax Exempt and Governmental Entities (TE/GE) division was released by the Internal Revenue Service (IRS). The Work Plan identifies the areas in which the Service will focus enforcement activities in the coming year. According to the document, the Federal, State, and Local Governments division (FSLG), which oversees public colleges and universities, announced that it will be conducting compliance projects to address employment tax issues that arise out of early retirement incentive plans, and to address worker classification issues.
Letter issued by Federal Student Aid providing information about a new, standardized Reaffirmation Agreement for use by lenders and loan servicers in the Direct Loan and Federal Family Education Loan (FFEL) programs. Loan holders, servicers, and postsecondary institutions are encouraged to begin using the new form immediately and may not provide any other reaffirmation agreement to borrowers after March 30, 2016.
Notice of proposed rulemaking published by the Department of Homeland Security that would extend the optional practical training (OPT) program for international students at American universities with degrees in science, technology, engineering and mathematics (STEM) fields. Specifically, the proposed rule would allow F-1 STEM students who have elected to pursue 12 months of OPT in the United States to extend the OPT period by 24 months. This 24-month extension would replace the 17-month STEM OPT extension currently available to certain STEM students. The rule would also increase federal oversight of STEM OPT extensions by requiring employers to implement formal mentoring and training plans, adding wage and other protections for STEM OPT students and U.S. workers, and allowing extensions only to students with degrees from accredited schools. Comments must be received by the Department on or before November 18, 2015.
Notice of request for comments issued by the U.S. Department of Education on its Educational Quality through Initiative Partnerships (EQUIP) Experimental Sites Initiative. The EQUIP project is intended to advance the Department's understanding of how to best increase access to high-quality, innovative programs in higher education. The Department is requesting a new information collection package to provide for a series of questions that will become components of the selection process for a new Federal Student Aid experimental site project. Interested persons are invited to submit comments on or before December 15, 2015.
Announcement of the release of the updated version of the National Student Loan Data System (NSLDS) Gainful Employment User Guide. Updates to the Guide include the addition of Chapter 5 to provide high-level information about the Gainful Employment (GE) Completers List, a list of students who completed a GE program during the applicable cohort period.
Annual report by the Consumer Financial Protection Bureau (CFPB) on federal student loan borrowers. The annual report, issued pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act, analyzes complaints submitted by consumers from October 1, 2014, through September 30, 2015. During this period, the CFPB documented a 23 percent increase in the number of borrowers making complaints about both federal and private loans. Additionally, the report found that at least 30 percent of borrowers who have loans under the Federal Family Education Loan Program are delinquent in repaying their debt or have already defaulted, and 95 percent of borrowers with federal loans made by private lenders are not enrolled in income-driven repayment plans. The report concludes with a discussion supporting the Bureau’s recent recommendation that policymakers pursue industry-wide standards for student loan servicers.
Legislation (S. 2099) introduced in the U.S. Senate by Senators Kelly Ayotte (R-NH) and Shelley Moore Capito (R-WV) entitled the "Student Loan Relief Act of 2015." The bill is designed to establish a mechanism that would allow borrowers of federal student loans to refinance their loans and receive a lower interest rate than the federal rate, and to amend the Internal Revenue Code to extend the exclusion for employer-provided educational assistance to employer payment of interest on certain refinanced student loans.
Memorandum opinion and order issued by the U.S. District Court for the District of Minnesota. Plaintiff Stephanie Jenkins filed suit alleging sexual harassment and several tort law claims against defendants Ted Swem, Dr. David Andersen, and the University of Minnesota. Jenkins alleged that while she was conducting research for her Ph.D. program with the University, Swem, a scientist from the United States Fish and Wildlife Service (USFWS) who was collaborating with the University on Jenkins’s research project, made repeated unwanted sexual advances toward her, and that when she reported this conduct to her adviser, Andersen, neither Andersen nor others at the University took steps to remedy the situation. Each defendant filed a separate motion for summary judgment. The Court found that neither Anderson nor the University acted with deliberate indifference to Jenkins’s concerns because they took steps to investigate the claim, changed her work assignment and office location, and supervised later meetings between Jenkins and Swem. It therefore granted Andersen’s and the University's motions for summary judgment on the plaintiff's Title IX claim. In regard to Swem's motion, the Court found that he was not entitled to qualified immunity on Jenkins’s sexual harassment allegation because Jenkins’s complaint adequately stated a hostile work environment claim and her right was clearly established at the time of Swem’s conduct. However, the Court granted Swem’s motion in part as to the plaintiff's common law tort claims, finding that although Jenkins demonstrated a viable claim for assault and intentional infliction of emotional distress, she did not make the requisite showing to maintain a claim for negligent infliction of emotional distress. Finally, because the Court concluded that a genuine issue of material fact remains as to whether Swem affected the conditions of Jenkins’s employment, for which the University may be vicariously liable, the Court denied the University’s motion for summary judgment as to Jenkins’s Title VII hostile work environment claim.
Sexual Misconduct; Title IX: Salau v. Denton
October 15, 2015
Order by the U.S. District Court for the Western District of Missouri. Plaintiff Ahmed Salau, a student at the University of Missouri, was expelled after a disciplinary hearing found him responsible for "nonconsensual sexual contact" and other violations of the University's code of conduct. After Salau opted not to participate in the hearing, he sued the University and various University officials, alleging that they had discriminated against him on the basis of sex in violation of Title IX. The Court dismissed his after determining Salau had "unquestionably failed" to allege any facts that suggested gender bias on the part of university officials. “Even if the University treated the female student more favorably than the Plaintiff, during the disciplinary process," the Court asserted, “the mere fact that Plaintiff is male and [the alleged victim] is female does not suggest that the disparate treatment was because of Plaintiff's sex." The Court also dismissed the plaintiff's due process claim, noting that the plaintiff "was afforded adequate procedural rights by Defendants by way of notice of the charges, identification of the violations charged, and an opportunity to present his case even though he refused to participate."
Legislation (S. 2150) introduced in the U.S. Senate by Senators Chuck Grassley (R-IA) and Al Franken (D-MN). entitled the "Net Price Calculator Improvement Act." The bill is intended to make technical improvements to the Net Price Calculator system so that prospective students may have a more accurate understanding of the true cost of college. These improvements include enacting minimum requirements for net price calculators maintained by institutions of higher education as well as the development of a universal net price calculator by the U.S. Department of Education. The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions.
Order by the U.S. District Court for the District of South Dakota. Plaintiff Koh Tsuruta, a student at Augustana University, was accused of rape and sexual assault by a female classmate. Tsuruta sued the University on Title IX grounds after it refused to postpone his hearing until the criminal charges he was also facing had been resolved, seeking a preliminary injunction that would force the University to delay his hearing. The Court determined, however, that the plaintiff did not demonstrate "likelihood of success on the merits," one of the elements necessary for a court to grant a preliminary injunction. The Court held that Tsuruta could not succeed on an "erroneous outcome" cause of action, since an outcome had not yet been determined, nor could he succeed on a "selective enforcement" cause of action because he failed to allege or show that the University had treated a female student in sufficiently similar circumstances to his own more favorably. It further held that Tsuruta's claim would likely fail due to a lack of specific allegations of gender as a motivating factor behind the University's conduct. "The fact that males are more often the subject of disciplinary proceedings stemming from allegations of sexual assault," the Court concluded, "does not suggest that those proceedings are tainted by an improper motive." The Court therefore refused to grant the preliminary injunction.
Letter signed by a group of eight higher education associations to the U.S. Department of Education expressing concern about the draft Dear Colleague Letter (DCL) the Department sent to institutions regarding the handling of student medical records. The letter asserts that the draft DCL goes beyond the “reasonable scope” of reminding postsecondary institutions of their obligations to protect students’ privacy under the Family Educational Rights and Privacy Act (FERPA) by including standards from the Health Insurance Portability and Accountability Act (HIPAA) which, the letter argues, would “result in significant confusion in the handling of education records." The associations encourage the Department to reconsider its inclusion of HIPAA standards in the DCL, adding that if the Department is considering making the changes outlined, it should do so through a formal regulatory process.
Notice of request for comments issued by the U.S. Department of Education on the Student Assistance General Provisions of the Student Right-to-Know (SRK) information collection. Under 34 CFR 668.41, participating institutions are required to provide certain information to all enrolled students, prospective students prior to their enrollment, and the institution's employees. This information includes the graduation rates of its certificate- or degree-seeking, first-time, full-time undergraduate students. Interested persons are invited to submit comments on this information collection on or before November 12, 2015.
Legislation (H.R. 3293) entitled the "Scientific Research in the National Interest Act" was introduced in the U.S. House of Representatives by Representative Lamar Smith (R-TX). The legislation would require the National Science Foundation (NSF) to award federal funding for basic research and education in the sciences through a new research grant or cooperative agreement only if it makes an affirmative determination, justified in writing, that the grant or agreement promotes the progress of science in the country, is worthy of federal funding, and meets certain other criteria. The House Science, Space, and Technology (SST) Committee approved the Act on October 8 by a voice vote.
Notice of request for comments issued by the U.S. Department of Education regarding annual fire safety reporting. This request is to extend the current approval of reporting requirements contained in Department regulations (34 CFR 668.49), which require institutions to collect statistics on fires occurring in on-campus student housing facilities and to publish an annual fire safety report containing these statistics as well as the institution's policies regarding fire safety. Interested persons are invited to submit comments on or before December 8, 2015.
Response from the U.S. Department of Education to an inquiry submitted by the National Association of Independent Colleges and Universities (NAICU) on reporting data inaccuracies in the College Scorecard. The Department stated that institutions may correct at any time the data produced as part of the College Scorecard project from the Integrated Postsecondary Education Data System (IPEDS) using the National Center for Education Statistics (NCES) revisions process. However, because earnings data is collected from tax records, it cannot be altered until the following round of earnings data is collected and posted. The response also indicated that the Department is still determining the update schedule and will work with institutions to improve reporting and data quality.
Order and opinion issued by the Court of Appeal of the State of California. Katherine Rosen, a student at the University of California, Los Angeles (UCLA), suffered severe injuries after she was attacked by another student, Damon Thompson, during a chemistry laboratory (Thompson was later found not guilty for the attack by reason of insanity). Several months before the attack, UCLA had treated Thompson for symptoms related to schizophrenia disorder, including auditory hallucinations and paranoid thinking. Rosen filed a negligence action against the Regents of the University of California and several UCLA employees, claiming that the defendants had breached their duty of care by failing to take reasonable measures that would have protected her from Thompson’s allegedly foreseeable conduct. The trial court denied the defendants' motion for summary judgment, concluding that the defendants owed Rosen a duty of care based on her status as a student and, alternatively, as a business invitee onto campus property. On appeal, the Court voted 2-1 to reject each of Rosen's six theories as to why UCLA had a legal duty to protect her from Thompson's allegedly foreseeable violent actions and granted defendants’ petition for writ of mandate. "We find no basis to depart from the settled rule that institutions of higher education have no duty to their adult students to protect them against the criminal acts of third persons," the Court held.
Legislation (S. 2111) introduced in the U.S. Senate by Senators Michael Bennet (D-CO) and Marco Rubio (R-FL) to establish an alternative, outcomes-based accreditation process. The bill would amend the Higher Education Act of 1965 to create a voluntary authorization pathway, enabling higher education institutions that meet certain standards for offering high-quality education and have a proven track record of successfully helping students graduate, obtain jobs, and pay back their student loans to obtain accreditation. The authorization process would be metrics-based as opposed to the existing input-focused accreditation process. The bill was referred to the Committee on Health, Education, Labor, and Pensions.
Decision and order by the Supreme Court of the State of New York. In 1928, Phelps Smith bequeathed the remainder of his estate to the establishment of a higher education institution under the condition that it be "forever known as 'Paul Smith's College of Arts and Sciences'." Petitioner Cathy S. Dove, President of Paul Smith's College, sought a court order allowing the College to be released from this naming restriction so that the institution could be renamed "Joan Weill-Paul Smith’s College" in return for a $20 million gift from Joan and Sanford Weill. The petitioner argued that the naming restriction "nearly fatally impedes the ability of Paul Smith's to seek large gifts from a single donor in order to make the investments it needs to remain viable." The Court, however, failed to find that any changes in circumstances--including decreasing enrollment, changes in the demographics of the student body, and a drop in revenue--rendered the administration of the charitable trust according to its literal terms "impractical, or wasteful, to such a degree that it frustrate[d] the charitable purpose of the bequest of Phelps Smith." It thus denied the petition. President Dove released a statement in response to the decision expressing disappointment with the outcome along with appreciation for the "enduring connection" that the College's community feels to the institution and its traditions.
Resolution Letter and Agreement regarding a Title IX complaint filed against Harvard University and Harvard Law School was released by the U.S. Department of Education Office for Civil Rights (OCR). OCR determined that the Law School's current and former sexual harassment policies and procedures failed to comply with Title IX's requirements for prompt and equitable response to complaints of sexual harassment and sexual assault; that the Law School did not ensure that individuals implementing the policies and procedures were adequately trained; and that the Law School improperly used a “clear and convincing” evidence standard of proof in its Title IX grievance procedures in violation of Title IX. The Law School signed an Agreement with OCR to address these issues. OCR also issued a press release announcing the Resolution Letter and Agreement in which Assistant Secretary for Civil Rights Catherine E. Lhamon congratulated the Law School for "committing to comply with Title IX and immediately implement steps to provide a safe learning environment for its students."
Final audit report released by the U.S. Department of Education on how the Higher Learning Commission could improve its evaluation of competency-based education programs to help the Department ensure that the programs are properly classified for Title IV purposes. The report concluded that the Commission did not establish a system of internal control that provided reasonable assurance that institutions’ classifications of delivery methods and measurements of student learning for competency-based education programs were sufficient for such purposes. To address this failure, the report offers several recommendations for steps that the Assistant Secretary for Postsecondary Education should take in regard to policy and procedure revisions, consistent application of procedures, and reviews of previously-proposed programs, among others.
In response to concerns expressed by members, the NACUA Board voted to make an exception to its Policy on Public Policy Issues that permits NACUA, in rare circumstances, to submit comments on proposed guidelines that relate directly to NACUA’s mission and member concerns. Specifically, NACUA’s comments expressed concern that FERPA should not be interpreted to give institution counsel greater or less access to student medical records than they have under other confidentiality laws that currently define those boundaries and warn that importing HIPAA standards into FERPA guidelines is likely to result in greater confusion rather than greater clarity and would require institutions of higher education to develop detailed HIPAA expertise so they could comply with FERPA. Finally, NACUA's comments express appreciation to FPCO for using a process that provided opportunity for public input regarding the DCL prior to its final issuance.
Comment request notice posted by the U.S. Department of Education on a request for an extension of the current information collection regarding the readmission of student servicemembers. Department regulations include requirements under which institutions must readmit service members with the same academic status they held at the institutions when they last attended or where accepted for attendance. Current regulations require institutions to charge readmitted service members the same amount that those students were charged for the academic year during which they left to fulfill a service requirement for the first academic year of their return. Interested persons are invited to submit comments on or before December 4, 2015.
Announcement issued by Federal Student Aid informing institutions that Congress did not take action to extend the Perkins Loan Program, which expired on October 1. As a result, institutions are instructed not to make Federal Perkins Loans to new borrowers after September 30, 2015, and to follow the guidance provided in the Dear Colleague Letter GEN-15-03 to wind down the program.
Report on strengthening the student loan system to protect borrowers was released by the U.S. Department of Education. The report provides statutory, regulatory, and administrative recommendations from the Department, developed in consultation with the Department of the Treasury and the Consumer Financial Protection Bureau, to help protect student borrowers and to promote the quality and affordability of higher education. President Barack Obama ordered the report in March 2015 as part of his announcement of his administration's Student Aid Bill of Rights. The Department also issued a press release in conjunction with the release of the report.
Resolution Letter and Agreement released by the U.S. Department of Education Office for Civil Rights (OCR) regarding OCR's investigation of alleged Title IX violations by the University of Virginia (UVA). OCR found UVA to be in violation of Title IX on a number of counts. Prior to the conclusion of the investigation, the University entered into an agreement with OCR to continue to implement its revised policies and to notify OCR of any proposed policy revisions; to ensure that agreements with student organizations clearly state that sexual harassment, sexual violence and retaliation are prohibited; and to establish an education and prevention program about the institution’s policies and procedures regarding sexual misconduct. The University has also agreed to conduct regular training of all members of the UVA community on issues related to sexual misconduct and Title IX; to develop and implement a system for tracking and reviewing all reports, investigations, interim measures, and resolutions of student and employee sexual misconduct; to ensure that such reports are adequately, reliably, promptly, and impartially investigated and resolved; and to reexamine complaints filed between 2011 and 2014. The Department issued a press release in conjunction with the release of the Resolution Letter and Agreement.
Opinion by a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit. Plaintiff Edward O'Bannon filed a class-action suit alleging that the National Collegiate Athletic Association's (NCAA) amateurism rules constituted an unlawful restraint of trade in violation of Section 1 of the Sherman Antitrust Act. The district court held in favor of the plaintiffs and permanently enjoined the NCAA from forbidding its member institutions from giving student-athletes scholarships up to the full cost of attendance at their respective schools and up to $5,000 per year in deferred compensation. On appeal, the Ninth Circuit panel concluded that the district court's decision was "largely correct." After holding that it was not precluded from reaching the merits of the plaintiffs’ Sherman Act claim, the panel analyzed the plaintiff's claims under the Rule of Reason and held that the NCAA’s rules had "significant anticompetitive effects within the college education market in that they fixed an aspect of the 'price' that recruits pay to attend college." The Court further held that the NCAA's rules "served the procompetitive purposes of integrating academics with athletics and preserving the popularity of the NCAA’s product." While the panel found appropriate the district court's decision to allow NCAA member institutions to give scholarships up to the full cost of attendance, it found the district court’s other remedy--allowing students to be paid cash compensation of up to $5,000 per year--to be improper. The panel thus vacated the district court’s judgment and permanent injunction insofar as they required the NCAA to allow its member institutions to pay student-athletes up to $5,000 per year in deferred compensation; it affirmed the rest of the district court's judgment and injunction.
Free Speech; Retaliation: Gomez v. Allbee
October 1, 2015
Order issued by the U.S. District Court for the Southern District of Iowa on plaintiff's motion for preliminary injunction. Plaintiffs Jessica Gomez, Alexis Huscko, and Anthony Trujillo--three student journalists at Muscatine Community College (MCC)--sued the College and several College administrators in their individual capacities for allegedly infringing upon their First Amendment right to free speech and for retaliating against the journalism program. The Court held that the students did not demonstrate a likelihood of success in showing that the defendant administrators’ comments about some of the articles had a chilling effect on the journalists, since those administrators had no control over the paper. It also held that the students did not demonstrate a likelihood of success on their retaliation claims. Furthermore, the Court found it unlikely that the defendants' removal of the paper's full-time faculty adviser in light of budget constraints, the purported cuts to the paper's funding, or the changes to the fall course schedule would cause irreparable harm to the paper. The Court thus denied the plaintiffs' request for preliminary injunction.
Comment request issued by the U.S. Department of Education on information collected to inform the Secretary of Education's recognition of accrediting agencies. The information collected--which consists of petitions, reports, and accreditation notifications--is required to determine if accrediting agencies comply with or are comparable to the Secretary's criteria for recognition. It is also used to allow the Secretary to make determinations on new, extensions of, and continuing recognition of accreditation statuses. Interested persons are invited to submit comments on or before November 30, 2015.
Announcement by the U.S. Department of Education stating that the official three-year cohort default rates were delivered to both domestic and foreign institutions on Monday, September 28 through the eCDR process. A three-year cohort default rate is the percentage of a school's borrowers who enter repayment on certain Federal Family Education Loan (FFEL) Program or William D. Ford Federal Direct Loan (Direct Loan) Program loans during a particular federal fiscal year and default or meet other specified conditions prior to the end of the second following fiscal year. According to Secretary of Education Arne Duncan, the three-year national cohort default rate is 11.8 percent. The Department also released a summary of the fiscal year 2012 official 3-year cohort default rates by state and by institution type, as well as a briefing on the national default rates.
A Joint Statement of Principles on Student Loan Servicing was released by the Consumer Financial Protection Bureau (CFPB) and the U.S. Departments of Education and the Treasury. The statement was developed as a roadmap to "improve student loan servicing practices, promote borrower success, and minimize defaults." It outlines the CFPB's and the Departments' commitment to ensure that student loan servicing is consistent, accurate, actionable, accountable, and transparent. The release of the statement coincides with the release of a report by the CFPB, which contains recommendations for addressing harmful servicing practices identified through responses to a CFPB public inquiry launched in May 2015.
Public infractions decision regarding violations by Southern Methodist University (SMU) was released by the National Collegiate Athletic Association (NCAA). After conducting an investigation of allegations against the University, the Division I Committee on Infractions panel found that SMU committed multiple violations, including academic fraud, unethical conduct involving head coach control in the men’s basketball program, and unethical conduct and recruiting violations involving the men’s golf program. The penalties imposed include three years of probation, a postseason ban for the men’s basketball and golf teams, scholarship reductions, recruiting restrictions, a vacation of certain men’s basketball wins, the disassociation of a booster, and a suspension of thirty percent of the men’s basketball season for the head coach.
Dear Colleague Letter released by Federal Student Aid reminding institutions that participate in the Federal Perkins Loan Program that they are required to return the federal portion of any excess liquid capital in their Perkins Loan Revolving Fund to the Department of Education. Excess liquid capital is the amount of the Fund’s “Cash On Hand” that is in excess of the institution’s estimated immediate needs. The letter includes instructions and worksheets for institutions to use to calculate their excess liquid capital.
Letters from the American Council on Education (ACE) and nineteen other higher education organizations in support of legislation that would extend the Perkins Loan Program through October 2016. The letter in support of H.R. 3954 praises the bill for "allowing the merits of the program to be considered within the context of the ongoing reauthorization of the Higher Education Act" and states that an extension of the program "is a necessary step to ensure that the over 500,000 students who receive an average of $2,000 in aid through this program are not unduly harmed." The letter to Senate leaders, addressed to Senators Lamar Alexander (R-TN) and Patty Murray (D-WA) of the Senate Committee on Health, Education, Labor and Pensions, urges them to extend the Perkins Loan Program, and asks that the Senate pass legislation “as the House has proposed that would guarantee that the future of the Perkins Loans program is determined through careful debate, and not as the result of an arbitrary deadline."
Legislation (H.R. 3594) introduced in the U.S. House of Representatives by Representatives Mike Bishop (R-MI) and Mark Pocan (D-WI) to temporarily extend the federal Perkins Loan program. The program is currently set to expire on October 1. The Act would extend the program for an additional year and limit the number of years that current recipients may receive Perkins loans.
Opinion and order by the Kansas Court of Appeals. In 2013, a Johnson County District Court issued a final protection of abuse order against plaintiff Navid Yeasin, a former student at the University of Kansas (UK), forbidding him from contacting his former girlfriend and fellow UK student for one year. During this period, Yeasin posted a series of "puerile and sexually harassing" tweets on his Twitter account, later acknowledging that they discussed his former girlfriend and therefore violated the protection order. Although Yeasin did not post the tweets on campus or at a University sponsored or supervised event, Yeasin was found to have violated of the University's Student Code and sexual harassment policy and was expelled. After exhausting his administrative remedies, Yeasin filed suit against the University, claiming that his expulsion violated his First Amendment right to free speech. In it's defense, the University argued that Title IX mandates that it take disciplinary action against Yeasin because his posts created a hostile education environment for one of its students. On appeal of the district court's holding in favor of Yeasin, however, the Kansas Court of Appeals rejected this argument. The Court held that, based on the Student Code's language, it's provisions apply only to conduct that occurs on campus or at University sponsored or supervised events, and therefore that the University had no authority to expel Yeasin.
Legislation introduced in the U.S. House of Representatives by Representatives Mike Bishop (R-MI) and Mark Pocan (D-WI) entitled the "Higher Education Extension Act of 2015" to extend the Perkins Loan program for an additional year. Under the bill, students who have received a Perkins Loan for the current 2015-16 academic year would be eligible to receive additional Perkins Loans until March 31, 2018.
Reference Guide on the U.S. Department of Education's Competency-Based Education (CBE) Experimental Sites Initiative was released by Federal Student Aid. The Guide is designed to assist schools participating in the CBE Experiment to implement the program and contains information on policies and procedures, systems, rules and regulations, and reporting related to the Initiative. In addition to announcing the release of the Guide, the Department announced that it will be issuing an expansion of the current CBE Experiment by the end of this year.
Resolution letter released by the U.S. Department of Education's Office for Civil Rights (OCR) regarding Princeton University's Compliance with Title IV. OCR examined whether Princeton discriminated against Asian applicants on the basis of race or national origin in the University’s undergraduate admissions process. Based on the information gathered during OCR’s investigation, the Office determined that there was "insufficient evidence" to demonstrate that the University had discriminated against Asian applicants during the fifteen-year period it examined.
Announcement by the White House Initiative on Educational Excellence for Hispanics to mark it's 25th anniversary. The Initiative was established in 1990 to address the educational disparities faced by the Hispanic community. According to the announcement, ten federal agencies have made commitments to continue investing in and supporting the educational attainment of Hispanic students. Additionally, the White House released the Federal Agencies Investing in Hispanic Education Report and the Education Agency Data Plans, which outline the Obama Administration's work to improve the education of Hispanic Americans.
Legislation (S. 2043) introduced in the U.S. Senate by Senator Chuck Grassley (R-IA) entitled, "Know Before You Owe Federal Student Loan Act of 2015." The legislation would revise the loan counseling requirements for certain borrowers of federal student loans. Revisions would include a requirement that student borrowers receive debt counseling every year before signing off on their loans. Additionally, during periods when payments are not required, the bill would require lenders to provide student borrowers with disclosure statements corresponding to time periods that payments would be required if the borrower was in repayment. The bill was referred to the Senate Committee on Health, Education, Labor and Pensions.
Report entitled "Optimizing the Nation's Investment in Academic Research" was authored by the National Academies of Sciences, Engineering, and Medicine at the request of Congress. The report, which examined federal regulation of government-funded research at colleges and universities, found that growing federal requirements on research institutions are forcing researchers to spend an increasing amount of time on administrative and compliance matters, thus undercutting their research productivity. The Committee tasked with creating the report recommended that Congress, the White House, and federal research agencies take steps to assess the effectiveness of current regulations, design more uniform rules across agencies, and eliminate redundancies.
Executive Order requiring all government contractors to offer their employees up to seven days of paid sick leave per year was signed by President Barack Obama. The new policy will go into effect beginning in 2017. The White House also issued a press release in conjunction with the signing of the Order.
Final rule on pay secrecy policies and actions was published by the U.S. Department of Labor's Office of Federal Contracts Compliance Programs (OFCCP). The rule implements Executive Order 13665, prohibiting federal contractors from discriminating against employees and job applicants who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants.
News release issued by the U.S. Department of Labor’s Office of Federal Contracts Compliance Programs (OFCCP) announcing that it has finalized its proposed “pay transparency” rule. Under the rule, federal contractors and subcontractors may not fire or otherwise discriminate against any employee or applicant for discussing, disclosing, or inquiring about his or her compensation or that of another employee or applicant. The rule will be applicable to all federal government contractors with contracts entered into or modified on or after January 11, 2016.
Opinion issued by the U.S. Court of Appeals for the Eleventh Circuit. A group of twenty-five former students who had participated in a nursing master’s degree clinical program at Wolford College sought to recover unpaid wages and overtime under the Fair Labor Standards Act (FLSA). After considering the six factors that the Department of Labor identified in recent guidance, the district court determined that the plaintiffs were not “employees” under the Act and therefore not entitled to wages or overtime pay. On appeal, the Eighth Circuit concluded that “[l]onger term, intensive, modern internships that are required to obtain academic degrees and professional certification and licensure in a field are just too different from" the internships at issue in previous cases for the old "primary beneficiary" test adopted under Walling v. Portland Terminal to apply. Instead, it announced a new test based on the factors articulated by the Second Circuit in Glatt v. Fox Searchlight Picture, which are designed to account for the unique qualities of the type of internship at issue in this case. The Court then remanded the case to allow the district court to apply the new test. However, it refrained from directly answering the question of whether the students in this case were “employees” for purposes of the FLSA.
Notice released by the U.S. Department of Education requesting an emergency clearance approval for the Data Challenges and Appeals Solution (DCAS). DCAS is new system that will enable institutions to challenge their self-reported data as well as the Department's calculated metrics, including Gainful Employment (GE) metrics, Cohort Default Rates, and Disclosure Rates and Metrics. This notice specifically requests a new collection for the first phase of DCAS: the institutional challenge to the GE completers list provided to institutions by the Department. Interested parties are invited to submit comments on or before November 23, 2015.
Letter of findings containing the results of the U.S. Department of Education Office for Civil Rights' (OCR) investigation of the University of Virginia (UVA) for alleged violations of Title IX. OCR found that the University's sexual assault and misconduct policies in place since 2005 did not provide for prompt and equitable resolutions of Title IX, that its informal resolution process was not equitable to either complainants or accused students, that the University failed to respond promptly and equitably to reports of sexual misconduct, and that a basis existed for a hostile environment for affected students and that the University failed to take steps to eliminate this environment. The University has since updated its policies, which federal officials consider compliant with Title IX. In a resolution agreement with OCR, UVA did not admit to any of the office’s findings or surrender the right to contest them “through all legal or administrative proceedings," but agreed to make a series of changes and to submit them to the office for review.
Opinion by the U.S. Appeals Court for the Eighth Circuit. Plaintiffs Dordt College and Cornerstone University, both nonprofit religious educational institutions that offer healthcare coverage to their employees, brought suit against the Departments of Health and Human Services (HHS), Labor (DOL), and Treasury, and their respective Secretaries, asserting that regulations adopted under the Patient Protection and Affordable Care Act (ACA) allowing religious organizations to opt out of providing, paying for, or facilitating the contraceptive coverage mandated by the ACA violated the Religious Freedom Restoration Act (RFRA). Under these regulations, organizations that choose to opt out of providing contraceptive coverage may do so by filling out a form for the group health plan's health insurance issuer or third-party administrator, or by sending notification to HHS. The government countered that the contraceptive mandate and accommodation process did not substantially burden Dordt and Cornerstone’s exercise of religion, that it had compelling interests in safeguarding public health and ensuring equal access to health care for women, and that the contraceptive mandate and accommodation process were the least restrictive means to further those compelling interests. The district court granted a preliminary injunction enjoining the government from enforcing the objectionable provisions of the ACA and its implementing regulations against the plaintiffs. The Eighth Circuit agreed, concluding that "by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion." It further held that, even assuming that the government’s interests in safeguarding public health and ensuring equal access to health care for women are compelling, the contraceptive mandate and accommodation process were not the least restrictive means of furthering those interests. Thus, it affirmed the district court's order granting injunctive relief to the plaintiffs. The Court referred to the reasoning set forth in Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services, which was handed down the same day, to support its holdings.
Opinion by the U.S. Appeals Court for the Eighth Circuit. Plaintiffs Sharpe Holdings, Inc., Heartland Christian College, and other religious nonprofits filed suit against the Departments of Health and Human Services (HHS), Labor (DOL), and Treasury, as well as their respective Secretaries, alleging that regulations adopted under the Patient Protection and Affordable Care Act (ACA) that enable religious organizations to opt out of providing, paying for, or facilitating the contraceptive coverage mandated by the ACA violated the Religious Freedom Restoration Act (RFRA). Under the ACA regulations, organizations that decide to opt out of providing contraceptive coverage may do so by delivering a form to their group health plan's health insurance issuer or third-party administrator, or by sending a notification to HHS. The plaintiffs asserted that the government was forcing them to violate their religious beliefs by threatening to impose significant monetary penalties "unless they either directly provide coverage for objectionable contraceptives through their group health plans or indirectly provide, trigger, and facilitate that objectionable coverage" through the accommodation process. The Eighth Circuit, citing the Supreme Court's 2014 decision in Hobby Lobby v. Burwell, determined that it was not the judiciary's role to second-guess the plaintiffs' assessment of a “difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” In affirming the district court's order granting injunctive relief to the plaintiffs, the Eight Circuit concluded that the government had substantially burdened the plaintiffs' exercise of religion and that, even assuming that the government’s interests in safeguarding public health and ensuring equal access to health care for women are compelling, the contraceptive mandate and accommodation process failed the least-restrictive means test.
Notice published by the U.S. Department of Education seeking comments on an altered system of records entitled the “Data Challenges and Appeals Solutions (DCAS) System." The new system, which will replace the Electronic Cohort Default Rate Appeals (eCDR Appeals) system, will be implemented in phases to include all appeals, requests for adjustments, and challenges related to institutional cohort default rates (CDRs), Gainful Employment regulations, and other student-level data initiatives. The Department seeks comments on the altered system of records as described in the Notice. Comments on the system must be received on or before October 21, 2015.
Campus Climate Survey on Sexual Assault and Sexual Misconduct was released by the Association of American Universities (AAU). The survey was designed to gauge overall campus climate with respect to perceptions of risk, knowledge of support resources available, and perceived reactions to incidents of sexual misconduct, in addition to providing participating institutions of higher education with information to help design policies to prevent and respond to reports of sexual misconduct.
Report authored by the Government Accountability Office on student loan borrowers' awareness of loan repayment and forgiveness options. The report concluded that most eligible borrowers do not participate in the U.S. Department of Education's Income-Based Repayment and Pay As You Earn repayment plans for Direct Loans, and that the Department has not provided information about the plans to all borrowers in repayment. As a result, borrowers who could benefit from the plans may miss the opportunity to lower their payments and reduce the risk of defaulting on their loans.
Settlement agreement reached in the case of Jergins v. Williams. The settlement stemmed from a lawsuit filed by three Dixie State University students against the president of the University and several other University officials for alleged violations of their free speech rights. Dixie State had rejected flyers promoting the Young Americans for Liberty (YAL) student group on the grounds that the flyers violated University policy by "disparag[ing]" and "mock[ing]" certain individuals, and later confined the group's "Free Speech Wall" event to the University's "Free Speech Zone." As part of the settlement, Dixie State agreed to revise its flyer approval process, posting policies, club event policies, and “Free Speech Zone” policy. The University also agreed to provide training to administrators regarding the campus’ new speech policies and to pay $50,000 in damages and attorney’s fees to the plaintiffs. The lawsuit was part of the Foundation for Individual Rights in Education’s (FIRE) Stand Up For Speech Litigation Project and represents the Project's seventh consecutive victory.
Ruling by the U.S. District Court for the District of Vermont on the plaintiff's emergency motion for preliminary injunction. Plaintiff John Doe filed suit against defendant Middlebury College based on Middlebury’s handling of a complaint of sexual misconduct against the plaintiff, which resulted from an incident that occurred while he was participating in a study abroad program with the School for International Training (SIT). While SIT exonerated the plaintiff, Middlebury conducted its own investigation de novo, and after finding that he had violated the College's sexual misconduct policy, expelled him. The plaintiff claimed that Middlebury’s undertaking of a second, de novo investigation and determination of the sexual assault allegation was not authorized because Middlebury’s policies pertaining to study-abroad programs and its agreements with the plaintiff prior to his participation indicated that he would be subject to the policies and discipline of the host institution, SIT. The District Court granted the plaintiff's emergency motion for a preliminary injunction forbidding Middlebury from expelling him for the fall 2015 semester.
Notice issued by the U.S. Department of Education regarding a request for an extension of the emergency clearance that was granted to allow the Department to gather information from borrowers who believe that they have cause to invoke borrower defenses against the repayment of student loans. This information collection effort will allow the Department to inform borrowers and loan servicers of the information needed to review and adjudicate requests for relief under borrower defenses regulations. Emergency clearance for the collection was originally granted on June 5, 2015. Interested persons are invited to submit comments on or before October 19, 2015.
Student Safety: Collar v. Austin
September 17, 2015
Order by the U.S. District Court for the Southern District of Alabama. Plaintiffs’ son Gil Collar was a student at the University of South Alabama when he was shot and killed by defendant Trevis Austin, a police officer employed by the University. The plaintiffs filed a Section 1983 suit against Officer Austin, claiming that he used excessive force in violation of the Fourth and Fourteenth Amendments, in addition to alleging wrongful death under Alabama state law. The Court held that the evidence viewed most favorably to the plaintiffs failed to support the proposition that the Collars' son posed no threat of death or serious injury to the defendant. Although unarmed, Collar exhibited what the Court and the plaintiffs referred to as "bizarre" and "irrational" behavior prior to the shooting, including appearing naked at the police station, jumping and waving his arms, advancing swiftly on a retreating officer, repeatedly telling the officer to shoot him and kill him, and ignoring repeated orders to get on the ground. The Court further concluded that it was not clearly established on the date of the incident that the defendant’s use of force violated Collar’s constitutional rights. Accordingly, it held that Officer Austin was entitled to qualified immunity as to the plaintiffs’ constitutional claim. Similarly, on the plaintiffs' wrongful death claim, the Court held that the defendant was entitled to state-agent immunity. It thus granted the defendant's motion for summary judgment on both claims.
Opinion and order issued by the U.S. District Court for the Northern District of Ohio. Plaintiff John Doe, a student at Lerner College, filed suit against Case Western Reserve University (CWRU) after a CWRU hearing found that the plaintiff had violated CWRU's sexual assault policy by engaging in non-consensual sexual contact with a female student of CWRU. Lerner College subsequently expelled the plaintiff. The plaintiff's complaint alleged Title IX violations based on erroneous outcome, selective enforcement, and deliberate indifference standards. The Court concluded that the complaint failed to plead any factual allegations to support the conclusion that CWRU discriminated against the plaintiff due to his sex, and thus granted the defendants' motion to dismiss, without prejudice, the plaintiff's Title IX violation claims based on all three standards.
Announcement by Federal Student Aid (FSA) that it plans to release the 2012 3-Year Official Cohort Default Rates to all schools, guarantees, and lenders on Monday, September 28, 2015. After the release of the rates to these select groups, FSA will post the 2012 Official Cohort Default Rates to the general public on the Default Management Web site and the FSA Data Center on Wednesday, September 30, 2015.
Minute order issued by the California Superior Court of San Diego. Defendant Investigative Newsource, a nonprofit investigative news outlet run by part-time San Diego State University (SDSU) professor Lorie Hearn, shared office space and performed investigations with a public media outlet on SDSU's campus. A strategic lawsuit against public participation (SLAPP) was filed by the nonprofit group San Diegans for Open Government (SDOG) against Investigative Newsource, Executive Editor Hearn, SDSU, and the SDSU Research Foundation, alleging that Investigative Newsource's lease agreement with SDSU posed a conflict of interest. The Court held that the plaintiff failed to meet its burden of showing that it has a probability of prevailing on the merits of its claim because the contracts at issue were "inextricably related to news gathering and dissemination, which is clearly protected activity under [California state law]." It therefore granted the defendants' anti-SLAPP motions.
Guidance memorandum prepared by the Association of American Universities (AAU), the Association of Public and Land-grant Universities (APLU), and the Association of Research Libraries (ARL) and sent to campus senior research officers on how campuses should comply with forthcoming agency grant rules on providing public access to the results of federally-funded research. The associations’ memo includes background information and potential campus preparatory actions in addition to a list of online resources.
Announcement published by Federal Student Aid explaining the changes to the Free Application for Federal Student Aid (FAFSA) that President Obama announced on September 14. The President's announcement included two major changes. First, beginning with the 2017-2018 financial aid application cycle, the FAFSA will be available on October 1st of the year prior to the upcoming award year rather than January of that year. Second, beginning with the same application cycle, FAFSA income information from one tax year earlier-- the so-called “prior-prior year”--will be collected instead of the information from the tax year immediately prior to when the application is submitted. The U.S. Department of Education will be providing more information to help resolve issues that will inevitably arise over the coming months and will also be sharing thoughts with, and soliciting input from, financial aid administrators at the Federal Student Aid Training Conference in December.
Comment request issued by the U.S. Department of Education on the Pell for Students who are Incarcerated Experimental Site Initiative (also known as "Second Chance Pell"). Under the initiative, the Department will provide select eligible postsecondary institutions with a waiver to the current statutory ban prohibiting incarcerated individuals from receiving Federal Pell Grant funds to attend eligible postsecondary programs. The experiment will test whether participation in high-quality educational opportunities increases after access to financial aid for incarcerated adults is expanded and examine how waiving the restriction influences individual academic and life outcomes. Interested parties must submit comments on or before November 13, 2015.
College Scorecard website was unveiled by the Obama Administration. The website, which was created in lieu of the Administration's original college ratings plan, is designed to provide students with data to on graduation rates, median salary, and loan repayment rates at specific institutions. The U.S. Department of Education compiled this data using federal tax records of students who received a federal loan or grant to attend a college or university.
Announcement issued by the White House on its plans to change the federal student aid process to allow students and families to apply for financial aid earlier in the year. Under the policy change, students and families will be able to submit their Free Application for Federal Student Aid (FAFSA) for the academic year beginning the following summer or fall in October instead of waiting until January. The change will take effect for students and families seeking federal financial aid for the 2017-18 academic year.
Press release issued by the National Collegiate Athletic Association (NCAA) announcing that all 65 Division I colleges and universities will vote on 72 rule change proposals in 2016. Of the 72 proposals, 14 would change the rules in areas of autonomy granted to the Atlantic Coast, Big Ten, Big 12, Pac-12, and Southeastern conferences; these proposals will be voted upon in January 2016 at the NCAA Conference in San Antonio after an opportunity for review and comment by member institutions. The remaining 58 proposals will be reviewed by members institutions before the Council takes final votes in April 2016.
Order by the Oregon Court of Appeals issued on September 2, 2015. Plaintiff Cassandra Scheffel filed suit against the Oregon Beta Chapter of Phi Kappa Psi and Phi Kappa Psi Fraternity, Inc., on theories of vicarious liability and negligence after she was sexually assaulted by a member of the fraternity during a party at the Chapter's fraternity house. The trial court granted summary judgment to the defendants and dismissed the plaintiff's claims. On appeal, the Court concluded that the trial court erred in granting summary judgment to the Beta Chapter on the plaintiff's negligence claim because the evidence established factual questions as to whether the plaintiff's sexual assault, in the context of the party, was reasonably foreseeable to the Chapter, as well as whether the Chapter's conduct fell below the applicable standard of care. The Court thus reversed and remanded the judgment as to the Beta Chapter but otherwise affirmed the trial court's judgment with respect to the national fraternity.
Notice of an open meeting by the National Advisory Committee on Institutional Quality and Integrity (NACIQI) was issued by the U.S. Department of Education. The Notice sets forth the meeting agenda and provides information to members of the public on how to submit written comments and to request to make oral comments during the meeting. The meeting is scheduled to take place December 16-18 in Washington, DC.
Letter signed by 175 research universities and other organizations to the U.S. House Appropriations Committee urging the Committee to retain the existing salary cap on extramural researchers funded by the Department of Health and Human Services (HHS). The Fiscal Year 2016 Labor-HHS appropriations bill, which passed the Committee in June, would implement a $20,000 (10 percent) cut in the Fiscal Year 2012 funding bill at a time when research institutions' discretionary funds from clinical revenues and other sources are decreasing, according to the letter. "It is essential to our nation's long-term health and standing in the global environment," the letter concludes, "that we adopt policies to ensure that America retains the most talented, productive, and diverse group of biomedical and behavioral researchers," and retaining the current funding level is one such policy.
Associations on the Proposed Overtime Pay Salary Threshold
Letter from the College and University Professional Association for Human Resources (CUPA-HR) and seventeen other higher education associations to the Department of Labor (DOL), responding to a Notice of Proposed Rulemaking that would make significant changes to the overtime provisions of the Fair Labor Standards Act (FLSA), including significantly increasing the salary threshold for when an individual qualifies as a worker exempt from the overtime pay requirement. While the associations agree that an increase to the minimum salary threshold is appropriate at this time and that Department must update the salary levels and regulations from time to time to ensure the exemptions are not abused, they assert that "the proposed minimum salary threshold . . . is simply too high."
Clarification issued by the Office of Postsecondary Education regarding certifications and compliance with the Clery Act. In light of information indicating that third parties are offering "certifications" to Campus Security Authorities (CSAs) and other institutional officials to indicate Clery Act compliance, the Office has issued this clarification to assert that the Department of Education "does not issue certifications and does not recognize or place any value on any certification offered by a third party." Moreover, institutions are neither required nor expected to have any such certification to comply with the Clery Act or related regulations, and the Department does not give any weight to third-party certifications in compliance reviews.
Dear Colleague Letter issued by the U.S. Department of Education announcing the availability of two courses on federal student aid program administration in the newly-redesigned Federal Student Aid Coach training suite. The introductory Web-based tutorials are available for both domestic and foreign schools. The Department expects to release the Intermediate Training course later this fall as well as an Advanced Training course in 2016.
Announcement by Federal Student Aid reminding institutions of the Pell Grant and Iraq and Afghanistan Service Grant 2014-2015 award year processing deadline. Under Federal Pell Grant Program regulations, data must be submitted to the Department of Education by September 30th following the end of the award year in which the Pell Grant or Iraq and Afghanistan Service Grant is made. For the 2014-2015 award year, the deadline is Wednesday, September 30, 2015.
Common Origination and Disbursement (COD) Processing Update issued by Federal Student Aid. The Update provides information related to COD System processing and includes news and updates, current issues, and reminders.
Announcement providing additional closeout information on the Teacher Education Assistance for College and Higher Education (TEACH) Grant for the 2014-2015 award year was posted by Federal Student Aid. The announcement provides information on processing deadlines, review of current balances, and when institutions can expect to learn their final balances.
Report by the Special Master for Borrower Defense to the Under Secretary of the U.S. Department of Education providing updates on the ongoing effort to develop processes and systems designed to enable aggrieved borrowers to assert a defense to repayment of their federal student loans. The report is designed to inform stakeholders and the public about the current status of the Borrower Defense Program (BDP) and includes statistics regarding the number of borrower defense claims received and the number of student borrowers to date who have had their student loans forgiven under the Program.
Consent order approving a settlement between the U.S. Justice Department and the University of Nebraska at Kearney (UNK) in the matter of a lawsuit filed against the University for allegedly violating the Fair Housing Act. The lawsuit arose in 2010, when UNK denied requests to allow two students with alleged disabilities to keep an emotional support animals with them in their apartment complex that UNK operates for students near its campus. Under the proposed settlement, UNK admits no legal wrongdoing but has agreed to change its policy to accommodate similar requests going forward, to pay the students $140,000, and to take other remedial measures. The Justice Department issued a press release announcing the settlement.
Little Sisters of the Poor Home for the Aged and other religious non-profit organizations brought suit against Sylvia Burwell, the Secretary of the U.S. Department of Health and Human Services (HHS), alleging that regulations adopted under the Patient Protection and Affordable Care Act (ACA) allowing religious organizations to opt out of providing, paying for, or facilitating the contraceptive coverage mandated by the ACA violated various provisions of the First Amendment. Under these regulations, organizations that choose to opt out of providing contraceptive coverage may do so by delivering a form to their group health plan's health insurance issuer or third-party administrator, or by sending a notification to HHS. The plaintiffs argued that the accommodation scheme violated the Religious Freedom Restoration Act ("RFRA") and the Religion and Speech Clauses of the First Amendment. The U.S. District Court for the District of Colorado denied the plaintiffs' motion for preliminary injunction, while two U.S. District Courts in Oklahoma granted their motions. On appeal, the U.S. Court of Appeals for the Tenth Circuit held that the regulatory scheme for accommodating organizations' objections to the ACA's contraception mandate: (1) did not violate RFRA; (2) did not violate the plaintiffs' rights under Free Exercise Clause; and (3) did not violate the Establishment Clause by treating churches differently from non-profit religious organizations. It further held that the notification requirement did not violate the plaintiffs' free speech rights. The Court thus affirmed the Colorado district court's denial of a preliminary injunction to the plaintiffs in Little Sisters of the Poor Home for the Aged v. Sebelius, and reversed the Oklahoma district courts' grants of a preliminary injunction to the plaintiffs in Southern Nazarene University v. Sebelius and Reaching Souls International, Inc. v. Sebelius.
Notice of Proposed Rulemaking (NPRM) issued by the U.S. Department of Education in conjunction with fifteen other federal agencies regarding protections for human research subjects. The goals of the proposed changes are to increase human subjects' ability and opportunity to make informed decisions; increase the uniformity of human subject protections; and facilitate current and evolving types of research that offer new approaches to treating and preventing medical and societal problems through reduced ambiguity in interpretation of the regulations, increased efficiency of review systems, and reduced burdens on researchers. Comments on the NPRM must be received no later than 5 PM on December 7, 2015.
Notice issued by the U.S. Department of Education setting forth the agenda for the September 23, 2015, meeting of the President's Board of Advisors on Historically Black Colleges and Universities (HBCUs). The Board will advise the President on improving the identity, visibility, distinctive capabilities and competitiveness of HBCUs; engaging various communities in a national dialogue regarding new HBCU programs and initiatives; improving the ability of HBCUs to remain fiscally secure; elevating the public awareness of HBCUs; and encouraging public-private investments in HBCUs. The Notice also provides information on how to submit written comments and to request time to make oral comments at the meeting.
Letter from the U.S. Department of Education's Office for Civil Rights (OCR) to Michigan State University (MSU) on the University's handling of two cases involving sexual misconduct. Federal investigators found that, between 2009 and 2014, the University did not promptly investigate student complaints of sexual misconduct and that its policies and procedures did not comply with Title IX. The University has entered into an agreement with OCR to resolve the issues without admitting to any violation of the law, as OCR announced in a press release.
Comment request issued by the U.S. Department of Education requesting an extension of the current information collection regarding the notification of income based repayment loan borrowers. Current regulations require loan holders to notify borrowers once a borrower establishes a partial financial hardship and is placed in an income based repayment plan by the loan holder. The regulations identify information the loan holder must provide to the borrower to continue to participate in the income based repayment plan.
Opinion and order issued on August 28, 2015 by the U.S. District Court for the Northern District of Illinois. Plaintiff Peter Ludlow, a professor at Northwestern University, filed suit against his employer alleging that Northwestern's investigation of sexual harassment allegations against him violated Title IX and that comments made by defendants Alan Cubbage, the Vice President of University Relations, and graduate student Lauren Leydon-Hardy in association with the investigation defamed him and placed him in a false light. After finding that Ludlow's Title IX claim was actually a challenge to an adverse employment action, the Court concluded that the claim was preempted by Title VII. The Court further held that even if Ludlow's Title IX claims were not preempted, Ludlow had not sufficiently pleaded that the alleged discrimination had any connection to his gender and thus dismissed Ludlow's Title IX claim against Northwestern University. Finally, the Court determined that it had no basis for exercising supplemental jurisdiction over his state law claims against Cubbage and Leydon-Hardy and subsequently dismissed them.
Legislation (H.R. 3403) introduced in the U.S. House of Representatives by Congressman Matt Salmon (R-AZ) entitled the "Safe Campus Act of 2015." The Act would give students at institutions of higher education who report sexual misconduct allegations to the institution the option of pressing for a criminal investigation of the incident. If the student chooses not to take this route, the legislation would prohibit the institution from to launching an independent investigation or enforcing disciplinary measures against the accused for conduct code violations. The bill would also provide increased due process protections for students accused of sexual misconduct.
Order by the U.S. District Court for the District of Nebraska. Plaintiffs Omowale Akintunde and Manfred Wogugu are both associate professors within the Black Studies Department at the University of Nebraska-Omaha (UNO). In 2014, conflicts over personnel issues began to arise within the Department. The plaintiffs filed suit against the Board of Regents of the University, Dean David Boocker, and four unnamed defendants, claiming that the defendants' efforts to resolve issues within the Department did not follow the University's Behavior Review Team procedures and that Dean Boocker "deliberately . . . create[d] a distrust among the [Department's] faculty and [Department Chair Okembe-RA] Imani . . . to prevent it from operating effectively, thus, justifying the elimination of Black Studies as a department." The Court held that UNO's Board of Regents and the University itself are state agencies entitled to sovereign immunity under the Eleventh Amendment and thus dismissed the plaintiffs' claims against them. The Court also dismissed the plaintiffs' claims against Dean Boocker, both in his official capacity because their complaint sought relief in the form of monetary damages, and in his individual capacity because their claims "did not articulate a violation of a clearly established constitutional or statutory right."
Comment request issued by the U.S. Department of Education on a proposal by the Rehabilitation Services Administration (RSA) for an extension of the Annual Payback Report. The Rehabilitation Act of 1973 provides long-term training grants to academic institutions to support scholarship assistance to students. Each of these institutions is required to track the employment status of and other information on former scholars supported under their grants to ensure that these scholars are making progress toward fulfilling their obligation towards payback in qualified employment in fields, and to report this information to the Secretary of Education through the Annual Payback Report form. Interested persons are invited to submit comments regarding the proposal by November 2, 2015.
Letter to Secretary of Education Arne Duncan signed by over 200 college and university leaders encouraging the Department of Education to incorporate data from the Student Achievement Measure (SAM) into the Department of Education's Integrated Postsecondary Education Data System (IPEDS). SAM is voluntary web-based tool that allows institutions to show the progress and graduation rates of significantly more students--including transfer students, part-times students, and students who enroll in multiple institutions--than the federal graduation rates reported through IPEDS, which does not include data on these students. Doing so, the letter asserts, would "help ensure the integrity and reliability" of the federal government's online college information system.
Plaintiff Karen Habitzreuther, a former student at Cornell University, was found to have violated the University's Honor Code and was suspended for two years after she failed to inform a student clinician who examined her dog of his "dominance aggression problems" before the dog bit the student. She was allowed to return to school after the first year of suspension on the condition that she comply with certain terms, but was subsequently expelled after the biting incident was re-examined de novo and in light of her academic performance and compliance with the terms during the fall semester. Habitzreuther filed suit against defendants Cornell University and Cornell University College of Veterinary Medicine, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, promissory estoppel and detrimental reliance, and fraudulent misrepresentation. The defendants moved for judgment on the pleadings, which the Court granted due to the conclusory nature of, and documented evidence directly contradicting, the plaintiff's claims in her pleadings.
Announcement released by the Internal Revenue Service (IRS) stating that it will waive the penalties assessed against colleges and universities for missing or inaccurate Taxpayer Identification Numbers (TINs). The waiver is being given due to recently-passed legislation that provides relief to educational institutions from future penalties for missing or incorrect TINs as long as the educational institution certifies that it has complied with regulations governing solicitation of payee TINs. The waiver applies to tax year 2012; the IRS will also refrain from issuing penalties for tax years 2013 and 2014.
Settlement agreement reached in a legal dispute over a University of Kansas (KU) student's effort to obtain the records of a lecturer, Dr. Arthur Hall, who previously worked for Koch Industries Inc. Student Schuyler Kraus, president of a student group at the University known as "Students for a Sustainable Future" (SSF), submitted a Kansas Open Records Act request for Dr. Hall's correspondence in hopes of proving that conservative activists Charles and David Koch were improperly influencing the University. The agreement states that the University will release certain documents related to the open-records request, including correspondence between Dr. Hall and other parties identified in the request that discuss the Center for Applied Economics' use of funds provided by Koch Industries and the original funding agreement related to the establishment of the KU Center for Applied Economics. However, the University will not have to release correspondence to or from two other faculty members named in the request.
Decision and order by the National Labor Relations Board (NLRB). The Berklee Faculty Union at Berklee College of Music filed a complaint claiming unfair labor practices based on the College's decision to implement a class-cancellation policy in 2012, allegedly without the Union's input. An administrative law judge found that the College's imposition of the class-cancellation policy effectively amounted to a denial of the Union's rights in the matter. On review, the NLRB reversed, holding that while the College provided the Union with a meaningful opportunity to bargain over the policy's effects, the Union failed to exercise its own bargaining rights in refusing to enter into such talks, instead remained focused on its challenge to the policy itself.
Ruling by the U.S. Bankruptcy Court for the District of Delaware approving Corinthian Colleges, Inc.'s Combined Plan and Disclosure Statement. After selling off or closing its campuses and filing for bankruptcy, Corinthian submitted to the Bankruptcy Court a Combined Plan and Disclosure Statement to liquidate its assets. The Plan proposed creating two separate trusts: a Distribution Trust for the benefit of all holders of non-student and non-government claims, and a Student Trust for the benefit student and government education claims. As a result, student debtors who were harmed by the Colleges' closures will be allowed to transfer their rights and interest in those funds (amounting to approximately $4.3 million) to the Student Trust, which, subject to the terms of the Student Trust Agreement, may be used to fund outreach programs and assistance for former students in seeking discharges or releases of their student loan obligations.
Supplemental decision and order by the National Labor Relations Board for Region 2 (Regional Board). The petitioner--Manhattan College Adjunct Faculty Union, New York State United Teachers, AFT/NEA/AFL-CI--sought to hold union elections for certain contingent faculty members at Manhattan College in 2011. After the Regional Board issued a Decision and Direction of Election, the National Labor Relations Board (NLRB) issued an order remanding the proceeding to the Regional Board for further action consistent with its decision in Pacific Lutheran University (361 NLRB No. 157), which revised the Board's standards for asserting jurisdiction over faculty members at self-identified religious institutions. Upon review, the Regional Board concluded that while the College holds itself out as a religious educational environment, it failed to establish that the petitioned-for adjunct faculty members perform a specific role in maintaining the College's religious educational environment. Therefore, it held that the exercise of jurisdiction by the Board over the College is proper and directed the impounded ballots to be counted.
Memorandum by the U.S. District Court for the District of Maryland. The claim stemmed from allegations by Jane Doe #1 that two unnamed plaintiffs, John Doe and Richard Roe, sexually assaulted her at a college house party. SU began an internal investigation into claim and, at a hearing by SU's Community Board, the plaintiffs were found responsible of engaging in non-consensual contact with Jane Doe #1 in violation of SU's Code of Conduct Sexual Harassment Policy. Specifically, the Board concluded by a preponderance of the evidence that "a reasonable person would have known that [Jane Doe #1] was intoxicated" and that an intoxicated person cannot consent to sexual activity. Plaintiffs filed suit against defendants Salisbury University (SU) as well as two SU officials, claiming that "SU has created an environment in which male students accused of sexual assault, such as Plaintiffs, are fundamentally denied due process as to be virtually assured of a finding of guilt." While the Court recognized that evidence of SU's sexual assault awareness programs does not, on its own, support a claim for sex discrimination, the plaintiffs "may have a viable case if they are able to uncover discoverable and admissible evidence that [their] gender was a motivating factor behind SU's allegedly flawed disciplinary procedures and wrongful conclusions." Thus, the Court denied Defendant SU's motion to dismiss on Count XII: Title IX (Erroneous Outcome).
Announcement by Federal Student Aid Deputy Chief Operating Officer Matt Sessa on a series of updates posted to the Federal Student Aid Data Center. The Data Center is the U.S. Department of Education's centralized online source for Federal Student Aid data. The announcement provides a summary of the updated quarterly reports available on the Data Center page as well as a snapshot of key findings and takeaways from the reports.
Press release issued by the U.S. Department of Education announcing an increase in the number of student-loan borrowers enrolling in Income-Driven Repayment plans. According to new quarterly numbers posted on the Department's Federal Student Aid Data Center page, nearly 3.9 million Direct Loan borrowers have enrolled in Income-Driven Repayment plans as of June 30, representing a 56 percent increase from June 2014. The new data also shows that delinquency rates have fallen from 23 percent to 21 percent over the same period.
Report published by the Education Commission of the States discussing the different strategies states are using to implement reverse transfer policies. Such policies retroactively award associate degrees to students pursuing four-year diplomas. The report concludes by recommending that states consider multiple factors to make reverse-transfer policies successful, including policy oversight, technology, funding and student identification.
Gainful Employment User Guide was released by the National Student Loan Data System (NSLDS). The Guide provides an overview of gainful employment compliance rules, guidelines, and administrative functions and responsibilities. Comprehensive information on GE Program requirements can be found on the Information for Financial Aid Professionals (IFAP) Gainful Employment page.
Announcement by Federal Student Aid Service Director Pamela Eliadis on a new functionality of the NSLDS Professional Access Web site. This functionality, which includes a new Gainful Employment Program Tracking page, is designed to assist institutions with managing the requirements for gainful employment (GE) reporting to the National Student Loan Data System (NSLDS).
Order by the U.S. District Court for the Middle District of Pennsylvania. Plaintiff Arianna Borreggine, a student-athlete at Messiah College who was diagnosed with dyslexia in high school, filed suit against the College for disability discrimination under the Rehabilitation Act. Plaintiff was dismissed from the lacrosse team after sustaining multiple foot injuries but engaging in arguably strenuous activities against her doctor's orders during her recovery. While the plaintiff asserted that her dismissal was the result of the head coach's alleged frustration with her dislexia as well as her injuries, the College argued that her attitude and lack of commitment to rehabilitation prompted her dismissal. The Court held that the plaintiff's foot injuries were not a basis for a disability discrimination claim under the Rehabilitation Act and that no reasonable factfinder could conclude that the plaintiff's dislexia was the reason for her dismissal from the team. It thus granted summary judgment to the College.
Proposed rule published by the U.S. Department of Education announcing the Department's intent to establish a negotiated rulemaking committee to prepare proposed regulations impacting Title IV Federal Student Aid programs. The Department seeks to clarify how Direct loan borrowers who believe they were defrauded by their institutions can seek relief and to strengthen provisions holding colleges accountable for their wrongdoing that results in loan discharges. The Department will host two public hearings in September at which interested parties may comment on suggested topics may offer additional topics that should be considered by the negotiating committee. A press release was issued by the Department to accompany this announcement.
Updated version of the Common Origination and Disbursement (COD) Technical Reference was released by the U.S. Department of Education. The 2015-2016 COD Technical Reference, which consists of seven volumes of attachments linked on the Federal Student Aid page, contains development information for the 2015-2016 Award Year.
Per curiam opinion issued by the Michigan State Court of Appeals. In February 2015, ESPN sued Michigan State University after the University redacted the names and identifying information of suspects, victims, and witnesses in records it provided ESPN in response to a request under Michigan's Freedom of Information Act. A trial court ordered the University to disclose the names of the student-athletes at issue. On appeal, the Court held that the the trial court did not err when it determined that the disclosure of the names of student-athletes identified as suspects did not constitute a clearly unwarranted invasion of an individual's privacy. It further held that the trial court did not abuse its discretion when it weighed the public's interest in understanding how the University's police department handles criminal investigations involving student-athletes against the student-athletes' privacy interests and determined that the balance favored disclosure.
Legislation (S. 1998) introduced in the U.S. Senate by Senators Martin Heinrich (D-NM) and Mazie Hirono (D-HI) entitled the "Middle Class Creating Higher Education Affordability Necessary to Compete Economically" Act ("Middle Class CHANCE" Act). The bill would increase the individual maximum Pell Grant amount to $9,140 to adjust for inflation. It would also restore year-round awards to give provide funding for summer courses and increase the number of semesters for which recipients are allowed to use awards from twelve to fifteen.
Statement issued by American Council on Education (ACE) President Molly Corbett Broad on the recent decision by the National Labor Relations Board (NLRB) declining to classify student-athletes as employees under federal labor law for the purpose of unionizing. In her statement, President Corbett Broad announces that ACE is pleased with the decision and reiterates the Council's position that "forming a collective bargaining unit is not the appropriate way to address concerns expressed by student-athletes."
Order by the U.S. Court of Appeals for the Seventh Circuit. Plaintiff Bryana Bible defaulted on her student loan payments but promptly agreed to enter into a rehabilitation agreement requiring her to make reduced monthly payments. Despite her subsequent compliance with this agreement, defendant United Student Aid Funds, Inc. (USA Funds) charged her $4,500 in collection fees. Bible sued the guaranty agency, alleging breach of contract and a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. § 1961). The district court held that Bible's complaint failed to state a claim that was plausible on its face, but the Seventh Circuit reversed. Applying the Secretary of the Education's interpretation of the applicable statutes and regulations, the Court held that a guaranty agency may not impose collection costs on a borrower who is in default for the first time but who has timely entered into and complied with an alternative repayment agreement. Thus, it held that both the breach of contract and RICO claims satisfy the plausibility standard under Rule 12(b)(6).
Supplemental decision and order issued by the National Labor Relations Board for Region 19 (Regional Board). The petitioner originally sought to hold union elections for contingent faculty at Seattle University in March 2015. After the Regional Board held that Seattle University is not a church-operated institution within the meaning of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the National Labor Relations Board (NLRB) issued an order remanding the proceeding to the Regional Board for further action consistent with its decision in Pacific Lutheran University (361 NLRB No. 157). Pacific Lutheran revised the Board's standards for declining jurisdiction over faculty members at self-identified religious institutions of higher education. Upon review, the Regional Board again found that the University has not met its burden of demonstrating that any of its faculty are held out as performing specific religious functions, and therefore that the University is not a church-operated institution falling outside the Board's jurisdiction. It thus directed the ballots previously collected to be opened and counted.
Letter sent by eleven state attorneys general to U.S. Secretary of Education Arne Duncan requesting that the Department of Education seek input from state attorneys general as it develops a process for discharging federal loans for students who attended colleges that defrauded them. The letter recommends that the Department allow states to participate in the loan discharge cases and to submit evidence of fraud that they've gathered against such institutions.
Settlement agreement between the U.S. Attorney's Office for the District of Massachusetts and Northeastern University resolving the University's alleged failure to account for federal research funds. According to allegations, Northeastern did not properly account for federal research funds that it received from the National Science Foundation (NSF) over a period of nine years. The University has agreed to pay $2.7 million and to submit to a five-year compliance agreement to ensure that proper oversight and safeguards are in place for future research awards. The U.S. Attorney's Office issued a press release on the agreement and, in a separate statement, Northeastern asserted that it reported the problems "as soon as they were discovered" and that it has made "significant enhancements" in financial and procedural controls over its research enterprise since the discovery.
Opinion by the U.S. District Court for the Eastern District of Pennsylvania. Plaintiff Kenneth Ruff, an African American, was hired by defendant Temple University as an academic advisor in 2008. Ruff sued Temple, alleging that it unlawfully discriminated against him on the basis of race when it failed to promote him to either of two newly-created Principal Advisor or Senior Advisor positions in 2010. The Court held that Ruff cited no objective evidence that would allow a jury to find that the decision of two university officials who hired him in 2008 and then decided to not then promote him to his requested job in 2010 was based on his race. It thus granted the defendant's motion for summary judgment.
Comment letter submitted by the Association of American Universities (AAU) to the U.S. Senate Commerce, Science, and Transportation Committee on the America COMPETES Act of 2015. The letter consists of several recommendations involving issues that directly affect research universities, including maximizing basic research, improving STEM education, and translating federal research results into innovative commerce applications. AAU asserts that, in order to remain the global leader in science, technology, and innovation, the U.S. must continue to invest in scientific research, and that the COMPETES Act "reinforce[s] the value and the necessity of the government-university-industry partnership."
Research published in Race, Ethnicity and Education on the "performance" demands on African American faculty members at academic conferences or meetings. The researchers interviewed thirty-three black faculty members on their experiences presenting their research in academic settings. A majority of those interviewed recalled experiencing audience critiques and questions about the objectivity of their research as well as on their appearance, energy levels, and humor. The researchers found that such experience compelled a majority of the respondents to sacrifice key aspects of their identity to avoid criticism, and some even resigned from their positions.
Memorandum opinion and order by the U.S. District Court for the Northern District of Illinois. In 2013, plaintiffs Willie Preston and Brittany Bailey, students at Chicago State University (CSU), ran for student government positions on platforms criticizing CSU administrators' handling of student affairs. Plaintiffs brought this suit in 2014, alleging that CSU had retaliated against them for their criticism by expelling Preston and by preventing Bailey from taking office. Due to the litany of disputed facts and unanswered questions, the Court concluded that it was in no position to grant the plaintiffs' request for mandatory injunctive relief at this stage. It further concluded that, because Preston is no longer a student at CSU and was denied reinstatement, he is neither eligible nor entitled to the student government seat he requests as a remedy, and that even if Bailey's factual allegations were true, it could not award her the relief she seeks because she has not identified any ongoing irreparable harm. The Court thus denied the plaintiffs' motion for preliminary injunction.
Draft Dear Colleague Letter issued by the U.S. Department of Education regarding the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g). The Letter offers guidance on cases where litigation occurs between the institution and the student and how protections of student medical records apply in such situations. According to the Department's interpretation of FERPA, the Letter states that institutions "should not share student medical records with the institution's attorneys or courts unless the litigation in question relates directly to the medical treatment itself or the payment for that treatment." In those cases, institutions should disclose "only those records that are relevant and necessary to the litigation." The Department also published a blog post to accompany the Letter. Interested parties have until October 2 to comment on the proposed language.
Legislation (H.R. 3157) introduced in the U.S. House of Representatives on July 22, 2015 by Representative Todd Rokita (R-IN). The bill would amend the Family Educational Rights and Privacy Act of 1974 (FERPA) to strengthen privacy protections for students and parents, including prohibiting schools and their partner technology companies from selling or using student data for marketing purposes. In addition, it would give the Department of Education the added enforcement power of imposing fines of anywhere between $100 to $1.5 million for FERPA violations.
Legislation (S. 1322) introduced in the U.S. Senate by Senator Edward Markey (D-MA) on May 13, 2015. The bill would amend the Family Educational Rights and Privacy Act of 1974 (FERPA) to ensure that student data handled by private companies is protected. Specifically, the bill would prohibit programs administered by the Department of Education from making funds available to any educational agency or institution that has not implemented information security policies that: (1) protect personally identifiable information from education records, and (2) require each outside party to whom this information is disclosed to have a comprehensive security program to protect such information.
Companion legislation (H.R. 2092, S. 1788) introduced in the U.S. Congress by Representative Luke Messer (R-IN) and Senator Steve Daines (R-MT) on April 29 and July 16, 2015, respectively. The bills would require operators that provide online and similar services to educational agencies or institutions to protect the privacy and security of students' personally identifiable information. To do so, they would prohibit these operators from collecting student information to create a personal profile or for purposes unrelated to educational instruction, school collaboration, or administrative activities; and from selling students' personal information to third parties. The bills would also require operators to implement information security procedures and a process for responding to data breaches, in addition to notifying specified parties of unauthorized acquisitions of students' personal information.
Ruling by the U.S. District Court for the District of Columbia on both parties' cross motions for summary judgment. In April 2008, defendant U.S. Department of Homeland Security (DHS) promulgated a rule extended the duration of optional practical training (OPT) for eligible science, technology, engineering, and mathematics (STEM) students. Plaintiff Washington Alliance of Technology Workers (WATW)--a collective-bargaining organization that represents STEM workers--sued DHS for, among other things, allegedly lacking good cause to waive the notice and comment requirement in promulgating the 2008 Rule. The Court determined that DHS's self-imposed deadline of April 2008 for promulgating the Rule lacked support in the record, meaning that DHS failed to carry its burden to show that it faced an "emergency situation" that exempted it from subjecting the 2008 Rule to notice and comment. However, after concluding that vacating the 2008 Rule would cause "substantial hardship" for thousands of international students who would have to leave the United States in short order, in addition to causing "major labor disruption" for technology-related industries, the Court stayed the decision until February to give DHS time to submit the Rule for public comment.
Dear Colleague Letter issued by the Department of Education (DOE) announcing the availability of an online training module that focuses on the Fiscal Operations Report for 2014-2015 and the Application to Participate for 2016-2017 (FISAP). The training module, which is designed for individuals on the financial aid and business office staff who are responsible for completing the FISAP is available on the Federal Student Aid E-Training Web site. The FISAP itself is available on the eCampus-Based (eCB) Web site and must be submitted no later than October 1, 2015 by schools that participate in the Federal Perkins Loan Program, Federal Supplemental Educational Opportunity Grant (FSEOG) Program, and Federal Work-Study (FWS) Program.
Filing with the U.S. Securities and Exchange Commission (SEC) by Bridgepoint Education, Inc. and its Ashford University. The filing indicates that Consumer Financial Protection Bureau (CFPB) is calling for information from Bridgepoint and Ashford to aid in its investigation of whether for-profit educators or others are engaging in unlawful activities involving private student loans. Bridgepoint and Ashford University state that they "expect to provide documents, testimony and other information to the CFPB."
Letter from Representative Bob Goodlatte (R-VA), Chairman of the U.S. House Judiciary Committee, to the presidents of 161 public colleges and universities urging them to update their speech codes to protect the First Amendment rights of students and faculty. The letter was sent in response to the Foundation for Individual Rights in Education's (FIRE) annual Spotlight on Speech Codes 2015 report, which identified the 161 institutions as having "at least one policy that both clearly and substantially restricts freedom of speech." The letter asks "what steps the [recipient institution] plans to take to promote free and open expression on its campus(es), including any steps toward bringing [its] speech policies in accordance with the First Amendment."
Decision on review and order by the National Labor Relations Board (NLRB). The College Athletes Players Association (CAPA) petitioned the Board to find that Northwestern University's football players who receive grant-in-aid scholarships are employees within the meaning of Section 2(3) of the National Labor Relations Act. In March 2014, a Regional Director held that the players are in fact employees under the Act and issued a Decision and Direction of Election. On appeal, the NLRB reversed, concluding that asserting its jurisdiction in this case "would not promote stability in labor relations." It cited "recent changes, as well as calls for additional reforms" as evidence that "the situation of scholarship players may well change in the near future."
Order issued by the Oregon Court of Appeals on cross-complainant Robert Davis' appeal of a judgment entered after the trial court denied his motion for partial summary judgment and granted a motion for summary judgment by cross-defendants Eastern Oregon University (EOU) and the Oregon State Board of Higher Education (collectively, the "cross-defendants"). Davis, a former EOU administrator, argued that the cross-defendants had an obligation under state law to pay the legal costs he accumulated in defending himself against a suit filed by a co-worker--who accused him of raping her--because the alleged incident occurred in the performance of his duties as an employee--namely, his attendance at a work-related conference. Assuming for legal purposes that Davis' claim that the two had engaged in consensual sex was correct, the Court nonetheless ruled that Davis "was not hired to engage in sexual conduct with other employees" and, furthermore, that there was "no evidence" that Davis, "in engaging in sexual conduct with plaintiff, was motivated by a purpose to serve EOU." It thus agreed with the trial court's conclusion that the underlying claims all related to Davis' sexual conduct with a coworker and, as a matter of law, could not constitute an act or omission occurring in the performance of duty. Therefore, it affirmed the grant of summary judgment to the cross-defendants and the denial of partial summary judgment to Davis.
Order by the U.S. District Court for the Northern District of Florida denying defendant Florida State University's (FSU) motion to dismiss. Erica Kinsman, a former student at FSU, filed suit against the University, claiming that FSU failed to properly investigate or respond to her allegation that she was raped by Jameis Winston, a student athlete. FSU filed a motion to dismiss the case, arguing that the complaint fails to meet the four requirements for a Title IX claim. The Court concluded that FSU simply "offers a different take on some of the facts in the complaint" and alleges "additional facts that are not in the complaint in an attempt to show its efforts to respond were diligent and genuine, or at least not "clearly unreasonable" under Title IX," but that the complaint itself plausibly alleges deliberate indifference during this period that effectively denied her the ability to attend FSU."
Draft of the Free Application for Federal Student Aid (FAFSA) for 2016-2017 was published by the U.S. Department of Education (DOE). The federal student aid application process, which begins with an applicant submitting a FAFSA to the DOE, is required to collect and process the data necessary to determine a student's eligibility to receive Title IV program assistance under the Higher Education Act. A summary of the changes made from the previous version can be found here.
Final priority issued by the Department of Education regarding vocational rehabilitation workforce innovation technical assistance. The original notice of proposed priority, published in the Federal Register on June 17 (80 FR 34579), was written with the intent to provide training and technical assistance to State vocational rehabilitation agencies to improve services under the State Vocational Rehabilitation Services program and the State Supported Employment Services program for individuals with disabilities, in addition to implementing changes to the Rehabilitation Act of 1973 as amended by the Workforce Innovation and Opportunity Act (WIOA). Except for minor revisions, there are no differences between the proposed priority and the final priority. The final priority will go into effect on September 14, 2015.
Notice issued by the Vocational Rehabilitation Workforce Innovation Technical Assistance Center inviting applications for new awards for fiscal year (FY) 2015. Under the Rehabilitation Act of 1973 (Rehabilitation Act), the Rehabilitation Services Administration (RSA) makes grants to States and public or nonprofit agencies and organizations to support projects that provide training, traineeships, and technical assistance designed to increase the numbers of, and improve the skills of, qualified personnel who are trained to provide vocational, medical, social, and psychological rehabilitation services to individuals with disabilities, and provide other services authorized under the Rehabilitation Act. Applicants may access the electronic grant application for the Rehabilitation Training: Vocational Rehabilitation Workforce Innovation Technical Assistance Center competition at www.grants.gov.
Press release issued by the Eastern Michigan University American Association of University Professors (EMU-AAUP) announcing that it has reached a tentative agreement with Eastern Michigan University (EMU). The contract reportedly includes raises of 2.5% per year for each year of the four-year contract, alterations in health care payments, and additional support and incentives for faculty research. The proposal remains subject to ratification by the union's members and by EMU's Board of Regents.
Resolution passed by the American Bar Association regarding sexual assault on campus. The Resolution encourages institutions of higher education to "recognize the rights of students to receive an education free from sexual harassment, sexual assault, stalking, gender-based violence, and intimate partner violence," to adopt policies that protect students from and respond to such misconduct, and to train students and employees in the harms that such misconduct causes, among other steps.
Order issued on August 5, 2015 by the U.S. District Court for the Western District of Virginia. An anonymous Washington & Lee University student was expelled for engaging in nonconsensual sex with a female student. The student filed suit against the University, alleging that its decision to discipline him violated his rights under Title IX, violated his right to due process Under the Fifth Amendment, and constituted a breach of contract. The Court held that, while some of the plaintiff's claims were without merit, he plead factual allegations sufficient enough to support a Title IX claim. It therefore granted in part and denied in part the University's motion to dismiss.
Comment request issued by the U.S. Department of Education regarding the 2016-2017 Federal Sudent Aid Application (FAFSA). The Department is seeking input on the collection of information through the FAFSA, which is projected to involve a net burden decrease of 3,522,674 hours. Interested parties are invited to submit comments by October 13, 2015.
California Bill (S.B. 424) to allow college and university campus police to use additional investigative tools was signed into law by State Governor Edmund Brown. The legislation will allow campus police departments to use pretext phone calls during sexual misconduct investigations and to wear body cameras.
Order issued on August 4, 2015 by the Chancery Court of Davidson County, Tennessee. The case arose when a female student at the University of Tennessee at Chattanooga (UTC), Molly Morris, accused petitioner Corey Mock, another student at UTC, of sexual assault. Administrative Law Judge Joanie Sompayrac (ALJ) initially held that UTC failed to carry its burden of proof and dismissed the charges but, upon reconsideration, reversed her Initial Order and held that UTC had proven by preponderance of the evidence that Ms. Morris did not consent to sexual activity. She then expelled Mr. Mock as a student for violating the University's Code of Conduct. Because Mr. Mock did not testify that Ms. Morris had consented, UTC Chancellor Steven Angle upheld Mr. Mock's expulsion. Upon review, the Chancery Court concluded that the UTC Chancellor "improperly shifted the burden of proof by a preponderance of the evidence and imposed an untenable standard upon" the petitioner, thus rendering the decision arbitrary and capricious. The Court reinstated the first Initial Order of the ALJ and reversed the decision of Chancellor Angle.
Memorandum issued by the Department of Labor (DOL) shedding light on how the Department will interpret and apply the Fair Labor Standards Act (FLSA) in classifying employees. The memorandum discusses pertinent FLSA definitions and the breadth of employment relationships covered by the FLSA, then addresses the factors involved in the "economic realities" test that courts use to determine whether a worker is an employee or independent contractor. "Each factor," the memorandum concludes, "should be considered in light of the ultimate determination of whether the worker is really in business for him or herself (and thus is an independent contractor) or is economically dependent on the employer (and thus is its employee)."
Grant program launched by Michigan First Lady Sue Snyder and Michigan State Police Director Colonel Kriste Kibbey Etue to support new or innovative education, awareness, prevention, reporting, and/or bystander intervention programs geared toward reducing the number of sexual assaults on college campuses. The Michigan Legislature has appropriated $500,000 from the FY 2016 General Fund to support the program. All public and private universities and colleges in Michigan where students attend classes on campus are eligible to apply. Applications must be received by the Michigan State Police Grants and Community Services Division by October 1.
Letter from U.S. Senators Patty Murray (D-WA), Elizabeth Warren (D-MA), and Richard Blumenthal (D-CT) to U.S. Department of Education Inspector General Kathleen Tighe regarding the Servicemembers Civil Relief Act (SCRA). The Senators call for an investigation into the Department's internal audit of student loan servicers' compliance with SCRA, which cleared the loan servicers of wrongdoing. The letter claims that the internal audit raised "more questions than answers," namely because the findings conflict with unfavorable findings by the Department of Justice (DOJ) and the Federal Deposit Insurance Corporation (FDIC).
Statement by American Council on Education (ACE) President Molly Corbett Broad regarding former Secretary of State and current presidential candidate Hillary Clinton's recently-announced student loan plan. The proposed plan (which includes an overview, a college cost component, and a student debt relief component) seeks to reduce college tuition, lower interest rates on student loans, implement tougher rules for for-profit higher educators, offer new grants for small private colleges that serve large numbers of low-income and minority students, and expand AmeriCorps. Ms. Corbett Broad states that, with the widespread public interest in college affordability, it is not surprising to see such proposals put forward and debated, and that ACE is "look[ing] forward to participating in that discussion."
Order issued on August 7, 2015 by the Court of Common Pleas of Knox County, Ohio, granting Defendant Kenyon College's Motion for Summary Judgment and dismissing the College as a party to the case. Plaintiff Stephen Zingarelli withdrew from Kenyon College in January 2013 and was readmitted the following October pending the outcome of a hearing on unresolved disciplinary charges, but later withdrew his request for readmission three days prior to the date the hearing was scheduled. He filed suit against the College on nine counts, including breach of contract, breach of implied duty of good faith and fair dealing, negligent training and supervision, and violation of Title IX, among others. Because Plaintiff withdrew before the hearing process took place, the Court concluded that Zingarelli chose to bypass the administrative process altogether, thus negating his claims that the charges were improperly investigated, the hearing process was improperly conducted, or that the hearing reached an improper result. After finding no genuine issues of material fact on any of the counts, the Court dismissed each of them and granted summary judgment to the Defendant.
Report published by a task force convened by the University of Texas at Austin to consider the fate of several campus statues honoring Confederate leaders. The report offers five possibilities for the future of the statues, which have long been the subject of controversy. The first—adding explanatory plaques to the statues—would "give historical context, while allowing the institution to put philosophical distance between itself and what the figures stood for," but might also draw more negative attention to the statues. The other four recommendations each involve relocating certain of the monuments to a museum or exhibit on the campus. University President Gregory L. Fenves released a written statement in response to the report.
Electronic Announcement issued by the Office of Postsecondary Education in response to inquiries as to whether institutions must report the data required under 34 CFR 668.411 of the Gainful Employment regulations for educational programs that were discontinued or otherwise ceased to be Title IV eligible prior to July 1, 2015. The Announcement describes the criteria for determining whether a program has been discontinued as of that date and whether a given institution must report the requested data. Because of the confusion surrounding these reporting requirements, the Office asks that institutions that have not reported their data but are still required to do so submit their data as soon as possible even though the deadline for submission has already passed.
Order issued on July 22, 2015 by the United States District Court for the Western District of North Carolina, Statesville Division, granting in part and denying in part the defendant’s motion to dismiss. The plaintiff, Lanston Tanyi, was a football player at Appalachian State University (University) when he was charged with various forms of sexual misconduct alleged by two students. Based on the University’s hearing process and related outcomes, Tanyi alleged violations of procedural due process under 42 U.S.C. § 1983 (III)(A)(1)-(7), substantive due process, and equal protection rights under 42 U.S.C. § 1983, as well as gender discrimination in violation of 20 U.S.C. § 1681. The Court allowed a portion of Tanyi’s procedural and substantive due process claims to move forward on the grounds that the University failed to articulate a legitimate reason for re-hearing one student’s rape allegations and that Tanyi received inadequate notice when he learned of a new charge against him the night before the hearing.
Comment request issued by the U.S. Department of Education regarding a proposed revision to the Health Education Assistance Loan (HEAL) Program forms. (HEAL) forms are required for lenders to make application to the HEAL insurance program and to report accurately and timely on loan actions. Interested persons are invited to submit comments on or before September 4, 2015.
Notice of proposed rulemaking issued by the U.S. Department of Education to amend: (1) the Education Department General Administrative Regulations (EDGAR) governing direct grant programs and State-administered programs as they relate to faith-based organizations; (2) and the regulations governing uniform administrative requirements, cost principles, and audit requirements for Federal awards. The amendments are designed to implement Executive Order 13279 (as amended by Executive Order 13559), which established principles to guide the policies of Federal agencies regarding the participation of faith-based and other community organizations in programs that they administer. Interested persons should submit comments on or before October 5, 2015.
Legislation introduced by Senators Jeanne Shaheen (D-NH) and Orrin Hatch (R-UT) proposes to increase college accountability by: (1) eliminating the government's student loan default rates and replacing them with a student loan repayment rate; and (2) creating a risk-sharing program in which colleges have to pay the federal government a share of the total federal loan dollars that their former students are not successfully repaying. As part of the proposal, institutions with low cohort repayment rates could become ineligible to receive federal student aid.
Publication from the Association of Governing Boards of Universities and Colleges (AGB) outlines elements of college board members’ fiduciary responsibilities and how to translate fulfillment of those responsibilities into effective board conduct and oversight.
Notice issued by the U.S. Department of Education setting forth the schedule and agenda for the President's Advisory Commission on Educational Excellence for African Americans (Commission). The Commission meeting will be held on September 14, 2015 at 9:00a.m.– 4:00 p.m. on Capitol Hill in room 1539 Longworth House Office Building (New Jersey Avenue and Independence SE., Washington, DC).
Order issued on July 31, 2015 by the Iowa District Court for Polk County denying the University of Iowa's petition for judicial review and affirming the Iowa Public Employment Relations Board's (PERB) Ruling on Negotiability Dispute, which held that a fee proposal fell within the meaning of the term "supplemental pay" and therefore constituted a mandatory subject of bargaining. The fee proposal in question afforded graduate-student employees the right, as part of their status as union members, to put student-fee reimbursement on the bargaining table as an element of their supplemental pay. The Court affirmed PERB's ruling on the grounds that student-fee payment was triggered by the University's employment relationship with its graduate teaching and research assistants, and that it was not "irrational, illogical, or wholly unjustifiable."
Settlement agreement reached between the plaintiff, Jane Doe, and the defendant, the University of Oregon (UO), based on a complaint filed by Doe, in which she alleged claims under Title IX after being sexually assaulted by three UO basketball players. As part of the settlement, UO agreed to continue to pursue a policy change requiring all transfer applicants to report any disciplinary history they have at their current or prior schools and require transfer applicants to sign a FERPA waiver allowing UO to access their disciplinary records if the applicant reports disciplinary history.
Announcement from U.S. Department of Justice's on Violence Against Women (OVW) regarding their launch of The Center for Changing Our Campus Culture a new comprehensive online clearinghouse on sexual assault, domestic violence, dating violence, and stalking on campus. This new website provides the latest information, materials and resources for campus administrators, faculty and staff, as well as campus and community law enforcement, victim service providers, students, parents and other key stakeholders to use to improve campus safety.
Notice from the U.S. Department of Education (Department) proposing a revision to the Evaluation of the Pell Grant Experiments Under the Experimental Sites Initiative. The Pell Grant Experiments evaluation is a two-part, seven-year demonstration study sponsored by the Department that focuses on the effects of expanded access to Pell grants on students' educational outcomes, employment and earnings. Interested persons are invited to submit comments on or before September 3, 2015.
Supplemental decision issued on July 30, 2015 by the National Labor Review Board (NLRB) Region 2 Director, dismissing SENS/UAW's petition to represent a unit of graduate students who assist faculty with teaching, research, and other miscellaneous duties at the New School. Pursuant to an order by the NLRB reinstating the petition and remanding the case for a hearing, Region 2 affirmed its earlier rejection of the case on the grounds that the NLRB's decision in Brown University (holding that graduate assistants are not "employees" within the meaning of Section 2(3) of the National Labor Relations Act) was controlling because the Petitioner sought to represent individuals employed in classifications which fall within the term "graduate assistants." The petitioner argued that an election should be directed because Brown was wrongly decided and should be overturned.
Announcement from the U.S. Attorney's Office, Northern District of West Virginia, that Wheeling Jesuit University (University) will pay the United States the sum of $2,300,000 to settle claims that it misused grant funding awarded by the National Aeronautics and Space Administration, the United States Department of Labor, and the National Science Foundation. The University is alleged to have improperly mischaracterized costs, incurred impermissible costs, and misused federal funds, and property acquired with federal funds from 2003 to 2010. The settlement resolves False Claim Act violations that the United States was prepared to pursue. The agreement does not preclude criminal charges against individuals involved in the grant fraud.
Order issued on July 31, 2015 by the 9th Circuit Court of Appeals granting the NCAA's request to stay the District Court's injunction. Ed O'Bannon, the plaintiff, filed an antitrust lawsuit against the defendant, the National Collegiate Athletic Association (NCAA), challenging the organization's use of the images of its former student athletes for commercial purposes. The order issued by the District Court on August 8, 2014, enjoined the NCAA from prohibiting member schools from offering relevant basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses, and prohibited other "overly-restrictive restraints" as a remedy.
Notice issued by the U.S. Department of Education (Department) inviting postsecondary educational institutions (institutions) that participate in Title IV student financial assistance programs to apply to participate in a new institution-based experiment under the Experimental Sites Initiative (ESI). Under this experiment, participating institutions will provide Federal Pell Grant funding to otherwise eligible students who are incarcerated in Federal or State penal institutions. Details of the experiment are provided in the ''The Experiment'' section of this notice. Letters of application to participate in the proposed experiment must be received by the Department no later than October 2, 2015.
Announcement from the U.S. Department of Education that the 2015-2016 Federal Student Aid Handbook Appendices are available online. To access all currently posted appendices of the 2015-2016 Federal Student Aid Handbook, click here. To access the 2015-2016 Federal Student Aid Handbook, click here.
Dear Colleague Letter (DCL) issued by the U.S. Department of Education reminds institutions of higher education and their third-party servicers of their obligations to protect data used in all aspects of the administration of the Title IV Federal student financial aid programs. The DCL includes recommended industry standards and best practices in managing information and information systems, and in securing personally identifiably information.
Dear Colleague Letter (DCL) issued by the U.S. Department of Education reminds Guaranty Agencies (GAs) of their obligation to submit a self-assessment as part of a recent security program initiated by Federal Student Aid (FSA), and advises GAs of the steps FSA will take to ensure appropriate management and protection of personally identifiable information (PII) under the control of GAs. The DCL also addresses specifically how FSA’s new self-assessment program will assist GAs and FSA in assessing the capabilities of GAs to secure the PII they have.
Dear Colleague Letter (DCL) issued by the U.S. Department of Education clarifies institutional and applicants' roles and responsibilities related to Title IV dependency determinations for unaccompanied homeless youth. The DCL includes three primary sections: (1) Applying for Title IV Aid; (2) Determinations by FAAs; and (3) Documentation of Homelessness or Risk of Homelessness.
Order from the United States District Court for the Northern District of Illinois, Eastern Division, denying Plaintiffs’ motion for a preliminary injunction but (1) ordering the parties to refrain from communicating with each other regarding the operation of a faculty blog that purportedly contained content critical of the university administration and (2) prohibiting officials at Chicago State University (CSU) from imposing sanctions against professors for publication of the blog. The professors are suing CSU for their alleged attempt to shut down the blog.
Announcement from Massachusetts Attorney General Maura Healey that a settlement has been reached with for-profit schools Lincoln Technical Institute (Lincoln Tech) and Kaplan Career Institute (Kaplan). According to the announcement, both Lincoln Tech and Kaplan will pay former students more than $2.3 million to resolve allegations that they inflated job placement numbers and employed unfair recruiting tactics to persuade prospective students to enroll in their programs. Under the settlement with Kaplan, a total of $1.375 million will be distributed to eligible graduates of the school’s medical vocational programs. Under the settlement with Lincoln Tech., $850,000 will be used to pay down federal student loans for eligible graduates of the school’s criminal justice program at its Somerville and Lowell campuses. Lincoln Tech will also forgive an additional $165,000 in private student loans.
Order from the Seventh Circuit Court of Appeals affirming and reversing in part the District Court’s grant of summary judgement for Moraine Valley Community College (College). The appellant, William Silk, a former adjunct-professor at the College, alleged violations of the Americans with Disabilities Act and Age Discrimination in Employment Act after the College reduced his course load, reassigned his courses, and terminated his employment, following heart surgery in April 2010. The Court of Appeals reversed the District Court’s grant of summary judgment on Silk’s Fall 2010 claim because there remained a genuine dispute over whether the College stated the they reduced Silk’s courses because they didn’t think he was physically capable of handling them. The case is remanded for further proceedings on this claim, with all other claims being affirmed in favor of the College.
Announcement from the Office of Management and Budget regarding the availability of the 2015 Compliance Supplement. The Compliance Supplement provides detailed guidance for conducting single audits of states, local governments, and nonprofit organizations - including colleges and universities.
Notice issued by the U.S. Department of Education regarding a proposed change to the Federal Perkins/NDSL Loan Assignment Form (Assignment Form). Institutions participating in the Federal Perkins Loan program use the Assignment Form to assign loans to the Department for collection without recompense, transferring the authority to collect on the loan. This request is for continuing approval of the paper based assignment form and for approval of the electronic process being finalized. Interested persons are invited to submit comments on or before September 28, 2015.
Report published by the U.S. Department of Education's National Center for Education Statistics and the Bureau of Justice Statistics examines crime occurring in schools and colleges. The report covers topics such as victimization, bullying, school conditions, fights, weapons, the presence of security staff at school, availability and student use of drugs and alcohol, student perceptions of personal safety at school, and criminal incidents at postsecondary institutions.
Notice issued by the U.S. Department of Education regarding a revision to the Graduate Assistance in Areas of National Need (GAANN) Performance Report. The GAANN report is used to evaluate grantee performance, as well as the accomplishments and impact of the GAANN Program as a whole. Interested persons are invited to submit comments on or before August 27, 2015.
Announcement from the NCAA that it has adopted an experimental rule allowing medical observers to notify game officials when a player appears to have suffered a head/neck injury. Effective for the 2015 season, the rule enables a medical observer, who suspects a player has sustained a head/neck injury, to alert the instant-replay official, who then contacts the referee to stop the game so the player can receive a medical evaluation.
First Amendment and Due Process: Barnes v. Zaccari
July 27, 2015
Settlement agreement between plaintiff, Thomas Barnes, and defendants, Valdosta State University (VSU) and the Board of Regents of the University of Georgia, requiring the defendants to pay the plaintiff $900,000. The plaintiff alleged that VSU violated his free speech, contract, and due process rights, as well as his rights under the Americans with Disabilities Act and the Rehabilitation Act, when they "administratively withdrew" (expelled) the plaintiff from campus due to safety concerns and without a hearing.
Report from the National Advisory Committee on Institutional Quality and Integrity (NACIQI) to the U.S. Secretary of Education makes 16 recommendations designed to: (1) simplify the accreditation and recognition process and enhance nuance in that process; (2) reconsider the relationship between quality assurance processes and access to Title IV funds; and (3) reconsider the roles and functions of NACIQI itself. The recommendations include reconstituting NACIQI as a committee with terminal decision-making authority, which would establish it as the final decision-making authority on accrediting agency recognition.
Klinger, a tenure track professor, sued the University of Southern Mississippi (USM), alleging deprivations of due process and equal protection, as well as claims arising from Mississippi contract and tort law, when USM declined to renew his annual contract after placing him on administrative leave for allegedly making comments that raised concerns of campus safety. In affirming the trial court's decision to grant summary judgment for USM on all of Klinger's claims, the Fifth Circuit Court of Appeals, held that USM provided Klinger with a constitutionally adequate opportunity to adjudicate his grievance by fully complying with its own comprehensive faculty-grievance procedures.
Order from the Consumer Financial Protections Bureau (CFPB) requiring Discover Bank to repay $16M to 100,000 borrowers, pay a $2.5M penalty, and improve its billing and collections practices. According to the consent order issued by the CFPB, Discover Bank: (1) failed to furnish clear information regarding the student-loan interest that consumers paid; (2) made intimidating collection calls at inconvenient times; (3) overstated the minimum amount due in student-loan billing statements; and (4) violated the Fair Debt Collection Practice Acts with regards to their collection activities.
Notice issued by the U.S. Department of Education proposes the Gainful Employment Recent Graduates Employment and Earning Survey (RGEES). The RGEES pilot study results will be used to compare median earnings collected through the survey to median earnings for graduates from comparable programs. Interested persons are invited to submit comments on or before August 24, 2015.
Newsletter from Federal Student Aid describes enhancements to the National Student Loan Data System enrollment reporting and to the gainful employment (GE) process. The newsletter also provides a reminder about important GE reporting deadlines, which begin on July 31, 2015.
Dear Colleague Letter (DCL) from the U.S. Department of Education summarizes the major changes to the Clery Act Regulations. The DCL includes specific information on the 2015 Campus Safety and Security Survey and provides a table outlining the new statistical requirements in the annual security report and online data collection.
Announcement from the U.S. Department of Justice that a settlement agreement has been reached with the University of Michigan under the Americans with Disabilities Act (ADA). The agreement, filed as a consent decree along with a complaint in the U.S. District Court for the Eastern District of Michigan, resolves allegations that the university violated the ADA by failing to accommodate a maintenance employee with degenerative back disease; and discriminated against similarly situated employees. The consent decree requires the university to: (1) pay the employees approximately $215,000 for monetary and compensatory damages; (2) revise its their policies on reassignments and transfers; (3) provide training to university staff on Title I of the ADA; and (4) file periodic reports with the Department.
Federal legislation (H.R. 2802) introduced by Rep. Raul Labrador (R-ID) proposes to prohibit the Federal Government from penalizing people and entities, including religious schools, that find same-sex unions contrary to their faith. For people and/or entities that qualify, the legislation would prohibit, among other things, the Federal Government from altering their Federal tax treatment and/or reducing or withholding their Federal grants. Senator Mike Lee (R-UT) introduced a companion bill (S. 1598) in the United States Senate.
Notice released by the U.S. Department of Education setting forth the schedule and agenda for the Quarterly Meeting of the National Assessment Governing Board (Governing Board). The Governing Board meeting will be held on August 6-8, 2015 at the Westin Arlington Gateway, 801 North Glebe Road, Arlington, VA 22203. A schedule for each day can be found in the announcement.
Decision from the United States District Court for the District Of Maryland issuing a permanent injunction barring the defendant, Towson University, from continuing to prohibit the plaintiff from returning to play in the University's football program in violation of his rights under Section 504 of the Americans with Disabilities Act (ADA). The plaintiff, Gavin Class, is a student at the university, who collapsed from a heat stroke during football practice. After receiving a liver transplant and clearances from his doctors, Class sought to return to the team, and the university prevented his return citing concerns for his safety. Class sought an injunction on the grounds that the university violated his rights under the ADA by failing to provide reasonable accommodations (i.e., monitoring his temperature every ten minutes and providing protective padding for his abdomen) that would allow Class to safely return to the team. The Court concluded that Class' requested accommodations were reasonable and did not impose an undue burden on the university. Therefore, the Court held, the university's decision to prohibit Class from returning to play was discriminatory under the ADA.
Report published by the American Council on Education (ACE) examines admis¬sions practices at four-year colleges and universities in the context of recent legal challenges to race-conscious admissions, including the pending U.S. Supreme Court case Fisher v. University of Texas at Austin. The report, which is based on responses to a national survey of undergraduate admissions and enrollment management leaders, reveals that 60 percent of the most selective institutions—those admitting 40 percent or fewer applicants—consider race in admissions.
Comment request issued by the U.S. Department of Education regarding a proposed change to the Federal Perkins Loan Program Master Promissory Note (MPN). The MPN provides the terms and conditions of the Perkins Loan program and is prepared by the participating eligible institution and signed by the borrower. Interested persons are invited to submit comments on or before August 20, 2015.
Order from the Commonwealth of Massachusetts Commission Against Discrimination (MCAD) requiring the respondent to cease and desist from all acts of retaliation, pay complainant back pay beginning in the 2003-04 academic year, and pay complainant the sum of $125,000, with interest, in emotional distress damages. The complainant, William Armstrong, a tenured chemistry professor at Boston College, alleged that the defendant, Boston College, retaliated against him when he sought to implement agreed-to accommodations after returning from campus leave for a psychiatric disability. The MCAD concluded that the actions taken against Armstrong when he returned from leave, which included prohibiting him from attending Chemistry Department faculty meetings and omitting him from Chemistry Department e-mails, were retaliatory and could not be justified as either legitimate or non-discriminatory. In reaching this decision, the MCAD noted that Armstrong's efforts to implement agreed-to accommodations were protected activities as required by the test for retaliation established in McDonnell Douglas Corp. v. Green.
Legislation (S. 81) signed into law by Oregon Governor Kate Brown provides a tuition waiver for eligible students taking community college courses. Eligibility is based on factors including high school grade point average, completion and submission of the Free Application for Federal Student Aid for each academic year, and acceptance of all state and federal aid grants available to the student. Eligible students will receive, at minimum, a $1,000 grant.
Reminder from Federal Student Aid (FSA) that a FSA ID may only be created and used by the individual who owns the FSA ID. The FSA ID, implemented in May 2015 as a replacement to the FSA PIN, is the legal signature that can be used to electronically sign important federal student aid documents, including the Free Application for Federal Student Aid (FAFSA®) and Direct Loan promissory notes.
Order from the Fourth Judicial Circuit of Virginia, Circuit Court of the City of Norfolk, denying in part and sustaining in part Virginia Wesleyan College's (VWC) demurrer, and ruling on several related pleadings. The case arose when Doe, a freshman student at VWC, alleged that she was raped and sexually assaulted by Roe, then also a VWC student, in a VWC dormitory. Doe sought relief from VWC on the grounds of negligence, gross negligence, and fraud. In ruling on five related pleadings, the Court focused on the relationship between Doe and VWC and concluded that Doe failed to sufficiently allege that a special relationship exists between a college and a student, and therefore, VWC did not have a duty to warn or protect students against third-party criminal acts. Doe was granted leave to file an amended complaint within twenty-one days.
Publication by the U.S. Department of Justice on the most frequently asked questions (FAQ) about Service Animals, relative to the Americans with Disabilities Act (ADA). The FAQs are organized into the six categories: (1) Definition of Service Animals; (2) General Rules; (3) Certification and Registration; (4) Breeds; (5) Exclusion of Service Animals; and (6) Miscellaneous. The ADA revised requirements on service animals can be found here.
Notice from the U.S. Department of Education regarding its request to the Office of Management and Budget for an emergency clearance to ensure that data collected and managed by Guaranty Agencies (GAs) in support of federal student financial aid programs is secure. Interested persons are invited to submit comments on or before September 14, 2015.
Missouri legislation (S.B. 93) proposes to classify the outdoor areas of public institutions of higher education as traditional public forums where people can engage in noncommercial expressive activity. Public institutions of higher education may place reasonable restrictions on the time, place, and manner of the expressive activity, but may not restrict members of the university community from spontaneously and contemporaneously assembling.
Announcement from the U.S. Department of Education (Department) regarding the availability of an updated list of institutions subject to Heightened Cash Monitoring. The first list, published in March 2015 contained 560 institutions. The most recent list, published in June 2015, contains 483 institutions. Heightened Cash Monitoring is a step that the Department's Federal Student Aid office can take with institutions to provide additional oversight on financial or federal compliance issues.
Announcement from the U.S. Department of Education with guidance for institutions on the correct reporting of gainful employment (GE) data to the Department's National Student Loan Data System (NSLDS).
Order from the Superior Court of California, County of San Diego Central granting the Petition for Writ of Mandamus and ordering Respondent, the University of California San Diego (University) to set aside its findings and sanctions against the Petitioner, a student accused of sexual misconduct, because the University's disciplinary action against the Petitioner was unfair and not supported by the evidence. More specifically, the Court held that the University's sexual misconduct proceedings were unfair because the University limited the Petitioner's right to cross-examine the primary witness against him and limited his right of confrontation by preventing the Petitioner from refuting evidence outside of the hearing that was crucial to the Hearing Panel's findings. The Court also concluded that the University abused its discretion by increasing sanctions without explanation after the student appealed the penalty.
Dear Colleague Letter issued by the U.S. Department of Education (Department) restates the requirements for guaranty agencies regarding charging collection costs to Federal Family Education Loan Program borrowers who enter into repayment agreements. The letter includes four primary sections: (1) applicable provisions of the Higher Education Act; (2) applicable provisions of Department regulations; (3) background and rationale for the requirement to provide an initial "notice and opportunity to resolve" the debt; and (4) background and rationale for the requirement to charge collection costs.
Announcement from Federal Student Aid (FSA) regarding the availability of new and revised Q&As to the high school diploma and verification portion of the U.S. Department of Education's Program Integrity Website. To view these additions and revisions, click on the applicable topics, and look for the "new" icon next to the Q&As that have been added and a bolded revised date next to those that have been modified.
Michigan legislative resolution, known as House Joint Resolution "O," proposes to amend the Michigan State Constitution by making public all governing boards meetings held by Michigan's institutions of higher education. Currently, Michigan only requires institutions' governing boards to make formal sessions public.
Order from the North Dakota Supreme Court reversing the District Court's judgment, in which it affirmed the Department of Transportation's suspension of the Appellant's driving privileges. Appellant Kroschel was arrested by a police officer from the North Dakota State University (NDSU) Police Department for driving under the influence. At no time during the incident was the officer or Kroschel on NDSU property. The issue before the court was whether the NDSU police officer had the authority to arrest Kroschel. The Appellant, the North Dakota Department of Transportation (Department), argued that the officer acted within his authority because of an existing Memorandum of Understanding (MOU) between the Department, the local police department, and NDSU. The District Court, which affirmed the Hearing Officer's decision, found that Section 44-08-24(1) of the North Dakota Century Code (N.D.C.C.) provided support for the MOU by giving authority to North Dakota law enforcement agencies to enter into agreements with other criminal justice agencies. The North Dakota Supreme Court (Supreme Court) rejected this argument, finding that Section 44-08-24 only applies to officers in unique situations and cannot be used on an ongoing basis. Additionally, the Supreme Court further held that the N.D.C.C. did not give police officers the authority to arrest persons outside the NDSU campus. The Supreme Court noted that this case does not challenge the authority of NDSU police officers to act on the NDSU campus or the authority of local police officers to act on the NDSU campus.
Notice of proposed rulemaking issued by the U.S. Department of Education to: (1) amend the Student Assistance General Provisions regulations to expand the circumstances under which an institution may challenge or appeal the potential consequences of draft or final cohort default rates based on the institution's participation rate index; and (2) amend the Federal Family Education Loan (FFEL) Program regulations to streamline and enhance existing processes; and (3) amend the FFEL program regulations to establish new procedures for loan holders to identify servicemembers who may be eligible for benefits under the Servicemembers Civil Relief Act. Interested parties must submit comments on or before August 10, 2015.
Report published by the Consumer Financial Protection Bureau (Bureau) summarizes student loan servicing complaints sent to the Bureau from service members, veterans, and their families. Since the Bureau's last report in October 2012, they have received more than 1,300 complaints from military borrowers related to the servicing or collection of student loans. The report outlines the most commonly reported servicing problems for service members, as well as the general issues faced by military borrowers.
Comment request issued by the U.S. Department of Education regarding a proposed revision to the William D. Ford Federal Direct Loan Program: Internship/Residency and Loan Debt Burden Forbearance forms. These forms serve as the means by which borrowers in the William D. Ford Federal Direct Loan, Federal Family Education Loan, and the Federal Perkins Loan Programs may request forbearance of repayment on their loans if they meet certain conditions. Interested persons are invited to submit comments on or before August 6, 2015.
Comment request issued by the U.S. Department of Education regarding a proposed revision to the William D. Ford Federal Direct Loan Program Deferment Request forms. These forms serve as the means by which borrowers in the William D. Ford Federal Direct Loan, Federal Family Education Loan, and the Federal Perkins Loan Programs may request forbearance of repayment on their loans if they meet certain conditions. Interested persons are invited to submit comments on or before August 6, 2015.
Dear Colleague Letter from the U.S. Department of Education provides guidance to guarantors and educational institutions participating in the Federal Family Education Loan Program and Federal Perkins Loan Program. The guidance specifically focuses on the regulations that govern the actions of guarantors and educational institutions in defending bankruptcy adversary proceedings seeking discharge of student loans authorized by Title IV on the basis that excepting the loans from discharge would impose undue hardship upon the borrowers.
Comment request issued by the U.S. Department of Education (Department) regarding a proposed revision to the Child Care Access Means Parents in School Program Annual Performance Report. This report provides the Department with information needed to evaluate a grantee's performance and compliance with program requirements in accordance with the program authorizing statute. Interested persons are invited to submit comments on or before August 5, 2015.
Settlement agreement reached between plaintiff, Timothy Stoner, and defendant, Pima Community College. Plaintiff, a U.S. Army National Guardsman, alleged that the defendant discriminated against him based on his military status, in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), when it failed to place him in the position of Police Corporal in its Department of Public Safety. As part of the settlement, the defendant agreed to: (1) place the plaintiff in a newly created, regular Police Corporal position; (2) pay the plaintiff $9,000 for last wages; (3) amend its personnel policies to notify employees of their rights and obligations under USERRA; and (4) continue displaying the USERRA notification poster required by federal regulations.
Order from the United States Court of Appeals for the Second Circuit vacating the district court's orders and remanding for further proceedings. The plaintiffs, former interns for the defendants, Fox Searchlight Pictures, Inc. and Fox Entertainment Group, Inc., contented they were employees under the Fair Labor Standards Act (FLSA), and therefore, due compensation for their work. In granting partial summary judgment, the District Court concluded that the plaintiffs were employees under the FSLA based on a six-factor test created by the U.S. Department of Labor (DOL) in light of the U.S. Supreme Court's decision in Walling v. Portland Terminal Co., 330 U.S. 148 (1947). The Circuit Court rejected the DOL test and adopted instead the "primary beneficiary" test, which focuses on: (1) what the intern received in exchange for his work; and (2) the economic reality as it exists between the intern and the employer. In conjunction with the test, the Circuit Court proposed a list of non-exhaustive factors to aid courts in identifying the primary beneficiary of the internship. On remand, the District Court must apply the primary beneficiary test, rather than the DOL test, to determine if the plaintiffs were in fact employees under the FLSA. The Circuit Court also rejected the plaintiff's motion to certify the New York class and motion to conditionally certify the nationwide FLSA Collective for failing to have individualized proof of each intern's experience.
Order of U.S. Supreme Court granting writ of certiorari to review the decision of the U.S. Court of Appeals for the Ninth Circuit affirming the district court's dismissal of the claims made by several California teachers, in which they argued that "agency fees" paid to teachers' unions compromise their First Amendment rights.
Announcement issued by the U.S. Department of Education regarding the availability of an updated version of the National Student Loan Data System (NSLDS) Gainful Employment User Guide (Guide). The Guide contains the following three chapters: (1) GE Compliance, Guidelines and Administrative Functions; (2) GE Reporting Batch Processing; and (3) GE Reporting Online.
Dear Colleague Letter issued by the U.S. Department of Education providing an overview of the regulatory requirements related to Gainful Employment (GE) programs. The letter provides a summary of the requirements in the GE regulations, the reporting requirements, D/E rates, and certification requirements for GE programs.
Comment request issued by the U.S. Department of Education (Department) regarding a proposed information collection related to the Recent Graduates Employment and Earnings Survey (RGEES) Standards and Survey form. The RGEES can be used in a debt-to-earnings (D/E) ratio appeal under the gainful employment regulations as an alternative to the Social Security administration earnings data. Interested persons are invited to submit comments on or before August 31, 2015.
Announcement from the Department of Homeland Security-United States Citizenship and Immigration Services (DHS-USCIS) that the Office of Management and Budget has approved a revised Document Verification Request G-845 Form (G-845 form). The G-845 form is used by Title IV postsecondary institutions to request verification from DHS-USCIS of an applicant's eligible non-citizenship status. Instructions on how to complete the revised G-845 form are included in the announcement and can also be found in Volume 1, Chapter 2 of the 2015-2016 Federal Student Aid Handbook. Institutions are encouraged to begin using the revised G-845 form immediately. The previous version of the G-845 form may no longer be submitted to DHS-USCIS after August 14, 2015.
Comment request issued by the U.S. Department of Education regarding a reinstatement of a previously approved information collection for the Paul Douglas Teacher Scholarship Performance Report form. Although the Paul Douglas Teacher Scholarship program is no longer a funded program, the annual performance report is necessary to monitor and evaluate the compliance of the former participating state education agencies. Interested persons are invited to submit comments on or before August 28, 2015.
Dear Colleague Letter issued by the U.S. Department of Education summarizing acceptable documentation changes for the 2016-2017 award year. The letter also provides information on changes to the 2016–2017 Verification Tracking Groups and the limited circumstances under which an applicant's Verification Tracking Group could change.
Writ of certiorari granted by the United States Supreme Court in Fisher v. University of Texas at Austin. Justice Kagan took no part in the consideration or decision of this petition.
Comment request issued by the U.S. Department of Education regarding a proposed revision to information collected from states and partnerships interested in applying for the Gaining Early Awareness and Readiness for Undergraduate Programs (GEAR UP) grant program. GEAR UP is a discretionary grant program that encourages applicants to support and maintain a commitment to assist eligible low-income students in obtaining a secondary school diploma and in preparing for and succeeding in postsecondary education. Interested persons are invited to submit comments on or before July 27, 2015.
Proposed NCAA legislation sponsored by the NCAA's Division 1 Council (Council) proposes to: (1) set the expectation that all students and staff members act with honesty and integrity; and (2) define academic misconduct, impermissible academic assistance and other academic improprieties that may occur at a school. The proposal requires schools to publish and adhere to an academic misconduct policy for all students and permits schools to have an expedited process for student-athletes so long as the expedited process has been approved by school officials outside of the athletics department. The Council will cast final votes on the proposal in April 2016. If adopted, new academic misconduct rules would be effective in August 2016.
Announcement from Jamienne Studley, the Deputy Under Secretary and Acting Assistant Secretary for Postsecondary Education, regarding an update to the U.S. Department of Education's anticipated college-rating system. The Department expects to release tools this summer that are both easy to use and designed to provide students with data to compare college costs and outcomes.
Announcement from the U.S. Department of Justice that Education Affiliates (EA), a for-profit education company, has agreed to pay $13 million to the U.S. to resolve allegations that it violated the False Claims Act by submitting false claims to the U.S. Department of Education for federal student aid for students enrolled in its programs. The U.S. Government alleged that EA employees altered admissions test results, created false or fraudulent high school diplomas, falsified students' federal aid applications, and referred prospective students to "diploma mills" to obtain invalid online high school diplomas. The settlement resolves five lawsuits filed under the federal False Claims Act.
Order from the United States District Court for the District of Columbia denying the plaintiff's motion for summary judgment and granting the defendant's cross-motion. The plaintiff, the Association of Private Sector Colleges & Universities (Association), challenged the Department of Education's (Department) October 2014 Gainful Employment Rule, which defined "gainful employment" by comparing the average debt load of former students against their earnings. The Court upheld debt-to-earnings portion of the Department's Gainful Employment Rule, concluding that the Department reasonably interpreted an ambiguous statutory command, and that the Rule, having been subjected to a thorough rulemaking process, was not arbitrary, capricious, or otherwise in violation of the APA. The Court also rejected plaintiff's challenges regarding the disclosure, reporting, and certification requirements of the regulations.
Comment request issued by the U.S. Department of Education regarding a proposed extension to the Income Based Repayment (IBR) notifications. Income based repayment, as authorized by the Higher Education Act of 1965, as amended, is available for Part B borrowers who have partial financial hardship. Pursuant to regulation, borrowers must receive notification from loan holders once a borrower establishes a partial financial hardship and is placed in an IBR plan by the loan holder. Interested persons are invited to submit comments regarding the proposed extension on or before August 24, 2015.
Opinion from the National Labor Review Board (NLRB) affirming the NLRB hearing officer's rulings, findings, and recommendations, and allowing part-time faculty (which includes adjuncts and instructors) at the Laguna College of Art and Design (College) to join the Service Employees International Union, Local 721. The College alleged that James Galindo, a pro-union supervisor employed by the College, tainted, and therefore invalidated, the unionization vote. Applying both prongs of the objective test established in Harborside Healthcare, Inc., the NLRB declined to invalidate the election, reasoning that: (1) Galindo was a low-level supervisor who engaged in non-coercive election behavior; (2) the College's contemporaneous anti-union campaign ensured that employees would not attribute Galindo's pro-union views to that of the College, effectively mitigating any potentially material interference.
Due Process and Jurisdiction: Texas A&M v. Carapia
June 19, 2015
Order from the Tenth Court of Appeals for the State of Texas reversing the trial court's determinations and dismissing the appellee's suit with prejudice. Appellee Gustavo Carapia, a student at Texas A&M University (TAMU), alleged that TAMU denied him due process when, after notice and a hearing, it suspended him from the Corps of Cadets and placed him on conduct probation. In reversing the trial court's decision, the Court concluded that sovereign immunity barred the Appellee's legal due process claims. The Court also held that Carapia had failed to effect a limited waiver of the State's sovereign immunity because he had not stated a valid due process claim, since extracurricular participation in the Corps of Cadets did not qualify as a property or liberty interest sufficient to give rise to an actionable due process claim. The Court also dismissed Carapia's claims under the Uniform Declaratory Judgment Act (UDJA), concluding that a dispute as to the constitutionality of an institutional code of conduct was not a "challenge to the validity of a statute or ordinance," as is required to state a claim under the UDJA. Finally, the Court held that the temporary injunction that had been issued by the trial court was void because it did not contain any of the requirements found in Rules 683 and 684 of the Texas Rules of Civil Procedure.
Dear Colleague Letter issued by the U.S. Department of Education (Department) reminding postsecondary institutions that the State Authorization Regulations will become effective on July 1, 2015. These regulations will require postsecondary institutions to have certain types of State oversight and approvals in place to participate in Title IV Federal Student Aid programs authorized under the Higher Education Act of 1965, as amended. The letter advises postsecondary institutions to contact their State authorizing agency to ensure that they have the necessary process is in place to meet these requirements and to ensure that their State has a compliant complaint system. Guidance on the regulations can be found on the Department's website.
Updated report on cybersecurity-related authoritative reports and resources issued by the Congressional Research Service (CRS). The report provides references to analytical reports and other resources concerning cybersecurity from CRS, other government agencies, trade associations, and interest groups. The reports and related websites are grouped in tables based on topic.
Report released by the Congressional Research Service (CRS) comparing two pieces of cybersecurity and information-sharing legislation that have passed the House of Representatives. The legislation discussed includes the Protecting Cyber Networks Act (PCNA) (H.R. 1560, as reported in the House on April 13) and the National Cybersecurity Protection Advancement Act of 2015 (NCPAA) (H.R. 1731, as reported in the House on April 17). The two bills have since been combined to form Title I and Title II of the most recent version of H.R. 1560, respectively, and sent to the Senate for consideration.
Report released by the Congressional Research Service (CRS) comparing three pieces of cybersecurity and information-sharing legislation. The legislation discussed includes the Protecting Cyber Networks Act (PCNA) (H.R. 1560, as reported in the House on April 13), the National Cybersecurity Protection Advancement Act of 2015 (NCPAA) (H.R. 1731, as reported in the House on April 17), and the Cybersecurity Information Sharing Act of 2015 (CISA) (S. 754 as reported in the Senate on March 17). The PCNA and NCPAA have since been combined to form Title I and Title II of the most recent version of H.R. 1560, respectively, and sent to the Senate for consideration. CISA is still under consideration in the Senate.
Notice released by the U.S. Department of Education setting forth the schedule and agenda of an upcoming open meeting of the National Advisory Council on Indian Education (NACIE). The NACIE meeting will be held via conference call on July 1, 2015, from 4:00 p.m. – 5:00 p.m EDT. Up to 20 dial-in, listen only phone lines will be made available to the public on a first come, first served basis. The conference call number is 1-888-677-5810 and the participant code is 3132285.
Consent Decree entered into between plaintiffs, Anthony Lanzilotti, Mitchel Cossaboon, and the National Federation of the Blind (NFB), and defendant, the Atlantic Cape Community College (ACCC). Lanzilotti and Cossaboon, both blind students at ACCC, alleged discrimination on the basis of disability under the Americans with Disability Act and § 504 of the Rehabilitation Act of 1973. The Consent Decree requires ACCC to: (1) hire a third-party consultant to evaluate the Disability Support Services office and assist ACCC in developing related policies; (2) develop a training program for all of its employees that addresses the requirements of the ADA; (3) conduct and complete a Technology Accessibility Audit, accepting and considering a list of recommendations from the NFB; and (4) make accessible for students with disabilities all instructional materials, online materials, and ACCC's public and student website. Additionally, per the Consent Decree, ACCC may not require a blind student to be accompanied by a sighted aide as a condition for access to campus.
Communication from Federal Student Aid (FSA) announcing publication of the initial chapters of the updated Gainful Employment (GE) Operations Manual. The updated manual includes references to the October 2014 GE regulations, as well as GE program examples. The manual also details necessary disclosures for GE Programs. Chapters on debt measures, challenges, and appeals are forthcoming.
Letter from the U.S. Department of Education (Department) to Accrediting Agency Executive Directors waiving and modifying certain statutory and regulatory requirements to allow a limited number of institutions the opportunity "to participate in experiments that will test alternative methods for administering Title IV aid programs for students enrolled in [Competency Based Education] programs. " For each institution that participates in the Department's experiment, the Department seeks assurance that accrediting agencies will assess the quality of the institution's competency-based education programs. Accompanying the letter is an instructional document that summarizes the Competency-Based Education experiment, as well as the role of accrediting agencies.
Announcement from the National Association of College and University Business Officers (NACUBO) outlining their concerns with the U.S. Department of Education's proposed rules on cash management. NACUBO's announcement outlines 11 specific issues, which primarily concern new requirements that would be imposed on colleges and universities that have agreements with financial institutions or third party servicers, such as bank accounts, debit cards, or other financial accounts offered to students and their parents. Other issues include concerns with a new provision that requires institutions to provide a way for Title IV-eligible students to obtain books and supplies by the seventh day of a payment period, and a new provision that requires an institution to list a student's existing financial account as the first and default option when selecting how to receive his or her Title IV credit balance refund.
Tenure Proceedings: Frampton v. UNC
June 17, 2015
Order from the North Carolina Court of Appeals reversing the trial court's entry of judgment in favor of the University of North Carolina at Chapel Hill (UNC) and remanding the case for further proceedings. The plaintiff, a tenured faculty member at UNC, was arrested and imprisoned in Argentina for allegedly smuggling cocaine into the country. After five weeks of imprisonment, during which time the plaintiff was scheduled to teach a course, UNC placed the plaintiff on personal leave without pay pursuant to the Faculty Services Illness, Major Disability, and Parental Leave Policy. Only after the plaintiff was convicted in Argentina did UNC initiate formal disciplinary proceedings under its tenure policies to terminate his employment. On appeal, the Court concluded that UNC had failed to comply with its own polices when it unilaterally placed the Plaintiff on unpaid leave without pay instead of initiating disciplinary proceedings pursuant to the terms set forth in UNC's tenure policies.
Report released by the Congressional Research Service (CRS) summarizes the major legislative provisions, hearings, and executive branch documents relating to cybersecurity. The report organizes legislative provisions and hearings by congressional year, and executive branch documents by date of issuance.
Staff Report from the U.S. Department of Education (Department) recommending that the Department terminate recognition of the Accreditation Commission for Education in Nursing for failing to meet the requirements of sections 602.14(a) and (b) of the Secretary's Criteria for Recognition. A summary of the Department's findings are included in the report.
Legislation (S. 11) signed into law by Texas Governor Greg Abbott allows license holders to carry concealed handguns on public and private university campuses. Both public and private institutions may adopt policies that regulate the storage of handguns in dormitories or other residential facilities that are owned, leased, or operated by the institution and located on the campus of the institution. Institutions also may adopt rules, regulations, and other provisions regarding concealed handguns that address the nature of the student population, specific safety concerns, and the uniqueness of the campus environment, so long as these provisions neither prohibit nor have the effect of prohibiting license holders from carrying concealed handguns on campus. Private and independent institutions, after consulting with students, staff, and faculty of the institution, may adopt policies that prohibit license holders from carrying handguns on the campus of the institution, any grounds or building on which an activity sponsored by the institution is being conducted, or on a passenger transportation vehicle owned by the institution.
Order from the United States District Court for the District of Columbia denying the defendant's motion for summary judgment and granting the plaintiff's cross-motion for summary judgment. Plaintiff, an observant Sikh whose religious practices did not comport with the United States Army's (Army) grooming standards, sought a religious accommodation from the Army to enroll in the ROTC program at Hofstra University. Plaintiff contends that the Army's refusal to accommodate his religious practices violated the Religious Freedom Restoration Act (RFRA). The Court entered judgment in favor of the Plaintiff, concluding that the Army had failed to show that its grooming regulations furthered a compelling governmental interest by the least restrictive means. The Court based this decision, in part, on the Army's successful accommodation of observant Sikhs in the past and the "tens of thousands of exceptions that the Army has already made to its grooming policy."
Report jointly published by The Washington Post and the Henry J. Kaiser Family Foundation reveals that twenty percent of women and 5 percent of men reported being sexually assaulted either by physical force or while incapacitated. The researchers polled more than 1,000 individuals who attended college within the past four years. As part of the poll, reporters from The Washington Post interviewed 50 participants, whose stories can be found here.
Order from the New York Supreme Court, Appellate Division, First Department, affirming dismissal of the complaint. Petitioners alleged that the respondent breached a settlement agreement that purportedly provided the faculty with the exclusive power to formulate university-wide academic admissions and accreditation policies. Specifically, Petitioners alleged that the respondent breached the settlement agreement when the Board of Trustees approved the "Pathways to Degree Completion Initiative" (Pathways) in a June 27, 2011 resolution. The Court held that the Board's actions were proper because the settlement agreement did not provide faculty the exclusive power to formulate university-wide academic admissions and accreditation policies. Petitioners also alleged that the respondents side-stepped the New York Open Meetings Law when they charged the college presidents (who are not subject to the Open Meetings Law), rather than the college faculty senates (who are subject to the Open Meetings Law), with the responsibility of formulating plans to implement Pathways. The Court concluded that these allegations did not state a direct claim under the New York Open Meetings Law.
Legislation (H.B. 3476) signed into law by Oregon Governor Kate Brown vests victims of sexual assault, domestic violence, or stalking with a legal privilege to refuse to disclose and to prevent any other person from disclosing: (1) confidential communications made by the victim to a "certified advocate" in the course of safety planning, counseling, support, or advocacy services; and (2) records that are created or maintained in the course of providing services to a victim. The privilege applies to civil, criminal, and administrative proceedings and to institutional disciplinary proceedings at two-year and four-year post-secondary institutions that enroll one or more students who receive an Oregon Opportunity Grant.
Letter from Kathleen Styles, Chief Privacy Officer at the U.S. Department of Education (Department), to Rep. Suzanne Bonamici (D-Ore.) that responds to the following three questions regarding the Federal Education Rights and Privacy Act (FERPA): (1) Do any regulations or laws restrict an institution's ability to access and share students' treatment records within the institution?; (2) Do federal regulations or guidance prevent students' treatment records from being shared with other offices of an institution that are not involved in the students' treatment?; and (3) Is there any guidance, regulation or law that limits whether an institution may declare that a treatment record is being used for a non-treatment purpose or otherwise deem a treatment record to be an education record? A similar letter was sent to Sen. Ron Wyden (D-Ore.), with one additional section describing differences between the privacy protections in FERPA and the Health Insurance Portability and Accountability Act.
Testimony from Barbara Carroll, chair-elect of the College and University Professional Association for Human Resources, before the U.S. Congress Joint Economic Committee, regarding the impact of the Affordable Care Act (ACA) on colleges and universities. The testimony focuses primarily on the ACA's impact on students and part-time professionals, as well as concerns about the ACA's excise tax.
Report published by the Pew Charitable Trusts analyzes the existing federal-state relationship in higher education funding. The report includes nine figures that illustrate how the federal-state funding relationship has evolved, and how it differs across states.
Announcement from Federal Student Aid (FSA) regarding the availability of instructions (attachment) on the GE program certifications that institutions must provide to the U.S. Department of Education. Included in this announcement is a sample GE Transitional Certification (attachment). Additionally, FSA reminds institutions that they must ensure that the Department has an accurate listing of their Title IV-eligible GE programs. Additional information on Gainful Employment can be found here.
Report published by the American Academy of Arts and Sciences analyzes the benefits of public research universities. The report is comprised of five sections: (1) Public Research Universities Serve the National Interest; (2) Public Research Universities Contribute to the Innovation Economy; (3) Public Research Universities Provide Quality Educational Opportunities and Programs at an Efficient Cost; (4) Public Research Universities are Working to Maintain and Improve Access and Affordability; and (5) Public Research Universities Value Responsible Spending.
Speech given by Sen. Elizabeth Warren (D-MA) proposes a framework to make college more affordable. Warren's framework is comprised of four policies: (1) changing incentives for colleges; (2) strengthening accountability; (3) renewing state investments in higher education; and (4) reforming federal higher education programs.
Order from the United States District Court for the Middle District of Tennessee granting the defendants' motion to dismiss. This is a putative class action lawsuit in which the plaintiffs, ten college athletes, alleged that they were entitled to recover monetary compensation from more than 20 athletic conferences, networks, and licensing agencies for the unauthorized use of their names, images, and likenesses in televised broadcasts of FSB Football and NCAA Division 1 basketball games. The alleged causes of action included: (1) statutory violation of the right to publicity under Tenn. Code Ann. § 47-25-1105; (2) violation of the right to publicity under Tennessee common law; (3) civil conspiracy; (4) violation of Section 1 of the Sherman Antitrust Act; (5) false endorsement in violation of Section 43(a) of the Lanham Act (against only the networks and licensing agencies); and (6) unjust enrichment. The seventh cause sought an accounting as to all defendants. The Court dismissed all claims with prejudice, holding that (1) Tennessee common law did not acknowledge a right of publicity for individual participants in sporting events; (2) Tennessee's statutory right of publicity expressly exempted broadcasters from liability for using the names, likenesses, and images of athletes in connection with sports' broadcasts; (3) The Complaint failed to state a claim under the Sherman Antitrust Act because the allegations neither identified an injury-in-fact nor an unreasonable restraint on trade with the requisite specificity necessary to survive dismissal; (4) The Complaint failed to state a claim for False Endorsement because the speech underlying the purported false endorsement was not "commercial speech" nor did it give rise to a "likelihood of confusion," as is required to state a claim under of the Section 43(a) of the Lanham Act; and (5) the remaining claims of Civil Conspiracy, Unjust Enrichment, and the request for an Accounting could not survive independently as a matter of law, in light of the dismissal of the underlying substantive legal claims.
Opinion from the United States District Court for the District of Connecticut granting summary judgment to the Defendants for claims arising under Title IX and §1983. Plaintiff, a complainant in a sexual misconduct proceeding, alleged that Defendant Connecticut State University exhibited deliberate indifference by failing to address prior instances of sexual harassment involving the accused professor and by inadequately responding to her allegations of sexual harassment. The Court concluded that (1) the record was devoid of evidence that would allow a reasonable jury to conclude that the Defendant had actual knowledge of any prior instances of sexual harassment by the accused professor; and (2) the university promptly initiated an investigation, took action to implement remedial measures, and disciplined the accused professor. Regarding Plaintiff's §1983 Claims, wherein the Plaintiff alleged Equal Protection violations, the Court concluded that the named defendants "lacked notice, personal involvement, and authority to remedy the sexual harassment," displayed no indicia of an intent to discriminate, and were entitled to Qualified Immunity.
Announcement from California Attorney General Kamala D. Harris and University of California President Janet Napolitano that a model Memorandum of Understanding (MOU), designed for law enforcement agencies and postsecondary institutions, is available online. The goal of the MOU is to improve coordination, collaboration, and transparency between law enforcement agencies and postsecondary institutions in response to cases of campus sexual assault. The MOU includes a How-To-Guide and a Template MOU.
Announcement from Ohio Attorney General Mike DeWine regarding three new initiatives designed to help Ohio's colleges and universities better respond to sexual assault. The three initiatives include: (1) a $3 million competitive grant program dedicated to strengthening sexual assault victim advocacy programs; (2) resources to help institutions develop model memorandums of understanding with law enforcement, prosecutors, and victim services providers; and (3) campus sexual assault investigation trainings that will take place throughout the state in summer 2015.
Connecticut legislation (S. 636) requires any public, private, and for-profit institution of higher education to adopt and disclose in its campus crime report the institution's policies on sexual assault, stalking, and intimate partner violence. Among other things, the policy must include provisions for: (1) providing information to students and employees about their options for assistance if they are victims of such violence; (2) disciplinary procedures; and (3) possible sanctions. This bill also requires institutions to use a standard of affirmative consent when determining whether sexual activity was consensual.
Request from the Federal Student Aid (FSA) to help increase awareness of FSA's Spring Student Loan Repayment Campaign, which is designed to educate borrowers about affordable repayment options and to provide borrowers with the tools and resources they need to make informed decisions.
Memorandum issued by Under Secretary of the U.S. Department of Education Ted Mitchell provides direction to the Department in responding to violations of the incentive compensation prohibition of the Higher Education Act (20 U.S.C. § 1094(a)(20)). According to the memo, the Department may recover all Title IV funds received by an institution over a particular period if the funds were received through implementation of a policy through which an institution recruited students in violation of the incentive compensation prohibition. The Department may also impose fines or revoke an institution's eligibility to violate in Title IV programs. The memo changes the Department's approach for measuring damages for violations of the incentive compensation prohibition as described in a memorandum issued by the Department in 2002.
Comment request issued by the U.S. Department of Education regarding a proposed extension to the Talent Search (TS) Annual Performance Report. The report provides the Department with information needed to evaluate a TS grantee's performance and compliance with program requirements, and to award prior experience points in accordance with the program regulations. Interested persons are invited to submit comments on or before August 10, 2015.
Notice from the U.S. Department of Education (Department) regarding its request to the Office of Management and Budget for an emergency review to facilitate the collection of information from borrowers who believe they have cause to invoke the borrower defenses against repayment of a loan as noted in regulation. The Department requested the review due to a recent increase in claims "due to a building debt activism movement as well as the notoriety of Corinthian's collapse, creating a need for a clearer process for potential claimants." The Department has updated this notice to include a 60-day comment period for public comment for the regular information collection. Interested persons are invited to submit comments on or before August 17, 2015.
Report prepared for the White House Task Force to Protect Students from Sexual Assault by the University of New Hampshire examines the efficacy of different methods for delivering campus sexual misconduct policies to first year students. The goal of the report was to determine if exposure to campus policies increased students' knowledge of the policy and campus resources and/or increased students' confidence to seek help or support for themselves, friends, or strangers. The researchers found that student understanding and recollection of campus policies increased as the number of different delivery methods increased. They also found that actively engaging students (through a facilitated discussion, for example) helped students process the information.
Letter from Chairman of the Senate Judiciary Committee Charles Grassley (R-IA) to U.S. Secretary of Homeland Security (DHS) Jeh Johnson regarding the Senator's concerns with DHS's proposal to lengthen extension periods for the Optional Practical Training (OPT) program. In addition to questioning the legality of the OPT program, the Senator's letter outlines national security concerns and problems identified in a 2014 Government Accountability Office report. Senator Grassley and others learned of DHS's proposal at a briefing on May 28, 2015. According to Senator Grassley's letter, the proposal is still being discussed internally by DHS.
Order from the Utah Court of Appeals affirming the trial court's decision and denying the plaintiff's motion for summary judgment. The case arose when Roger Bryner filed a complaint seeking to compel the Canyons School District (District) to produce a copy of a video-surveillance recording taken by a security camera at Butler Middle School. Holding that the video was an education record under the Family Educational Rights and Privacy Act (FERPA), the trial court prohibited the release of the recording. The trial court, however, did require the District to provide a redacted copy of the video at the expense of Bryner. On appeal, Bryner raised two primary arguments: (1) the trial court erred by determining that the video was an education record subject to FERPA; and (2) the trial court erroneously ordered Bryner to pay the estimated cost of redacting the video in order to receive a copy of that recording. In addressing Bryner's first argument, the Court analyzed FERPA's statutory language and concluded that Congress did not intend for the definition of "education records" to be limited to only academic records, as contended by Bryner. The Court then analyzed the two elements of an "education record," as set forth by FERPA, and concluded that both were satisfied because: (1) the video contained information related directly to the students in the altercation; and (2) the video was maintained by the District. Given that both elements were met, the Court concluded that the video was protected by FERPA. In analyzing Bryner's second argument, the Court applied the Government Records Access and Management Act (GRAMA) - which governs the procedure in Utah for requesting government records – and concluded that the redaction fee was allowable because GRAMA allows a government entity to charge a reasonable fee to cover costs. Rejecting both of Bryner's arguments, the trial court's ruling was upheld and the plaintiff's motion for summary judgment was denied.
Interactive timeline published by Bloomberg outlines the allegations made against U.S. fraternities and sororities in 2015. According to Bloomberg, in the spring semester of 2015, 133 fraternity and sorority chapters at 55 U.S. colleges were shut down, suspended, or otherwise punished after alleged offenses. The allegations can be searched using the following categories of offenses: (1) hazing; (2) alcohol or drugs; (3) sexual misconduct; (4) property damages/mischief; (5) death; (6) offensive behavior; (7) intimidation; and (8) unspecified.
Announcement from the U.S. Department of Education outlining President Obama's new debt relief process for Corinthian Colleges' students. A different process has been created for: (1) Corinthian students whose schools have closed down; and (2) Corinthian students who believe they were victims of fraud, regardless of whether their school closed.
Order from Region 6 of the National Labor Relations Board (Board) holding that adjunct faculty at Duquesne University of the Holy Spirit (University) may unionize on the grounds that the adjunct faculty were not held out as performing a specific role in maintaining the University's religious educational environment. In reaching this decision, the Board applied the two-pronged test from Pacific Lutheran University, which held that the Board would exercise jurisdiction over an employee unless the employer could demonstrate that: (1) it holds itself out as providing a religious educational environment; and (2) the employer holds the petitioned-for employees out as performing a specific role in creating or maintaining the university's religious educational environment. To determine if the adjuncts were performing specific religious duties, the Board looked at the adjuncts' contracts, courses, and orientation, as well as the University's hiring practices.
Announcement from the Occupational Safety and Health Administration (OSHA) regarding the publication of OSHA's Guide to Restroom Access for Transgender Workers. The Guide includes model practices and applicable local, state, and federal laws.
Interactive report published by the Chronicle of Higher Education providing 2014 fiscal-year data on the compensation of 238 presidents at 220 public universities and systems across the United States. The data is organized into four categories: (1) total compensation; (2) base pay; (3) tuitions equivalent to total compensation; and (4) time in office.
Announcement from the U.S. Department of Education that a set of questions and answers about the Federal Perkins Loan Program is available on the Information for Financial Aid Professionals (IFAP) Web site. The Question and Answer document will be updated periodically.
Order from the United States District Court for the District of New Jersey denying the plaintiff's motion to proceed anonymously. The case arose when a student sued Princeton University for allegedly discriminating against him on the grounds of mental disability. The plaintiff requested that the court conceal his identity to "avoid social stigma and emotion distress relating to his mental health." Analyzing the facts using the 9-factor Provident Life test, the Court concluded that openness in the judicial process outweighed the plaintiff's desire to proceed anonymously. The Court noted that it would be "fundamentally unfair" to allow the plaintiff to remain anonymous while forcing the defendants, Princeton University and several named individuals, to defend themselves publically.
Report published by the National Association of Colleges and Employers (NACE) summarizes the outcomes of recent college graduates. The report, based on NACE's 2014 First-Destination Survey, provides data on 31 broad disciplines and 190 majors.
Letter from 53 U.S. legislators to U.S. Department of Education Secretary Arne Duncan requesting that the Department allow students to use data from the second preceding tax year to complete the Free Application for Federal Student Aid (FAFSA). The letter outlines current challenges with the FAFSA deadline (January 1) and potential benefits to students, families, and postsecondary intuitions.
Longitudinal study published by the U.S. Department of Education's National Center for Education Statistics which surveyed, over a ten year period, a nationally representative cohort of students during certain points of secondary and postsecondary education. This summary of the longitudinal study examines differences in students' educational attainment by socio-economic status (SES), as well as how other variables may differentially relate to students' educational attainment by SES group.
Legislation (S.1413) introduced by Sen. Daniel Coats (R-IN) proposing to improve compliance with higher education tax benefits by: (1) eliminating penalties under §6721 of the Internal Revenue Code for education institutions that certify they have complied with IRS standards by requesting a student's taxpayer identification number; and (2) requiring taxpayers to have proof of eligibility before claiming certain education tax benefits, including the American Opportunity and Lifetime Learning Tax Credits. The legislation was introduced in response to a recent report by the U.S. Treasury Inspector General for Tax Administration which revealed that the Internal Revenue Service (IRS) paid out billions in potentially erroneous education tax credits to more than 3.6 million taxpayers.
Proposal from the U.S. Department of State to Amend the International Traffic in Arms Regulations (ITAR) to: (1) update definitions in order to clarify their scope and consistency with the Export Administration Regulations (EAR); (2) create definitions in order to clarify and support the interpretation of the revised definitions proposed in this rulemaking; and (3) address the electronic transmission and storage of unclassified ''technical data'' via foreign communications infrastructure. The Department of State will accept comments on this proposed rule until August 3, 2015.
Legislation (S.B. 308) signed into law by Texas Governor Greg Abbott requires police departments at private colleges and universities to follow the state's public records law. The law takes effect on September 1, 2015.
Notice from the U.S. Department of Education inviting applications for the FY2015 Native American-Serving Nontribal Institutions Program (NASNTI). NASNTI provides grants to eligible institutions of higher education to plan, develop, undertake, and carry out activities to improve and expand such institutions' capacity to serve Native American and low-income individuals. The application deadline is July 6, 2015.
Announcement from the U.S. Department of Education that Volume 5 of the 2015-16 Federal Student Aid Handbook is available online. This volume covers how a school should respond when a student receiving federal student aid withdraws from the institution.
Announcement from the U.S. Department of Education that effective June 3, 2015, grantees under the following programs are authorized to make subgrants: (1) Centers for International Business Education Program; (2) Language Resource Centers Program; (3) National Resource Centers Program; and (4) Undergraduate International Studies and Foreign Language Program. Subgrants but must be made in accordance with the limitations described in the Department's notice.
Announcement from the Council of Regional Accrediting Commissions (C-RAC) outlining the criteria that the seven regional accreditors will use in defining and approving competency-based education (CBE) programs. The common framework agreed to by C-RAC includes a definition of CBE, approaches to CBE, and the approval process for CBE programs.
Notice released by the U.S. Department of Education setting forth the schedule and agenda of an upcoming open meeting of the President's Board of Advisors on Historically Black Colleges and Universities (PBA). The PBA meeting will be held at the at the Bennie G. Thompson Academic and Civil Rights Research Center in Tougaloo, Mississippi on June 23, 2015, from 9:00 a.m. – 2:00 p.m.
Finances: Updates to NACUBO Manual on Business Administration
June 2, 2015
Announcement from the National Association of College and University Business Officers (NACUBO) that two chapters have been updated in its College and University Business Administration (CUBA) manual, both of which are available as free downloads. The Procurement chapter, written in conjunction with the National Association of Educational Procurement, describes best practices and the many variables that affect a procurement department's responsibilities and structure. The Strategic Debt Management chapter addresses how changes in the financial markets have impacted debt management.
Order by Region 13 of the National Labor Relations Board (Board) finding that, with limited exceptions, ballots for adjuncts at Saint Xavier University (University) should be counted in a union election because the University failed to demonstrate that adjuncts play a specific role in creating its religious educational environment. The case was remanded to Region 13 in light of Pacific Lutheran University, in which the Board held that it would exercise jurisdiction over an employee unless the employer could demonstrate that: (1) it holds itself out as providing a religious educational environment; and (2) the employer holds the petitioned-for employees out as performing a specific role in creating or maintaining the university’s religious educational environment.
Order from the U.S. Supreme Court overturning the conviction of petitioner Anthony Douglas Elonis and remanding the case to the Third Circuit U.S. Court of Appeals. The case arose when Elonis used his Facebook account to post violent rap lyrics about his wife, co-workers, a kindergarten class, and law enforcement personnel. In response to his Facebook posts, the Federal Bureau of Investigation charged Elonis with five counts of violating 18 U.S.C. §875(c), which makes it a federal crime to transmit in interstate commerce communications that contain threats to hurt others. The District Court held, and the Third Circuit Court affirmed, that under §875(c), Elonis could be found guilty if a reasonable person would interpret his posts as a threat. In a 7-2 opinion, the Supreme Court struck down the "reasonable person" standard, noting their hesitancy in inferring negligence in a criminal statute. Instead, the Supreme Court held that for a conviction under §875(c), there must be proof that: (1) a communication was transmitted; and (2) the communication contained a threat. Relying on the "general rule" of criminal law, which requires a "guilty mind" for proof of crime, the Supreme Court applied a mental state requirement to both prongs of the framework found in §875(c). Using this standard, a person can be convicted under §875(c) if the defendant transmits a communication for: (1) the purpose of issuing a threat; or (2) with knowledge that the communication will be viewed as a threat. The Supreme Court did not address Elonis's First Amendment defense.
Order from the U.S. Supreme Court reversing the Tenth Circuit Court of Appeals' granting of summary judgment to respondent Abercrombie & Fitch Stores (Abercrombie). The Ten Circuit held that an employer could not be liable for failing to accommodate a religious practice if the applicant did not provide the employer with actual knowledge of the need for accommodation. In the 8-1 opinion, the Supreme Court rejected the Ten Circuit's "knowledge requirement," holding that under Title VII of the Civil Rights Act an applicant is only required to show that their need for a religious accommodation was a motivating factor in the employment decision. The case arose when Abercrombie refused to hire Samantha Elauf because her headscarf, which she wore pursuant to religious beliefs, conflicted with Abercrombie's dress code policy. The Equal Employment Opportunity Commission sued Abercrombie on behalf of Ms. Elauf.
Announcement from the U.S. Copyright Office regarding the availability of the Fair Use Index (Index). The Index is an online database that tracks and summarizes major fair use judicial decisions. Each judicial decision includes a brief summary of the facts, the relevant question(s) presented, and the court's determination as to whether the contested use was fair. The Copyright Office intends to update and expand the Index periodically.
Comment request issued by the U.S. Department of Education regarding a proposed extension to Pell Grant reporting under the Common Origination and Disbursement (COD) System. The COD System is used by institutions to request, report, and reconcile grant funds received from the Pell Grant program. Interested persons are invited to submit comments on or before June 29, 2015.
Notice from the U.S. Department of Education proposing an altered system of records for the Freedom of Information Act and Privacy Act Tracking System. The proposed alterations include updates to the system location and system of records notice (SORN) number, categories of individuals covered by the system, categories of records in the system, system managers and addresses, and routine uses. Interested persons are invited to submit comments before June 29, 2015.
Announcement from the U.S. Department of Justice that Navient Corporation will soon compensate the 77,795 service members charged excess interest on their student loans. The checks, which are scheduled to be mailed on June 12, 2015, will range from $10 to over $100,000, with an average of about $771.
Report published by the (Virginia) Governor's Task Force on Combating Campus Sexual Violence. The twenty-one recommendations, aimed at preventing sexual assault on college campuses, are organized into five themes: (1) Engaging Our Campuses and Communities in Comprehensive Prevention; (2) Minimizing Barriers to Reporting; (3) Cultivating a Coordinated and Trauma-Informed Response; (4) Sustaining and Improving Campus Policies and Ensuring Compliance; and (5) Institutionalizing the Work of the Task Force and Fostering Ongoing Collaborations. The task force was established by Governor McAuliffe on August 21, 2014, and was chaired by Virginia Attorney General Mark Herring.
Order from the United States District Court for the Southern District of New York denying the Association of Proprietary Colleges' (APC) motion for summary judgment and granting the U.S. Department of Education's (Department) cross-motion for summary judgment. At issue in this case are the Gainful Employment Rules (GE Rules) promulgated by the Department in October 2014 and scheduled to take effect July 1, 2015. APC claimed that the GE Rules: (1) violate the Due Process Clause; (2) exceed the Department's statutory authority under the Higher Education Act of 1965 (HEA); and (3) run afoul of the Administrative Procedure Act's prohibition on arbitrary and capricious agency rulemaking. In addressing the first claim, the Court held that the GE Rules do not violate due process because: (1) the GE Rules do not deprive APC of a protected interest in property or liberty because proprietary colleges do not have a "vested right" to continued eligibility to participate in Title IV federal funding programs under the HEA; and (2) the GE Rules afford affected institutions all the process that is constitutionally required. In addressing the second claim, the Court held that the 2014 GE Rules are based on a permissible construction of the statute and the Department therefore acted within its statutory authority. In so holding, the Court incorporated portions of the District of Columbia Court of Appeals' 2012 opinion in Association of Private Colleges & Universities v. Duncan, in which the Association of Private Colleges & Universities challenged the Department's 2011 gainful employment rules. Finally, in addressing the third claim, the Court held that the GE Rules were the product of "reasoned decision making." Given that all three claims failed, the Court granted summary judgment in favor of the Department.
Comment request issued by the U.S. Department of Education regarding a proposed extension to the Pell Grant Experiments evaluation. The evaluation is a two-part, seven-year demonstration study that focuses on the effects of expanded access to Pell grants on students' educational outcomes, employment and earnings. Interested persons are invited to submit comments on or before July 27, 2015.
Announcement from the National Collegiate Athletic Association (NCAA) that 21 teams will be ineligible for postseason play due to low academic performance. Academic performance is measured by the NCAA's Academic Performance Program (APR). In order to compete postseason, the NCAA requires teams to achieve a 930 multi-year APR, which predicts a 50 percent graduation rate among student athletes.
Report published by the U.S. Department of Education's National Center for Education Statistics (NCES) presents 42 key indicators on topics and trends in U.S. education.
Notice from the U.S. Department of Education announcing the availability of the Federal Need Analysis Methodology for the 2016-17 award year. The methodology determines a student's expected family contribution for the following student financial aid programs: Federal Pell Grant, Federal Perkins Loan, Federal Work-Study, Federal Supplemental Educational Opportunity Grant, William D. Ford Federal Direct Loan, Iraq and Afghanistan Service Grant and TEACH Grant Programs. U.S. Department of Education has made a technical correction to this notice and a correction to the Education Savings and Asset Protection Allowance tables.
Announcement from the U.S. Department of Education that its inquiry into four federal student loan servicers (Navient, Great Lakes, PHEAA and Nelnet) revealed that each service provider, in the vast majority of cases, complied with the Servicemembers Civil Relief Act (SCRA) as required by the Higher Education Act (HEA). The inquiry, which looked at active-duty service members' SCRA eligibility between 2009 and 2014, showed that in less than one percent of cases borrowers were incorrectly denied the six percent interest rate cap required by the laws.
Notice from the U.S. Department of Education announcing the availability of the Federal Need Analysis Methodology for the 2016-17 award year. The methodology determines a student's expected family contribution for the following student financial aid programs: Federal Pell Grant, Federal Perkins Loan, Federal Work-Study, Federal Supplemental Educational Opportunity Grant, William D. Ford Federal Direct Loan, Iraq and Afghanistan Service Grant and TEACH Grant Programs. U.S. Department of Education has made a technical correction to this notice.
Announcement from the U.S. Department of Education that Volume 6 of the 2015-2016 Federal Student Aid Handbook is available online. This volume provides information that institutions need to administer the Federal Work-Study Program, the Federal Supplemental Educational Grant Program, and the Federal Perkins Loan Program.
Order from the Supreme Court of Appeals of West Virginia granting in part and denying in part Highland Mining Company's (Highland) request for documents related to several articles co-authored by a professor from the West Virginia University School of Medicine (WVU). The court held that pursuant to the West Virginia Freedom of Information Act (FOIA), WVU may use FOIA's "internal memorandum" exemption to withhold documents that reflect the professor's deliberative process but may not invoke FOIA's "personal privacy" exemption to protect documents containing anonymous peer review comments of the draft articles (although those documents would be exempt from disclosure under the "internal memoranda" exemption). The court also concluded that WVU may not claim an "academic freedom" privilege to avoid the plain language of FOIA.
Order from the U.S. Court of Appeals for the Fourth Circuit granting in part and denying in part defendant's motion for summary judgment. The case arose when Iris Foster, a police officer employed by the University Of Maryland-Eastern Shore (University), claimed that the University punished her for filing harassment charges against her work supervisor. Foster, under Title VII of the Civil Rights Act of 1964, alleged three causes of action against the University: (1) discriminatory termination based on gender; (2) retaliatory termination; and (3) the creation of a hostile work environment. The district court initially granted summary judgment to the University on the first and third causes of action and denied summary judgment on the second cause of action based on the McDonnell Douglas burden-shifting framework. Because Foster lacked direct evidence of retaliation, the district court concluded that a reasonable jury could have found that retaliation was "causally related" to her termination. However, in light of the U.S. Supreme Court's decision in the University of Texas Southwestern Medical Center v. Nassar, which held that a plaintiff must prove "but for" causation in Title VII retaliation cases, the University motioned for reconsideration. The district court granted the motion for reconsideration, and based on Nassar, granted summary judgment to the University on the retaliation claim. The Court of Appeals affirmed the district court's grant of summary judgment on the first and third causes of action but reversed on the second cause of action on the grounds that the McDonnell Douglas framework was the appropriate standard for reviewing Foster's claim because the framework incorporates "but for" causation, as required by Nassar. Under the McDonnell Douglas framework, the Court of Appeals held that a reasonable jury could conclude that Foster was fired due to retaliation and not due to the University's purported justifications, and therefore, the University lacked grounds for summary judgment.
Legislation (S. 1195) introduced by U.S. Sens. Ron Wyden (D-OR), Mark R. Warner (D-VA), and Marco Rubio (R-FL) that would authorize the Secretary of Education to create new program and institution-specific outcome measures. Institutions of higher education who participate in any program under the Higher Education Act of 1965 would be required to submit data consistent with the new measures. A similar piece of legislation, H.R. 2518, was introduced in the U.S. House of Representatives. As of May 26, 2015, language was not available for H.R. 2518.
Report published by the National Center for Campus Public Safety (NCCPS), the IACP University and College Police Section, and the International Association of Campus Law Enforcement Administrators (IACLEA) summarizing the discussion at the University Public Safety/Police Practitioner's Title IX/Clery Summit II (Summit). Summit participants reviewed and briefly discussed eight challenges associated with the Clery Act and Title IX and, in organized groups, identified one or more "Promising Practice" per challenge. A summary of each challenge, and the correlating Promising Practices, are included in the report.
Announcement from the U.S. Citizenship and Immigration Services (USCIS) that premium processing for all H-1B Extension of Stay petitions will be suspended until July 27, 2015. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015. Premium processing remains available for all other Form I-129 H-1B petitions.
Announcement from the U.S. Citizenship and Immigration Services (USCIS) that information and Frequently Asked Questions are now available to help eligible H-4 dependent spouses who seek employment authorization under the Employment Authorization for Certain H-4 Dependent Spouses final rule.
Order from the Ohio Supreme Court requiring a private university police department to provide documents to a campus publication on the grounds that the police department was a public office for purposes of Ohio's Public Records Act. Although the police department was established under Otterbein University, a private institution exempt from Ohio's Public Record Act, the Court held that the police department was a public office because its officers were sworn, state-certified police officers performing a core function of government. The case arose when the news editor of a campus publication, Anna Schiffbauer, requested criminal records from the Otterbein University police department.
Comments from the American Council on Education (ACE) on behalf of fourteen higher education organizations to Chairman Alexander and Ranking Member Murray regarding S. 590, the Campus Accountability and Safety Act. The letter highlights three broad concerns with S. 590: (1) the one-size-fits-all approach assumes that all students attend large, four-year residential institutions; (2) the vague and unclear legislative language creates uncertainty regarding institutional requirements; and (3) the Secretary of Education is authorized to impose huge fines with no clear standards.
Legislation (S.1102) introduced by Sen. Reed (D-RI) that would require colleges or universities with at least 25 percent of the student population participating in the William D. Ford Federal Direct Loan program to make risk-sharing payments to the Secretary of Education if the college or university has a cohort default rate of 15 percent or higher. The legislation, known as the "Protect Student Borrowers Act of 2015," would authorize the Secretary of Education to waive or reduce risk-sharing payments for colleges and universities that develop and implement an approved student loan management plan.
Report by the National Association for Music Education found that nearly 30 percent of respondents indicated they observed some form of hazing in their marching band. The most common acts of hazing involved were public verbal humiliation or degradation. Survey respondents represented freshman, sophomores, juniors, and seniors attending National Collegiate Athletic Association Division I schools in thirty states.
Notice released by the U.S. Department of Education setting forth the schedule and agenda of an upcoming open meeting of the National Advisory Council on Indian Education (NACIE). The NACIE meeting will be held in Washington, DC on June 1, 2015, from 9:00 a.m. – 5:00 p.m. and on June 2, 2015, from 9:00 a.m. – 1:00 p.m.
Notice released by the U.S. Department of Education setting forth the schedule and agenda of an upcoming open meeting of the National Board for Education Sciences (NBES). The NBES meeting will be held in Washington, DC on June 8, 2015, from 9:00 a.m. to 4:15 p.m.
Publication by the College Board, American Council on Education, and EducationCounsel identifying the issues and challenges that impact diversity programs at colleges and universities. In addition to identifying relevant issues, the goal of the Syllabus is to direct institutions to resources that will help them pursue their goals related to diversity. The publication is comprised of two sections: (1) Key Elements of a Diversity Policy and Legal Framework and (2) Legal Foundations.
Announcement from Federal Student Aid (FSA) that a series of updates have been made to the FSA Data Center. All reports now reflect activity through or as of March 31, 2015.
Legislation introduced by Sen. Sanders (VT) proposes a grant program to eliminate tuition and required fees for students attending public four-year colleges. Under the proposal, the federal government would be responsible for 67 percent of the program's cost and state governments would be responsible for the remaining 33 percent. A summary of the legislation can be found on Sen. Sanders' website.
Notification from the U.S. Department of Education that awards have been approved for the Federal Work-Study, Federal Supplemental Educational Opportunity Grant, and Federal Perkins Loan programs. A list of approved schools and award amounts can be found here.
Final audit report published by the Office of Inspector General (OIG) covers the results of OIG's review of the U.S. Department of Education's compliance with improper payment reporting requirements from October 1, 2013, through September 30, 2014. The report outlines three findings: (1) the Department failed to comply with the Improper Payments Elimination and Recovery Act of 2010; (2) the Department needs to improve the accuracy, completeness, and quality of its improper payment estimates and estimation methodologies; and (3) the Department needs to improve the completeness of its improper payment reporting. The Department has 30 days to develop and submit to OIG a corrective action plan that sets forth the specific action items necessary to implement the final corrective actions and recommendations contained in the report.
Announcement from the U.S. Department of Veteran Affairs (VA) waiving Section 702 of the Veterans Choice Act for all non-compliant states until January 1, 2016. Section 702 requires the VA to disapprove education programs at public institutions for Post-9/11 GI Bill and Montgomery GI Bill-Active Duty benefits if a school charges veterans, as well as their spouses or children, tuition and fees in excess of the resident rate. The VA is requesting all currently non-compliant states and territories to submit their plans to become compliant to the VA no later than June 15, 2015.
Survey published by the University Risk Management and Insurance Association (URMIA) analyzinged how colleges and universities view the risks associated with fraternities. Based on the survey results, URMIA observed that while two-thirds of the respondents judged fraternity risk to be among the institutions' significant or top liability risks, nearly every institution has one or more strategy for addressing risks related to fraternities.
Comment request issued by the U.S. Department of Education regarding a revision to the Graduate Assistance in Areas of National Need (GAANN) performance report. Performance reports are used to evaluate grantee performance, as well as the accomplishments and impact of the GAANN Program as a whole. Interested persons are invited to submit comments on or before July 20, 2015.
Comment request issued by the U.S. Department of Education regarding a revision to the 2015–16 National Postsecondary Student Aid Study (NPSAS) Full Scale Institution Contacting and Enrollment List Collection. NPSAS is a nationally representative study of how students and their families finance postsecondary education. The next major NPSAS data collection will occur in 2016 following a field test collection in 2015. Interested persons are invited to submit comments on or before June 18, 2015.
Comments from the National Association of College and University Business Officers to the U.S. Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) in response to his request for comments on the committee's white paper on Risk-Sharing/Skin-in-the-Game. The letter addresses two specific components of the white paper: Repayment of Federal Student Loans and Cost Structure.
Report published by the National Association for College Admission Counseling shows that while application growth continues for most colleges, a growing number of institutions are taking steps to increase outreach to international and transfer students.
Research published by EDUCAUSE analyzes the next approach to digital learning, defining its principal functional domains (interoperability; personalization; analytics, advising, and learning assessment; collaboration; and accessibility and universal design) and proposing a "Lego" approach that allows individuals and postsecondary institutions to construct learning environments tailored to their own requirements and goals.
Notice issued by the U.S. Department of Education inviting applications for new awards under the Predominantly Black Institutions (PBI) Competitive Grant Program. The purpose of the PBI Program is to strengthen predominantly black institutions to carry out programs in the following areas: science, technology, engineering, or mathematics (STEM); health education; internationalization or globalization; teacher preparation; or improving educational outcomes of African-American males. The deadline to apply is July 2, 2015.
Letter to the U.S. Senate Committee on Appropriations from 812 organizations urging members of Congress to increase the Fiscal Year FY2016 302(b) allocation for the Labor, HHS, Education and Related Agencies Appropriations Subcommittee. Without an increase in the proposed 302(b) allocation, the stakeholder groups believe it will be impossible to fund new initiatives while also maintaining funding for current initiatives.
Legislation introduced by Congressmen Chris Collins (NY) and Blake Farenthold (TX) would provide that tuition payments made to a postsecondary institution by a parent on behalf of their child are not fraudulent for purposes of section 548 of the U.S. Bankruptcy Code. The proposed legislation is intended to prevent bankruptcy collectors from suing colleges for tuition already paid by parents on the behalf of their child.
Comments sent to the Internal Revenue Service by the American Council on Education (ACE) on behalf of eleven higher education organizations regarding the Section 4980I excise tax on high-cost employer-sponsored health plans referenced in Notice 2015-16 (Notice). The Notice is intended to initiate and inform the process of developing regulatory guidance regarding the excise tax on high-cost employer-sponsored health coverage under Section 4980I of the Internal Revenue Code (Code). ACE's comments focus primarily on the specific technical matters raised in the Notice.
Comment request issued by the U.S. Department of Education regarding a revision to forms related to the Health Education Assistance Loan (HEAL) program. The forms are required for lenders to apply to the HEAL program, to report on loan actions, and to establish the repayment status of borrowers who qualify for deferment. Interested persons are invited to submit comments on or before July 14, 2015.
Announcement from the U.S. Department of Education that Volume 3 of the 2015-2016 Federal Student Aid Handbook is available online. This volume discusses how to calcu¬late, award, and disburse the proper amounts for the various Title IV programs.
Legislation (H.B. 934) signed into law by Maryland Governor Larry Hogan prohibits a postsecondary institution from requiring access to information about a student's personal electronic account. A "student" includes current or prospective students, as well as applicants.
Proposal from the U.S. Department of Education to amend the cash management regulations under subpart K and other sections of the Student Assistance General Provisions regulations issued under the Higher Education Act. The proposed changes are intended to: (1) ensure students have convenient access to their title IV funds; (2) ensure students do not incur unreasonable and uncommon financial account fees on their title IV funds; (3) clarify how previously passed coursework is treated for title IV eligibility purposes; and (4) streamline the requirements for converting clock hours to credit hours.
Report published by the National Student Clearinghouse Research Center finds that in spring 2015, overall postsecondary enrollment decreased by 1.9 percent from the previous spring. Included in the report are six tables that compare and contrast enrollment statistics by year, sector, institution size and state.
Request issued by the Bureau of Consumer Financial Protection for public comments related to the role that servicing plays in facilitating repayment of student loans. The Bureau will use the comments to assist federal and state agencies in prioritizing resources and to assist financial services providers in developing best practices. The deadline for submission of comments is July 13, 2015.
Comment request issued by the U.S. Department of Education regarding a revision to the Federal Perkins Loan Program Master Promissory Note (MPN).The MPN provides the terms and conditions of the Perkins Loan program and is prepared by the participating eligible institution and signed by the borrower. Interested persons are invited to submit comments on or before July 13, 2015.
Compliance calendar published by the U.S. Department of Education summarizing all reports and disclosures required for participation in Title IV programs. Each summary includes the statutory or regulatory authority, a description of what is required in each report/disclosure, the due date, the method of transmittal or distribution, and the recipient of the report/disclosure. The compliance calendar is comprised of three sections: reports, disclosures, and disclosures related to loans.
Announcement from the U.S. Department of Justice that it has moved to intervene in Aleeha Dudley v. Miami University, et al., a lawsuit alleging disability discrimination by Miami University. In their motion to intervene and complaint, the United States alleges that Miami University violated Title II of the Americans with Disabilities Act (ADA) by requiring current and former students with disabilities to use inaccessible websites and learning management system software, and by providing these students with inaccessible course materials. The complaint seeks a judgment from the court requiring Miami University to provide accessible materials to individuals with disabilities and to award compensatory damages to aggrieved individuals.
Report released by the Congressional Research Service (CRS) containing information from security firms regarding the current state of cybersecurity threats in the United States as well as internationally. The table within the report provides a list of projects, databases, and annual reports relating to data security breaches, identity thefts, cybercrimes, malwares, and network securities.
Announcement from the U.S. Department of Education regarding the School Partners Survey, which will begin on May 14, 2015. The survey will assess the performance of Federal Student Aid and the Department of Education in terms of the ease with which school partners are able to do business with them. A notification e-mail with a link to the web survey will be sent to a random sample of school financial aid administrators.
Statement released by the Association of American Universities (AAU) expressed concerns that the adopted FY16 Congressional Budget Resolution would force long-term cuts in the nation's investments in research and higher education. AAU recommends that Congress confront the long-term fiscal challenges by raising budget caps and developing a long-term plan to addressing entitlements and taxes.
Report released by the Congressional Research Service (CRS) comparing two pieces of cybersecurity and information-sharing legislation that have passed the House of Representatives. The legislation discussed includes the Protecting Cyber Networks Act (PCNA) (H.R. 1560, as reported in the House on April 13) and the National Cybersecurity Protection Advancement Act of 2015 (NCPAA) (H.R. 1731, as reported in the House on April 17). The two bills have since been combined to form Title I and Title II of the most recent version of H.R. 1560, respectively, and sent to the Senate for consideration.
Announcement of Cybersecurity Week and the four main takeaways from congressional deliberations on cybersecurity-related legislation was issued on April 22. The key considerations that the announcement advises observers of cybersecurity-related activities in Congress to keep in mind include: 1) the complexity of current laws governing cybersecurity information sharing; 2) the fact that legislative efforts at reform are attempts to create a new framework for information sharing as opposed to altering existing laws; 3) the three distinct but related activities covered by cybersecurity legislation, which are not limited to information sharing or the private sector; and 4) the notion that the precise terms and definitions used in various proposals could change the scope of a given provision.
Updated report on cybersecurity-related authoritative reports and resources was issued by the Congressional Research Service (CRS). The report provides references to analytical reports and other resources concerning cybersecurity from CRS, other government agencies, trade associations, and interest groups. The reports and related websites are grouped in tables based on topic.
Report published by Georgetown University's Center on Education and the Workforce on how much college graduates earn by major at the entry-level (ages 21-24) and mid-career (ages 25-59), the most popular majors, the majors most likely to lead to a graduate degree, and the majors for which a graduate degree provides the largest benefit. According to the report: (1) bachelor's degree holders earn an average annual salary of $61,000 over the course of their careers (compared to, $78,000 for those with graduate degrees); (2) science, technology, engineering, and math (STEM) majors comprise 20 percent of college-educated workers, and (3) business majors' wages vary the most whereas education majors' wages vary the least.
Opinion from the United States District Court of Nebraska a former doctoral student's request for injunctive relief on the grounds that the defendants – department chairs and other employees at the University of Nebraska - did not violate the plaintiff's constitutional right to due process nor did they retaliate against plaintiff by failing to compel a faculty member to accept the plaintiff as an advisee or to accept the plaintiff's proposed doctoral topic. The court noted that neither the court nor the defendants can compel an advisor to accept a doctoral topic because doing so would substitute their will for that of an advisor.
American Council on Education and 25 higher education associations submitted comments to U.S. Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) in response to his request for comments on the committee's white paper on Federal Postsecondary Data Transparency and Consumer Information. The letter addresses postsecondary data needs and transparency in the following categories: consumer information for students and parents, policy analysis and research, and institutional accountability for receipt of public funds.
Legislation (S.B. 352 and H.B. 647) in Minnesota would require public colleges and universities in Minnesota to establish programs that would allow any student who does not meet minimum course placement criteria and who would otherwise be required to enroll in a developmental noncredit course option to take a regular, credit-bearing course while receiving supplemental academic instruction.
Press release issued from the U.S. Department of Education announcing the availability of $60 million in Fiscal Year 2015 in the First in the World (FITW) program. FITW Program will provide grants to institutions of higher education to "spur the development of innovations that improve educational outcomes and make college more affordable for students and families, and to develop an evidence base of effective practices." FY 2015 FITW grant applications are due by June 30, 2015.
Comment request issued by the U.S. Department of Education on the Fulbright-Hays Seminars Abroad Program Application. The program provides opportunities for U.S. educators to participate in short-term study seminars abroad in the subject areas of the social sciences, social studies, and the humanities. The proposed changes to the application include updating language to reflect the seminars current offered and the electronic system used to accept applications, and reducing the number of references that applicants are asked to submit from three to two. Interested persons are invited to submit comments on or before June 8, 2015.
Proposed amendments to the Federal Rules of Bankruptcy and Civil Procedure were submitted to Congress by the U.S. Supreme Court. The proposed amendments affect Bankruptcy Rule 1007 as well as Civil Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55. The amendments would also abrogate Rule 84 and the Appendix of Forms. Unless Congress takes action to further modify the proposed rules, these amendments will become effective December 1, 2015.
Letter from the Department of Education sent in response to requests for information on campus sexual violence complaint and investigation data from Senators Barbara Boxer (D-CA), Kirsten Gillibrand (D-NY), and Tim Kaine (D-VA). According to the data provided, the number of sexual violence complaints on the college and university level filed with the Department's Office for Civil Rights (OCR) increased from nine in FY 2009 to 102 during FY 2014. Meanwhile, the average length of time it took OCR to investigate complaints of Title IX sexual violence violations at postsecondary institutions increased from 379 days in FY 2009 to 1,469 days in FY 2014 for investigations that resulted in substantive case closures (as opposed to, for example, cases that resulted in findings of no violation or insufficient evidence). OCR's stated goal is to resolve complaints within 180 days.
List of Questions and Answers regarding gainful employment regulations was posted on the U.S. Department of Education's Federal Student Aid Office website. The answers provide information and operational guidance on the requirements of gainful employment regulations. The listing will be updated periodically with new questions and answers.
Order from the U.S. District Court for the Southern District of New York granting in part and denying in part defendants' motion for summary judgment. The case arose when Elizabeth Manon, an admissions office receptionist at 878 Education LLC, was fired after accumulating excessive absences from work and a poor punctuality record that were purportedly due to her need to attend to her infant daughter's breathing problems. The plaintiff presented evidence that her boss, the director of admissions, stated that he needed someone without children in the position and asked the plaintiff, "So what is it, your job or your daughter?" The Court ruled that the director's comments are the type of "smoking gun" evidence that could support an associational disability discrimination claim under the ADA and under New York law, and thus the plaintiff had a triable case. The Court granted the defendants' motion for summary judgment with respect to the plaintiff's claim of gender discrimination under New York law.
Dear Colleague Letter issued by the U.S. Department of Education announcing a new process for confirming a student's citizenship or immigration status. Through the process, a student may confirm his or her citizenship or immigration status and, in turn, eligibility for Title IV student financial assistance, when the student is unable to appear in person at the institution to present documentation. The announcement includes a sample affidavit that institutions may use to allow a student to submit immigration or citizenship documentation in this manner.
Resource guide for students, parents, and borrowers on creating a Federal Student Aid ID (FSA ID) was posted by the U.S. Department of Education. The announcement advises institutions to distribute the guide after the FSA ID is made available and individuals are allowed to create an account.
Accounting Standards Update (ASU) was proposed by the Financial Accounting Standards Board (FASB) in order to improve the information provided in not-for-profit financial statements and notes to financial statements. The proposed ASU describes FASB's suggested improvements to a reporting model that was first used by independent higher education institutions in the mid-1990s. Interested parties are invited to submit comments on the proposal by August 20, 2015.
Legislation (S. 335) amending the Internal Revenue Code with respect to qualified tuition programs (529 plans) was approved by the U.S. Senate Finance Committee. The bill would make the allowance for payment of computer technology and equipment expenses from a 529 plan permanent as long as the technology and equipment are used primarily by the beneficiary of the plan. Additionally, the bill would eliminate the aggregation requirement for distributions to a 529 plan for purposes of determining taxable income, and would allow a student who withdraws from an educational institution to make a tax-free recontribution to a 529 plan using refunds received from withdrawal, subject to certain conditions.
Notice released by the U.S. Department of Education setting forth the schedule and agenda of an upcoming open meeting of the Historically Black Colleges and Universities Capital Financing Advisory Board. The Board meeting will be held on Monday, May 18, 2015, from 10:00 a.m. – 2:00 p.m. at Xavier University of Louisiana.
Announcement issued by the U.S. Department of Education regarding reimbursements for 2013-2014 Federal Perkins Loan cancellations based on the borrower's employment in certain service fields. According to the announcement, because the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) did not allocate funds for the 2013-2014 reimbursements, no reimbursement payments will be issued this year. However, the Department will calculate the reimbursement payment for which an institution would have been eligible to receive and maintain a record of that amount.
Report from the Coalition for Urban Serving Universities (CUSU), the Association of Public and Land-grant Universities (APLU), and the Association of American Medical Colleges (AAMA)—which have partnered as Urban Universities for HEALTH—on the effects of cluster hiring. The report concludes that, when done correctly, cluster hiring can be a powerful way to build both institutional excellence and faculty diversity.
The Texas State Senate passed legislation (S.B. 778) relating to performance-based tuition limitations for public higher education institutions. The bill would require public colleges to meet several performance standards—including standards measuring graduation rates, student completion milestones, the number of degrees earned by at-risk students, and the institution's administrative costs—in order to increase tuition rates beyond the rate of inflation. The bill has been sent to the State House of Representatives for consideration.
Issue brief released by the American Council on Education (ACE) regarding the guidance documents on Title IX Coordinators released by the U.S. Department of Education's Office for Civil Rights (OCR) on April 24. The brief summarizes the main aspects of the guidance documents and highlights the information that OCR has not previously conveyed in formal guidance.
The Office for Civil Rights (OCR) Fiscal Year 2013-2014 report to the President and Secretary of Education was released by the U.S. Department of Education. The report observed that OCR increased the quantity, quality, transparency, and reach of its policy and enforcement efforts during the fiscal year. However, at a time when the volume of complaints, requests for information, demands for stakeholder and public engagement, and needs for technical assistance have dramatically increased, the Office's staffing level has consistently declined. The report concludes that while OCR has made important progress in the advancement of civil rights for students, sizable opportunity gaps still exist.
Comments issued by the American Council on Education (ACE) to Chairman Lamar Alexander (R-TN) of the Senate Committee on Health, Education, Labor and Pensions regarding accreditation. As Congress considers the role of accreditation in federal higher education policy, ACE encourages members to emphasize and maintain what it characterizes as the four central features of accreditation. It also asks that Congress clarify the responsibilities of accreditors vis-à-vis the Department of Education, asserting that accreditors should focus on student learning and educational quality while the Department of Education focuses on enforcing Title IV eligibility requirements.
Ruling by the U.S. Court of Appeals for the Eighth Circuit reversing the district court's granting of summary judgment to defendant Heritage College on an allegation of fraud. Former Heritage employees Chickoiyah Yehnee Miller and Cathy Lynn Sillman filed a qui tam False Claims suit against the College, alleging it fraudulently induced the Department of Education to provide the College with federal funds by signing a Program Participation Agreement (PPA) without intending to accurately maintain the PPA's required student records. The district court dismissed the case, accepting Heritage's argument that its failures to keep accurate records under the PPA did not cause any improper disbursement of federal funds. On appeal, the Eighth Circuit reversed, holding instead that the plaintiffs did not have to establish a link between record changes made by the college and fraudulent payments in order to prove a claim of fraud under the Act. The Court remanded the case to allow the district court to decide if Heritage understood its obligation to keep accurate records and whether it intended to manipulate its records.
Letter from the Association of American Universities (AAU) to leaders of the U.S. House of Representatives Committee on Science, Space and Technology on the impending markup of the NASA Authorization Act for 2016 and 2017. The letter expresses concern that the Act makes steep cuts in some areas of scientific research in order to bolster funding in other areas, and advises that the Committee reconsider these proposed cuts so that NASA is able to operate effectively and successfully achieve its mission.
Final rule issued by the U.S. Department of Homeland Security amending its regulations under the Student and Exchange Visitor Program (SEVP). The new rule grants school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses. It also permits accompanying spouses and children of academic and vocational nonimmigrant students with F-1 or M-1 nonimmigrant status to enroll in study at an SEVP-certified school as long as they are enrolled for less than a full course of study. This rule will go into effect on May 29, 2015.
Statement issued by six higher education organizations (the Association of American Universities (AAU), Association of Public and Land-grant Universities (APLU), Association of American Medical Colleges (AAMC), American Council on Education (ACE), Association of University Technology Managers (AUTM), and Council on Governmental Relations (COGR)) on the introduction of the PATENT Act in the U.S. Senate. While the organizations will need to examine the legislation further, they consider the Act a "substantial improvement" over the Innovation Act (H.R. 9) introduced in the House of Representatives because it "takes a more measured approach to addressing the abusive litigation practices of patent trolls while protecting the integrity of our patent system."
Patents: PATENT Act
April 29, 2015
Legislation entitled "The Protecting American Talent and Entrepreneurship Act of 2015" (PATENT Act) was introduced in the U.S. Senate by Senator Chuck Grassley (R-IA) on behalf of himself and six other senators. The bill would amend the Leahy-Smith America Invents Act to stop abusive patent litigation practices and prevent bad actors from further undermining the system. Among the bill's key provisions are clarified pleading standards, protections for end users, limitations on early discovery, deterrents from abusive and dilatory litigation practices, curbs on abusive demand letters, and increased transparency by the Patent and Trademark Office.
ACE and 25 higher education associations submitted comments to U.S. Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) in response to his request for comments on the committee staff concept paper on risk-sharing – the idea that colleges should have something at risk in order to participate in federal aid programs.
The Association of American Universities and the Association of Public and Land-grant Universities submitted comments to the Federal Aviation Administration recommending that university researchers be allowed to fly certain unmanned aircraft systems (UAS) beyond line of sight and encouraging the creation of a new micro-UAS classification. The associations also recommend that the FAA create a student operator certificate to accommodate faculty who wish to have students fly small UAS as part of their classes.
The Association of American Universities and the Association of Public and Land-grant Universities submitted comments to the National Telecommunications and Information Administration outlining the benefits of unmanned aircraft systems (UAS) to colleges and universities, including their use in research and development, student instruction, and inspection of campus infrastructure. The letter specifically addresses the use of small UAS and privacy, noting that universities are differently situated from commercial entities and should be treated differently.
Joint motion for consent decree by U.S. Department of Justice and Compass Career College to resolve allegations under Title III of the Americans with Disabilities Act. Based on its investigation, the Department determined that the college discriminated against an applicant with HIV. Among other things, the terms of the consent decree would require the College to implement a nondiscrimination policy that ensures that the college does not discriminate against persons with HIV and to stop questioning applicants and students about their HIV status.
Legislation introduced in the U.S. House of Representatives by Senators Richard Durbin and Maxine Waters that would prohibit the use of mandatory arbitration agreements in enrollment agreements made between students and certain institutions of higher education. The bill would also prohibit institutions from requiring any student to agree to limitations or restrictions on the student's ability to pursue a claim against an institution in court.
Dear Colleague Letter released by the U.S. Department of Education's Office for Civil Rights (OCR) regarding Title IX coordinators. In addition to incorporating existing OCR guidance on Title IX coordinators, the Letter outlines the factors an institution should consider when designating a Title IX coordinator, describes the Title IX coordinator's responsibilities and authority, and reminds institutions of the importance of supporting Title IX coordinators by ensuring that the coordinators are visible in their school communities and have appropriate training. The Dear Colleague Letter was released in conjunction with a letter directed to Title IX coordinators providing further information about their responsibilities, as well as a 26-page Title IX resource guide.
Legislation (H.E.A. 1042) regarding information provided to students receiving state financial aid was introduced in the Indiana State House of Representatives. The bill would require any postsecondary educational institution in the state that enrolls students receiving state financial aid to provide those students with certain information regarding their education loans on an annual basis.
Notice published by the U.S. Department of Education inviting applications for new awards under the Centers of Excellence for Veteran Student Success program for the fiscal year 2015. The program is intended to encourage institutions of higher education to develop programs to support veteran students in postsecondary education by coordinating services to address the academic, financial, physical, and social needs of these students. The deadline to submit applications is June 23, 2015.
Letter submitted to the Senate Health, Education, Labor and Pensions Committee by the Association of American Universities (AAU) offering comments on Chairman Lamar Alexander's (R-TN) Higher Education Accreditation Concepts and Proposals Paper. The letter offers general comments on current issues surrounding accreditation in relation to educational quality, innovation, competition, and cost. It further addresses specific proposals outlined in Senator Alexander's paper, including the repeal of accreditation regulations unrelated to direct institutional quality, the provision of authority to accreditors to establish risk-adjusted reviews, the establishment of distinctions and gradations within accreditation statuses and reviews, and the delinking of accreditation from institutional eligibility for federal student aid.
Legislation (S.B. 593) introduced in the North Carolina State Senate directing the state's Board of Governors to adopt a policy requiring all professors to teach a minimum of eight class courses per academic year. Under the bill, any professor who teaches less than the required number of classes would have his or her salary reduced on a pro rata basis. However, this faculty member's salary could be supplemented with proceeds from the constituent institution's endowment fund.
Update: The North Carolina Senate Education Committee pulled S.B. 593 from the legislative docket on April 28 and referred the bill for further study.
Legislation (S.F. 64) introduced in the Iowa State Senate affecting the employment of professors at public institutions of higher education. The bill would require the state's Board of Regents to develop and adopt a ratings system establishing specific performance goals for professors as well as minimum thresholds of performance based on student evaluations. Students enrolled at these institutions would then be required to evaluate the performance of their professors at the end of each semester. Any professor who receives a score falling below the agreed-upon performance threshold would be dismissed from employment regardless of tenure status or contract; the five professors who receive the lowest ranks at a given institution would have their continued employment voted upon by the entire student body.
Dear Colleague Letter released by the U.S. Department of Education's Federal Student Aid Office concerning changes mandated by the Budget Control Act of 2011 (the sequester law) that affect Title IV student aid programs. The Letter provides information regarding sequester-required changes to loan fees in the Direct Loan Program where the first disbursement is on or after October 1, 2015, as well as information on sequester required reductions to Iraq-Afghanistan Service Grant and TEACH Grants awards where the first disbursement is on or after October 1, 2015.
Notice issued by the U.S. Department of Education announcing that the Fiscal Operations Report for 2014-2015 and Application to Participate for 2016-2017 (FISAP) have been approved by the Office of Management and Budget (OMB). Attachments to the Notice include copies of the FISAP form, FISAP instruction booklet, and FISAP desk reference. The FISAP will be available on the eCampus Based (eCB) Web site by August 1, 2015.
Report issued by the National Association of College and University Business Officers (NACUBO), the Association for College and University Technology Advancement (ACUTA), and the Association of Colleges and University Housing Officers International (ACUHO-I) on research findings from the 2015 State of ResNet Study. The research is designed to help administrators and business officers at higher education institutions address issues relating to the unprecedented growth in bandwidth and connectivity demands in light of budget restrictions and policy considerations, among other concerns. This report is the fourth installment of a five-year tracking study and includes data from over 450 higher education institutions.
Letter from the Ad Hoc Group for Medical Research asking that Senator Jerry Moran's (R-KS) biomedical research amendment (the Moran Amendment) be added to Congress' fiscal year 2016 budget resolution agreement. The Moran amendment is designed to create a deficit neutral reserve fund to support investment in biomedical research and the National Institutes of Health (NIH). The letter characterizes the amendment as "a strong, bipartisan commitment to medical research and ensuring the health and well-being of the American people and our economy."
Letter to leaders of the U.S. Senate and House Appropriations Committees on behalf of the Association of American Universities (AAU) urging both Committees to make research and higher education programs a top priority as they consider the 302 (b) allocations for the Fiscal Year 2016. The letter asks the Committee leaders to ensure that the 302 (b) allocations for higher education-related and scientific research-related congressional subcommittees "support robust investments" in the agencies and programs within their jurisdictions. Such programs include the National Institutes of Health, the National Science Foundation, the Department of Energy's Office of Science, Advanced Research Projects Agency-Energy, NASA's science and technology programs, Pell Grants, and Department of Education research programs, among others.
Budget legislation (H.B. 64) had included language that would have reclassified certain professors as supervisors and managers and barred them from engaging in collective bargaining. That language was removed in the version that passed the House on April 22.
North Dakota Senate Bill 2150 was signed into law. The bill grants students enrolled in public colleges and universities the right to be represented by an attorney during suspension or expulsion hearings but includes an exception if the allegation involves academic dishonesty. The bill provides a similar right to student organizations.
Order by the U.S. District Court for the District of New Jersey granting defendants' motion for summary judgment. The case arose when plaintiff Sarin Kadakia, a former joint BA/MD student at Rutgers State University of New Jersey Medical School, was dismissed from the school after the Academic Standing Committee Committee voted to dismiss Kadakia because of his "persistent academic difficulty and exceeding [the] limitation on the number of failed blocks or courses," and the Dean upheld the decision on appeal. Kadakia filed suit against Rutgers, the Robert Wood Johnson Medical School, and the site director for his Medicine Clerkship course for allegedly violating his due process rights. With regard to substantive due process, the Court noted that even if it were to assume that students have protected property interest in continuing their graduate studies, in this case, the Medical School's decision to dismiss Kadakia was not arbitrary and capricious because the record demonstrated that the plaintiff was legitimately dismissed because of his "continuous and obvious academic difficulties." As for the plaintiff's procedural due process claim, the Court found that Kadakia was afforded far greater procedural due process than the informal faculty evaluation that is constitutionally required because he was provided with adequate notice, an opportunity to be heard while accompanied by an attorney, and an appeal. It thus granted the defendants' motion for summary judgment.
Report on the federal role in protecting the nation's information and communications technology systems was published by the Congressional Research Service (CRS). In recent years, experts and policy makers have expressed increasing concerns about protecting these systems from cyberattacks, which many expect to increase in frequency and severity in the near future. The CRS report discusses the concept of cybersecurity, the management of cybersecurity risks, current and proposed federal actions to address these risks, and the long-term challenges that policymakers face in dealing with the threat.
Update: An updated version of this report was released on April 29, 2015.
Order issued by the U.S. District Court for the Southern District of New York granting the defendant Columbia University's motion to dismiss the complaint for failure to state a claim. The plaintiff, a male college student, was suspended from Columbia after having been found to have engaged in non-consensual sex with a female classmate. The student filed suit against Columbia and its Board of Trustees alleging that the disciplinary process and his resulting suspension violated Title IX. Specifically, the student asserted that he was treated unfairly—and more harshly—on the basis of his sex due in part to the backlash Columbia received because some believed that its treatment of men accused of sexual assault was too lenient. Applying the "well-established precedent of the Supreme Court and Second Circuit," the District Court found that the complaint's assertion of anti-male bias based on the theories of erroneous outcome and selective enforcement were conclusory and at times "overwrought." Since the Court found that there were no factual allegations in the complaint that plausibly suggest Columbia acted because of, rather than in spite of, the plaintiff's sex, it dismissed the complaint.
Updated summary report on cybersecurity legislation, hearings, and executive branch documents was issued by the Congressional Research Service (CRS). The original report provided lists and tables containing recently-enacted laws, major legislative proposals, congressional hearings, executive orders, presidential directives, and CRS reports relating to cybersecurity issues, dating back to 2011. This report is current as of April 17, 2015.
Title IX, Sexual Orientation, and Right to Privacy: Videckis v. Pepperdine University
April 22, 2015
Order by the U.S. District Court for the Central District of California granting in part and denying in part defendant Pepperdine University's motion to dismiss. Two former college basketball players at Pepperdine claimed that they were harassed and discriminated against by their coach and other university officials on the basis of sexual orientation. They filed suit against the University for alleged gender discrimination under Title IX as well as for violations of their right to privacy concerning their medical records and sexual orientation. The Court dismissed the plaintiffs' invasion of privacy claim with regard to their medical records, finding that the complaint only alleged specific facts regarding staff demands for records that were related to plaintiffs' athletic participation. However, the Court granted the plaintiffs leave to amend their complaint to assert that the records requested were unrelated to confirming their physical fitness to participate in the sport. The Court did, however, find that the plaintiffs had a reasonable expectation of privacy as to their sexual orientation and their intimate activities and thus denied the defendant's motion to dismiss this claim. Finally, the Court dismissed the plaintiffs' Title IX claim, which alleged a Title IX violation due to discrimination on the basis of sexual orientation, but granted plaintiffs' request for leave to amend to state a claim of discrimination on the basis of gender discrimination. In so doing, the Court noted that "the line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best, and thus a claim that Plaintiffs were discriminated against on the basis of their relationship and their sexual orientation may fall within the bounds of Title IX."
Letter from the National Association of College and University Business Officers (NACUBO) on behalf of itself and five other representatives of issuers, dealers, community banks, and nonprofit organizations to the U.S. Senate Finance Committee's Community Development & Infrastructure Tax Reform Working Group. The letter encourages the Working Group to permanently increase the bank qualified annual debt limit from $10 million to $30 million, to index that amount for inflation, and to apply it to individual borrowers. The signers assert that by permanently enacting these changes, local governments, schools, hospitals, colleges, and other entities will be able to access capital markets more easily and to sell debt in a more efficient manner, which will ultimately lead to savings for taxpayers.
Letter from the National Association of College and University Business Officers (NACUBO) to the U.S. Senate Finance Committee's Community Development & Infrastructure Working Group offering comments on energy tax policy. In its letter, NACUBO reasserts its interest in promoting energy efficiency and renewable energy investments at colleges and universities, and encourages the working group to consider federal policy options to defray the costs of financing these projects. Two specific proposals are offered for the Working Group's consideration: (1) extending and expanding the Section 179D deduction; and (2) allowing tax-exempt revenue bond financing to prepay power purchase agreements.
Statement by the Task Force on American Innovation—a coalition of businesses and business organizations, scientific societies, and university organizations—on the reauthorization of the America COMPETES Act
(H.R. 1806). The statement supports the proposed increase in overall funding for the Department of Energy Office of Science and the National Science Foundation but expresses concerns about the consequences of proposed cuts to specific programs within the Department. The Task Force claims that these cuts will contribute to an innovation deficit that threatens America's global leadership in innovation as well as its international competitiveness.
Resolution (S. Res. 143) introduced in the U.S. Senate by Senator Brian Schatz (D-HI) supporting efforts to ensure that all students have access to debt-free higher education. The Resolution expresses support for efforts (1) to help states make increased investments in higher education; (2) to increase financial aid to cover students' total coast of attendance; and (3) to encourage innovation by states and higher education institutions that would make college more affordable by increasing efficiency and enabling speedy and less-costly degree completion.
2015 survey on administrative burden at institutions of higher education was released by the National Association of Student Financial Aid Administrators (NASFAA). As a follow-up to a similar survey conducted in 2010, NASFAA surveyed financial aid professionals at its member institutions to better understand how ongoing regulatory changes are affecting college financial aid offices. The findings indicate that students attending institutions in all higher education sectors are likely experiencing reduced access to financial aid office services, due in large part to a prolonged increase in administrative burden and an environment characterized by limited operating resources. The report concludes with nine recommendations designed to address the causes of resource constraints and to reduce administrative burden.
Notice issued by the U.S. Department of Education inviting applications for new awards under the Strengthening Institutions Program (SIP). SIP provides grants to eligible institutions of higher education to help them become self-sufficient and expand their capacity to serve low-income students by providing funds to improve and strengthen the institution's academic quality, institutional management, and fiscal stability. For the fiscal year 2015, the Department will award additional points to applications that meet the competitive preference priority of supporting strategies for which there is "moderate evidence of effectiveness." The application deadline is 45 days after April 23, 2015.
Statement by the Association of American Universities (AAU) opposing the current form of the America COMPETES Act reauthorization legislation (H.R. 1806). According to AAU, the COMPETES Acts of 2007 and 2010 established a "unifying vision for enhancing America's competitiveness through science and innovation" that H.R. 1806 fails to uphold. While AAU acknowledges that tight caps on domestic discretionary spending imposed by the Budget Control Act make it very difficult to provide significant investments in research, it expresses concern that the proposed cuts in vital areas of research are creating an innovation deficit that threatens America's role as global innovation leader.
Order by the St. Joseph County Superior Court, in response to cross-motions for judgment on the pleadings, holding that the University of Notre Dame's Security Police Department is not required to provide ESPN access to police records about student athletes. ESPN and one of its reporters filed suit against the private University and its campus police department, alleging that they violated Indiana's Access to Public Records Act by withholding police incident reports involving student athletes. The Court held that because the University's police department does not constitute a separate legal entity, and because the University is not a public agency under the state's open records law, the police department is no more subject to the state's Public Records Act than the University itself. The Court thus granted the University's motions for dismissal and judgment on the pleadings.
Ruling by the Arizona Superior Court of Pima County upholding defendant Arizona Board of Regents' denial of access to records requested by plaintiff Energy & Environmental Legal Institute (E&E), which included "prepublication critical analysis, unpublished data, analysis, research, results, drafts, and commentary" contained in emails written by two University of Arizona climate scientists. Under Arizona case law, state agencies are presumptively required to disclose requested information but may seek to have records declared exempt "if release of the information would have an important and harmful effect upon the official duties of the official or agency." After weighing the conflicting claims by E&E and the Arizona Board, the Court found that "the abundance of supporting evidence presented" by the Board indicated that it had not abused its discretion or acted arbitrarily or capriciously in refusing to release the requested records.
Emergency decision issued by the Bureau for Private Postsecondary Education – an oversight body located within California's Department of Consumer Affairs - ordering Corinthian Colleges to cease enrollment of any new students in its programs at thirteen locations. The order was issued in light of concerns regarding the school's financial resources and regulatory disclosures. According to the order, Corinthian has the right to request a hearing before the Director of the Department of Consumer Affairs prior to the effective date of the decision, as well as the right to obtain judicial review of the decision after it takes effect.
Order by the Oregon Employment Relations Board finding that Portland State University (PSU) unlawfully interfered with, restrained, or coerced employees represented by the Portland State University Chapter American Association of University Professors (Association) in the exercise of their collective bargaining rights. The Association filed an unfair labor practice complaint against PSU, alleging that the University violated state labor law by announcing, two days before an Association strike vote, that it would disable log-in credentials to University-provided e-mail and other electronic accounts for any striking faculty members. The Board concluded that the University's statement would "naturally and probably" chill the employees in exercising their statutorily-guaranteed rights, including the strike-authorization vote, because Association-represented employees are highly dependent on being able to access the Odin system for their organizing efforts. In addition to issuing a cease and desist order, the Board ordered the University to post and circulate the ruling to Association-represented employees.
Volume 1 of the 2015-2016 Federal Student Aid Handbook was released by the U.S. Department of Education. This volume covers student eligibility requirements and covers issues such as school-determined requirements, citizenship, and financial aid history, among others.
New guidance on financial literacy for counselors and college access professionals was released by the Office of Federal Student Aid (FSA). The guidance provides a framework that institutional professionals can use to inform financial aid recipients and students about key financial concepts to help them make informed budgeting, borrowing, and loan repayment decisions.
Study published in the Proceedings of the National Academy of Sciences on hiring trends in science, technology, engineering, and mathematics (STEM) fields. The researchers found that, contrary to popular belief, both men and women faculty members from the four fields studied (biology, engineering, economics, and psychology) preferred female applicants by a factor of 2:1 over identically-qualified males with matching lifestyles.
Legislation entitled the "America COMPETES Reauthorization Act of 2015" was introduced in the U.S. House of Representatives by Science, Space, and Technology Committee Chairman Lamar Smith (R-TX). The bill would increase federal funding of technological innovation and prioritize investment in basic research, fundamental scientific discovery, and development. To offset the proposed funding increases, the bill would also cut funding for programs that focus on later-stage technology development and commercialization activities. Representative Smith issued a press release in conjunction with the Act.
Legislation (H.B. 3476) to protect the privacy of survivors of domestic violence and sexual assault was passed by the Oregon House of Representatives. The bill would establish a privilege in civil, criminal, administrative, and postsecondary institutional disciplinary proceedings for certain communications between individuals seeking services related to domestic violence, sexual assault, or stalking and qualified victim services programs and advocates.
Legislation (H.R. 1791) introduced in the U.S. House of Representatives to amend the patent law in light of an ambiguity created by language in the Leahy-Smith America Invents Act (AIA) (Public Law 112–29; 125 Stat. 284) and related regulations. Under current law, uncertainty exists regarding the scope of the one-year grace period during which an inventor who discloses an invention to the public may decide whether to file a patent application for the invention. The Grace Period Restoration Act would add a new section, 102(b)(3), to clarify that the grace period protects an inventor against disclosures by anyone even after the inventor has made a public disclosure of the claimed invention in a printed publication.
Report published by the American Psychological Association on racial and gender bias among professors when considering requests from prospective students seeking mentoring. The researchers' data indicated that faculty members were significantly more responsive to white males than to all other categories of students collectively. These results were more pronounced in higher-paying disciplines and at private institutions.
Notice of the collection of information on reaffirmation agreements was published by the U.S. Department of Education. Program lenders will use the information on the reaffirmation form to enforce the borrower's obligation to repay the total Federal Family Education Loan (FFEL) or Direct Loan debt that the borrower acquired. Interested persons should submit comments on or before May 18, 2015.
Educational Longitudinal Study of 2002 was released by the U.S. Department of Education. The study tracks the educational and developmental experiences of high school students who were sophomores during the spring of 2002. In the report, the Department uses information gathered during in 2013–14 to provide a "descriptive portrait" of the students' higher education experiences. Some of the variables analyzed included choice of institution, degree completion, and highest level of education achieved.
Budget legislation (H.B. 64) pending before Ohio's House Finance Committee that includes language affecting the classification of professors at public institutions. The bill would reclassify professors who are "involved in personnel decisions, selection or review of administrators, and determination of educational policies related to admissions, curriculum, subject matter, and methods of instruction and research" as supervisors or managers. The classification would bar professors who participate in these activities from engaging in collective bargaining.
2015 Survey of Community College Presidents was released by Inside Higher Ed. The survey is designed to help interested parties understand how community college leaders perceive and address the challenges facing their institutions. Issues addressed include proposals for free community college, the focus on degree completion, online courses, for-profit institutions, stackable credentials, students' academic options, and the purported "skills gap."
Statement from National Association of College and University Business Officers (NACUBO) on behalf of itself and nine other higher education organizations to the U.S. Senate Finance Committee Working Group on Business Income Tax. In light of the Committee's current consideration of options to reform the federal tax system, NACUBO contends that Congress should grant tax-exempt status to colleges and universities due to the contributions these institutions make to the public good.
Comments submitted by the American Council on Education (ACE) on behalf of itself and fifteen other higher education groups to the U.S. Senate Finance Committee Tax Reform Working Group on Individual Income Tax. ACE expresses support for the existing "three-legged stool" framework in the federal tax code that (1) encourages saving for higher education; (2) helps students and families pay for college; and (3) assists borrowers as they repay student loans. Additionally, ACE encourages the Committee to preserve the current tax incentives for charitable donations while avoiding measures that could significantly impact these donations.
Joint statement on behalf of fifteen associations involved in higher education to the Senate Finance Committee Working Group on Community Development and Infrastructure. The statement urges Congress to protect tax-exempt bond financing, including qualified 501(c)(3) private-activity bonds. These financial instruments, the statement contends, are necessary to preserve the financial health of hospitals, colleges, universities, and other charitable organizations.
Order issued by the New York Supreme Court for the County of New York requiring respondent Barnard College permit Petitioner Georgette Fleischer's grievance to be heard by the Faculty Internal Grievance Procedure (FIGP). Petitioner was challenging Barnard's decision not to reappoint her to teach a class that she had taught in previous years. Petitioner asserted that, despite the fact her appointments were fixed terms of limited term duration and she was offered a contract to teach the same number of courses, failure to require a majority faculty vote on the decision not to reappoint her to teach the course she taught previously violated college procedures and was an employment decision grievable under the FIGP. Barnard College directed Petitioner to a different grievance procedure. The Court determined that petitioner's grievance should be considered using the FIGP and ordered Barnard to review Petitioner's grievance using the FIGP.
Letter from the U.S. Department of Education to the President of Corinthian Colleges notifying Corinthian of the Department's decision to fine the Corinthian-owned Heald College. The Department found that Corinthian failed to uphold its fiduciary duty in administrating Title IV programs and misrepresented its job placement rates at Heald. According to the letter, a $29,665,000 fine has been levied on Corinthian for these violations.
Notice regarding the application for Title III or Title IV designation was posted by the U.S. Department of Education. To apply for Title III or Title V designation, and thus be eligible for a waiver of the Federal Work Study (FWS) and Federal Supplemental Education Opportunity Grant (FSEOG) non-federal share requirements, an institution must complete the "Application for Designation as an Eligible Institution" annually through the Office of Postsecondary Education's website. The notice posted contains information on the application process for 2015.
Legislation (AB 968) regarding the content of student transcripts has been introduced in the California legislature. The bill would require the governing bodies of both public and private postsecondary educational institutions to indicate on a student's transcript when the student is ineligible to reenroll due to suspension or expulsion.
Annual report on the economic status of college and university faculty by the American Association of University Professors (AAUP) was published in the March-April issue of AAUP's magazine, Academe. The report discusses four common myths about higher education and presents data from a variety of sources to counter those myths. Additional information associated with the report, including the appendices and a list of tables and figures, is available on the AAUP website.
Report on state funding of higher education was released by the State Higher Education Executive Officers Association (SHEEOA). The report presents a description of revenue sources and uses, an analysis of national trends in enrollment and revenue, and a comparison between states, among other information. According to the report, the data suggests a "continuing economic recovery and restoration of state funding for higher education on average nationally."
Memorandum issued by Richard F. Griffin, Jr., General Counsel for the National Labor Relations Board (NLRB), to guide parties in complying with representation case procedure changes that take effect on April 14. The Board adopted the final rule implementing the procedure changes in December 2014 in order to "remove unnecessary barriers to the fair and expeditious resolution of representation cases, simplify representation-case procedures, codify best practices, and make them more transparent and uniform across regions." In the memorandum, the General Counsel outlines the changes made by the final rule and explains how the changes will impact representation case processing.
Decision by the National Labor Relations Board (NLRB) regional office in Boston approving potential union participation for fourteen temporary instructors at Lesley University. Service Employees International Union, Local 509 (SEIU) sought to represent 181 core faculty members employed by the University, in addition to fourteen "temporary" faculty members that the University hired to fill in for faculty members who are absent for substantial periods of time. Lesley sought to exclude its temporary faculty members from the unionizing effort based on their temporary status and purported lack of a "community of interest" with the core faculty. However, the NLRB found that the temporary faculty shared a sufficient community of interest with the core faculty to be included in the unit. It further concluded that Lesley failed to demonstrate that the prospect of termination is "sufficiently finite" to make the temporary faculty ineligible to vote because, although the temporary faculty members work on one-year contracts, Lesley repeatedly re-hired enough of them to warrant some expectation of continued employment at the University.
Legislation (H.B. 1892) that grants students at public institutions of higher education the right to active assistance of legal counsel during the campus appeals process was signed into law by Arkansas Governor Asa Hutchinson. Under the new law, any student who has received either a suspension of ten or more days or an expulsion may hire a licensed attorney or non-attorney advocate to fully participate during the disciplinary appeal proceeding. The student would be responsible for any expenses associated with such representation. The right does not apply to allegations of academic dishonesty.
Legislation (H.B. 1471) entitled the "John Wall New Voices Act" passed unanimously in both the North Dakota Senate and the House and was signed into law by Governor Jack Dalrymple. The law was designed to protect the First Amendment rights of student journalists by forbidding administrators at public and private colleges from using the Supreme Court case Hazelwood School District v. Kuhlmeier to justify censorship of school-sponsored media. In Hazelwood School District v. Kuhlmeier, the U.S. Supreme Court held that student newspapers not designated as public forums have lesser First Amendment protections than other forms of student expression.
Response letter from the Association of American Universities and the Association of Public and Land-grant Universities to the letter that the Consumer Electronics Association (CEA) recently sent to 145 university presidents and chancellors asking them to reconsider their active opposition to the Innovation Act (H.R. 9), which is currently pending in the U.S. House of Representatives. The letter reiterates the groups' support for addressing the bad actors in the patent system but asserts that legislative efforts to curtail patent abuses "should be narrowly tailored to address the abuses of this small minority of patent holders without substantially weakening the U.S. patent system as a whole." The Innovation Act, they conclude, fails this test.
Program Integrity: Two Reports on Competency-Based Education by the American Enterprise Institute
April 9, 2015
Two new reports on competency-based education were released by the American Enterprise Institute's (AEI) Center on Higher Education Reform. The first paper uses results from a survey of nearly 500 hiring managers at companies throughout the country to pinpoint several obstacles to the expansion and acceptance of competency-based education efforts within the labor market. The survey found that while employers' overall awareness of competency-based education programs is low, those that do know about it have a favorable view of such programs. The second paper identifies best practices for the assessments employed by competency-based programs. The report argues that the viability of competency-based programs depends on the quality of those assessments.
Letter signed by the attorneys general of nine states calling on the U.S. Department of Education to forgive the loan debts of students who attended Corinthian Colleges. The letter suggests two processes for discharging federal student loans based on a school's alleged violations of state law and asks the Department to consider implementing either or both of them. Additionally, the signers offer to help the Department and other federal agencies recoup loan balances from schools that committed violations and benefitted from unlawful deception.
Legislation (S.B. 210) to protect students' social media accounts from school officials—including those at public and private colleges and universities—was passed by the Maryland legislature. The legislation would prohibit school officials from requiring or asking students to provide access to their social media accounts and protect schools from legal liability over students' posts. The bill was submitted to Governor Larry Hogan for consideration.
Notice of a new information collection proposal for the College Assistance Migrant Program (CAMP) Annual Performance Report (APR) was published by the U.S. Department of Education. In compliance with the Higher Education Act, CAMP office staff collects the data on recipients of multi-year discretionary grants using the generic 524B APR. The staff has requested a customized APR that goes beyond the 524B APR to facilitate the collection of more standardized and comprehensive data, to improve the overall quality of data collected, and to increase the quality of data that can be used to inform policy decisions. Interested parties are invited to submit comments on or before June 9, 2015.
Draft of a proposed expansion to the Pay As You Earn (PAYE) income-driven student loan repayment program, released by the U.S. Department of Education at the second session of the Department's negotiated rulemaking to establish a new plan for those not covered by the existing Pay as you Earn Repayment Plan in the Federal Direct Loan Program . The revised program, also known as REPAYE, would be available to all Direct Loan student borrowers who have a partial financial hardship at the time they select the plan. The draft proposal outlines several new features, which are designed to target the "neediest borrowers" and are not available in the existing PAYE plan.
Update: On April 30, negotiators on the U.S. Department of Education's rulemaking committee reached consensus on the REPAYE proposal, which would create a new income-based repayment program available to all federal Direct Loan borrowers regardless of when they took out their loans. According to Department lawyer Brian Siegel, the Department plans to formally propose the new repayment program and seek public comment on the plan in early July.
Annual report on the college degree-attainment rate among U.S. residents was released by the Lumina Foundation. The report provides data that describe degree attainment at the national, state, and county levels, as well as for the nation's 100 most populous metropolitan regions. According to the report, forty percent of U.S. residents between the ages of 25 and 64 had at least an associate degree in 2013, representing a 0.6-percentage point increase in the college attainment rate from the previous year. At the end of the report, Lumina provides a roadmap for achieving its goal of having 60 percent of the population earn college degrees or credentials by 2025.
Denial of certiorari was issued by the U.S. Supreme Court in the case of Niwayama v. Texas Tech University. The decision left undisturbed the Fifth Circuit Court of Appeals' decision that the plaintiff, Satomi Niwayama, could not pursue the Title VII sex, national origin, or race discrimination claims she filed when she was denied tenure by Texas Tech University because she did not file a charge with the Equal Employment Opportunity Commission (EEOC) within 300 days of the University's decision. The Fifth Circuit found that although the University did not finally reject Niwayama's appeal until ten months after the limitation period began, the limitation period was not tolled by "the pendency of . . . university grievance procedures." The Fifth Circuit also rejected the plaintiff's argument that because the University's decision to deny her tenure had consequences for her compensation, the decision constituted a "discriminatory compensation decision" under the Lilly Ledbetter Fair Pay Act. holdings by the Tenth, Third, and District of Columbia Circuits, the Fifth Circuit reaffirmed its previous holding that the Ledbetter Act's prohibition of discrimination does not apply to "discrete acts" by employers such as "termination, failure to promote, denial of transfer, and refusal to hire." The Supreme Court denied review of the claim without additional comment.
Investigative report conducted by the American Association of University Professors (AAUP) on the nonrenewal of two long-term professors at the University of Texas M.D. Anderson Cancer Center. The report found that the Cancer Center administration violated commonly-accepted academic standards when it terminated the appointments of the professors without affording them requisite academic due process.
Final report released by Brown University's Sexual Assault Task Force as a continuation of the Interim Report released in December 2014. The Task Force was convened in the fall of 2014 to investigate the issues and challenges presented by sexual and gender-based violence and harassment on college campuses. Among its recommendations, the Task Force urges the University to adopt a new "unified policy" that defines gender-based harassment, sexual violence, relationship and interpersonal violence, and stalking as "prohibited conduct"; and to centralize all University processes dealing with sexual assault in a recently-created Title IX office.
Dear Colleague Letter published by the Department of Education discussing the statutory and regulatory requirements for entrance counseling as well as institutions' flexibility to augment that counseling. The letter provides institutions with information on loan counseling strategies that they can use to help ensure that students' borrowing decisions are well-informed. Additionally, the letter reminds institutions that they may require students to complete exercises designed to improve student understanding of the implications of borrowing as part of their loan entrance counseling program, but that those measures may not "unreasonably" impede students' access to a loan.
Contract agreement between New York University and its graduate student employee union, International Union UAW Local 2110, was ratified. As a result of the agreement, NYU will increase the starting hourly pay for employees of NYU's graduate school over the life of the five-year agreement. Among its other provisions, the contract also establishes new family health-care and child-care benefits and adds protections from discrimination.
Draft plan regarding participation rate index appeals was unveiled by the White House. The plan would expand the circumstances under which a college could appeal a high default rate on the basis that a low percentage of its students borrow money through the federal loan program. Under this proposal, colleges would be allowed to appeal their default rate based on a low rate of federal loan borrowing any year in which their default rate is 30 percent or greater.
Comments submitted by the National Association of College and University Businesses Officers (NACUBO) in response to the Consumer Financial Protection Bureau's (CFPB) proposed Safe Student Account Scorecard (see attachment). The Safe Student Account Scorecard is designed to be a tool for institutions of higher education to solicit information on the fees and features of financial products before selecting a financial institution partner. The comments reflect NACUBO's concerns regarding the initiative, as well as their recommendations for improvements.
Report published by the U.S. Department of Education on the total, net, and out-of-pocket prices by type of institution in 2011–12. The report, "What is the Price of College," focuses on three topics: (1) the average prices paid by full-time undergraduates at different types of institutions; (2) how components of average total and net prices of attendance vary by type of institution; and (3) how net prices paid by full-time undergraduates vary by income.
Texas bill, S.B. 1819, would repeal the 2001 Texas Dream Act by abolishing in-state college tuition for students who are not "authorized under federal statute to be present in the United States." After 11 hours of debate, the Senate Subcommittee on Border Security voted to send the bill to the full Veterans Affairs and Military Installations committee.
Notice from U.S. Department of Education on a proposed extension of an existing information collection related to the Lender's Application Process (LAP). LAP is submitted by lenders who are eligible for reimbursement of interest and special allowance, as well as Federal Insured Student Loan claims payment, under the Federal Family Education Loan Program. The information will be used by the Department to update Lender Identification Numbers (LID's), lender names, addresses with 9 digit zip codes, and other pertinent information. Interested persons are invited to submit comments on or before May 7, 2015.
Memorandum opinion by the U.S. District Court for the Western District of Pennsylvania granting defendant University of Pittsburgh-Johnstown's (UPJ) motion to dismiss a lawsuit by Seamus Johnston, a transgender male student who alleged that the University discriminated against him based on his sex and transgender status in violation of Title IX and the Equal Protection Clause of the U.S. Constitution. Johnston initially applied to UPJ by listing his sex as "female" on his application form; however, he "consistently lived as male" while enrolled at UPJ, which included using the men's locker room and restrooms. UPJ informed Johnston that he would only be allowed to use the men's locker room and restrooms if he officially changed his gender in UPJ's records by presenting a new birth certificate or court order. Johnston failed to take these steps and instead continued using men's restrooms and the men's locker room, which resulted in his expulsion from the University after being found guilty of "exhibiting disorderly, lewd or indecent behavior" and disregarding University directives. Federal Judge Kim Gibson dismissed Johnston's suit, holding that his transgender status was not covered by either the Equal Protection Clause or Title IX. With regard to the Equal Protection claim, Judge Gibson concluded that transgender status is not a suspect class and therefore analyzed UPJ's actions under rational basis scrutiny. Judge Gibson subsequently found that the University's rationale of needing "to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex" was a rational justification for its actions. With regard to Title IX, Judge Gibson held that "the plain language of Title IX does not prohibit discrimination on the basis of gender identity," and therefore rejected that claim as well.
Opinion and order by the United States District Court for the Southern District of New York granting defendant Vassar College's motion for summary judgment. The student, Yu, was expelled from Vassar after the College's Interpersonal Violence Panel found that he had sexually assaulted another student in violation of the Vassar College Regulations prohibiting non-consensual sexual contact. Yu filed suit, claiming that gender bias was a motivating factor in his expulsion from Vassar and therefore that his expulsion violated his rights under Title IX. After reviewing the facts presented by Yu, the Court found that there was no evidence that gender bias was a contributing factor in Yu's expulsion or that Vassar had otherwise violated state law.
Announcement that the U.S. Department of Justice has entered into a settlement agreement with edX Inc. to remedy alleged violations of the Americans with Disabilities Act (ADA). edX is a nonprofit platform used by approximately 60 universities and institutions to offer massive open online courses (MOOCs) to the general public. Within 18 months of the date of the settlement, edX is required to modify its website, platform, and mobile applications to conform to the Web Content Accessibility Guidelines (WCAG) 2.0 AA. Among other things, edX must provide accurate captioning for the deaf, oral navigation signals for the blind, and programing changes so that those with dexterity disabilities can navigate content without struggling with a hand-operated mouse.
Statement issued by President of the University of Maryland Wallace D. Loh concluding that although a student's private email that condoned non-consensual sexual conduct was "hateful and reprehensible," it did not violate University policies and was protected by the First Amendment.
Letter from forty-six members of Congress to the Chairman and Ranking Member of the House Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, requesting that the Subcommittee include "robust funding" for Title VI/Fulbright-Hays programs. The letter states that these programs have helped the United States "develop a strong foundation in international education, research, and foreign language studies," all of which are crucial to the interests of national security and global economic competitiveness.
Request for comments regarding the reinstatement of the application for the Historically Black Colleges and Universities (HBCU) Program and the Student Aid and Fiscal Responsibility Act (SAFRA) of 2009 Program was published in the Federal Register by the Department of Education. These programs provide historically Black institutions with resources to establish or strengthen their physical plants, financial management, academic resources, and endowments. Interested parties are invited to submit comments within sixty days of the posting of the comment request.
Notice published by the U.S. Department of Education inviting applications for new awards for the fiscal year 2015 Graduate Assistance in Areas of National Need (GAANN) Program. The GAANN Program provides grants to colleges and universities to support graduate fellowships for students with excellent academic records who demonstrate financial need and plan to pursue the highest degree available in their course of study at the institution. The deadline for submitting applications is May 29, 2015.
Notice published by the U.S. Department of Education inviting applications for new awards for the fiscal year 2015 Minority Science and Engineering Improvement Program (MSEIP). The MSEIP is designed to improve science and engineering education at predominantly minority institutions and to increase the flow of underrepresented ethnic minorities into scientific and technological careers. The deadline for submitting applications is June 1, 2015.
Statement released by Penn State President Eric Barron in light of media reports on a private Facebook page created by members of the Kappa Delta Rho (KDR) fraternity that depicted unconscious women, hazing, and drug deals. President Barron stated that he was "repulsed and shocked" by the alleged behavior but, in the interest of due process, called upon those pushing for the immediate expulsion or suspension of all KDR members to allow the criminal investigation of the matter to be completed before any sanctions are considered. The President also announced that he will create a task force to conduct a "focused examination" of life in fraternities and sororities at Penn State "in a manner that supports the best of Greek life, while promising real and lasting change."
Announcement from the U.S. Department of Education (Department) that they will soon publish a list of the 560 institutions subject to Heightened Cash Monitoring. Heightened Cash Monitoring is a step that the Department's Federal Student Aid office can take with institutions to provide additional oversight on financial or federal compliance issues. The list has been released to members of the press that previously requested it, and will be published on the Department's website in the coming days and updated on a regular basis.
Update: The Department of Education has released a complete list of the 560 institutions subject to Heightened Cash Monitoring. The current list includes the names of twenty institutions that were redacted from the previously-released list.
Press release announcing the results of an annual study conducted by the College and University Professional Association for Human Resources (CUPA-HR) on the salaries of higher education professionals. The data from CUPA-HR's 2014-15 Professionals in Higher Education Salary Survey indicated that the overall median base salary for these professionals increased by 2.2 percent in 2014. The median base salary increase for professionals employed by public institutions was 2.3 percent, while the increase for those at private institutions was 2.1 percent.
Religious Freedom and Discrimination: Statements by the Presidents of Three Indiana Universities on Indiana's Religious Freedom Restoration Law
March 30, 2015
Statements issued by the presidents of Indiana University, Butler University, and DePauw University questioning the wisdom of the state's newly-signed Religious Freedom Restoration law. The legislation states that the government may not impose a substantial burden on a person's exercise of religion unless the burden: (1) "is in furtherance of a compelling governmental interest;" and (2) "is the least restrictive means of furthering that compelling governmental interest." Critics of the law claim that it enables businesses to discriminate against LGBT individuals; state lawmakers, on the other hand, defend the law as necessary to protect religious freedom. The presidents' statements express concerns about the law and reaffirm their institutions' commitment to diversity and respect for all individuals.
Update: The Indiana legislature has since introduced a new bill (S.B. 50) designed to address concerns that the original law would allow privately-owned businesses to discriminate against individuals on the basis of their sexual orientation. S.B. 50 clarifies that the original law does not authorize any business to refuse to offer or provide services to members of the public based on various characteristics, including sex or sexual orientation.
Press release issued by the U.S. Department of Justice's Office of Public Affairs announcing the indictment of a student at the University of Mississippi in Oxford, Mississippi, for federal civil rights violations. The student, Graeme Phillip Harris, allegedly conspired with others to hang a rope and an outdated version of the Georgia state flag, which prominently depicts the Confederate battle flag, around the neck of the James Meredith statue on the campus of the University. Harris was indicted by a federal grand jury on one count of conspiracy to violate civil rights and one count of using a threat of force to intimidate African American students because of their race.
Announcement issued by the U.S. Department of Education detailing how a college or university may request a waiver of the community service expenditure requirements under the Federal Work-Study (FWS) Program for the 2015-2016 Award Year. Section 443(b)(2)(A) of the Higher Education Act of 1965 sets forth the community service expenditure requirements under the FWS Program that an institution must meet unless the Secretary of Education grants it a waiver. The Secretary may waive the requirements if the institution has demonstrated that enforcing the requirements would cause a hardship for the students at that school.
Press release issued by the Association of American Universities (AAU) and Association of Public and Land-Grant Universities (APLU) recommending principles that institutions can incorporate into their policies regarding innovation, technology transfer, and commercialization. The Associations hope that these recommendations will "help assure the public and policymakers that universities continue to be focused on their primary missions [of education, research, and public service], and that their technology transfer operations are being managed in a way that serves these missions."
Determination letter issued by the Illinois Assistant Attorney General on whether colleges and universities can withhold access to student directory information under the Family Educational Rights and Privacy Act (FERPA). The underlying debate arose when the College of Dupage turned over a database of its email accounts in response to an Illinois Freedom of Information Act (FOIA) request but redacted all student email addresses. The College claimed that it retained the right to choose not to release the information requested even though it had permission under FERPA to disclose directory information, including student email addresses. The Illinois Assistant Attorney General disagreed, concluding that the College did not demonstrate that FERPA could be interpreted to prohibit student email addresses from being disclosed in response to a state FOIA request.
Letter from a group of twenty-seven U.S. Senators asking members of the Senate Appropriations Committee to fund the National Endowment for the Humanities (NEH) and the National Endowment for the Arts (NEA) at the President's requested levels of $147.9 million. The letter states that federal financial support for the arts and humanities is "a vital economic, educational, and cultural priority" and that the requested funding will help the endowments maintain their successful programs.
Audit report released by the U.S. Department of Education's Office of Inspector General regarding the Department's Federal Student Aid Office (FSA). The report found that FSA has not adequately carried out regulatory changes that were made in 2010 to override previous regulations that allowed colleges and universities to pay recruiters without violating the federal law banning incentive compensation. While the 2010 regulatory changes, according to the Inspector General's office, gave the Department "an excellent opportunity to revise its enforcement policies and practices" regarding incentive compensation, FSA has failed to carry out all of the recommended tests for identifying violations or institute more aggressive penalties for violating the ban.
Announcement from the U.S. Department of Education that an open NACIQI meeting will be held on June 25–26, 2015, from 8:00 a.m. to 5:30 p.m., at a location to be determined in the Washington DC area. In addition to its review of accrediting agencies and State approval agencies for Secretarial recognition, the meeting agenda will include Committee discussions regarding the Committee's policy recommendations to advise the Secretary in preparation for the reauthorization of the Higher Education Act (HEA). Any written comments must be received by May 1, 2015. One June 15, 2015, the Department issued a revised agenda for the NACIQUI meeting.
Report published by the American Association of University Women highlighting research that explores the factors underlying the underrepresentation of women in STEM (Science Technology Engineering and Mathematics), including stereotypes and biases, college curriculum, and workplace environment. The report includes a number of recommendations for specific changes at colleges and universities and in the workplace.
Report issued by Richard F. Griffin, Jr., General Counsel for the National Labor Relations Board (NLRB), on recent case developments arising in the context of employee handbook rules. The report is designed to help employers review and, if necessary, revise their handbooks. The report is divided into two parts: (1) a comparison of rules that the NLRB found unlawful with rules the NLBR found lawful and an explanation of the Board's reasoning; and (2) a discussion of handbook rules from a recently settled unfair labor practice charge against Wendy's International LLC.
Statement made by the National Collegiate Athletic Association (NCAA) expressing its concern over the passage of a controversial Indiana bill (S.B. 101). The new law includes broad language that critics are concerned will allow businesses to refuse service based on a customer's sexual orientation. According to its statement, the NCAA is committed to ensuring that athletes competing in, and visitors attending, next week's Men's Final Four in Indianapolis will not be negatively impacted by the new law.
Update: The Indiana legislature has since introduced a new bill (S.B. 50) designed to address concerns that the original law would allow privately-owned businesses to discriminate against individuals on the basis of their sexual orientation. S.B. 50 clarifies that the original law does not authorize any business to refuse to offer or provide services to members of the public based on various characteristics, including sex or sexual orientation.
Legislation (S.B. 1565) to amend the Higher Education Student Assistance Act was introduced in the Illinois State Senate by State Senator Bill Brady. The bill would require the Illinois Student Assistance Commission to award grants to students in financial need who are enrolled for at least 15 credit hours in a college or university within the state. Then, beginning with the 2016 fiscal year, the bill would ban all appropriations to institutions of higher education from the General Revenue Fund other than amounts appropriated for these grants, in effect privatizing these institutions.
Statement announcing Kalamazoo College's adoption of a test optional admissions policy beginning with students applying for enrollment in the fall of 2016. Kalamazoo states that it decided to change its policy after a study found that high-school grade point average was the most accurate predictor of academic performance at Kalamazoo, and that SAT and ACT scores reflected family economic status as opposed to academic performance. Under the new policy, prospective students will no longer be required to submit SAT or ACT scores when they apply for admission but can submit these scores as additional information in their applications.
Statement released by University of Virginia (UVA) President Teresa A. Sullivan regarding the results of a local police investigation into the sexual misconduct allegations reported in Rolling Stone magazine. The Charlottesville Police Department recently announced that there was no evidence to show that the gang rape described in the magazine article had occurred at a UVA fraternity. President Sullivan stated that the investigation "confirms what federal privacy law prohibited the university from sharing last fall: that the university provided support and care to a student in need, including assistance in reporting potential criminal conduct to law enforcement."
Notice issued by the U.S. Department of Education regarding the annual updates to the Income Contingent Repayment (ICR) plan formula for the Federal Direct Loan Program. Each year, as required by federal regulation, the Department adjusts the income percentage factor used to calculate a borrower's ICR payment to reflect inflation and issues notice of the adjustment to Direct Loan borrowers and the general public. The income percentage factors contained in this notice are effective for any borrower who enters the ICR plan or has his or her monthly payment amount recalculated from July 1, 2015, to June 30, 2016.
Request for comments regarding Federal Pell Grant program reporting under the Common Origination and Disbursement (COD) System was published in the Federal Register by the Department of Education. Institutions are required to report
student Pell Grant payment information to the Department electronically through the COD system. Interested parties are invited to submit comments by May 22, 2015.
Federal Perkins Loan Program Status of Default Report as of June 30, 2014 was published by the U.S. Department of Education. The report, also known as the Orange Book, lists each school that participated in the Perkins Loan Program during the 2013-2014 Award Year and provides a cohort default rate for each school.
Proposed 2015-16 budget for the state of New York containing provisions that would require all colleges and universities in the state to "implement uniform prevention and response policies and procedures relating to sexual violence including sexual assault, domestic violence, dating violence, and stalking." These policies and procedures would include codifying an affirmative consent standard for college students who engage in sexual activity, requiring that state institutions distribute a "Victim and Survivor Bill of Rights" to all students each year, and calling for mandatory campus climate assessments, among other reforms.
Letter to the U.S. House Appropriations Committee Chairman and Ranking Member from 86 members of Congress on the funding of the U.S. Department of Energy Office of Science. The letter requests that the Committee make funding for the Office a priority in the fiscal year 2016 in its Energy and Water Appropriations bill. "Sustained and robust funding" of the Office, the letter states, "will preserve our capacity to innovate, reduce our dependence on foreign sources of energy, enhance our competitive edge in the global economy, improve our quality of life, ensure our national security, and create good American jobs well into the future."
Memorandum opinion from the U.S. District Court for the District of Columbia dismissing the plaintiff's complaints on jurisdictional grounds. Jane Doe, a former undergraduate student at the University of Virginia (UVA), claimed to have been sexually assaulted by another student in late 2011. The following June, she filed complaints with the U.S. Department of Health and Human Services (HHS) and the Department of Education (DoE), alleging that UVA failed to "promptly and equitably" investigate her complaint. Then in March 2014, she filed suit against HHS and DoE, claiming that these agencies' failure to promptly resolve her complaints against the University constituted a violation of Title IX and the Clery Act. The Court, however, held that Jane Doe should have brought her claims of discrimination against the University rather than the agencies charged with enforcing the law. Additionally, it concluded that although agency regulations required a prompt investigation of complaints involving sexual misconduct, they did not require a prompt resolution of the complaints or provide any sort of mandatory time frame to guide agency investigations. Judge Howell added that Jane Doe's complaint was based in part on an incorrect interpretation of the Clery Act amendments at issue, which require schools to address sexual misconduct in their policies but do not affect the Title IX standard that colleges use to evaluate sexual misconduct complaints. Thus, the Court granted the defendants' motion to dismiss.
Statement from the Association of American Universities (AAU) suggesting that the House and Senate FY16 budget resolutions would likely widen, not close, the nation's innovation deficit by cutting nondefense discretionary spending, ultimately forcing reductions in research and higher education funding.
Policy papers released by Senate Health, Education, Labor, and Pensions Committee Chairman Lamar Alexander (R-TN) on the following three topics related to the reauthorization of the Higher Education Act (HEA): (1) risk sharing related to student borrowing; (2) accreditation; and (3) data collection. Each policy paper describes the problems to be addressed and identifies potential solutions. Comments are requested by April 24, 2015 to help inform the Committee's work on the reauthorization of the HEA.
Report on Fiscal Year 2016 proposed budget appropriations was published by the Association of American Universities (AAU). Each fiscal year, AAU prepares analyses of the Administration's proposed budgets for eight federal research and education agencies. These organizations include the National Institutes of Health, the National Science Foundation, the Department of Defense, the Department of Energy, NASA, the Department of Education, the National Endowment for the Humanities, and the Agriculture and Food Research Initiative.
Legislation (H.R. 1030) introduced in the U.S. House of Representatives that would amend the Environmental Research, Development, and Demonstration Authorization Act of 1978. The bill would prohibit the Environmental Protection Agency (EPA) from proposing, finalizing, or disseminating a "covered action" unless all scientific and technical information relied on to support such action is the best available science, is specifically identified, and is available to the public. A "covered action" includes a risk, exposure, or hazard assessment; criteria document; standard; limitation; regulation; regulatory impact analysis; or guidance.
Letter to the U.S. House of Representatives written by the American Association for the Advancement of Science (AAAS) on behalf of itself and thirty-four other research organizations and institutions of higher education regarding the proposed Secret Science Reform Act of 2015 (H.R. 1030). The letter urges members of the House to evaluate the potential unintended consequences of the bill, including the possibility of misinterpreting some key terms, the workability of standards for gauging the reproducibility of research, and the imposition of additional uncompensated burdens on federal research recipients.
Advisory report on student financial responsibility agreements was released by the National Association of College and University Business Officers (NACUBO). The report provides sample language on various subjects to assist colleges and universities in developing or strengthening these agreements, which provide students with information about their financial obligations and ensure institutional compliance with various laws and regulations.
Letter from the Student Aid Alliance—which represents students, college presidents, and other educators who support federal student aid—on the Fiscal Year 2016 Budget Resolution was sent to the U.S. House of Representatives. In its letter, the Alliance expresses "strong opposition" to the proposed Budget Resolution that is currently under consideration in the House for its alleged threat to the nation's future economic competitiveness.
Letter from Students for Fair Admissions (SFFA), an advocacy group, to Yale University, Brown University, Columbia University, Cornell University, Princeton University, the University of Pennsylvania, and Dartmouth College in response to reports of the destruction of student records at Yale University law school. SFFA objects to the destruction of admissions files because, according to the group, it raises concerns under the Family Education Rights Privacy Act and risks spoliation of evidence relevant to ongoing litigation between SFFA and Harvard University.
Report on the legal issues surrounding cybersecurity and information sharing published by the Congressional Research Service (CRS). The report examines the various legal issues that arise with respect to the sharing of cybersecurity intelligence, focusing specifically on the sharing of cyber-information within the government's possession as well as information within the possession of the private sector. It concludes by examining the potential legal issues that could be prompted by three major legislative proposals: the Cyber Intelligence Sharing and Protection Act (CISPA) (H.R. 234), the Cybersecurity Information Sharing Act (CISA) (S. 754), and the Cyber Threat Sharing Act (CTSA) (S. 456).
Notice from the U.S. Department of Education inviting applications for FY 2015 awards for the Asian American and Native American Pacific Islander-Serving Institutions (AANAPISI) Program. The AANAPISI Program provides grants to eligible institutions of higher education (IHEs) that have an undergraduate enrollment of at least 10 percent Asian American or Native American Pacific Islander students to assist such institutions to develop and implement activities to improve and expand such institutions' capacity to serve Asian Americans and Native American Pacific islanders and low-income individuals. Applications for grants under this competition must be submitted electronically using the Grants.gov by May 19, 2015.
Notice from U.S. Department of Education inviting application for FY 2015 awards for the Developing Hispanic-Serving Institutions (HSI) Program. The HSI Program provides grants to assist HSIs to expand educational opportunities for, and improve the academic attainment of, Hispanic students. Applications for grants under this competition must be submitted electronically using the Grants.gov by May 19, 2015.
Notice from the U.S. Department of Education on an altered system of record entitled ''Person Authentication Service" (PAS). PAS contains records about former, current, and prospective students, and their parents and endorsers, who apply for a user ID and password (FSA ID). Specifically, through this notice, the Department revises the name of the system from the ED PIN Registration System to the PAS and makes alterations to the system, including, but not limited to, the system location, the categories of records maintained in this system, the system's purposes, and the system's routine uses. Additionally, the Department seeks comment on the altered system of records described in this notice, in accordance with the requirements of the Privacy Act. Comments on this notice of an altered system of records must be made on or before April 20, 2015.
Florida District Court of Appeals upheld a rule adopted by the State Board of Education which established standards and criteria for tenure-like contracts with full time employees. The rule substantially revised the prior version of the rule and, among other things: 1) increased the period of satisfactory service required for an employee to obtain a continuing contract, and 2) prescribed specific performance criteria to determine whether to award or terminate a continuing contract.
Comment request issued by the U.S. Department of Education on a reinstatement of a previously approved information collection. The Predominantly Black Institutions (PBI) Program makes grant awards to eligible colleges and universities to support the strengthening of PBIs to carry out programs in the following areas: science, technology, engineering, or mathematics; health education; internationalization or globalization; teacher preparation; or improving the educational outcomes of African American males. Interested persons are invited to submit comments on or before April 20, 2015.
Senate Budget Committee passed the GOP's budget proposal on March 19, 2015 in a 12-10 party-line vote. The Senate Republican budget instructs the Finance Committee and the Committee on Health, Education, Labor and Pensions to report, by July 31, 2015, changes in laws within their jurisdictions to reduce the deficit by $1 billion over the 10-year period of fiscal years. The full Senate will consider the committee's budget proposal next week.
Announcement by the U.S. Department of Education that "Volume 4 – Processing Aid and Managing FSA Funds of the 2015-2016 Federal Student Aid Handbook" is available as a PDF file. The file is comprised of an introduction, table of contents, chapters, and appendices, followed by separate PDF files for each chapter and appendix of the volume. To access the 2015-2016 Federal Student Aid Handbook, click here.
Statement by the American Association of University Professors (AAUP) expressing that they are "deeply troubled" that the United Arab Emirates (U.A.E.) denied New York University (NYU) professor Andrew Ross entry to the emirate of Abu Dhabi. Ross has been conducting research on labor conditions in the country and has been a critic of the U.A.E.'s policies on migrant labor. NYU has maintained that its Abu Dhabi campus will observe the AAUP's principles on academic freedom and that all faculty and students will be free to enter and leave the country without undue restriction. The AAUP urges NYU to make every effort to get the ban on Ross lifted or to work with its faculty to reconsider its role in the U.A.E.
Texas legislation (SB 11) that would allow concealed handguns to be carried in college and university buildings passed the state Senate. The bill would expand the current law which allows concealed weapons on university grounds, but not buildings. Private institutions are permitted to ban the practice.
Fiscal Year 2016 budget proposal released by Republican members of the U.S. House of Representatives. The proposal calls for freezing the maximum Pell Grant award at the current $5,775 for the next decade.
Gallup survey of college and university presidents published by Inside Higher Ed. Gallup surveyed 647 college presidents about a range of issues facing higher education institutions. Topics covered include the White House's proposed ratings framework, the sustainability of institutional financial models, the prevalence of campus sexual misconduct, campus race relations, and the president's role in decisions on tenure and hiring, among others.
Report released by the University of Michigan (UM) Senate Advisory Committee on University Affairs (SACUA) concluding that the University's Office of Institutional Equity's (OIE) procedures for handling allegations against faculty lacked "basic elements of fairness and due process." Concerns about lack of due process in the OIE's practices and procedures were originally raised in reports to SACUA from the Faculty Grievance Monitor (FGM) beginning in 2012. The report, which focuses on the OIE's investigation of allegations against three UM faculty members, concludes with a list of five recommendations, including revising current OIE procedures "to ensure due process and procedural fairness" and reversing the actions taken against the three faculty members until their cases can be reconsidered.
Unpublished National Labor Relations Board (NLRB) order in New School and Student Employees at the New School-SENS/UAW. The order reverses a decision by an NLRB Regional Director to reject union petitions filed by the United Auto Workers on behalf of graduate students at the New School based on an NLRB decision handed down in 2004. The previous ruling held that graduate teaching assistants at Brown University were primarily students and not employees, and therefore could not unionize. The Board remanded the case to the Regional Director.
Unpublished National Labor Relations Board (NLRB) order in Columbia University and Graduate Workers of Columbia-GWC, UAW. A Regional Director originally rejected union petitions filed by the United Auto Workers on behalf of graduate students at Columbia based a 2004 NLRB decision, which held that graduate teaching assistants at Brown University could not unionize because they were primarily students, not employees. The Board reversed the Regional Director's decision and remanded the case.
Legislation (S.B. 5954) that would tie tuition at public colleges in Washington State to a percentage of the average state wage passed the state Senate. Under the bill, the tuition fees for resident undergraduates would be no more than 6 percent of the state's average wage for students at community and technical colleges; 10 percent of the state's average wage for students attending the regional universities and The Evergreen State College; and 14 percent of the state's average wage for those attending research universities. The bill now heads to the House of Representatives.
Data and Policy Brief on basic research at American universities was published by the Association of American Universities (AAU). The brief states that federal government remains the largest funder of basic research in 2012, although its proportion has declined from its peak of 70.3% in 1980 to 52.6% in 2012. Moreover, universities
have performed much of the nation's basic research after surpassing industry in the late 1950s.
New coalition, known as the College Athletes Rights & Empowerment Faculty Coalition (CARE-FC), was recently created by more than 20 faculty members from around the country to help college athletes become recognized as employees. CARE-FC is targeting its efforts in four areas: (1) Developing relationships with other like-minded entities and concerned faculty; (2) Educating public policy makers and legislators about the realities of the current college sport industry; (3) Creating awareness around the disproportionate negative impact that college sport business practices have on college athletes in the racial minority; and, (4) Opposing reform efforts that do not result in justice and fairness for athletes.
Comment request issued by the U.S. Department of Education (Department) on proposed changes to the Direct Loan Program: Internship/Residency and Loan Debt Burden Forbearance Forms. These forms serve as the means by which a borrower may request forbearance of repayment on their loans if they meet certain conditions. The Department and other loan holders use the information collected on these forms to determine whether a borrower meets the eligibility requirements for the specific type of forbearance. Interested persons are invited to submit comments on or before May 12, 2015.
Comment request issued by the U.S. Department of Education (Department) on proposed changes to the Direct Loan Program Deferment Request Forms. These forms serve as the means by which borrowers in the William D. Ford Federal Direct Loan (Direct Loan) and Federal Family Education Loan (FFEL) Programs may request deferment of repayment on their loans if they meet certain statutory and regulatory criteria. The Department and other loan holders use the information collected on these forms to determine whether a borrower meets the eligibility requirements for the specific deferment type being submitted. Interested persons are invited to submit comments on or before May 12, 2015.
Legislation (H.B. 403) introduced in the Illinois House of Representatives amending various laws relating to the governance of state universities. The bill would repeal provisions that permit the children of state university employees who have been employed by any state university for at least seven years to receive a 50 percent tuition waiver.
Letter to the U.S. Department of Education from U.S. Representative Suzanne Bonamici (D-OR) asking for clarification on the Family Educational Rights and Privacy Act (FERPA). The letter suggests that, under a certain interpretation, FERPA may permit sexual assault victims' medical and therapy records to be released as part of a student's education record. Representative Bonamici asks the Department to clarify the distinction between students' "treatment records" and their "education records" in the statute to determine if this loophole exists.
Notice of deadline dates for the receipt of documents and other information from applicants and institutions participating in certain federal student aid programs authorized under Title IV of the Higher Education Act of 1965 for the 2015-2016 award year was published by the U.S. Department of Education. The financial aid programs covered by this deadline notice include the Pell Grant, Direct Loan, TEACH Grant, and Iraq and Afghanistan Service Grant programs.
Student Aid Bill of Rights was released by the White House. The Bill of Rights consists of four rights and is part of President Barack Obama's effort to ensure "affordable, quality education for all Americans." In conjunction with the release, the President will sign a Presidential Memorandum directing the U.S. Department of Education and other federal agencies to do more to help borrowers afford their monthly loan payments.
Statement released by American Council on Education (ACE) President Molly Corbett Broad on President Barack Obama's student loan plan. In the statement, President Corbett Broad "welcome[s] the administration's move to streamline the system for servicing student loans" and expresses the hope that the proposed changes will make the loan repayment process more straightforward.
Letter to U.S. House and Senate Judiciary Committee leaders from forty economists and law professors who specialize in patent law and policy regarding discussions of legislation to address abusive patent legislation. The letter cautions that much of the information used to inform these discussions is "flawed, unreliable, or incomplete." Reliance on flawed data, the authors argue, will lead to legislation "that goes well beyond what is needed to curb abusive litigation practices, causing unintended negative consequences for inventors, small businesses, and emerging entrepreneurs." The authors urge Congress to demand more empirically sound data from researchers before taking any action.
Legislation (H.B. 3932) to amend Illinois' Private College Campus Police Act was introduced in the Illinois General Assembly. The bill would require campus police departments at private universities to publicly disclose any information that other law enforcement agencies are required to provide under the state's Freedom of Information Act.
Legislation (S.B. 182) to provide a public records exemption for those applying to become president, provost, or dean at state universities or Florida College System institutions was approved by the state's Senate Governmental Oversight and Accountability Committee. The bill would allow institutions to withhold any personally identifying information about an applicant, including his or her name, credentials, and salaries.
Order issued by the U.S. Court of Appeals for the Seventh Circuit affirming the trial court's decision dismissing the case as a result of the defendant's motion for summary judgment. The plaintiff, Associate Professor Tollie Carter, filed suit against Chicago State University, claiming that he was not appointed acting department chair in retaliation for his taking leave under the Family and Medical Leave Act (FMLA) and because he is black. Professor Carter claimed that the temporal proximity of his taking FMLA leave and the appointment of the acting department chair "raised a suspicion of discriminatory intent." The trial court rejected this claim, holding that, "We do not find a span of seven months suspicious," and the Seventh Circuit affirmed. The Seventh Circuit also observed that the plaintiff provided no direct or indirect evidence of racial discrimination. Finally, the Seventh Circuit concluded that the record contains evidence that the plaintiff was actually less qualified than the person named acting department chair because the plaintiff had refused to teach several classes, had student complaints about the quality of his teaching from the classes he taught, and was removed from the department chair position in the past.
Guidance from the IRS on § 4980I of the Internal Revenue Code (Code), commonly referred to as the "Cadillac tax." Section 4980I, which was added to the Code by the Affordable Care Act, applies to taxable years beginning after December 31, 2017. The issues addressed in this guidance primarily relate to: (1) the definition of applicable coverage, (2) the determination of the cost of applicable coverage, and (3) the application of the annual statutory dollar limit to the cost of applicable coverage. The IRS and U.S. Department of Treasury anticipate issuing another notice before the publication of proposed regulations under § 4980I.
Reminder from the U.S. Department of Education regarding the procedures for adding or correcting a student's Alien Registration Number on the Free Application for Federal Student Aid to confirm eligible noncitizen status with the U.S. Department of Homeland Security. The summary address eligible and non-eligible citizen documentation, Social Security Administration and U.S. Department of Homeland Security matches, codes and the G-845 form. Additional information can be found in the Federal Student Aid Handbook, Volume 1, Chapter 2: Citizenship.
U.S. Supreme Court orders the Seventh Circuit Court of Appeals to reconsider its decision against the University of Notre Dame in light of the June 2014 Supreme Court ruling in Burwell v. Hobby Lobby Stores, Inc., which allowed certain privately owned corporations to seek exemptions from the contraceptive provision of the 2010 Affordable Care Act. The United States District Court for the Northern District of Indiana denied Notre Dame's first motion for the preliminary injunction in December 2013. In February 2014, the Court of Appeals affirmed the district court's holding.
Public Infractions Decision was released by the National Collegiate Athletic Association (NCAA) regarding violations committed by Syracuse University. The Division I Committee on Infractions panel concluded that, over the course of a decade, Syracuse failed to exercise proper control over the administration of its athletics program and used deficient monitoring systems, which allowed violations to occur involving academics, compliance with the college's drug testing policy, and staff and student relationships with a booster. Syracuse discovered and self-reported ten of the violations. Penalties will include five years of probation, vacations of all wins during the years that ineligible men's basketball and football students played, suspension of the head men's basketball coach, and fines, among others.
Report published by the Center for Community College Student Engagement at the University of Texas at Austin on part-time community college students. The Center has collected community college student data since 2004 from nearly 900 institutions across the country. According to the results of the study, more part-time community college students are coming to class prepared, working with instructors, and participating with other students, in comparison to the data from 2004.
The Research and Development Efficiency Act (H.R. 1119) was approved by the House Science, Space, and Technology Committee. The legislation seeks to reduce the burden of federal regulations on government-sponsored research by harmonizing, streamlining, and eliminating duplicative federal regulations and reporting requirements.
Financial responsibility composite scores for private, non-profit, and proprietary institutions with fiscal years ending between July 2012 and June 2013 were released by the U.S. Department of Education. Section 498(c) of the Higher Education Act of 1965 requires these institutions to submit audited financial statements to the Department annually to demonstrate that they are maintaining the standards of financial responsibility necessary to participate in the Title IV programs. The composite score of three ratios—reserve ratio, an equity ratio, and a net income ratio—reflects the overall relative financial health of each institution. Institutions with scores of less than 1.5 but greater than or equal to 1.0 are considered financially responsible but require additional oversight, while institutions with scores less than 1.0 are considered not financially responsible.
E-mails from the University of Minnesota's President and Vice President announcing that the University's crime alert practices will no longer use race to describe a suspect when information is too general to aid the community in identifying the suspect. President Kaler and Vice President Wheelock believe that this new approach will advance public safety while also recognizing the harm caused by using race in otherwise limited suspect descriptions. This change is the product of an 18-month discussion at the University of Minnesota that asked if: (1) The University community is safe? and (2) The University of Minnesota feels safe?
Opinion by the United States Court of Appeals for the Second Circuit affirming the district courts' finding that a community college and certain of its administrators are not "arms of the state" entitled to Eleventh Amendment sovereign immunity. The appellee, Carol Leitner, was a former adjunct professor at Westchester Community College (WCC) who claimed that her First Amendment rights were violated after she was fired for making allegedly offensive comments during class. WCC asserted that it should be immune from Leitner's lawsuit because of the Eleventh Amendment, which generally bars suits in federal court by private individuals against non-consenting states. Although the Supreme Court has not articulated a clear standard for determining whether a state entity is an "arm of the state" and thus entitled to sovereign immunity, the Second Circuit has applied two different tests to determine whether government entities are "arms of the state." Using both tests, the Second Circuit found that WCC is not entitled to sovereign immunity because it would not further the state's interest in preserving its treasury, nor would it protect the integrity of the state. The Second Circuit did note that federal courts have concluded that community colleges in some states are entitled to Eleventh Amendment immunity, while community colleges in other states are not. The difference in these opinions is often contingent on whether a community college is predominantly or exclusively dependent on state appropriations rather than local funding, or where the state government controls the college's board of trustees.
Letter to Secretary Arne Duncan from student body presidents at 76 universities opposing the Office for Civil Rights' (OCR) recommendation that students not be permitted to serve as adjudicators in campus conduct hearings related to Title IX violations. The student presidents outlined six primary reasons for their opposition, including a shared belief that students provide a valuable perspective to hearings that supports a more fair and balanced process. The letter proposes that, as an alternative, hearing boards should be required to adopt baseline standards for training and confidentiality expectations for all members. Six principles are provided to guide the development of these standards. A list of the student presidents and their respective institutions can be found in the letter.
Letter from NASPA, Student Affairs Administrators in Higher Education, to state elected officials expressing concern regarding bills pending before multiple state legislatures that (1) require school officials to mandatorily refer all reports of sexual violence that they receive to law enforcement, or (2) give students and student organizations accused of misconduct a right to seek judicial review of student disciplinary or other institutional proceedings and to obtain monetary damages if a court finds in favor of the accused student. Although NASPA applauds states legislatures for their desire to assist institutions of higher education in improving their responses to gender-based violence, NASPA is deeply concerned that these proposals will have the unintended consequence of making it more difficult for campuses to end gender-based violence. The letter outlines six specific concerns, including conflicts with federal law.
Statement made by the President of the Association of American Universities (AAU) in support of the STRONG Patents Act of 2015. AAU supports the legislation because they believe that its measures will not make it more difficult and/or costly for patent holders to enforce their patents.
Statement made by the President of the Association of Land-Grant Universities (APLU) in support of the STRONG Patents Act of 2015. APLU supports the legislation because they believe that the bill will curb "abusive practices" without weakening the U.S. patent system.
Patent-reform legislation, known as the STRONG Patents Act of 2015, was introduced by three U.S. senators. The legislation is designed to (1) make it harder for firms to be targeted with frivolous patent lawsuits, (2) level the playing field between small inventors and large companies, and (3) ensure that the U.S. Patent and Trademark Office has the resources it needs to ensure patent quality. This bill is in contrast to another patent-reform bill, the Innovation Act, which was recently introduced in the U.S. House of Representatives. A detailed summary of the STRONG Patents Act of 2015 can be accessed at Senator Coon's website.
Letter from two members of the U.S. Commission on Civil Rights (Commission) addressed to members of Congress expressing concerns with President Obama's proposal to increase funding by 31 percent to the U.S. Department of Education's Office for Civil Rights (OCR). The two members of the Commission argue against any funding increases to OCR because, among other issues, they argue that OCR misstates applicable law on sexual assault and harassment on college and university campuses, encourages unfair treatment for some accused students, and gives colleges and universities approval to violate students' First Amendment rights. The commissioners conclude by asserting that Congressional intervention is necessary to balance OCR's overreach. The letter was not written on behalf of the Commission as a whole.
Letter from the Association of Public and Land-Grant Universities, the Association of American Universities, and the American Council on Education requesting that the following be considered in Congress's budget resolution: 1) End budget sequestration in FY2016 and beyond; 2) Outline a path for comprehensive tax reform, which will spur economic growth and produce new revenue; 3) Provide for meaningful entitlement reforms that do not adversely affect those most vulnerable in society; and 4) Include specific language that places a high priority on scientific research and higher education. The letter was sent to chairmen and ranking members of both the U.S. Senate's and the U.S. House of Representatives' budget committees.
Press release announcing the results of an annual study on the salaries of higher education administrators conducted by the College and University Professional Association for Human Resources (CUPA-HR). For 2014, the data from the CUPA-HR's 2014-15 Administrators in Higher Education Salary Survey show an overall median base salary increase of 2.4 percent for administrators at both private and public institutions. The median base salary increase for those in senior-level positions at public institutions was 2.5 percent, compared to a 2.3 percent increase for those in the same positions at private institutions.
Press release issued by the U.S. Department of Education announcing that, after a review of twenty-two private collection agencies, it will end contracts with five agencies that were providing inaccurate information to borrowers. The five companies include Coast Professional, Enterprise Recovery Systems, National Recoveries, Pioneer Credit Recovery, and West Asset Management. The Department plans to reassign accounts held by these five agencies that are not already in repayment to other agencies.
Final report published by the National Association of System Heads (NASH) summarizing the findings of a two-year project that sought to strengthen institutional research among public systems, colleges, and universities. The researchers found that institutional research offices are becoming increasingly central to institutional and state efforts to track student completion, performance, and other education-related metrics, but are not always receiving the financial support or other resources that they need. The report is designed to provide the context and serve as a tool that system and institutional research leaders can use to "align their functions with current and future challenges."
Comment request issued by the U.S. Department of Education on regulations affecting the Student Assistance General Provisions. The final regulations will require institutions to report certain information on each student who, during an award year, began attending or completed a program leading to gainful employment in a recognized occupation. Additionally, the regulations will require these institutions to disclose certain information to prospective students. Interested persons are invited to submit comments on or before April 1, 2015.
The U.S. Department of Education's Office for Civil Rights (OCR) released an updated Case Processing Manual. The Manual outlines the procedures by which OCR investigates and resolves complaints, compliance reviews, and directed investigations to ensure compliance with civil rights laws. The newly-released version includes updates and revisions as of February 2015.
By a 401-20 vote, House members approved H.R. 529 to expand 529 college-savings accounts. The bill proposes to: (1) expand the qualifying expenses to include certain computer and related expenses; (2) eliminate the requirement that distributions from a 529 plan be aggregated for purposes of determining the amount includible in a taxpayer's income; and (3) allow a tax-free re-contribution to a 529 plan of amounts refunded to a student by an eligible educational institution if the re-contribution is made not later than 60 days after the date of such refund and does not exceed the refunded amount. According to the Congressional Budget Office estimate, the bill will cost approximately $51 million over the 2015-2025 period.
Bi-partisan group of U.S. Senators introduced a new version of the Campus Accountability and Safety Act, which was originally introduced in July 2014. Changes to the legislation include imposing fines of up to one percent of the institution's operating budget for violations, requiring colleges and universities to update memoranda with local police departments every two years, requiring institutions to publish a campus climate survey every two years rather than annually, and the creation of a competitive grant program that would provide funds to colleges and universities to research best practices for improving prevention of and response to sexual assault on their campuses. A companion bill is expected to be introduced in the U.S. House of Representatives.
Announcement from the Federal Communications Commission (FCC) adopting stronger rules aiming to ensure that America's broadband networks are fast, fair, and open. The adopted Open Internet Order: (1) sets three "bright-line" rules for behavior known to harm the Open Internet, (2) adopts an additional, flexible standard to future-proof Internet openness rules, and (3) protects mobile broadband users with the full array of Open Internet rules.
Announcement from the U.S. Department of Education that final 2015-16 Campus-Based programs funding worksheets and the 2015-16 Statement of Account for each of the Campus-Based programs will be posted to the eCampus-Based (eCB) Web site by April 1, 2015. In addition to the Department's Electronic Announcement, individual schools will be notified by e-mail that the 2015-2016 Campus-Based allocation information has been posted to the eCB Web site.
Final rule issued by the Department of Homeland Security (DHS) that extends eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. With this change, DHS hopes to reduce personal and economic burdens faced by H-1B nonimmigrants and eligible H-4 dependent spouses during the transition from nonimmigrant to LPR status, to attract and retain highly skilled foreign workers to the United States, and to minimize disruption to American businesses. The new regulations will go into effect on May 26, 2015.
Comments submitted by the Association of American Universities (AAU) to the National Advisory Committee on Institutional Quality and Integrity (NACIQI) on the panel's draft policy recommendations regarding accreditation. The comments address six of the panel's recommendations, including AAU's opposition to the Department or accreditors mandating specified quantitative general assessment measures. AAU reiterates its "continued support for a non-federal process for determining quality, one that allows for flexibility, cost-efficiency, and informed academic judgment."
Letter to Representatives Virginia Foxx (R-NC), Alcee Hastings (D-FL); Matt Salmon (R-AZ); and John Kline (R-MN) from American Council on Education (ACE) President Molly Corbett Broad on behalf of twenty-six higher education groups endorsing the Supporting Academic Freedom Through Regulatory Relief Act (H.R. 970). The Act would block some of the most controversial Department of Education regulations that impact colleges and universities, including state authorization, credit hour, and gainful employment. In the letter, President Broad states that "the sheer volume, ineffectiveness and cost" of the U.S. Department of Education's regulations and related actions have far surpassed what might reasonably be required holding colleges and universities accountable to taxpayers.
Letter from 144 universities warning the House and Senate Judiciary Committees that pending legislation to address patent litigation will weaken the nation's patent system and hinder the flow of groundbreaking advances from universities to the private sector. Of these proposals, the universities are particularly concerned that mandatory fee-shifting and involuntary joinder will weaken the university technology transfer process, which is an essential part of the United States' innovation and entrepreneurial ecosystem. A list of the 144 signatories can be found in the letter.
Proposed legislation, S.B. 308, that would amend the Texas Education Code to require police departments at private colleges and universities to follow the state's public records law. Private college and university police departments, which are licensed by the state of Texas, are not currently required to make records publicly available. The bill has been referred to the Texas Senate Committee on Criminal Justice, which has not yet set a date for a public hearing.
Statement of accreditation status by the Middle States Commission on Higher Education unanimously affirming the Commission's November decision to withdraw the accreditation status of Sojourner-Douglass College. The decision is effective June 30, 2015, which will allow current students to complete the academic year.
Notice of proposed rulemaking for the First in the World Program, the Obama administration's effort to encourage innovation in higher education, was published by the U.S. Department of Education. The notice outlines the priorities that the Department will use in awarding the program's grants in 2016, which include improving developmental education; improving teaching and learning; improving student support services; developing and using assessments of learning; facilitating pathways to credentialing and transfer; and increasing the effectiveness of financial aid. Interested parties are invited to submit comments on or before March 25, 2015.
Kansas legislation (H.B. 2234) to prohibit college and university employees from including their official titles in certain publications was introduced in the Kansas state House of Representatives. Specifically, the bill would forbid employees of state colleges from providing their job title when authoring a newspaper opinion column, and "only when the opinion of the employee concerns a person who currently holds any elected public office in this state, a person who is a candidate for any elected public office in this state or any matter pending before any legislative or public body in this state."
Announcement from the Big 12 that all member institutions will be required to follow the National Collegiate Athletic Association's 2014 Inter-Association Consensus Guidelines for Concussion Diagnosis and Management. The protocol states that institutions should have on file a team physician-directed concussion management plan and the specific protocol for evaluation and management of a concussion. Each Big 12 member institution will be required to submit an updated concussion management plan annually to the Conference office, which will establish a plan to track potential unsafe plays.
Response from sixteen University of Pennsylvania Law School professors regarding the U.S. Department of Education Office for Civil Rights' guidelines for enforcing Title IX of the Education Amendments Act of 1972. The law professors, although recognizing the concerns about of sexual assaults on college campuses, as well as the necessity for "comprehensive protections for those who are abused," are concerned about the federal government's failure to abide by the traditional procedures for passing laws and promulgating regulations. The letter concludes by providing suggestions for a policy that both strongly condemns and punishes sexual misconduct and provides for a fair adjudicatory process.
Opinion by the U.S. Court of Appeals for the Third Circuit reversing the district courts' grants of appellees' motions for preliminary injunction. Appellees—including Geneva College, a nonprofit higher education institution established by the Reformed Presbyterian Church of North America—challenged the Patient Protection and Affordable Care Act's (ACA) (42 U.S.C. § 300gg-13(a)(4)) contraceptive coverage requirement and the accommodation mechanism that compels those organizations wishing to opt out of the contraception mandate to notify the entity that administers its health plan of its objection so that the entity may offer separate coverage for contraceptive services directly to the insured individuals. The appellees claimed that both options impose a substantial burden on their religious exercise in violation of the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb et seq.). Geneva specifically asserted that complying with either the contraceptive mandate or opting for the accommodation mechanism would cause the institution to "trigger," "facilitate," or be "complicit" in the commission of what it believes to be a "sinful" act, namely supporting access to abortion through emergency contraceptives and intrauterine devices. The Court rejected this argument, holding that the accommodation mechanism does not trigger or facilitate the provision of contraceptive coverage because federal law, rather than any involvement by the appellees in filling out or submitting the form, mandates that such coverage be provided. Moreover, the Court held that the submission of the self-certification form does not make the appellees "complicit" in the provision of contraceptive coverage but rather constitutes a declaration that they will not be complicit in providing coverage, since the form itself contains a provision stating that the filer objects to providing coverage on religious grounds. Thus, the Third Circuit concluded that the appellees did not show a likelihood of success on the merits of their RFRA claim.
Nevada legislation (A.B. 148) to allow concealed weapons on college campuses was introduced in the state Assembly. Specifically, the bill would enable individuals authorized to carry a concealed firearm to carry firearms on the property of the Nevada System of Higher Education, as well as that of a private or public school or a child care facility.
The U.S. Department of Justice, National Institute of Justice (NIJ) issued a request for applications for research and evaluation related to the investigation and adjudication of sexual assaults on college and university campuses. Based on recommendations in the January 2014 report by the White House Task Force to Protect Students From Sexual Assault, NIJ seeks to identify "promising practices" for campus sexual assault investigations. Applications are due by April 6, 2015.
Final injunction and judgment from the Superior Court of California for the County of San Francisco in favor of the state giving the City College of San Francisco (CCSF) the option to have the Accrediting Commission for Community and Junior Colleges (ACCJC) reconsider its 2013 decision to revoke the College's accreditation. If CCSF elects this option, ACCJC must provide a written report identifying CCSF's deficiencies in compliance with accreditation standards and convene a meeting of the Commission to review the College's response to the report.
Decision by the National Collegiate Athletic Association (NCAA) Division I Committee on Infractions ruling finding that coaches at West Virginia University sent impermissible text messages and made impermissible telephone calls to prospective student-athletes and their parents between June 2010 and February 2013. Penalties include two years of probation and a one-year show cause order for the assistant coach involved. The university also adopted self-imposed penalties that were adopted by the NCAA Committee on Infractions panel.
Letter from the American Council on Education (ACE) and twenty-six other higher education associations to the U.S. Department of Education detailing their concerns with the feasibility of the Department's approach to the Postsecondary Institution Ratings System (PIRS). The authors note that the draft framework released by the Department in December 2014 is not sufficient enough to allow institutions the opportunity to evaluate the strengths and weaknesses of the PIRS. The letter requests that the Department offer more detail about its plan in advance of publishing any ratings and make its rating formula open for comment.
Order by the National Labor Relations Board (NLRB) in a case addressing faculty unionization at Duquesne University of the Holy Spirit, a religious institution. This decision follows three similar NLRB orders issued earlier this month in which the Regional Director initially asserted jurisdiction over the institutions and directed that union elections take place. Yet in December 2014, while the cases were pending review, the Board issued its decision in Pacific Lutheran University, 361 NLRB No. 157, which specifically addressed the standard that the Board should apply for determining whether it can exercise jurisdiction over faculty members at self-identified religious colleges and universities. The Board thus remanded the Duquesne University proceedings for further action consistent with Pacific Lutheran University.
Proposed regulations from the Federal Aviation Administration (FAA) that would adopt specific rules and guidelines for the operation of small unmanned aircraft systems in the National Airspace System, certification of their operators, and registration. Provisions include weight restrictions for aircraft, speed limits, airspace restrictions, and a requirement for an unmanned aircraft operator certificate. A full summary of the proposed provisions is available here.
Opinion and order issued by the U.S. District Court for the Southern District of Texas granting the plaintiff states' request for preliminary injunction. Plaintiffs—which include the state of Texas as well as twenty-five additional states—filed suit against the United States and various Department of Homeland Security officials challenging the "Deferred Action for Parents of Americans and Lawful Permanent Residents" (DAPA) program, which is designed to provide legal presence to over four million individuals who are currently in the country illegally and would enable these individuals to obtain a variety of both state and federal benefits. Adopting the "constitutional avoidance" principle, the court sidestepped the constitutional concerns with the executive action and instead answered the question of whether, in enacting the program, the defendants legislated a substantive rule without complying with the procedural requirements of the Administration Procedure Act. The court concluded that the defendants did just that because 1) the DAPA program clearly represents a substantive change in immigration policy; 2) the plaintiff states would likely suffer substantial and immediate irreparable injury if the injunction was not granted; 3) the equities strongly favor the issuance of an injunction to preserve the status quo; and 4) the granting of a preliminary injunction would not be adverse to the public interest. Judge Andrew Hanen thus issued a temporary injunction enjoining the implementation of the DAPA program.
Report released by the Senate Task Force on Federal Regulation of Higher Education found that "oversight of higher education by the Department of Education has expanded and evolved in ways that undermine the ability of colleges and universities to serve students and accomplish their missions." The report reflects the work of a bipartisan group of U.S. senators charged with three goals: (1) Summarizing the increasing burden of federal regulation on higher education; (2) Identifying regulations of particular concern to institutions of higher education, explaining why they are problematic, and recommending changes to ameliorate them; and (3) Offering longer-term process improvements that would minimize similar concerns about regulations in the future.
Virginia state senate passed legislation, SB 1122, requiring public colleges to establish policies on parental notification for dependent students that exhibit "suicidal tendencies." The Virginia State delegates have proposed a similar bill, HB 1715, which would require a student's "suicidal tendencies" to be reported to a campus's threat-assessment team.
Letter from the Hispanic Association of College and Universities (HACU) opposing the U.S. Department of Education's proposed regulations for teacher preparation programs Accountability System under Title II of the Higher Education Act of 1965, as amended (HEA). HACU's letter to Secretary Duncan outlines eight concerns, including federal overreach and a negative impact on affordability and access to college. The proposed regulations were released in December 2014 with the intent of final regulations being issued in the summer of 2015.
Comments submitted by the National Association of Independent College and Universities (NAICU) in response to the U.S. Department of Education's proposed postsecondary ratings system. The letter reflects both NAICU's recognition of the President's commitment to access, affordability, and transparency in higher education, as well as their concern that the weighting and assignment of value to higher education information must remain in the hands of consumers and not a federal rating tool. Further, NAICU questions the federal government's capacity to design a ratings system that provides a useful consumer information tool and an effective accountability system. Comments on the ratings system are due by February 17, 2015 and can be submitted through this online form: www.ed.gov/blog/collegeratings.
Comments request issued by the U.S. Department of Education on the application package for the Minority Science and Engineering Improvement Program (MSEIP). The purpose of MSEIP is to effect long-range improvement in science and engineering education at predominantly minority institutions and to increase the flow of underrepresented ethnic minorities, particularly minority women, into scientific and technological careers. The U.S. Department of Education is ED is proposing a reinstatement of a previously approved information collection. Interested persons are invited to submit comments on or before March 16, 2015.
Announcement that the U.S. Department of Education will collect information directly from third party servicers that perform work on behalf of Title IV eligible institutions since the Department determined that "a significant number of higher education institutions failed to report, update, and/or incorrectly report[ed] third party servicer information" as required under 34 C.F.R. § 668.25(e). Entities that meet the definition of a third party servicer are required to submit a Third Party Servicer Data Form. A timeline for submission of the data form can be found in the announcement.
Updated guidance from U.S. Department of Education for institutions regarding Direct Loan refunds. Included in the guidance is a reminder that, as of January 1, 2015, the Department no longer accepts paper checks for Direct Loan refunds of cash. To make the most timely and accurate refunds, the guidance generally recommends using the G5 Web Site. The guidance also provides general information about Direct Loan funds and the process for making a direct loan refund.
Recommendations made by the National Association of Independent Colleges and Universities (NAICU) in response to President Obama's proposal to combine current higher education tax benefits. The recommendations proffered by NAICU include: (1) Preservation of Sec. 529 College Savings Plans and Coverdell Education Savings Accounts; (2) Tax tuition incentives directed at certain income levels of taxpayers and employers who provide tuition benefits to employees; and (3) Assistance to students who finance their college education, including the removal of taxes on forgiven student debt.
Announcement from the U.S. Department of Education that gainful employment (GE) reporting functionality is now available on the National Student Loan Data System (NSLDS), including on the NSLDS Professional Access website. While the GE final regulations, published on October 31, 2014 with an effective date of July 1, 2015, provide that the deadline for institutions to report GE Program information is July 31, 2015, institutions may begin submitting GE data now on a voluntary basis. The NSLDS Gainful Employment User Guide is available here.
Comments from the National Association of Independent Colleges and Universities (NAICU) and nine other higher education associations in response to the Department of Education's notice of proposed rulemaking on teacher preparation issues published in the Federal Register on December 3, 2014. The letter argues that the regulations would violate Title II, Section 207 of the Higher Education Act by requiring states to adopt a federally-mandated rating system, rather than developing their own at the state level. The authors also express concern that the regulations evaluate teacher preparation programs based on "invalid and unreliable metrics" and do not reflect current practices in the profession.
Maryland legislation (S.B. 210) introduced by five state senators would prohibit educational institutions from requiring or requesting that a student or prospective student provide access to their social media or other personal electronic accounts. The bill would not prohibit institutions from accessing information available in the public domain and, in specified circumstances, would permit access to certain personal communications during an investigation in accordance with institutional policy.
Report on higher education research and development expenditures was released by the National Science Foundation (NSF). According to data from the Higher Education Research and Development (HERD) Survey, university spending on research and development in all fields totaled $67.2 billion in fiscal year 2013. When adjusted for inflation, the total spending increased by less than half a percent from the previous fiscal year. The NSF also released a chart ranking expenditure amounts by university.
Comment request issued by the U.S. Department of Education on the proposed waiver and extension of the project period for the Native American Career and Technical Education Program (NACTEP). The Secretary of Education is proposing to: (1) waive the requirements that generally prohibit project period extensions involving additional federal funds; and (2) extend the project periods for current NACTEP grantees for up to twenty-four months. Interested parties are invited to submit comments on or before sixty days after publication of the proposal in the Federal Register.
Comment request issued by the U.S. Department of Education regarding the National Advisory Committee on Institutional Quality and Integrity (NACIQI) Draft Policy Recommendations Report dated January 2, 2015. The NACIQI advises the Secretary of Education about accreditation agency criteria for recognition under federal and state law, the eligibility and certification process for institutions of higher education, and the relationship between accreditation and state licensing of such institutions. Recommendations from the Report include simplifying the accreditation and recognition process, developing common definitions of accreditation actions and procedures, and requiring periodic Departmental review of criteria for recognition, among others. Interested parties are invited to submit comments, which must be received by February 28, 2015.
Statement released by the Association of American Universities (AAU) on the President's Fiscal Year 2016 Budget. The AAU applauds the budget proposal for recommending the elimination of sequestration, raising the budget caps to increase funding for various federal research entities, and expanding and making permanent the American Opportunity Tax Credit. However, it criticizes the 8.3 percent cut in basic research spending by the Department of Defense, which the AAU deems necessary for "this nation's fighting men and women to remain the world's best equipped, most technically advanced force."
New Hampshire legislation (H.B. 142) designed to protect students' online privacy was introduced in the state House of Representatives by State Representative Katherine Rogers. The bill would forbid both public and private institutions from requiring or requesting that students provide access to a personal social media accounts via user name, password, or other means of authentication. However, institutions would still be allowed to conduct investigations of alleged student misconduct associated with a student's social media account as long as they do not require or request access to the account.
Order by the National Labor Relations Board (NLRB) in three cases dealing with the unionization of faculty at self-identified religious colleges and universities: Seattle University and Service Employees International Union, Saint Xavier University and St. Xavier University Adjunct Faculty Organization, and Manhattan College and Manhattan College Adjunct Faculty Union. Originally, the Regional Director issued decisions asserting jurisdiction over the institutions and directing that union elections take place. Yet in December 2014, while the cases were pending review, the Board issued its decision in Pacific Lutheran University, 361 NLRB No. 157, which specifically addressed the standard that the Board should apply for determining whether it can exercise jurisdiction over faculty members at self-identified religious colleges and universities. The Board thus remanded the proceedings in all three cases for further action consistent with Pacific Lutheran University.
Minnesota budget legislation (H.F. 3172) that includes a proposal requiring public colleges to disclose information about the safety records of their education abroad programs. Specifically, the bill would call for the state's colleges to file annual reports on student deaths, accidents, and illnesses that occur abroad and require hospitalization.
Wyoming legislation (H.B. 0114) entitled the "Wyoming Repeal Gun Free Zones Act" was approved by a vote of 42 to 17 in the state House of Representatives. The bill would repeal the gun-free zones carved out around public schools, including colleges and universities, thereby allowing those holding a valid concealed carry permit issued by the state to carry concealed firearms on campus. The bill will be considered by the state Senate.
Report released by the Center for Collegiate Mental Health (CCMH) at Penn State University, in partnership with Student Affairs Administrators in Higher Education (NASPA) and the American College Personnel Association (ACPA), summarizing the data on student mental health that was contributed to CCMH during the 2013-2014 academic year. The information was gathered directly from students and from campus counseling centers across the country. The survey included questions on a variety of mental health issues, from those that affect the general student population (financial woes, safety concerns, sexuality, etc.) to those that affect certain individuals (mental illness, substance abuse issues, and thoughts of suicide).
Comment request issued by the U.S. Department of Education on information collection activities related to the Graduate Assistance in Areas of National Need (GAANN) program. Title VII of the Higher Education Act of 1965 requests the collection of specific data necessary to evaluate, score, and rank the quality of the projects proposed by higher education institutions applying for the grant. The Department is proposing a reinstatement of this collection. Interested parties are invited to submit comments on or before March 9, 2015
Comment request published by the U.S. Department of Education on the Campus Safety and Security Survey. The Survey, which is mandated under the Higher Education Act of 1965, is a tool used to compile annual data on campus crime and fire safety in hopes of increasing the transparency surrounding college safety and security information. The Department is proposing a new information collection through this Survey. Interested parties are invited to submit comments on or before March 9, 2015.
Letter from six higher education associations (AAU, ACE, AAMC, APLU, AUTM, and COGR) on the Innovation Act (H.B. 3309). The signers express support for efforts to reign in the litigation practices of those who abuse the patent system. However, they assert that the Innovation Act, in its current form, would substantially raise the costs and risks associated with patenting, thereby discouraging the private sector from using research discoveries at universities to craft new innovations. As such, they are withholding support for the Act until it is redrafted in a way that promotes, rather than discourages, technology transfer and sustains the existing patent system.
Report released by the Cooperative Institutional Research Program at the Higher Education Research Institute at UCLA on norms in America's 2014 freshmen. The report covers ten issues, ranging from student alcohol and tobacco use, emotional health concerns, and interest in both early admission programs and advanced degrees. The results reported are based upon 153,015 first-time, full-time students who entered 227 four-year U.S. colleges and universities. A list of participating institutions can be found in Appendix C.
Report released by the Babson Survey Research Group in partnership with the College Board on the state of online learning in U.S. higher education based on a 2014 survey of more than 2,800 colleges and universities and data from the U.S. Department of Education's Integrated Postsecondary Education Data System (IPEDS). According to survey data, the proportion of academic leaders who report that online learning is critical to their institution's long term strategy increased from 49 percent in 2002 to 71 percent in 2014. However, while 28 percent of respondents believed online learning is sustainable when asked in 2002, only 16 percent believe so in 2014.
Press release issued by the U.S. Department of Education announcing that Zenith Education Group, a newly-created nonprofit provider of career school training and subsidiary of the ECMC Group, has finalized its acquisition of over fifty Everest and WyoTech campuses from Corinthian Colleges Inc. As part of the terms of the sale, the parties agreed to pay $12 million in up-front payments, and up to an additional $17.25 million in earn-out payments to the Department over the next seven years, all of which will be used to benefit Corinthian students. The sale also included the forgiveness of $480 million in loans that Corinthian students took out from a private lending program the company created.
Report released by the Hiring Policies and Procedures Review Committee at the University of Illinois at Urbana-Champaign (UIUC) on the faculty hiring process. The Committee, which was appointed in response to the Steven Salaita faculty appointment case, was charged with reviewing the policies and processes for faculty hiring on the Urbana-Champaign campus. Among its recommendations, the Committee stated that the Board of Trustees should formally delegate its responsibility for tenured and tenure-track academic appointments to senior campus administrators, who in turn should continue the existing policy of delegating to the chancellor and provost.
Letter to Secretary of Education Arne Duncan from the Association of American Universities (AAU) in response to the U.S. Department of Education's draft ratings framework. The letter builds on two previous sets of comments on the proposed rating system—submitted by AAU on December 2, 2013 and January 24, 2014—to offer comments and suggestions on the rating system generally as well as on data and metrics. AAU also urges the Department to provide an opportunity for public comment on a "full and complete rating proposal" before the system is ultimately implemented.
Ruling released by the National Labor Relations Board (NLRB) affirming an earlier 2013 ruling holding that Grand Canyon University wrongly fired an employee for discussing her working conditions. Three former employees working on Grand Canyon's "grad team" frequently discussed concerns about the quality of leads referred to them, the limited degree programs in which they were permitted to enroll students, and the difficulty of meeting enrollment quotas. Grand Canyon fired these employees because the conversations violated a clause in the University's Employee Counseling Statement prohibiting employees from discussing with each other the terms and conditions of their employment. In 2013, the NLRB found that the University violated labor law by threatening to fire the employees and interrogating them about their speech, which constituted "protected concerted activity." Grand Canyon filed an appeal at the time when two of President Obama's appointments to the NLRB during a three-day Congressional recess were being challenged. After the appointment question was settled in NLRB v. Noel Canning, the Board considered the decision 2013 de novo. The NLRB ruled that the University's questioning of the employees in response to another employee volunteering information about the conversations unlawfully sought specific information about the protected activities of other employees, and thus found the interrogation unlawful.
Report from the California Legislative Analyst's Office (LAO) on the implementation of state legislation—the Student Transfer Achievement Reform Act— requiring the creation of associate degrees for transfer from the state's community colleges to the California State University System. The report found that the institutions have developed a sufficient number of the thirty-three transfer model curricula to "meet the spirit of the legislation," and recommended setting specific reporting and data requirements to make sure the institutions stay on track.
California University of Pennsylvania commissioned The Compliance Group to conduct a review of its football program after an October 2014 incident in which six University football players were arrested in connection with a beating that left a man hospitalized. The University's Interim President stated that four of the recommendations from the review will be implemented immediately, and that she is taking into consideration each of the remaining twenty-eight recommendations.
Comment request issued by the U.S. Department of Education on the College Assistance Migrant Program (CAMP). CAMP office staff collects information for the CAMP Annual Performance Report (APR) to ensure that the data being collected is in compliance with Title IV of the Higher Education Act of 1965, the Education Department General Administrative Regulations (EDGAR), and other federal legislation. The CAMP office staff is requesting a customized APR that goes beyond the generic 524B APR to facilitate the collection of more standardized and comprehensive data, to improve the overall quality of data collected, and to increase the quality of data that can be used to inform policy decisions. Interested parties are invited to submit comments, which are due by April 6, 2015.
Announcement issued by the U.S. Department of Education regarding changes made to the adverse credit history provisions used in determining an applicant's eligibility for a Direct PLUS Loan. The announcement discusses early operational impacts to institutions and provides preliminary information about the changes planned for the Common Origination and Disbursement (COD) System implementation during the period of March 27-29, 2015. This announcement is the first in a series of announcements that will provide operational information about the upcoming changes, as described in final regulations published on October 23, 2014 and the January 27, 2015 Electronic Announcement, which will be implemented on March 29, 2015.
Letter from American Council of Education (ACE) President Molly Corbett Broad on behalf of ACE and thirty-one other higher education organizations offering comments on the U.S. Department of Education's Notice of Proposed Rulemaking regarding teacher preparation. The letter states that while the goals of the proposal are commendable, the regulation will not only fail to meet the intended goals, it will also "exacerbate existing challenges while undoing much of the progress made by states and institutions to improve program quality." To conclude, the letter respectfully requests that the Department withdraw the proposed "pending further study and analysis."
Settlement agreement reached between Ohio University (OU) and Isaac Smith in a case involving alleged violations of the First Amendment. Plaintiff Smith, a student at OU, sued various University officials in July 2014 after campus administrators ordered Smith and other members of the Students Defending Students (SDS) campus organization to stop wearing shirts bearing the slogan, "We get you off for free," on the grounds that it violated the University's Student Code of Conduct. The Code of Conduct prohibited any "act that degrades, demeans, or disgraces" another student as well as "taking any reckless, but not accidental, action from which mental or bodily harm could result to another person." As part of the settlement, OU has agreed to revise its policies and will pay $32,000 for Smith's damages and attorneys' fees.
Budget request for the fiscal year 2016 was released by President Barack Obama. The request calls for increasing federal spending on many higher education programs, a range of initiatives targeted at increasing overall college access, a bonus grant program to reward colleges that graduate large numbers of low-income students, and a scheduled increase in the Pell Grant maximum award from the current $5,775 to $5,915 for 2016-17. Because many of these proposals would require legislative action by a Republican-controlled Congress to be enacted, their future remains uncertain.
Legislation (S. 227) to amend and reauthorize the Education Sciences Reform Act of 2002 through fiscal year 2021 was approved by the Senate Committee on Health, Education, Labor, and Pensions. The Strengthening Education Through Research Act (SETRA) makes a number of changes to the Institute for Education Sciences, a semi-independent agency within the Department of Education that conducts and oversees education research, as well as changes to the National Assessment of Educational Progress (NAEP).
Letter from the Association of American Universities (AAU) and the Association of Public and Land-Grant Universities (APLU) to the Acting Director of the Office of Clinical Research and Bioethics Policy at the National Institutes of Health (NIH) Sarah Carr on the "Draft NIH Policy on the Use of a Single Institutional Review Board (IRB) for Multi-Site Research." The letter states that AAU and APLU support the movement towards the use of a single IRB for multi-site research studies in principle, but recommend that the NIH take into account potential unintended, negative consequences that may result from the new policy.
Discussion draft of legislation entitled the "21st Century Cures Initiative" was introduced in the House Energy and Commerce Committee by Chairman Fred Upton (R-MI). The discussion draft includes a number of smaller bills and proposals primarily related to the National Institutes of Health (NIH) and the Food and Drug Administration (FDA). The NIH proposals in particular are aimed at assisting young scientists, developing a strategic plan and examine regulatory burden, and supporting high risk, high reward research.
White paper entitled "Innovation for Healthier Americans" was released by Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) and Senator Richard Burr (R-NC). The paper outlines challenges faced by the National Institutes of Health (NIH) and the Food and Drug Administration (FDA) in the research, development, and regulation of new medical products and identifies ways to facilitate stakeholder engagement in these processes. Overall, the paper seeks to "identify and advance[e] specific steps to better align public policy to support medical innovation and patient access to new medicines and technologies."
Letter to the National Institute of Standards and Technology (NIST) on NIST Special Publication 800-171 on behalf of the Council on Governmental Relations (COGR) and the Association of American Universities (AAU). The letter expresses concern for the proliferation of federal
requirements relating to sensitive, unclassified information, particularly with regard to basic and applied research. The authors note that the requirements in NIST Special Publication 800-171 appear to contradict National Security Decision Directive 189 (NSDD-189), which states,
". . . to the maximum extent possible, the products of fundamental research remain unrestricted. . . ." To resolve this issue, the letter concludes with several recommendations that would help clarify the scope of Publication 800-171.
Order by the U.S. District Court for the Central District of Illinois granting the defendant's motion to dismiss. Plaintiff Jack Blank, a student at Knox College, was accused of sexual misconduct by two female students. After considering the information presented at a grievance hearing, including only a partial amount of the information offered by the plaintiff, the College determined that Blank's conduct violated its policy against sexual misconduct as to both complainants and suspended him for two terms. Blank filed suit alleging that the College had violated Title IX by denying a portion of relevant evidence and failing to consider all of the relevant evidence he presented during the hearing while giving full consideration to all evidence presented by or on behalf of the female complainants. The Court held that the plaintiff never actually stated that the sex of his accusers was the reason for the alleged bias, but that even if he had, the complaint would nonetheless be insufficient under federal pleading requirements because such a statement would be a mere conclusion and devoid of the requisite particular facts necessary to cast doubt on the outcome of the hearing.
Report published by the Carnegie Foundation for the Advancement of Teaching on the role of the Carnegie Unit—also known as the "credit hour"—in the changing world of higher education. The report acknowledges the difficulties that the credit hour can present to areas such as the allocation of financial aid, the development of curricula with alternative pacing, and innovations that make education more flexible and learning outcomes more transparent. However, the authors argue that despite its flaws, the credit hour remains the best option for maintaining a common language in education.
Payment and disbursement schedules for determining Federal Pell Grant awards for the 2015-2016 Award Year for full-time, three-quarter-time, half-time, and less-than-half-time students were released by the U.S. Department of Education. Under the Student Aid and Fiscal Responsibility Act (SAFRA), the Federal Pell Grant maximum award increases annually based on changes in the Consumer Price Index. The 2015-2016 maximum award is $5,775, reflecting an increase of $45 from the previous year's maximum.
Order by a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit reversing the district court's decision holding that Case Western Reserve University (CWRU) School of Medicine arbitrarily and capriciously denied Amir Al-Dabagh a diploma based on its determination that he lacked the professionalism required to discharge his duties responsibly. The Sixth Circuit concluded that a lack-of-professionalism finding amounts to an academic judgment for several reasons, including the fact that the CWRU student handbook—the governing contract—states repeatedly that professionalism is part of Case Western's academic curriculum, that professionalism has played a role in the field of medicine since ancient times, and that case law from various jurisdictions supports this conclusion. Since the University's lack of professionalism finding did not represent "such a substantial departure from accepted academic norms as to demonstrate that the . . . committee responsible did not actually exercise professional judgment," the Sixth Circuit held in favor of the University.
Press release announcing the results of the 2014 NACUBO-Commonfund Study of Endowments was issued by the National Association of College and University Business Officers (NACUBO). The final data gathered from 832 U.S. colleges and universities indicated that these institutions' endowments returned an average of 15.5 percent for the 2014 fiscal year, an increase of 3.8 percentage points from the 2013 fiscal year average. These rising return rates have enabled institutions to increase spending from their endowments to support student financial aid programs, faculty research, and other activities vital to their missions, according to survey respondents.
Dartmouth College released a plan entitiled "Moving Dartmouth Forward" that describes on their strategies to bring campus life to a "safe, sustainable place". The new policies implemented by the plan are based on recommendations from a Presidential Steering Committee that was formed in April 2014 to address the incidence of high-risk behavior and a lack of inclusivity on campus. Dartmouth's plan includes strategies to eradicate sexual assault on campus and to promote community awareness of sexual violence and gender-based harassment.
Legislation (S.B. 893; House companion bill H.B. 1722) introduced in the Virginia legislature by Senator J. Chapman Petersen (D-Fairfax) that would eliminate an existing public records law exemption for public college and university presidents was passed over by the Senate General Laws and Technology subcommittee. Currently, the state's Freedom of Information Act (FOIA) (Va. Code § 2.2-3705.7) exempts the working papers and correspondence of these presidents from public disclosure. Both H.B. 1722 and S.B. 893 would remove the language, "the president or other chief executive officer of any public institution of higher education in Virginia" from the list of exemptions. Lawmakers refrained from passing the bill because of an ongoing Freedom of Information Advisory Council study to examine all of the law's exemptions.
Draft template proposed by the Consumer Financial Protection Bureau (CFPB) for colleges and universities to use when issuing requests for proposals (RFPs) that include provision of financial accounts to students. The Safe Student Account Scorecard is intended to help institutions set parameters for student financial accounts sponsored by or otherwise connected to the institution and to compare offerings. The CFPB also published a Request for Information in the Federal Register to solicit comments on the draft template. Interested parties may submit responses to the questions posed in the Request by March 9.
Letter from the American Council on Education (ACE) and ten other higher education organizations to Representative Lloyd Doggett (D-TX) strongly endorsing the American Opportunity Tax Credit Act of 2015. Among other provisions, the Act would consolidate the AOTC and Lifetime Learning Credit into one simplified, permanent AOTC that would provide up to $2,500 per year in tax relief for students and their families. The letter applauds the bill for seeking to simplify the current higher education tax credit, which the authors characterize as overly complex and difficult for students and their families to use correctly.
Report released by the U.S. Department of Justice on campus law enforcement during the 2011-12 academic-year. The findings include statistics on the types of officers providing law enforcement services, the average number of full-time campus law enforcement employees per 1,000 students, and the prevalence of community policing activities. Data from the 2004-05 survey is included for comparative purposes.
Plan announced by Wisconsin Governor Scott Walker to reform the partnership between the state and the University of Wisconsin (UW) System. Under the plan, the UW System would receive a true Grantee Performance Report (GPR) block grant from the state with independent authority over spending and the resident undergraduate tuition freeze would continue for an additional two years. The plan is designed to grant the UW System greater independence and flexibility regarding decisions on employee matters, construction projects, and other issues.
Report released by the University of California, Berkeley on a study of the salaries of the institution's faculty. The data suggest that women and members of ethnic minority groups earn somewhat lower salaries on average than male non-minority faculty members. Although the study could not identify the causes for these salary differences, the report concludes with a number of recommendations designed to address them.
Announcement by Virginia Commonwealth University (VCU) that it will no longer will require applicants with a high school GPA of 3.3 or higher to submit SAT scores. VCU President Michael Rao stated that the decision was made based on studies showing that GPA has proven to be a better determinant of how well a student will do in college and that the SAT has racial and socio-economic biases.
Study released by United Educators (UE) on student sexual assault claims filed between 2011 and 2013 by the institutions it insures. The findings include statistics on the victims and perpetrators, responses by colleges and universities to sexual misconduct allegations, lawsuits filed against the institutions, and federal Title IX complaints filed against institutions.
Announcement released by the U.S. Department of Education's Office of Postsecondary Education stating that the new standards and procedures relating to adverse credit history, which were announced in a January 14, 2015 Federal Register notice, will apply to all PLUS Loan credit checks conducted on or after March 29, 2015. Furthermore, beginning on March 29, 2015, the Secretary of Education will implement the new regulatory provision requiring special loan counseling for any PLUS Loan applicant who has an adverse credit history but who qualifies for a PLUS Loan through the process for reconsideration due to extenuating circumstances or by obtaining an endorser for the loan.
Poll conducted by Christopher Newport University's Judy Ford Wason Center for Public Policy of registered voters in Virginia on a range of public policy issues, including issues surrounding sexual misconduct on campus. In response to the question of whether colleges and universities should be required to report allegations of sexual assault to local police or whether they should be allowed to handle such allegations as internal disciplinary matters, 90% of respondents chose the former option.
Illinois Public Act 098-0129—which gives schools, colleges, and universities access to the passwords of student social media accounts—went into effect on January 1, 2015. Under the new law, if a school or institution has reasonable cause to believe that the student's account contains evidence that a student has violated a disciplinary rule of policy, that school or institution can demand the student's social media password. This authorization applies even if the alleged violation is posted after school hours.
Information bulletin issued by California Attorney General Kamala D. Harris to all California state and local law enforcement agencies, campus police, security personnel and campus administrators. The bulletin provides a summary of new and amended California state laws regarding campus safety and sexual misconduct and highlights critical points of collaboration between law enforcement and campus authorities. The two laws summarized include AB 1433 (Reporting of Sexual and Hate Violence) and SB 967 (Affirmative Consent).
Same-Sex Marriage: Caspar v. Snyder
January 27, 2015
Order issued by the U.S. District Court for the Eastern District of Michigan preliminarily enjoining the defendant, Michigan Governor Richard Snyder, from refusing to recognize the marital status of the plaintiffs and all other same-sex couples who were lawfully married under Michigan law. Plaintiffs include eight same-sex couples who were married in Michigan during a brief window of time after a federal district court in the state declared that Michigan's refusal to authorize same-sex marriage was unconstitutional (DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014)). The U.S. Court of Appeals for the Sixth Circuit issued a stay on the decision the next day (DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014)). Following the Sixth Circuit's ruling, Governor Snyder announced that the state would not recognize the marital status of the same-sex couples who were issued marriage licenses while the district court's original ruling remained in effect. After determining that courts have been "unwavering in their disapproval of any attempt to deprive people of their marital status when that state's law authorized the marriage when solemnized," the District Court concluded that the continued legal validity of an individual's marital status is a fundamental right under the liberty interest protected by the Due Process Clause of the Fourteenth Amendment.
Same-Sex Marriage: Searcy v. Strange
January 27, 2015
Order by the U.S. District Court for the Southern District of Alabama granting the plaintiffs' motion for summary judgment and denying the defendant's cross motion for summary judgment. The case was filed by Cari Searcy and Kimberly McKeand, a same-sex couple legally married in California who petitioned the state of Alabama to allow Searcy to adopt McKeand's 8-year-old biological son under a provision of Alabama's adoption code that allows a person to adopt a spouse's child (ALA. CODE § 26-10A-27). Their petition was denied because Searcy did not qualify as a "spouse" for adoption purposes under Alabama law. Both the Alabama Sanctity of Marriage Amendment and the Alabama Marriage Protection Act (ALA. CODE § 30-1-19) provide that Alabama will not recognize same-sex marriages that occurred under the laws of any other jurisdiction. After concluding that the right to marry is fundamental, the Court applied strict scrutiny review and determined that the laws in question injured the children of same-sex couples both emotionally—by making it difficult for the children "to understand the integrity and closeness of their own family"—and financially—by denying their families "a panoply of benefits that the State and the federal government offer to families who are legally wed"—in a way that it did not harm children of opposite sex couples. It therefore held the challenged laws to be unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Sample memorandum of understanding (MOU) with law enforcement released by the White House Task Force to Protect Students from Sexual Assault. The sample MOU includes provisions concerning communication and coordination with law enforcement, sexual assault prevention measures, policies and procedures for responding to a reported sexual assault, and training coordination. The Task Force acknowledges that there is no "one-size-fits-all" approach and that the sample MOU is intended only as a guide.
Order by the U.S. District Court for the Northern District of Illinois granting plaintiffs' motion for preliminary injunction. Plaintiffs Wayne Lela and John McCartney, members of Heterosexuals Organized for a Moral Environment (HOME), filed suit against the Board of Trustees of Community College District No. 516, alleging that Waubonsee Community College (WCC) violated their First Amendment rights when it denied their request to hand out flyers on campus. Defendant claimed that the flyers, which promoted a message critical of homosexuality, posed a direct conflict to the College's mission "to uphold and adhere to the legal requirements for maintaining a non-discriminatory educational enforcement, free of unlawful hostility." While Judge Gettelman did not dispute that the views outlined in the flyers would promote policies that violate the college's anti-bias policies, the court found that the defendant unlawfully discriminated against the plaintiffs based on the content of their speech.
Announcement issued by the National Academy of Science's Committee on Science, Technology, and Law on a study of federal regulations and reporting requirements, specifically focusing on those directed at research universities. The Committee will develop a new framework for federal research regulations that addresses the needs of Congress, federal agencies, and the public while advancing the missions of research universities.
Letter from the American Academy of Universities (AAU), the Association of Public and Land-grant Universities (APLU), and over two hundred other organizations to U.S. House and Senate Judiciary Committee leaders expressing concerns about potential patent litigation legislation. The letter acknowledges that abusive patent litigation is a problem but contends that any legislation designed to address this behavior should not overreach in a way that weakens the overall patent system. The letter also describes several major judicial and administrative developments that have positively reshaped the patent landscape since Congress last considered the issue, and asks the Committee leaders to take these changes into account when drafting any legislation.
Alert from the Department of Homeland Security's Internet Crime Complaint Center (IC3) regarding multiple scams targeting universities, university employees, and students nationwide. The scams include attempts to get employees to divulge their personal payroll information and to steal student reimbursement money, including student loan funds. Victims of these scams are encouraged to file a complaint with the IC3 at http://www.ic3.gov and to notify the police at the relevant university.
Press release issued by the Association of American Universities (AAU) announcing that 29 public and private research universities will participate in its national sexual assault climate survey. The survey, which will be conducted this Spring, will document the frequency and characteristics of campus sexual assault and sexual harassment, in addition to assessing campus climate. Nearly all of the AAU universities that opted not to participate in the survey are either carrying out their own surveys or participating in state university system surveys.
Legislation (H.B.5034) introduced in the Rhode Island General Assembly that would require institutions of higher education to report allegations of sexual assault involving students or employees to law enforcement authorities. The bill, which was introduced by State Representative Mia Ackerman (D-Cumberland and Lincoln), does not preclude the institution from responding to or investigating the allegation itself for the purpose of imposing disciplinary action on the alleged perpetrator.
Letter from American Council on Education (ACE) President Molly Corbett Broad and thirteen higher education association leaders to the Senate sponsors of the Immigration Innovation Act of 2015 expressing strong support for the measure. The Act is designed to expand the ability of high-skilled workers to live and work in the United States by eliminating the H-1B cap for advanced-degree graduates, exempting advanced-degree STEM graduates from employment-based green card limits, and creating a visa fee to fund STEM education programs.
Amendments regarding transgender student participation were made to the policies and tournament materials for the National Intramural-Recreational Sports Association (NIRSA) Championship Series Events. Under the new language, NIRSA explicitly recognizes transgender tournament players and encourages these students to participate in intramural sports based on their expressed gender identity.
Results of a survey conducted by the National Association for College Admission Counseling (NACAC) regarding admissions officers' views of federal regulations under the Higher Education Act. NACAC surveyed 824 admissions officers at postsecondary institutions to gauge their awareness of federal regulations pertaining to enrollment management and to solicit feedback on the regulations' efficacy and importance to prospective students and their families.
Advisory opinions from October 31, 2014 and January 5, 2015 by Indiana Public Access Counselor Luke Britt in response to a complaint filed by ESPN alleging that the Notre Dame Security Police Department (NDSPD) violated Indiana's Access to Public Records Act (Ind. Code § 5-14-3-1 et. seq.). In September and November 2014, NDSPD denied ESPN access to incident reports relating to certain student athletes on the grounds that NDSPD is a private law enforcement agency and therefore is not subject to the Act. The Advisory Opinions, however, state that because Indiana law gives NDSPD the power to enforce the law, NDSPD is subject to open records laws. ESPN and its reporter, Paula Lavigne, filed suit against the University of Notre Dame on January 15, 2015.
Press release issued by the White House outlining President Barack Obama's "middle class economics" plan to provide working families with the support they need to thrive in the 21st century economy. Proposals that specifically affect the higher education community include making two years of community college free for responsible students, reducing the burden of student loan debt, extending tax credits for college, and partnering with businesses to create more on-the-job training opportunities.
Study published by coalition of five higher education groups (The American Council on Education (ACE), InsideTrack, NASPA: Student Affairs Administrators in Higher Education, and the University Professional and Continuing Education Association (UPCEA)) on graduation and retention rates of non-first-time students. The researchers found that non-first-time students are more likely to complete an associate degree and less likely to drop out if they combine full-time and part-time enrollment.
Report issued by the U.S. Department of Justice based on the 2011-12 Survey of Campus Law Enforcement Agencies, which includes Clery Act data from more than 900 U.S. four-year colleges and universities that enroll 2,500 or more students. According to the data, while violent crimes on college campuses decreased by 27 percent between 2005 and 2012, the number of sworn and armed police officers on campuses continues to rise.
Press release issued by the California Community Colleges Chancellor's Office announcing that the state's Community Colleges Board of Governors gave initial approval to fifteen colleges to develop bachelor's degree programs as part of a pilot program approved by the Legislature and Governor Jerry Brown. The programs selected will undergo additional review by the Chancellor's Office as well as further consultation before final approval is considered by the Board of Governors in March.
Comment request issued by the U.S. Department of Education on reaffirmation agreements. Reaffirmation is the agreement to repay the amount that a Title IV borrower received in excess of the maximum total amount allowed under the Higher Education Act according to the terms and conditions of the promissory note that the borrower signed. Interested parties are invited to submit comments, which are due by March 23, 2015.
Final regulations published in the Federal Register by the U.S. Department of Education to amend the Education Department General Administrative Regulations (EDGAR). The final regulations include amendments to certain definitions, technical edits to regulations to improve their clarity and consistency, and the addition of a provision that allows the Secretary of Education to give special consideration to projects supported by evidence of promise.
Legislation (H.B. 1471) introduced in the North Dakota Legislative Assembly to protect the First Amendment rights of student journalists. The bill, entitled the "John Wall New Voices Act," would prevent administrators at public and private colleges from invoking the Hazelwood School District v. Kuhlmeier precedent to justify censorship of school-sponsored media. In Hazelwood School District v. Kuhlmeier, the U.S. Supreme Court held that student newspapers not designated as public forums have lesser First Amendment protections than other forms of student expression.
Legislation (H.B. 1343) introduced in the Virginia General Assembly that would require police departments at Virginia public universities to report incidents of sexual assault to the local Commonwealth attorney. The bill, which is sponsored by Delegates Eileen Filler-Corn and David Albo, would require the departments to report incidents within 48 hours of receiving the report.
Proposal announced by New York Governor Andrew Cuomo entitled the "Get On Your Feet Loan Forgiveness Program." Under the proposal, New York State would cover the difference between what the federal government covers under the Pay As You Earn (PAYE) program and the individual student's total loan payment. In order to qualify, a student must attend college in New York and continue to live in the state following graduation; participate in the federal PAYE program; and earn less than $50,000 annually.
Legislation introduced in the U.S. Senate by Senators Orrin Hatch (R-UT), Amy Klobuchar (D-MN), Marco Rubio (R-FL), Chris Coons (D-DE), Jeff Flake (R-AZ), and Richard Blumenthal (D-CT) entitled the "Immigration Innovation Act of 2015." Among other provisions, the Act would uncap the existing U.S. advanced degree exemption for H-1B visas; allow dual intent for foreign students at U.S. colleges and universities; exempt U.S. STEM advanced degree holders, outstanding professors, and researchers from the employment-based green card cap; and reform fees on H-1B visas and employment-based green cards.
Press release issued by Duke University announcing that it has decided to reverse its previously-announced plan to present a traditional Muslim call-to-prayer from the bell tower of the Duke Chapel. In defending the decision, Vice President for Public Affairs and Government Relations Michael Schoenfeld acknowledged that the policy was not having the intended effect of unifying the campus. However, he also reiterated Duke's commitment to "fostering an inclusive, tolerant and welcoming campus for all of its students" and welcomed the continued expression of faith by Duke's Muslim community.
Statement issued by the University of Illinois Board of Trustees regarding its decision to rescind its offer of a faculty position to Stephen Salaita after he posted controversial remarks on the Israeli-Palestinian conflict on his Twitter account. The Board stated that its 8-1 vote not to approve Dr. Salaita's appointment was final, contrary to what some may have concluded due to a December report issued by the Committee on Academic Freedom and Tenure recommending that the Board reconsider its position.
Letter from the Accrediting Commission for Community and Junior Colleges (ACCJC) to the City College of San Francisco (CCSF) granting the College a two-year restoration of its accreditation status. The Commission found that while CCSF was noncompliant with several accreditation standards, it had demonstrated the ability to meet them during the restoration period. CCSF will be required to submit an Institutional Self Evaluation Report by October 15, 2016, demonstrating that it has come into compliance with all eligibility requirements and accreditation standards.
Report on an investigation by the University of Massachusetts (UMass) Chancellor's Working Group of the UMass Amherst Police Department's confidential informant program, which used students as informants in drug investigations. UMass convened the working group after a student informant died of a heroin overdose in October 2013. In light of the report's conclusions that the program was too secretive and may have harmed students who participated, Chancellor Kumble R. Subbaswamy has decided to end the program.
Order by the U.S. District Court for the Northern District of Illinois denying defendants' motion to dismiss. Plaintiffs Phillip Beverly and Robert Bionaz, two professors at Chicago State University (CSU), filed suit against CSU's president and other officials alleging that the defendants violated their First Amendment rights by trying to shut down their blog and adopting a cyberbullying policy that prohibits electronic communications that may have an "adverse impact on the work environment of a CSU faculty member or employee." The defendants moved to dismiss for lack of jurisdiction, claiming that they never enforced the policy against the plaintiffs. The Court denied the motion, holding that the plaintiffs sufficiently alleged a concrete, particularized, and imminent injury, as well as the existence of an actual dispute, by citing a cease and desist letter from the defendants demanding that they shut down the blog on the grounds that "the lack of civility and professionalism expressed on the blog violates the University's values and policies requiring civility and professionalism."
Press release issued by the U.S. Department of Education announcing that it has granted nearly $570,000 to the University of California Santa Barbara (UCSB) to assist with the funding of mental health services following the May 2014 shooting near campus. The immediate services grant, which is being made through the Department's Project School Emergency Response to Violence (SERV) program, will expand the campus' existing mental health staff to help meet the increased demand for services in light of the attack.
Announcement issued by the U.S. Department of Education regarding the date for early implementation of the William D. Ford Federal Direct Loan Program regulations that update the standard for determining if a potential parent or student borrower has an adverse credit history for purposes of eligibility for a loan. The Department issued these final regulations in 34 CFR part 685 for the PLUS Loan Program in October 2014. The early implementation date is March 29, 2015.
Freedom of Speech and Retaliation: Barnes v. Zaccari
January 14, 2015
Order by the U.S. Court of Appeals for the Eleventh Circuit vacating and remanding the district court's grant of summary judgment to defendant Ronald Zaccari. During the spring of 2007, former Valdosta State University (VSU) President Ronald Zaccari expelled Thomas Hayden Barnes, a student at VSU, for protesting Zaccari's plan to construct two parking garages on campus by posting a collage on his personal Facebook page. After calling the collage a "threatening document" and labeling Barnes a "clear and present danger" to VSU, Zaccari expelled Barnes without a hearing. Barnes sued Zaccari and other VSU administrators in 2008, and the district court granted summary judgment in favor of the defendants on the claim of retaliation for exercising his right to free speech under the First Amendment. The Eleventh Circuit disagreed, holding that the district court erred in reading the complaint too narrowly in ruling that there was no "stand-alone" or individual retaliation claim against Zaccari and that Barnes' complaint contained several factual allegations to support the claim.
Employment Discrimination: Brown v. Sessoms
January 14, 2015
Order by the U.S. Court of Appeals for the D.C. Circuit reversing in part, remanding in part, and affirming in part the district court's ruling dismissing the plaintiff's complaint. Plaintiff Stephanie Brown, a black female and former law professor at the University of the District of Columbia School of Law (UDC), was denied tenure because she had only written two published articles rather than the three necessary under UDC's tenure requirements. The D.C. Circuit found that Brown presented evidence showing that a white male applicant with equivalent qualifications was granted a tenured position despite only having published one article. It thus held that Brown and the white male applicant who was granted tenure were similarly situated and therefore that Brown's discrimination case should be reinstated.
Press release issued by the White House announcing that the U.S. Department of Energy will give $25 million in grants over the next five years to support a cybersecurity education consortium consisting of thirteen Historically Black Colleges and Universities (HBCUs) and two national labs. The program will help to fill the growing demand for skilled cybersecurity professionals in the American job market in addition to expanding the science, technology, engineering, and mathematics (STEM) curricula at HBCUs.
Corporate filing by Corinthian Colleges, a for-profit higher education chain, stating that the proposed sale of fifty-six of its campuses to student loan guarantor ECMC Group, Inc., will be postponed until February 2, 2015. The filing states that while Corinthian and ECMC have made "substantial progress towards the satisfaction of the closing conditions," they were unable to satisfy all these conditions in time to conduct an initial closing on January 12, 2015, as the parties had previously agreed.
Settlement agreement reached between the United States and Quinnipiac University based on a complaint filed with the United States Attorney's Office in Connecticut alleging that Quinnipiac discriminated against a student with a disability in violation of the Americans with Disabilities Act (ADA). Specifically, the complainant alleged that Quinnipiac failed to make necessary reasonable modifications to its policies, practices, and procedures when it placed the student on a mandatory medical leave of absence because of the student's depression without first considering options for the student's continued enrollment. Under the terms of the settlement, Quinnipiac agreed to pay off the former student's tuition loan and to issue her a payment for emotional distress, pain and suffering.
Legislation entitled the "Campus Free Expression Act" (CAFE Act) was introduced in both the Senate (S.B. 93) and the House (H.B. 408 and H.B. 436) of the Missouri state legislature. The Act would deem outdoor areas of campuses at public colleges and universities to be "traditional public forums." Institutions would be allowed maintain and enforce reasonable time, place, and manner restrictions within these forums to serve compelling institutional interests "only when such restrictions employ clear, published, content, and viewpoint-neutral criteria, and provide for ample alternative means of expression."
Arbitrator's decision and award ordering the University of Hawaii to rehire longtime adjunct professor, Dr. Monique Mironesco, to a tenure-track position. Dr. Mironesco served as an adjunct lecturer at the University of Hawaii-West Oahu (UHWO) on a temporary contract that was renewed each year from 2002 until 2014, when UHWO converted her position into a tenure-track one and announced it would conduct a national search to fill the slot instead of rehiring Dr. Mironesco. The University of Hawaii system's faculty union filed a grievance on behalf of Dr. Mironesco based on a provision in the faculty contract stating that adjuncts should be converted to tenure-track faculty if the University creates a tenure-track position in a field "where evidence of continued need has been demonstrated by consistent funding of the [adjunct] position for seven consecutive years that includes at least 75 percent state general funding." The arbitrator ruled that under these circumstances, the contract dictated that "open recruitment was not needed," and for this reason, Mironesco was entitled to a position on the tenure track.
Dear Colleague Letter issued by the U.S. Department of Education providing guidance to institutions that contract with third-party servicers to administer any aspect of the institution's participation in Title IV student assistance programs. Title IV of the Higher Education Act and related regulations require these institutions to report the names of any individual or entity that performs for, or on behalf of, the institution any of the listed Title IV functions. However, the Department has determined that a significant number of institutions have failed to report or update this information, or have reported incorrect information, due to confusion relating to which entities should be reported as third-party servicers. The Letter seeks to address this confusion.
Draft discussion guide on measuring college outcomes was published by the American Association of Community Colleges (AACC), the Association of Public and Land-grant Universities (APLU), and the American Association of State Colleges and Universities (AASCU). The guide contains a strategic framework designed to enable colleges and universities, policymakers, and the public to discuss and create measurement tools for reporting student outcomes after college.
Legislation (S.B. 2150) was introduced in the North Dakota legislature that would grant students enrolled in public colleges and universities the right to be represented by an attorney during suspension or expulsion hearings. However, the bill includes an exception to this right if the allegation involves academic dishonesty. The bill would also provide a similar right to student organizations.
Proposal announced by President Barack Obama that would allow students enrolled in community college to earn the first half of a bachelor's degree or the technical skills needed in the workforce at no cost. To be eligible, a student must attend community college at least half-time, maintain at least a 2.5 GPA, and make steady progress toward completing his or her program. Federal funding would cover three-quarters of the average cost while participating states would be expected to contribute the remaining funds.
Legislation introduced in the U.S. Senate by Senator Lamar Alexander (R-TN) that would reduce the length of the application for federal student aid and consolidate federal grant and loan programs. The purpose of the bill is to provide greater access to postsecondary education for students and families and to give information that will allow students and families to make better consumer choices. Senator Alexander hopes to bring the bill to the Senate floor by the end of this spring.
Legislation introduced in the U.S. Senate by Senators Angus King (I-ME) and Richard Burr (R-NC) that would direct the Secretary of Education to streamline federal student loan repayment plans for new borrowers. The bill would also implement limits on the amount of loan forgiveness that high-debt borrowers can receive.
New fraternal organization agreement regarding the safety practices of campus fraternity and sorority councils was adopted by the University of Virginia. The new policies and regulations focus on reducing "high-risk drinking," increasing oversight of fraternity and sorority activities, and providing resources to students to combat the risks of these activities.
Publication containing the quarterly special allowance rates for the federal Family Education Loan Program was released by the U.S. Department of Education. Under section 438(b)(2)(I)(i)(I) of the Higher Education Act (HEA), the Department is required to determine these rates, which consist of "the average of the bond equivalent rates of the quotes of the 3-month commercial paper (financial) rates in effect for each of the days in such quarter as reported by the Federal Reserve in Publication H-15 (or its successor) for such 3-month period." For the quarter ending December 31, 2014, the average rate used to compute special allowance will be 0.14 percent.
Policy statement on campus free speech was released by the Committee on Freedom of Expression at the University of Chicago. The statement declares that the University "is committed to free and open inquiry in all matters," and that because of this commitment, it "guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn." The policy states further that, "it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive."
Decision from the Eleventh Circuit Court of Appeals denying both parties' petitions for rehearing en banc, thereby upholding the panel's unanimous October 2014 ruling finding that the lower court's analysis of fair use was erroneous and reversing the district court's ruling in favor of defendants at Georgia State University and the University System of Georgia.
Order issued by the U.S. District Court for the Southern District of Iowa denying defendants' motion to dismiss. The case arose when officials at Iowa State University (ISU) withdrew the ISU Trademark Office's approval of a t-shirt design submitted by the ISU chapter of the National Organization for the Reform of Marijuana Laws (NORML) that expressed support for legalizing marijuana after state officials and members of the public complained about the t-shirt's message. ISU later adopted new trademark regulations to prohibit messages by student groups promoting "dangerous, illegal, or unhealthy" products or actions and rejected two additional NORML's t-shirt designs. Plaintiffs, two student leaders of NORML, alleged that these actions violated clearly established constitutional rights of which reasonable administrators and staff should have known. The Court found that the restrictions on speech were viewpoint-based and that the plaintiffs' speech was private speech, as opposed to government speech, because case law suggests that speech by collegiate student organizations is not government speech. Based on these conclusions, the Court held that the complaint sufficiently alleged facts indicating that a reasonable college administrator would know that restricting students' speech based on viewpoint is a constitutional violation.
Pilot program that will help cover the expenses of student basketball players' family members who travel to the men's and women's Final Four games this spring was announced by the National Collegiate Athletic Association (NCAA). For men's and women's Final Four teams, the NCAA will pay up to $3,000 total for travel, hotel and meal expenses for student-athletes' families to attend games, while championship game participants will receive $4,000.
Press release issued by the U.S. Department of Justice announcing that a settlement was reached between the Department and Kaplan Higher Education, a nonprofit education company that runs colleges in Texas. The Department began investigating Kaplan after a whistleblower suit alleged that Kaplan knowingly requested, received, and retained federal tuition funds for courses taught by individuals who did not meet the minimum requirements established by Texas law. Under the settlement terms, Kaplan will pay $1,329,753.25 to resolve the whistleblower claims, the majority of which will be paid in the form of tuition refunds.
Order by the U.S. District Court for the Middle District of Pennsylvania granting defendant Bucknell University's motion for summary judgment. The case arose from a sexual assault allegation by Kelly Stefanowicz against plaintiff Reed Dempsey, both of whom were students at Bucknell. Bucknell held a student conduct hearing in which both students were found guilty of disorderly conduct. Dempsey filed suit against the University as well as various Bucknell officials and employees alleging a total of fourteen claims, including false arrest, malicious prosecution, supervisory liability, and breach of contract, among others. The Court held that because Dempsey's claims of false arrest and malicious prosecution failed as a matter of law, there was no violation of his constitutional rights and thus no supervisory liability under Section 1983 on the part of the defendants. Furthermore, the Court granted summary judgment to Bucknell on the plaintiff's breach of contract claim because Dempsey, having been found not guilty of the sexual assault allegation, did not present any evidence of damages resulting from Bucknell's refusal to provide him with certain documents related to the conduct hearing.
Comments from the American Council on Education and twenty-two other higher education associations in repsonse to the Office of Management and Budget's (OMB) Information Collection Request published in 79 FR 71819. The associations express concern that OMB's estimates of approximately $42 million as the likely financial burden of the proposed regulations for teacher preparation programs are "unrealistically low" based on existing data on the costs of developing systems capable of meeting the new requirements. The letter requests that OMB use a third party to verify the Derpartment of Education's estimates prepared for the proposed regulations.