Cases and Documents
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higher education cases reported by West
Plan to alter and expand federal job-training programs released by Vice President Joe Biden. During his 2014 State of the Union Address, President Barack Obama announced that he had assigned the Vice President to lead the effort to review the nation's worker programs and design a plan based on these findings. The plan will require grant applicants to follow a "job-driven checklist" consisting of seven elements, including increased collaboration with employers, more on-the-job training, and improved tracking of employment outcomes.
New Experimental Sites Initiative announced by the U.S. Department of Education. The initiative will allow institutions to apply for limited waivers that will give them flexibility over a portion of their federal student aid. This flexibility will enable institutions to implement experiments designed to provide "better, faster and more flexible paths to academic and career success." Applications for the waivers will be due in late September.
Letter from Senators Mark Udall (D-CO) and Claire McCaskill (D-MO) to Secretary of Education Arne Duncan regarding access to information on sexual assault nurse examiners ("forensic nurses"). Specifically, the Senators request that the Department of Education, as part of its implementation of the Campus SaVE Act, require institutions to provide written notification to students and campus personnel of the availability of forensic nurses on campus and the surrounding community.
Press release issued by the Accrediting Commission for Community and Junior Colleges, Western Association of Schools and Colleges (ACCJC) announcing that it will not reconsider its decision to revoke the City College of San Francisco's (CCSF) accreditation after an independent appeals panel ordered ACCJC to review the College's compliance with accreditation standards. Upon review of testimony and documentary evidence describing CCSF's progress toward compliance, the Commission concluded that CCSF did not establish that it met ACCJC's accreditation standards as of May 21, 2014. The College may now move to the third administrative process by applying for restoration status, which would grant CCSF two additional years to come into compliance with these standards.
Memorandum opinion issued by the U.S. District Court for the Middle District of Pennsylvania refusing the plaintiffs' motion to use fictitious names while proceeding with a Fourth Amendment lawsuit against Bucknell University. The plaintiffs, six former Bucknell students, wanted to remain anonymous because the suit would result in public revelation of their possession of marijuana and drug paraphernalia. The Court held that the only harm the plaintiffs identified—the embarrassment caused by public disclosure of their possession of contraband and possible denial of future employment—did not qualify as an exception to the strong presumption of openness in the federal court.
Order by the Iowa Supreme Court affirming a district court's award of intentional infliction of emotional distress damages and reputational-harm damages to former marketing specialist Dennis Smith, but reversing its award of damages to the plaintiff under the state's whistleblower law. Smith sued the Iowa State University of Science and Technology (ISU) and the state of Iowa for intentional infliction of emotional distress and retaliation by his superiors, including his former boss, whom Smith alleged had engaged in unlawful activity. The state Supreme Court concluded that Smith's superiors had "engaged in unremitting psychological warfare against Smith over a substantial period of time." It thus affirmed the jury verdicts of liability and award of damages to the plaintiff for intentional infliction of emotional distress and also upheld district court's award of reputational-harm damages to the plaintiff after finding that the state failed to preserve error with respect to the challenge to that award it is now pursuing on appeal. However, the Court agreed with the state that Smith's loss of his job in a downsizing that occurred in 2010 could not be causally linked to any reporting he made to ISU's president three years earlier and therefore vacated $634,027.04 of Smith's whistleblower damages.
S. 2244 was passed by the Senate and would renew the Terrorism Risk Insurance Act for an additional seven years. The original Act, implemented in 2002, established a public-private risk sharing mechanism to pay the federal share of compensation for insured losses resulting from terrorist acts, thereby helping ensure that colleges and universities can purchase adequate and affordable insurance coverage to protect against losses resulting from a terrorist attack.
Policy brief published by the American Association of State Colleges and Universities (AASCU) regarding the proposed "Pay it Forward, Pay it Back" solution to the problem of financing student tuition. This method would eliminate up-front tuition and fee payments at public institutions in exchange for students agreeing to pay the institution a pre-determined, fixed portion of their annual earnings after graduation. The AASCU brief argues that Pay it Forward would ultimately harm colleges, students, and taxpayers because it fails to address the underlying factors associated with high levels of student debt, would create substantial financial uncertainty for public institutions, and would make college more expensive for most graduates.
Corporate filing by DeVry University in which the University discloses that it is under investigation by New York's attorney general for possible "false advertising and deceptive practices" in its television ads and website marketing. A letter from the state's Office of the Attorney General requested relevant information from January 1, 2011, to the present that would allow the Office to determine whether any legal action against the University is warranted. DeVry stated that it intends to fully cooperate with the investigation.
Bill to appropriate funds to the Department of Defense for the fiscal year of 2015 (H.R. 4870) was approved by the Senate Appropriations Committee. The measure would increase the budget for basic research programs to $2.27 billion, an increase of five percent from the fiscal year 2014 budget. However, it would also cut overall appropriations for Defense research, development, testing & evaluation by $428 million; and cut Defense science and technology funding by $146 million.
Bill entitled the "America Gives More Act of 2014" (H.R. 4719) was approved by the House of Representatives. The legislation contains a package of five charitable giving tax provisions, including a permanent extension of the IRA Charitable Rollover.
Letter from the American Council on Education (ACE) on behalf of itself and nine other higher education organizations expressing concern over the Student and Family Tax Simplification Act (H.R. 3393). The authors approve of the proposed consolidation and simplification of current higher education tax credits as well as the improved coordination with the Pell Grant. However, they add that they cannot support the bill as currently written because other proposed changes would harm many low- and middle-income students who benefit from the existing law as well as graduate students and lifetime learners who use the current tax deduction or the Lifetime Learning Credit.
Settlement reached in a suit filed against the University of Connecticut (UConn) by five current and former students alleging that the University violated Title IX. The settlement was announced in a joint statement released by UConn and the plaintiffs. Under the settlement terms, UConn has agreed to pay the plaintiffs $1.225 million, which includes damages and attorneys' fees that the plaintiffs claimed or could have claimed in the lawsuit. In addition to withdrawing their federal suit, various plaintiffs agreed to withdraw their complaints filed with the U.S. Department of Education's Office of Civil Rights and the EEOC. The settlement does not constitute an admission of guilty by the University.
Comments released by eleven higher education groups and libraries regarding the Federal Communications Commission's (FCC) notice of proposed rulemaking on net neutrality. The groups criticize the proposal, which would creating a "fast lane" for online traffic for vendors willing to pay for access, arguing that it "fall[s] short of what is necessary to ensure that libraries, institutions of higher education and the public at large will have access to an open Internet." They suggest that the FCC instead design open Internet rules to promote research, learning, education, and the free flow of information by ensuring that the rules cover institutions that serve the public interest by prohibiting paid prioritization, exempting private networks and end users from open Internet rules, and making the rules technology-neutral.
Press release issued by the U.S. Department of Education indicating that it has assigned Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates, under the leadership of former U.S. Attorney Patrick Fitzgerald, to monitor the closure and sale of Corinthian College. On July 3, the Department and Corinthian entered into an operating agreement requiring that an independent monitor oversee the process. Mr. Fitzgerald and his firm are tasked with the role of confirming that Corinthian provides the Department with an accurate accounting of its operations "to ensure students are protected" and to "protect the integrity of taxpayers' investment."
Order by the Wisconsin Supreme Court reversing the appeals court ruling in favor of the defendant and former University of Wisconsin System (UW) student, Jeff Decker. The case arose after Decker repeatedly disrupted campus meetings, trespassed on UW property, and attempted to purchase a gun after police tried to serve him with a temporary restraining order, in an effort to protest UW's use of student funds. The state Supreme Court held that Wis. Stat. § 813.125 can extend injunctive protection to institutions and that the circuit court's decision to grant a harassment injunction against Decker was a proper exercise of its discretion. After concluding that sufficient evidence existed for the circuit court to find that Decker's conduct constituted harassment and lacked a legitimate purpose, the Court reversed the court of appeals' decision to overturn the injunction and remanded the case to the circuit court to clarify and refine the terms of the injunction because the parties agreed that it was overbroad.
Letter from the New England Association of Schools and Colleges' (NEASC) Commission on Institutions of Higher Education to the president of Gordon College regarding concerns that the school's accreditation is in jeopardy due to its recent request for an exemption from federal antidiscrimination requirements. The letter states that the planned discussion of Gordon's policies at the Commission's September meeting is "common practice" when controversies over policies covered by accreditation standards gain prominent media attention. It also assures the president that Gordon has no chance of having its accreditation withdrawn or of being placed on probation as a result of the discussion.
Bill to amend the state university exemption to public records laws in Delaware's Freedom of Information Act (FOIA) was signed into law by Governor Jack Markell. Although the law largely preserves public records and open meetings exemptions for the University of Delaware and Delaware State University, it requires the two universities to produce records of proposals or contracts "relat[ing] to the expenditure of public funds."
Order by the U.S. District Court for the Eastern District of Pennsylvania granting defendant Temple University's motion for summary judgment. The case arose when Mable Jones, an African-American woman and former physician at the Temple University Hospital, sued the University alleging that it had discriminated against her because of her race and sex when she was not promoted and ultimately terminated from her employment. The Court found that Temple put forth legitimate, non-discriminatory reasons for its decision to hire a highly-experienced radiologist and administrator as Chief of the Radiology Department instead of the plaintiff; and that the plaintiff failed to identify a similarly-situated, non-African-American or male employee who was retained despite the University's reduction in force in light of budget issues. Because Jones did not set forth evidence that would enable a jury to reasonably find in her favor, the Court granted the defendant's motion for summary judgment.
Latest version of the Department of Defense's Voluntary Education Partnership Memorandum of Understanding (MOU), which has been updated to incorporate a minor technical change from a version released on May 15. Institutions participating in the program now have until September 5 to sign the MOU—even if they have already signed the previous version—to ensure that service members on their campuses continue to receive tuition support.
Questions & Answers published by the American Council on Education (ACE) and the National Association of College and University Business Officers (NACUBO) on the latest version of the Department of Defense's Memorandum of Understanding (MOU) regarding its tuition assistance program. Colleges and universities are now required to sign the revised MOU by September 5 if they wish to participate in the program.
Order by a three-judge panel of the Fifth Circuit Court of Appeals affirming the district court's grant of summary judgment to the defendant University of Texas at Austin (UT). UT denied admission to Abigail Fisher, a Texas resident who did not qualify for automatic admission under the state's Top Ten Percent Plan and was instead considered under the holistic review program. Fisher sued the University, arguing that the facially-neutral Top Ten Percent Plan—which guarantees Texas residents graduating in the top ten percent of their high school class admission to any public university in Texas—is sufficient to enable the University to attain the educational benefits of diversity, and that the holistic review process—which takes into account many factors, including an applicant's achievements, extracurricular activities, work experiences, socioeconomic status, and race, among others—violates the Equal Protection Clause of the Fourteenth Amendment. After the district court and the Fifth Circuit ruled in favor of UT, the U.S. Supreme Court held that the lower courts reviewed UT's admissions programs with undue deference, and thus vacated the decision and remanded to the Fifth Circuit with orders to examine UT's efforts to achieve diversity using strict scrutiny. A majority of the Fifth Circuit panel concluded that UT "has demonstrated that race-conscious holistic review is necessary to make the Top Ten Percent Plan workable by patching the holes that a mechanical admissions program leaves in its ability to achieve the rich diversity that contributes to its academic mission." Further, the court ruled that, "We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter."
Dear Colleague Letter released by the Department of Education on complying with the Clery Act (20 U.S.C. 1092(f)). In response to numerous inquiries the Department received asking for clarification on Clery Act compliance, the letter states that until the Department's final rules are published and take effect, higher education institutions "must make a good-faith effort to comply with the statutory provisions as written." Examples of such good-faith efforts include revising policy statements to include investigation procedures, evidence standards, and the options available to victims in changing their academic, transportation, and living situations in the aftermath of an alleged sexual assault.
Bill introduced by Representatives David Price (D-NC) and Tom Petri (D-WI) that would require public and private institutions, athletic conferences, and the National Collegiate Athletic Association (NCAA) to provide the federal government with detailed revenue and expenditure data on an annual basis, which would then be released to the public.
Corporate filing issued by the Apollo Education Group, parent company of the University of Phoenix, announcing that the U.S. Department of Education will conduct an "ordinary course program review" of the University's financial-aid administration under Title IV, as well as its compliance with the Clery Act (20 U.S.C. § 1092(f)), the Drug-Free Schools and Communities Act (20 U.S.C. § 1011i), and related regulations. The review is scheduled to begin on August 4, 2014 and will cover the financial aid years of 2012-2013 and 2013-2014.
Testimony submitted by the American Council on Education (ACE) on behalf of itself and nine other higher-education organizations to the Senate Committee on Finance regarding the Committee's Hearing on Higher Education and the Tax Code. In its testimony, ACE expresses approval of the "three-legged stool" framework within the current tax code that furthers three important goals: encouraging people to save for higher education, helping students and families pay for college, and assisting borrowers in repaying their student loans. ACE also reiterates its support for legislative efforts to consolidate and simplify tax incentives in order to increase their effectiveness and enhance access to higher education.
Joint media statement released by the University of California at Los Angeles (UCLA) and David S. Cunningham, an African-American judge who filed suit against the University alleging that he had been the victim of racial profiling and mistreatment during a traffic stop by campus police. UCLA agreed to pay Judge Cunningham $150,000 in legal fees, to create a $350,000 scholarship fund in the Judge's name, and to increase diversity training for its police force to settle the complaint.
The Energy and Water Development and Related Agencies Appropriations bill for the fiscal year of 2015 was approved by the U.S. House of Representatives. The measure would provide the Department of Energy (DOE) Office of Science with $5.071 billion. Although this total is equivalent to the Office's fiscal year 2014 funding, the bill changes the amount appropriated to specific programs within that total.
Bill to fund the Department of the Interior, environment, and related agencies for the fiscal year of 2015 was approved by the House Interior-Related Agencies Appropriations Subcommittee. The bill would cut $8 million in funding of the National Endowment for the Humanities (NEH), from $146 million during the fiscal year of 2014 to $138 million in 2015.
Letter submitted to the House Science, Space, and Technology Committee by the Association of American Universities (AAU) and the Association of Public and Land-Grant Universities (APLU) on legislation to reauthorize basic and applied research programs in the Department of Energy (DOE). The letter commends the proposed increase in authorized funding for the DOE Office of Science as well as the exemption granted to universities and nonprofit organizations from the existing 20 percent matching requirement for conducting DOE applied research and development. However, it expresses "strong concern" regarding cuts to funding for the Biological and Environment Research program in the Office of Science, the Advanced Research Projects Agency for Energy (ARPA-E), and the Energy Efficiency and Renewable Energy (EERE) research program.
Package of three bills to reauthorize the Higher Education Act was approved by the House Education and the Workforce Committee. The bills include the Strengthening Transparency in Higher Education Act (H.R. 4983), the Advancing Competency-Based Education Demonstration Project Act (H.R. 3136), and the Empowering Students through Enhanced Financial Counseling Act (H.R. 4984). The proposals are intended to support innovation, strengthen transparency, and enhance financial counseling in the nation's higher education system.
Settlement reached in a lawsuit between the University of Michigan at Ann Arbor (UM) and the Young Americans for Liberty. The lawsuit arose when UM's student government denied the group funding for a speech by Jennifer Gratz on the grounds that the speech was political. Gratz played a lead role in the 2003 case Gratz v. Bollinger, in which the Supreme Court held UM's affirmative-action admissions policy unconstitutional. As part of the settlement, the University agreed to pay $5,000 to Young Americans for Liberty's UM chapter and $9,000 in legal fees to the Alliance Defending Freedom.
Report released by the American Association of State Colleges and Universities (AASCU) on the projected state higher education spending for the fiscal year of 2015. The report projects a 3.6 percent increase in higher-education appropriations collectively, which is less than the 5.7 percent increase for the fiscal year of 2014. Of the 49 states that have passed a 2015 budget, 43 increased higher education funding for the new fiscal year while the rest cut funding.
Letter to the House Energy & Commerce Subcommittee on Commerce, Manufacturing, and Trade from four higher education organizations (AAU, ACE, APLU, and COGR) expressing support for the July 7 draft of the Targeting Rogue and Opaque Letters (TROL) Act of 2014. While acknowledging that some modest improvements could be made to the draft, the letter commends the Subcommittee members for their effort to combat abusive demand letters while maintaining the integrity of legitimate patent enforcement activity.
Dear Colleague Letter announcing the two sets of designated nonprofit entities that are eligible to receive FAFSA Filing Status Information from state grant agencies under the new FAFSA Completion Initiative. The two categories of entities include the Talent Search, Upward Bound, and Student Support Services programs (the TRIO programs) and the Gaining Early Awareness and Readiness for Undergraduate Programs (GEAR-UP).
Statement issued by eleven libraries and organizations involved in higher education setting forth a list of principles for the Federal Communications Commission (FCC) to bear in mind as it reconsiders its net neutrality policies. The principles seek to protect the openness of the Internet, thereby ensuring equitable access and preserving the nation's social, cultural, educational, and economic well-being.
Bill designed to streamline the nation's workforce development system and to establish a standard set of outcome measures for evaluating all federal job training programs, was approved by the Senate by a vote of 95-3 last month and passed the U.S. House of Representatives. President Obama is expected to sign the bill into law.
Letter submitted by the American Council on Education (ACE) to the House Education and the Workforce Committee regarding a set of three bills to reauthorize the Higher Education Act. The bills include the Advancing Competency-Based Education Demonstration Project Act (H.R. 3136), the Strengthening Transparency in Higher Education Act (H.R. 4983), and the Empowering Students Through Enhanced Financial Counseling Act (H.R. 4984). Although ACE states that it has some concerns with several aspects of the bills, it calls the package a "welcome step towards reauthorization of the Higher Education Act" and states that many of its members support the overall measures contained in the bills.
Press release announcing that the Illinois Educational Labor Relations Board (IELRB) has approved efforts by non-tenure-track faculty members at the University of Illinois at Urbana-Champaign (UIUC) to form a union. A majority of non-tenure track faculty members at UIUC submitted signed union authorization cards to demonstrate their interest in union representation in May. The Campus Faculty Association (CFA), the Illinois Federation of Teachers (IFT), the American Federation of Teachers (AFT), and the American Association of University Professors (AAUP) led the union organizing drive.
The American Association of Medical Colleges (AAMC) recently revised its Uniform Clinical Training Affiliation Agreement. The Agreement is designed to spell out roles and responsibilities between a medical education program and its clinical affiliates and provide a consistent framework for managing an increasing number of students participating in clinical training. The Liaison Committee on Medical Education has endorsed the Affiliation Agreement as meeting its accreditation standards.
Report released by Senator Claire McCaskill (D-MO) on the results of a national survey of 440 four-year institutions regarding how they report, investigate, and adjudicate incidents of sexual violence on campus. The report concludes that "many institutions are failing to comply with the law and best practices" in handling sexual violence, and that these problems can be found at every stage in the response process. Some of the key findings show that there is a failure to encourage reporting of sexual violence, a lack of adequate sexual assault training, a failure to investigate reported sexual violence, and a lack of adequate services for survivors.
Statement released by Washington and Lee University announcing that it will remove the Confederate flags that are displayed outside of its campus chapel in response to student protests. In the statement, President Kenneth P. Ruscio acknowledged the University's past involvement with slavery—a "regrettable chapter" in its history—and stated that in making the decision to remove the flags, he called upon Washington and Lee's "principal values," including mutual respect, civility, appeals to reason over emotion, a reverence for history combined with the courage to examine it critically, and a focus on the future. The flags will be moved to the American Civil War Museum and the Lee Chapel Museum.
Statement released by Gordon College President Michael Lindsay explaining why he, along with several other Christian-institution leaders, signed a letter to President Obama asking him to include a religious exemption within his forthcoming executive order on the Employment Non-Discrimination Act (ENDA). Asserting that Gordon is an educational institution "grounded in [a] commitment to Christ," he argued that the College should be able to set its own expectations for the conduct of members of its community. However, he also clarified that Gordon has never prohibited categories of individuals from campus as students or employees and does not intend to do so in the future.
New guidelines to improve student-athlete safety were issued by the National Collegiate Athletic Association (NCAA). The guidelines—which do not carry the force of NCAA rules—address independent medical care for college student-athletes, diagnosis and management of sport-related concussions, and year-round football practice contact. They were developed by the NCAA in conjunction with the College Athletic Trainers' Society, medical organizations, college football coaches, and conference commissioners.
Settlement reached between Southern University and student Kayla Williams in a suit alleging violations of the Americans with Disabilities Act (ADA). Williams, who has paraplegia, argued that the lack of accessible restrooms, elevators, and adequately-sloped ramps at Southern's athletic facilities, among other problems, led her to experience "embarrassment, humiliation and inability to participate in classroom instruction to the same degree as students without disabilities." The settlement requires the University to make thirty-four physical upgrades to its campus within the next five years and to conduct a publicized self-evaluation of its ADA compliance measures by June 30, 2015. Southern also agreed to pay Williams an undisclosed amount to cover damages, attorney's fees, and legal expenses.
Amicus brief written by the American Council on Education (ACE) and four other higher education associations (AGB, APLU, CUPA-HR, and NAICU) was submitted to the National Labor Relations Board (NLRB) discussing the question of whether student-athletes are eligible to form unions for collective bargaining purposes. In May, the NLRB invited interested parties and amici to file briefs in response to its decision to grant Northwestern University's request for review in Northwestern University v. College Athletes Players Association. The authors argue that student-athletes are not subject to the National Labor Relations Act (NLRA) (29 U.S.C. § 151–169), and therefore cannot form unions, because they are primarily students who participate in athletics for their own benefit as opposed to employees who render services for compensation.
Operating agreement reached between Corinthian Colleges and the Department of Education in which Corinthian agreed to a plan to close or sell all of its campuses and online programs. The Department has agreed to release $35 million in Title IV student aid funds to finance the normal daily operations of the colleges; however, these funds may not be used for legal fees or shareholder dividends. Pursuant to the agreement, Corinthian must halt the enrollment of new students and provide notice to all current and prospective students on the status of its colleges as well as the options and protections afforded to the students during the process.
Order by the U.S. Supreme Court granting an emergency injunction to Wheaton College, a religiously-affiliated non-profit institution, exempting it from filing a form that the College claims burdens free exercise of its religion. Regulations promulgated under the Affordable Care Act require certain employer group health insurance plans to cover FDA-approved contraceptive services (77 Fed. Reg. 8725 (2012)). Religious employers may opt out of the mandate by filing a self-certification form enabling insurance issuers or third-party administrators, rather than the employers themselves, to provide contraceptive coverage for their employees. Wheaton filed suit against the Secretary of Health and Human Services, asserting that completing the form would make it complicit in the provision of contraceptive coverage in violation of its religious beliefs, and sought a preliminary injunction against federal enforcement of the requirement pending resolution of its legal challenge. The Court issued the injunction, noting that nothing in the interim order would affect the ability of Wheaton's employees to obtain, without cost, the full range of FDA-approved contraceptive services. The Court also noted that, even if the obligations of the insurance issuer and third-party administer depend on their receipt of notice that the employer objects to the contraceptive coverage requirement, Wheaton has already given notice to the federal government. The government may rely on that notice to facilitate the provision of full contraceptive coverage.
An Albany County, New York, cyberbullying ordinance prohibiting "any act of communicating or causing a communication to be sent by mechanical or electronic means . . . disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate . . . purpose, with the intent . . . to inflict significant emotional harm on another person" is an unconstitutional violation of free speech. The New York State Court of Appeals found that the ordinance goes beyond prohibiting acts popularly understood as cyberbullying to forbid various constitutionally-protected modes of expression. It thus held the ordinance to be overbroad and facially invalid under the Free Speech Clause of the First Amendment.
The civility clause contained within the University of South Dakota's (USD) employment policy is not facially void for vagueness or impermissibly vague as applied to the petitioner's conduct relating to an email he sent calling his supervisor a "lieing [sic], back-stabbing sneak." The clause states, "Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner." Petitioner Christopher Keating filed suit against the University and several of its employees, alleging that the non-renewal of his contract in light of the email violated a variety of constitutional provisions. The Eighth Circuit Court of Appeals held that because the civility clause "articulates a . . . comprehensive set of expectations that, taken together, provides employees meaningful notice of the conduct required by the policy," it is not facially unconstitutional. In reference to Keating's conduct, the Eighth Circuit upheld USD's decision not to renew Keating's contract because he reasonably should have recognized that the language he used in the email, combined with his express refusal to comply with a direction from his supervisor, ran afoul of the civility clause requirements. It therefore reversed the district court's grant of declaratory relief in favor of Keating.
New Title IX policy and procedures to prevent sexual harassment and sexual violence were issued by Harvard University. The rules are intended to instill greater consistency in responding to reports of assaults across all thirteen of Harvard's schools, which have traditionally had autonomy in methods of investigating reports. Changes include establishing a new Office for Sexual and Gender-Based Dispute Resolution; hiring trained, expert investigators to run the office; and adopting a "preponderance of the evidence" standard of proof to determine whether a sexual assault or harassment occurred.
Plaintiff Linda Finke, a former dean of the College of Health and Human Services at Indiana University Purdue University-Fort Wayne (IPFW), claimed that the defendants discriminated against her on the basis of her sex by demoting her from her position as dean and paying her less than similarly-situated male employees. The U.S. District Court for the Northern District of Indiana held that the fact that the only female dean was demoted by leaders consisting entirely of males was not enough to establish discriminatory animus and that, to the contrary, the record was "replete with" evidence showing that Finke was not meeting IPFW's legitimate work expectations, including student grievance complaints and generally negative feedback that she received from colleagues during her tenure. On the wage discrimination claim, the Court held that even if Finke could establish a prima facie case, IPFW had proffered a bona fide, gender-neutral reason for paying her less than male deans: the fact that it relied on data that determine the marketplace values of skills to determine its deans' salaries, and that the data set salaries of deans in nursing programs lower than those of deans in other programs.
Two reports assessing the results of faculty climate surveys at the University of Michigan (UM) were released. The surveys were administered in 2001, 2006, and 2012 to assess the work environment for women and minority faculty members in STEM (science, technology, engineering, and mathematics) fields, as well as the faculty in general, as part of UM's ADVANCE Institutional Transformation grant program. While the 2001 survey documented a relatively more negative work environment for female and minority faculty members, and the 2006 survey report showed little overall improvement, the 2012 survey data indicated that faculty members report statistically significant gains in the general climate and climate for diversity in their departments.
Chiropractic college violated state and federal disability laws when it failed to provide a reasonable accommodation—a sighted reader to assist in examinations and certain modifications to practical examinations—for a student with a visual disability. The student, Aaron Cannon, filed a complaint with the Davenport Civil Rights Commission after withdrawing from petitioner Palmer College of Chiropractic (Palmer)'s graduate program when conversations with Palmer officials suggested that the College was either unwilling or unable to provide the requested accommodations. While the Commission found that Palmer had discriminated against Cannon on the basis of his blindness, the district court determined that Cannon's suggested accommodations would have required the College to fundamentally alter its curriculum. On appeal, the Iowa Supreme Court reversed, finding that the fact that Palmer's previously-granted accommodations to blind students and that other institutions have successfully granted similar accommodations, constituted persuasive evidence that the requested accommodation did not fundamentally alter the institution's curriculum. Therefore, the Court affirmed the Commission's findings and application of the relevant law.
Dear Colleague Letter from the Department of Education describing requirements for high school completion documentation and providing guidance on FAFSA verification requirements. The Letter indicates that in order for a state-approved test to meet the Free Application for Federal Student Aid (FAFSA) documentation requirement necessary to demonstrate that certain applicants have received a high school diploma or its equivalent, the test transcript must either indicate that the state has determined that the results meet its high school equivalency requirements or that the final score is a passing score. The Letter also provides institutions with additional guidance on some of the verification items and acceptable documentation for the 2015-2016 award year.
Annual Notice issued by the Department of Education on the interest rates of federal student loans disbursed under the William D. Ford Federal Direct Loan Program from July 1, 2014 through June 30, 2015. The interest rate calculations are made based on formulas provided by Section 455(b) of the Higher Education Act of 1965 (20 U.S.C. 1087e(b)). The interest rate determination for new loans differ from year to year based on these formulas, but the loans will have a fixed interest rate for the life of the loan.
Questions & Answers published by the American Council on Education (ACE) and the National Association of College and University Business Officers (NACUBO) to help institutions understand the Department of Defense's newest Memorandum of Understanding (MOU) regarding its tuition assistance program. On May 15, the Department published its final rules in the Federal Register, which included the newest version of its MOU. Colleges and universities are required to sign the MOU by July 23 if they wish to participate in the program.
Statement issued by Cedarville University announcing a successful resolution between the University and the U.S. Department of Education's Office of Civil Rights (OCR) Region XV on a Title IX complaint filed in May 2013. The complaint alleged that the University did not have a Title IX Coordinator or "prompt and equitable grievance procedures" to address sex-based discrimination. Based on its investigation, OCR concluded that the University had designated an individual to investigate sexual harassment complaints but that it had not identified this individual as the Title IX Coordinator or published her contact information. OCR also found that Cedarville had the required policies and procedures, but they were not readily available to students and employees at the time the complaint was filed. The University has voluntarily taken steps to address these issues in accordance with OCR's Manual.
Bill introduced by Senator Tom Harkin (D-IA) to reauthorize the Higher Education Act of 1965 and intended to increase college affordability, help ease existing student loan debt burdens, improve institutional accountability to students and taxpayers, and to help students make informed decisions about enrolling in higher education. Some of the specific provisions include creating a State-Federal College Affordability Partnership to increase state investment in public higher education while lowering costs of tuition; reinstating year-round Pell Grants; strengthening student loan servicing standards; streamlining loan repayment plans; automatically enrolling severely delinquent borrowers into income-based repayment plans; and allowing private student loans to be discharged in bankruptcy. Senator Harkin calls the proposal a "discussion draft" and has announced that he will be accepting comments from the public on the draft through 5pm on August 29 at the email: HEAA2014@help.senate.gov.
Bill approved by a vote of 95-3 in the U.S. Senate. The bill is designed to streamline the nation's workforce development system and to evaluate all federal job training programs through a standard set of outcome measures. It would also preserve a seat for two-year institutions on local workforce investment boards, eliminate "sequence of service" rules, and allow local workforce boards to train students by entering into contracts with community colleges. The Senate's passage of the bill comes on the heels of a bipartisan agreement that was reached earlier in May.
Letter from the American Council on Education (ACE) to the Senate Committee on Health, Education, Labor and Pensions (HELP) regarding sexual assault on campus. The letter describes the efforts of colleges and universities to address the problem and details certain difficulties that institutions are facing in light of the policies and procedures issued by the Department of Education's Office for Civil Rights. ACE concludes its letter by providing six recommended steps for Congress to take that would assist institutions in reducing incidents of sexual assault and facilitating institutional responses to reports of such incidents.
Bill to consolidate education tax benefits approved by a party-line vote of 22-13 in the House Ways and Means Committee. The bill would amend the Internal Revenue Code of 1986 to combine the Hope Credit, the American Opportunity Tax Credit (AOTC), the Lifetime Learning Credit (LLC), and the tuition deduction into a single, permanent tax credit. It would also reduce the allowable amount of such credit based on the taxpayer's modified adjusted gross income and allow for an exclusion from gross income for amounts received as a Federal Pell Grant. Representatives Diane Black (R-TN) and Danny Davis (D-IL) are co-sponsoring the bill.
Law signed by North Carolina Governor Pat McCory to allow religious and political student organizations at state public institutions of higher education, including community colleges, to limit leadership roles to students committed to the group's mission or faith. The law prohibits institutions from denying recognition or funding to student organizations exercising this right.
Decision from the Liaison Committee on Medical Education (LCME) following a reconsideration hearing that affirms its previous decision to place Baylor College of Medicine on probation. The letter outlines fourteen areas of concern, which focus primarily on administrative processes and procedures. Citations include a need for improved assessments of medical student skills and achievement; more institutional responsibility for the overall design, management, and evaluation of the curriculum; improved specifications of policies regarding final admissions responsibility and admissions committee conflicts of interest; and clarification of policies involving faculty appointment, promotion, and dismissal. In response, the College must develop and submit an action plan in conjunction with the Secretariat by December 1, 2014, which will be reviewed by the LCME in February 2015.
Order from the U.S. Supreme Court holding that under the Religious Freedom Restoration Act of 1993 (Pub. L. No. 103-141; 42 U.S.C. §§ 2000bb et seq.) (RFRA), a closely-held, for-profit corporation may deny its employees health coverage of contraceptives—to which the employees are otherwise entitled under regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA)—based on the religious objections of the corporation's owners. The owners of three such corporations—Hobby Lobby Stores, Mardel, and Conestoga Wood Specialties—believe, on religious grounds, that facilitating access to contraceptive drugs or devices would contradict their religious beliefs. In separate actions, each of the owners filed suit against HHS and other federal officials arguing that the contraceptive coverage regulations violated their religious rights under RFRA as well as the Free Exercise Clause of the First Amendment. The Court held that closely-held, for-profit corporations are "persons" for the purposes of RFRA because nothing in the statute indicates that Congress intended to depart from the Dictionary Act's (1 USC §1) definition of a "person," which includes corporations. Furthermore, it held that because the contraceptive mandate substantially burdens an owners' ability to conduct business in accordance with his or her religious beliefs, and because the government failed to show that the mandate is the least restrictive means of furthering the government's alleged interest in guaranteeing cost-free access to contraception, the mandate violates RFRA's prohibition on government action that substantially burdens a person's exercise of religion when applied to closely-held, for-profit corporations.
Report issued by the California State Auditor on the Accrediting Commission for Community and Junior Colleges (ACCJC) finding that the ACCJC was inconsistent in applying its accreditation process, that its deliberations on institutional accreditation status lack transparency, and that its appeals process fails to provide institutions a definitive right to provide new evidence of progress made in addressing deficiencies. To address these issues, the report offers six recommendations designed to encourage the chancellor's office to work with community colleges on crafting clearer guidance, increasing transparency, ensuring fair treatment, strengthening institutions' understanding of how to comply with ACCJC standards, increasing flexibility in choosing accreditors, and enabling better monitoring of community colleges for issues that may jeopardize accreditation.
Bill introduced in the U.S. House of Representatives to amend the Higher Education Act of 1965 (Pub. L. No. 89-329). The bill is designed to "simplify and streamline" the availability of consumer information regarding institutions of higher education that is made publicly available by the Secretary of Education by creating a "College Dashboard" website with information and data on enrollment, costs, financial aid, graduation rates, etc. This new website would replace the Department of Education's existing College Navigator website.
Bill to amend loan counseling requirements under the Higher Education Act of 1965 (Pub. L. No. 89-329) introduced by Representatives Brett Guthrie (R-KY), Richard Hudson (R-NC), and John Kline (R-MN). The bill is intended to increase financial counseling for students who take out federal loans or grants. Additionally, it would direct the Department of Education to develop an online tool to assist students in understanding their rights and obligations as borrowers.
Report released by the University of Colorado (UC) on the social climate with respect to social identity at the four campuses within the UC system. The Board of Regents' goal in conducting the survey was to determine how well the UC campuses were implementing the Board's guiding principles related to diversity. The majority of students, faculty, and staff surveyed reported that the University promotes an environment of respect regardless of social identity. Although in the minority, significant numbers of students, faculty, and staff disagreed with the premise that they are respected regardless of their political affiliations and political philosophies.
Letter from twelve U.S. Senators calling for Secretary of Education Arne Duncan to take specific actions relating to Corinthian Colleges, Inc., a for-profit educational institution that is currently under investigation by twenty states, the Consumer Financial Protection Bureau, the U.S. Department of Justice, and the Securities and Exchange Commission. The requested actions include prohibiting new students from enrolling in its institutions, and to answer a series of questions related to the protection of students and taxpayer funding. Corinthian has agreed to sell or close its campuses after failing to provide required data to the Department of Education on its practices.
Report released by the California State Auditor on sexual harassment and sexual violence at four state universities, including University of California, Berkeley; University of California, Los Angeles; California State University, Chico; and San Diego State University. The report concluded that while each university reviewed had an adequate overall process for responding to incidents of sexual misconduct, none ensured that all employees were sufficiently trained in responding to and reporting such incidents, nor did they consistently comply with state law requirements for the distribution of relevant policies. The State Auditor offered recommendations to the state legislature and the universities directly for addressing these issues.
The Second Circuit Court of Appeals affirmed the U.S. District Court for the District of Vermont's grant of summary judgment to the defendants based on its holding that defendant Middlebury College did not breach its contract with a student-athlete or violate a fiduciary duty when the College's hockey coach unilaterally dismissed the student from the team. The Second Circuit found that the Student Handbook's disciplinary procedures—which referenced "non-academic conduct infractions," "non-academic disciplinary offense[s]," "academic dishonesty," and "plagiarism"—did not apply to coaching decisions or athletic penalties. It further found that because the Student Handbook did not contain any specific reference to the National Collegiate Athletics Association (NCAA) manual's provisions relating to disciplinary procedures, it did not incorporate those procedures into its contract with students and, therefore, Middlebury was not in breach of its contract. Finally, the Court refused to recognize the existence of a special relationship between colleges and their students for the purposes of a breach of fiduciary duty claim, since such relationships can only arise through state law.
No genuine issue of material fact existed regarding whether a contract between the Public Hospital District No. 1 of King County ("the District") and the University of Washington (UW) was ultra vires because the agreement was not an unlawful delegation of the district's powers. The district's Board of Commissioners entered into the Strategic Alliance Agreement with UW, the stated purpose of which was to establish "joint or cooperative action pursuant to" the statute that provides for agreements for joint or cooperative action by public agencies. RCW 70.44.060(7) provides the District with the power "[t]o enter into any contract with . . . any state, municipality, or other hospital district . . . for carrying out any of the powers authorized by this chapter." The Court held that there is no difference between the State Legislature "reallocating powers from a municipality to a public agency and authorizing a municipality to partially cede those powers to such an agency," and, therefore, the plain language of the statute authorizes the District to contract with UW, a state entity, to carry out the District's powers. Moreover, the Court held that under the circumstances of this case, the fact that the majority of the new members of the Board of Commissioners do not view the Strategic Alliance Agreement as valid does not constitute a basis for declaring the Agreement ultra vires.
University of Kentucky (UK) contract governing its athletics and campus multimedia marketing rights was awarded to JMI Sports. The deal—worth $210 million plus a signing bonus of $29.4 million over the first two years—includes radio rights for the university's football, basketball, and baseball games; naming rights to several UK athletics facilities; game sponsorships; and coaches' endorsements. It is set to take effect in April of 2015 and last for fifteen years.
The Department of Education seeks comments on fifteen new and revised priorities and definitions for discretionary grant programs that will replace the 2010 Supplemental Priorities (76 FR 27637). Some of the proposed priorities that deal with postsecondary education include projects designed to increase postsecondary access, affordability, and completion; projects that focus on improving job-driven training and employment outcomes; projects to support the education and training of individuals in fields related to science, technology, engineering, and mathematics; and projects that implement internationally benchmarked college- and career-ready standards and assessments. Information collected will be used to help the Department make funding decisions for institutions that apply for federal grants. Comments are due by July 24, 2014.
Insurance company that mistakenly represented Burlington Community College (BCC) in a workers' compensation case and agreed to pay a $35,000 settlement on BCC's behalf could not file an application to remove its name from the settlement agreement after the judgment was entered. The case arose when BCC employee Shaun Cronrath filed a claim petition in which he listed "St. Paul Travelers Ins. Co." in the space labeled "Insurance Carrier" even though BCC was not and had never been insured by the appellant, Travelers Casualty Insurance Company of America (Travelers). Nine months after Travelers accepted the claim, negotiated a settlement, and paid the settlement award, a Judge of Workers' Compensation (JWC) denied Travelers' application to modify the award after concluding that it had neither a statutory basis nor jurisdiction to reopen the settlement under New Jersey's Worker's Compensation Act (N.J.S.A. 34:15-51). The Superior Court of New Jersey's Appellate Division affirmed, holding that Travelers did not present sufficient cause to reopen the settlement to change the identity of the settling entity because its claim involving a post-judgment dispute between two insurers lay outside the scope of the Workers' Compensation Court's statutory jurisdiction.
Order by the U.S. District Court for the District of Colorado granting plaintiff Colorado Christian University's (CCU) motion for preliminary injunction but denying its alternative request for expedited consideration of its pending motion for summary judgment. CCU, a "Christ-centered liberal arts university alleged that the Preventative Care Coverage Requirement (29 C.F.R. § 147.130) ("the mandate") promulgated under the Patient Protection and Affordable Care Act (Pub. L. No. 111-148), would require group health plans for employees of CCU to "provide coverage for drugs and procedures that may destroy human life after fertilization" and would impose a substantial burden on the exercise of CCU's religion, thereby violating its rights under the First Amendment and the Religious Freedom Restoration Act (RFRA). The Court held that CCU demonstrated a substantial likelihood that it would prevail on its RFRA claim because its four options— 1) refusing to provide employee health insurance coverage; 2) providing the coverage required under the mandate; 3) providing a health insurance plan that does not comply with the mandate; or 4) executing and delivering an Exemption Form that would trigger a process facilitating third party coverage that complies with the mandate—would either subject CCU to "prodigious" or "ruinous" financial penalties or force it to violate its religious beliefs.
Settlement agreement reached in a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) against Chapman University. Former professor Stephanie Dellande, the only black faculty member in the University's Argyros School of Business and Economics, alleged that she was denied tenure despite strong recommendations in her favor from her peers, and was subsequently discharged upon a denial of her tenure appeal, because of her race and in violation of Title VII of the Civil Rights Act of 1964. As part of the settlement, Chapman agreed to pay Dellande $75,000 and award her the title of Associate Professor. Chapman will also have to provide a training course in equal opportunity law to all of its business school employees, review its policies on discrimination and retaliation to ensure that they meet the standards outlined, and create a centralized system to track tenure and discrimination complaints from the business school.
Plaintiff could not prove that her requests for reasonable accommodation went unheeded by her employer, as required to prevail on a claim under the Americans with Disabilities Act, because she failed to make known her desired accommodation. Edie Wallace, a former biology professor at Heartland Community College (HCC) who suffered from fibromyalgia and osteoarthritis, alleged that the defendant College failed to provide her with reasonable accommodations for her disabilities. While the U.S. District Court for the Central District of Illinois found that Wallace produced evidence showing that she made her superiors aware that she was experiencing stress and pain from dealing with inept lab assistants, there was no evidence that her communications contained specific requests for an accommodation concerning the lab assistants. Thus, the Court granted the defendant's motion for summary judgment.
Letter notifying Wilberforce University, the oldest private historically black college in the nation, that the Higher Learning Commission Board of Trustees has issued a Show-Cause Order requiring the University to present its case for why its accreditation should not be withdrawn. The University has until December 15, 2014 to respond to the Order with a report providing evidence that the University has ameliorated each item of concern identified by the Order and that it meets each of the Criteria for Accreditation and Core Components, in addition to other requested information. A Show-Cause Evaluation Visit will be conducted no later than February 9, 2015 to confirm the report's contents, after which the Board will make its decision on whether the concerns listed have been fully ameliorated and the accreditation requirements have been met.
Contract between Starbucks and Arizona State University (ASU) providing details about the Starbucks College Achievement Plan. Under the contract’s provisions, Starbucks agrees to reimburse the tuition and fee costs of certain employees who complete their undergraduate studies through one of ASU’s online education programs. An employee must have already completed 56 or more credits and meet other eligibility requirements to qualify for the scholarship. Partial scholarships will also be made available for freshman and sophomore students.
Senate bill entitled the “Correctly Recognizing Education Achievements to Empower Graduates Act” (CREATE Graduates Act) introduced by Senator Kay Hagan (D-NC). The bill would create incentives for four-year institutions to establish “reverse-transfer” programs, which would enable transfer students from two-year institutions to obtain the associate’s degrees that they would have earned had they remained at the two-year institutions and completed enough credits there. These incentives would include awarding competitive grants to states that encourage institutions to adopt such programs.
Department of Education notification of a further delay in the Department’s implementation of state authorization regulations under the amendments to 34 CFR 600.9. The final regulations deadline is now July 1, 2015, exactly one year after the previously announced implementation date. The delay applies to institutions whose state authorization does not meet the requirements of the regulations, provided that the state “is establishing an acceptable authorization process” that will become effective by the delayed implementation date. To demonstrate that it is establishing such a process, the state must provide an explanation of how an additional extension will permit the state to finalize its procedures so that the institution is in compliance with the new regulations.
Student Loans: In re Christoff
(June 23, 2014)
Tarra Nichole Christoff’s student loan debt to a private university was eligible for discharge under Title 11 of the Bankruptcy Code. Christoff, a former student at the Institute of Imaginal Studies dba Meridian University (Meridian), was ordered to pay her student loan balance of $5,950 plus interest to Meridian after withdrawing from the University. She later filed for Chapter 7 bankruptcy, after which Meridian filed suit, arguing that the amount Christoff owed was not dischargeable under 11 U.S.C.A § 523(a)(8). The U.S. Bankruptcy Court for the Northern District of California held that Meridian's sole source of protection fell under § 523(a)(8)(A)(ii) because: 1) Meridian—a private university—was not a governmental unit; 2) its extension of credit to Christoff did not involve any insurance or guaranties by governmental units or nonprofit institutions; and 3) the extension of credit was not a qualified education loan under the Internal Revenue Code. This section provides that “a discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) [of Title 11] does not discharge an individual debtor from any debt unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor . . . , for an obligation to repay funds received as an educational benefit, scholarship, or stipend.” Since Christoff’s obligations included payment of the amount under the promissory notes but did not flow from “funds received,” either by her as the student or by Meridian from any other source, the Court held that Christoff’s debt was not covered by § 523(a)(8)(A)(ii) and was therefore eligible for discharge.
Bill to amend the Higher Education Act of 1965 introduced in the Senate by Senators Lamar Alexander (R-TN) and Michael Bennet (D-CO). The bill intends to simplify federal student aid programs by eliminating the Free Application for Federal Student Aid (FAFSA) and replacing it with an application that requires most students to provide only their family size and household income to determine their eligibility. Additionally, the bill calls for consolidating existing federal student aid programs into one undergraduate loan program, one graduate loan program, and one parent loan program. The bill would also restore year-round eligibility for Pell Grants and provide more flexibility for how students may use those awards.
Free Speech: Lane v. Franks
(June 20, 2014)
Opinion by the United States Supreme Court unanimously holding that a community college employee’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. Central Alabama Community College (CACC) hired petitioner Edward Lane to be the director of its Community Intensive Training for Youth program in 2006 but subsequently eliminated Lane’s position after he testified against a state legislator who had been indicted for mail fraud and theft relating to a program that received federal funds. Citing the 2006 Supreme Court decision in Garcetti v. Ceballos, the district court granted, and the Eleventh Circuit Court of Appeals affirmed, defendant CACC President Steve Franks’ motion for summary judgment on the grounds that public employees who engage in speech related to their official duties do not have First Amendment protections. The Supreme Court reversed, holding that Garcetti does not apply in cases where speech directly relates to matters of public concern and the duties of citizens. “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes,” wrote Justice Sonia Sotomayor. “That is so even when the testimony relates to his public employment or concerns information learned during that employment.” The ruling enables Lane to pursue a First Amendment retaliation claim against Franks under 42 U.S.C. § 1983.
Legislation to fund the State Department, foreign operations, and related programs for the fiscal year of 2015 (S. 2499) was marked up by the Senate State-Foreign Operations (SFOPS) Appropriations Subcommittee and released by the full Senate Appropriations Committee. The bill would allocate a total of $590.77 million to State Department international exchange programs, including $236 million in flat funding for the Fulbright Program, $90 million for the International Visitor Leadership Program, and $100 million for Citizen Exchanges. This total is $22 million more than the fiscal year 2014 level and exceeds President Obama’s requested amount by $12.87 million. A parallel bill introduced in the House would invest $236.974 million in the Fulbright program, which would represent a slight increase over current spending levels.
The U.S. District Court for the District of South Carolina held that plaintiff Sharon Brown Williams, an adjunct faculty instructor at Horry-Georgetown Technical College (HGTC), did not adequately demonstrate that HGTC’s decision to hire younger, Caucasian female applicants instead of promoting the plaintiff to two higher positions for which she applied was discriminatory because the evidence did not show that she was qualified for either position. The Court also held that the plaintiff failed to show that her reduction in teaching load and transfer to a different campus constituted an adverse employment action necessary to establish a prima facie case for race and age discrimination. Finally, because HGTC provided evidence demonstrating that the plaintiff was not performing her job duties at a level that met its legitimate expectations at the time of her termination, the Court held that the defendant had a legitimate, non-retaliatory reason for terminating her employment that the plaintiff was unable to refute.
The U.S. District Court for the Northern District of Alabama held that plaintiff Bozorgmehr Pouyeh, an Iranian citizen and legal permanent resident of the United States, failed to establish that the defendant University of Alabama (UAB) discriminated against him based his national origin, as prohibited under Title VII of the Civil Rights Act. The evidence he offered showed that his failure to be accepted to a residency program was based on the medical school from which he graduated—a non-class A school—not his national origin. The Court further held that the UAB’s medical training standards did not violate any Constitutional prohibitions because the standards are required of all candidates—both United States citizens and foreign nationals—for entry into the program, and that the plaintiff had no fundamental right to post-graduate education or to obtain a professional license.
Notice of Proposed Rulemaking issued by the Department of Education to implement amendments made to the Clery Act by the Violence Against Women Reauthorization Act of 2013 (VAWA). The Department proposes amending 34 C.F.R. § 668.46 in order to implement these statutory changes, which are intended to "update, clarify, and improve" current Clery Act regulations. Among others, provisions of the proposed regulations include requiring institutions to compile statistics for incidents of dating violence, domestic violence, sexual assault, and stalking based on proposed definitions of the terms; revise categories of bias for hate crime reporting; and to describe prevention and awareness campaigns in their annual security reports. The Department requests comments on the proposed rule, which must be received by July 21, 2014.
Wilkes University's new policy to arm public safety officers reflects recommendations issued by Margolis Healy & Associates, a Vermont-based consulting firm specializing in school security issues, based on the firm's evaluation of the University's public safety function. Officers who have completed the requisite training will begin carrying firearms while on duty this summer. By arming its officers, the University hopes to create a "hybrid force that is better equipped to act as first responders on campus and coordinate with the Wilkes-Barre Police Department."
Press release announcing the formation of a partnership between the National Association of Student Financial Aid Administrators (NASFAA) and the National Direct Student Loan Coalition (NDSLC) to create a joint Task Force on student loan servicing issues. The Task Force seeks to understand current servicing practices and to make recommendations to the Department of Education's Office of Federal Student Aid and loan servicers on improving the process for student borrowers. As a result of this study, the organizations hope to release disclosure reports and recommendations in early 2015.
The State Personnel Board's (SPB) conclusion that the plaintiffs failed to demonstrate that they made protected disclosures was not supported by its findings. All three plaintiffs filed whistleblower retaliation complaints under the Reporting by Community College Employees of Improper Governmental Activities Act (Ed. Code § 87160 et seq.) after being terminated by Feather River Community College, purportedly as a result of their reports of employee misconduct and the College's alleged failure to comply with Title IX. The Court of Appeal for the Third District of California held that because none of the plaintiffs were assigned the task of reporting employee misconduct or noncompliance issues as part of their general work duties, the SPB erroneously applied the "normal duties" analysis to the facts of the case in drawing the conclusion that the plaintiffs' disclosures were not protected.
Assurance of Voluntary Compliance between Florida Attorney General and Kaplan Higher Education, Kaplan Higher Education Campuses, and Kaplan University (Kaplan). The agreement follows the Attorney General's investigation into Kaplan's enrollment and marketing practices, which was initiated in response to allegations that students were misled by the University's marketing claims. Under the agreement's terms, Kaplan must "clearly and conspicuously disclose" and "make readily available true and accurate information" regarding the school's accreditation, program costs, financial aid, and the scope and nature of employment services provided.
Settlement reached between San Francisco's City Attorney and Education Management Corporation (EDMC), a Pittsburgh-based for-profit education provider and parent company of the California Art Institute. The initial dispute involved allegations that EDMC's marketing tactics underestimated program costs for students and inflated job placement numbers for the program's graduates. Under the terms of the agreement, EDMC will pay San Francisco $1.95 million to settle the dispute; establish a $1.6 million Returning Student Scholarship Fund for non-graduating California Art Institute students who wish to return to the school and complete their studies; and offer $850,000 in scholarships to new students. It also requires EDMC to reform its marketing and reporting practices. The agreement includes no admissions of wrongdoing by EDMC.
Report released by the National Consumer Law Center (NCLC) offering ten recommendations for how states can prevent abuses by and increase the accountability of for-profit higher education institutions. The report recognizes the federal government's efforts to enact gainful employment standards as an "important development" but asserts that these standards will not be sufficient to prevent the "widespread use of deceptive and illegal practices throughout the [for-profit education] sector." Some of the report's key recommendations include calling for states to set their own minimum standards instead of relying on regional accreditors to vet for-profit institutions, to focus their resources on increased supervision and investigation of for-profit schools at risk of deceiving students, and to require a "fair and thorough" process for investigating and resolving student complaints.
Announcement issued by the Department of Education offering guidance to institutions on reporting the verification results of identity and high school completion status for applicants. Specifically, the announcement clarifies (1) which FAFSA applicants institutions must include in their reports, (2) the conditions for each Identity Verification Results value, and (3) when the results must be reported.
Plaintiff medical student Paulo Serodio could not establish a genuine issue of material fact regarding his allegations of retaliatory conduct, discrimination, and creation of a hostile work environment against Rutgers' University of Medicine and Dentistry of New Jersey (UMDNJ). The U.S. District Court for the District of New Jersey found that the evidence—which included emails from Serodio to students notifying them of his intention to be lynched as a publicity stunt for a speech, as well as class lecture notes that Serodio had posted to a student-run website containing racially-insensitive and sexually-explicit cartoons and commentary— demonstrated that the plaintiff's misuse of the University's intranet and failure to conform to the school's code of professional conduct were the true reasons for his dismissal. Therefore, the Court held that no reasonable juror could find a causal link between Serodio's allegations of wrongdoing by the defendants and the alleged harm inflicted by his dismissal and granted the defendant's motion for summary judgment.
Defendant police officers were entitled to public official immunity from the wrongful death suit filed by plaintiff William S. Mills, ancillary administrator of the estate of Aaron Lorenzo Dorsey. Officer Lorenzo shot and killed Dorsey during a struggle in which Dorsey allegedly grabbed Officer Larry Carter's weapon. The North Carolina Court of Appeals held that, as officers of the state pursuant to N.C. Gen. Stat. § 14-233, Officers Liberto and Carter were entitled to immunity despite the fact that they were employed by Duke University (Duke)—a private institution—and therefore could not be held individually liable for damages caused by "mere negligence in the performance of their governmental or discretionary duties." It further held that the plaintiff provided no evidence tending to show that Officer Liberto's actions were "corrupt or malicious," or that he acted "outside of and beyond the scope of his duties," as would be required to survive a motion for summary judgment. It therefore affirmed the lower court's grant of summary judgment in favor of the defendant officers.
Plaintiff Dale Langston's reports to his managers of alleged defective components within the San Jacinto Junior College were not protected by the First Amendment. The College hired Langston to oversee and maintain its HVAC systems but later fired him after he repeatedly attempted to alert his supervisors and manager of what he considered to be faulty repairs to the systems that were performed by an outside contractor. Langston admitted that he had expressed his concerns within the chain of command and that these concerns dealt with subject matter of his employment, all of which constitutes speech that is not entitled to First Amendment protections. The U.S. District Court for the Southern District of Texas further found that Langston had failed to plead any facts that would allow it to determine whether the plaintiff had a property interest in his employment sufficient to support a due process violation claim. Thus, the Court granted the defendant's motion to dismiss the retaliation and due process claims but granted the plaintiff leave to amend his claims within twenty days.
Order and judgment by the U.S. Court of Appeals for the Tenth Circuit affirming the district court's order granting summary judgment to the defendants. Plaintiff Steven J. Maranville, a former associate professor at Utah Valley University (UVU), filed suit against UVU for refusing to grant him tenure, arguing that he had not been afforded due process and that his denial of tenure constituted a breach of contract and a breach of the implied covenant of good faith and fair dealing. Maranville had accepted UVU's offer of a tenure-track faculty position in 2008, which was conditioned upon his completion of a one-year probationary period and acquisition of the written recommendation of the Department Chair and Dean. After receiving consistent complaints from students, the school's Board of Trustees voted to deny Maranville tenure due to "serious concerns regarding [his] classroom behavior." The Court held that, as a non-tenured instructor, Maranville had not established a property right deserving of procedural due process protections. On the contractual claims, the Court held that UVU's denial of tenure did not constitute a breach of contract because Maranville failed to satisfy the conditions of his contract to obtain tenure and that the implied covenant of good faith and fair dealing cannot be used to impose on an employer the duty to end an employee's service only upon good cause.
Order and opinion by the Supreme Court of Georgia rejecting defendant officer's motion to dismiss. The case arose from a complaint by an Agnes Scott College (ASC) student who reported that she had been beaten and sexually assaulted on two occasions by University of Tennessee graduate student Amanda Hartley, which was later found to be demonstrably false. Without investigating these allegations, ASC campus police officers arrested and detained Hartley, who was later released after the district attorney dismissed all charges against her. Hartley filed a tort suit against ASC and three of its campus officers. The officers moved to dismiss, arguing that they were entitled to immunity under the Georgia Tort Claims Act (OCGA § 50-21-22) (GTCA). The Court held that private college campus police officers are not state officers or employees entitled to qualified immunity from suit under the GTCA, since the statute makes clear that liability rests not with the state employee named in his individual capacity but instead with "the state government entity for which the state employee was acting" when he allegedly committed the tort. Because the ASC officers were hired by a private institution (ASC) rather than a state entity, the Court held that they were not acting for any state government entity when they committed the alleged torts and were thus not entitled to qualified immunity.
Order by the U.S. Court of Appeals for the Sixth Circuit ruling in favor of defendants on plaintiff's procedural and substantive due process claims. Plaintiff Frank McKenna, an associate professor at BGSU, and the University reached a settlement agreement requiring McKenna to abide by an addendum to his faculty appointment letter. Dean Morgan-Russell notified McKenna that he would initiate a committee investigation after receiving complaints from students suggesting that McKenna had failed to comply with the settlement agreement. The committee voted to revoke McKenna's tenure and dismiss him from the University. The Sixth Circuit held that "a state-created right to tenured employment lacks substantive due process protection." The Court also held that plaintiff was afforded all the requirements of procedural due process by receiving written notice of the charges against him, an explanation of BGSU's evidence at the hearing, and an opportunity to present his position to BGSU during the hearing. It further declined to remand McKenna's claim for injunctive relief against BGSU and its Board of Trustees because neither defendant was a "person" subject to suit under 42 U.S.C. § 1983 and both were subject to immunity under the Eleventh Amendment. Finally, the Court held that Dean Morgan-Russell could not be held liable for due process violations under § 1983 because he was not responsible for the "overall shortcomings" in BGSU's Grievance Procedures and the sufficiency of the Hearing Board's decision.
Section 504, Contracts, Due Process, and First Amendment: Simpson v. Alcorn State University
(June 17, 2014)
Opinion and order from the U.S. District Court for the Southern District of Mississippi dismissing the plaintiff's four claims against defendant Alcorn State University (ASU). Plaintiff Alvin Simpson was a professor at ASU when the alleged violations occurred and claimed that the violations forced him to take early retirement, which he argued constituted constructive discharge. The Court dismissed Simpson's Rehabilitation Act claim because he had not described the nature of his alleged disability beyond mentioning unspecified "health problems" and a "spinal cord disorder" and did not indicate the manner in which any of these conditions substantially limited any major life activity. Moreover, the Court found no proof that Simpson suffered an adverse employment action to satisfy a claim of constructive discharge because his alleged reasons for resigning—including his non-selection as Department Chair —would not have caused a reasonable person to feel compelled to resign. The Court also dismissed Simpson's breach of contract claim for failing to identify provisions of his employment contract that were violated. Finally, the Court dismissed Simpson's constitutional claims against ASU and the individual defendants in their official capacities because he could have, but failed to, file a proper § 1983 suit against them; dismissed his due process claim against the named defendants in their individual capacities because he did not have the requisite property interest in his position as interim Department Chair; and dismissed his First Amendment retaliation claim against those same defendants because he failed to identify any adverse employment action taken against him or to demonstrate that his speech was protected.
Order and opinion by the U.S. District Court for the Western District of Washington denying the defendant's motion to dismiss. Plaintiff Timothy Hargrave, a Caucasian male professor at the University of Washington (UW), filed suit against UW for alleged employment discrimination after his application for tenure was denied on two occasions. External reviewers "unequivocally endorsed" and gave "highest recommendation" to his tenure application. Hargrave alleged that the decision to deny him tenure was based not on his record, but on race, national origin, and sex. Plaintiff argues that similarly-situated tenure candidates —including a Hispanic male, an Indian male, and a female— who defendant argued had credentials "inferior" to his were all granted tenure. The Court concluded, based on these purported facts, that Hargrave crossed the "plausibility threshold" required to survive a Rule 12(b)(6) motion to dismiss by alleging a fact pattern leading to a reasonable inference that he was denied tenure for discriminatory reasons.
South Carolina law will require the College of Charleston and the University of South Carolina-Upstate to spend $52,000 and $17,000, respectively, to incorporate the United States Constitution and other founding documents into their educational programs. This measure was enacted by state legislators to penalize the universities for assigning readings characterized as having "gay themes" to their students.
Statement issued by a coalition of academic and civil liberties groups "strongly condemn[ing]" South Carolina's newly-enacted law requiring the College of Charleston and the University of South Carolina-Upstate to spend a combined total of nearly $70,000 to teach works related to the founding of the United States, including the Constitution, the Declaration of Independence, and the Federalist Papers. This measure was enacted by state legislators to penalize the universities for assigning readings characterized as having "gay themes" to their students. Calling the provision "an assault on academic freedom" and "constitutionally suspect," the statement argues that it "represents unwarranted political interference with academic freedom," "undermines the integrity of the higher education system in South Carolina," and will put students at a competitive disadvantage once they graduate from college.
Statement issued by an independent hearing panel of the Accrediting Commission for Community and Junior Colleges (ACCJC) directing the Commission to reconsider its decision to terminate the accreditation of the City College of San Francisco (CCSF). While acknowledging that CCSF was not in substantial compliance with accreditation standards and eligibility requirements as of June 7, 2013, the panel asserted that "there is good cause for a consideration of CCSF's achievement of compliance with accreditation standards and eligibility requirements through January 10, 2014 and up to and including the end of the evidentiary hearing sessions on appeal." The panel instructed the ACCJC to retract its termination decision and to consider new evidence of CCSF's progress before making a final decision.
Order issued by a three-member panel of the National Labor Relations Board (NLRB) affirming a decision by a NLRB judge that Laurus Technical Institute (LTI) violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by enacting a "No Gossip Policy" for employees and terminating an employee for violating the policy. LTI initiated the policy in response to former admissions representative Joslyn Henderson's discussion of work issues and complaints with a manager outside her chain of command. The policy forbid employees from "participat[ing] in or initiat[ing] gossip about the company, an employee, or customer" and threatened those who violated the policy with disciplinary action. The panel upheld the judge's ruling that the policy was "vague," "overly broad" and "ambiguous," and maintained that it chilled the exercise of protected activity under Section 7 of the NLRA by "severely restrict[ing] employees from discussing or complaining about any terms and conditions of employment."
Statement by the Association of American Universities (AAU) criticizing the National Defense Authorization Act for Fiscal Year 2015 (H.R. 4435) for reducing funding for Defense basic research. AAU urges Congress to reverse the funding cuts, asserting that basic research is a "vital part of the Defense budget" and cautioning Congress to approve the provisions "only if it wishes to erode our armed forces' future technological advantages."
The Energy and Water Development and Related Agencies Appropriations bill for fiscal year 2015 was approved by the House Subcommittee on Energy and Water Appropriations. The bill provides a total of $34 billion to fund nuclear national security efforts, energy security, and infrastructure projects – a $50 million reduction from the fiscal year of 2014 level but $327 million above the President's request. The measure would level fund the Department of Energy (DOE) Office of Science at $5.1 billion and level fund ARPA-E at $280 million. The full committee is scheduled to mark up the legislation on Wednesday, June 18.
Appropriations legislation to fund the Department of Defense for the fiscal year of 2015 (H.R. 4435) was approved by the House Appropriations Committee. The bill would cut investment in basic research programs by 6.4 percent and cut applied research programs by 2.4 percent.
Letter sent to the Department of Education Secretary Arne Duncan criticizing the Department's latest draft of a state authorization rule that would require online programs to obtain approval from every state in which they enroll students. The new proposal includes an additional provision that would allocate federal funds only to distance education providers that are actively reviewed by state regulators. The letter claims that the rule would lead to "large-scale disruption, confusion and higher costs for students in the short-term" and produce no long-term benefits. It also offers a list of eight recommendations for the Department to include in its regulatory language.
Report by the IRS Advisory Committee on Tax Exempt and Government Entities (ACT) making recommendations to address compliance issues surrounding the unrelated business income tax (UBIT). The report was initiated in response to the results of audits at thirty-four institutions, which were prompted by responses to an IRS questionnaire submitted to 400 colleges and universities in 2008 indicating significant under-reporting of unrelated business income. The ACT reviewed the existing rules and regulations to develop five recommendations for how the IRS can address recurring losses and the allocation of expenses. The IRS also plans to use examinations and education resources to make tax-exempt organizations aware of the rules regarding the application of the UBIT to unrelated business activity.
Letter from attorneys defending Daniel Kopin, a student at Brown University who was suspended for sexually assaulting another student, to the Department of Education's Office for Civil Rights (OCR). The letter comes in response to OCR complaints filed by Lena Sclove contending that the University violated Title IX by mismanaging her accusations of rape and suspending Kopin for one year instead of two. Kopin's attorneys assert that the University failed to provide Kopin with a "truly fair and impartial hearing" and that the evidence, especially the "shifting nature" of Sclove's allegations throughout the investigation, will clear Kopin of the allegations against him.
Revised decision issued by a three-member panel of the National Labor Relations Board (NLRB) affirming a 2012 ruling against Columbia College Chicago over a union-negotiation dispute, but altering the punishment. The dispute arose in 2010 when the College reduced the maximum number of courses some of its part-time faculty members were allowed to teach, a decision that the NLRB ruled violated the law. Rather than requiring the College to pay faculty members the monetary value of a three-credit course, the new penalty calls for only those faculty members who were affected by the reduction in course load during the spring and fall semesters of 2011 be paid a $100 course-cancellation fee, which the faculty members lost when the policy was changed. Determining the economic losses after the fall of 2011 would be too speculative, the panel concluded, because the fall 2011 semester was the last semester in which schedules developed under the new system could be compared to those under the old system.
Notice issued by the Department of Education announcing its semiannual agenda of federal regulatory and deregulatory actions. The agenda includes a plan to finalize the proposed gainful-employment rule, which includes changes to eligibility for Title IV federal student aid based on graduates' rates of default and levels of student-loan debt relative to their incomes.
Per curiam order by the Superior Court of New Jersey, Appellate Division affirming the judgment by the Division of Workers' Compensation that denied plaintiff's worker's compensation claim based on a psychiatric disability. Dorothy Rizzo, an assistant professor at Kean University, filed a claim against the University alleging that an incident where the undergraduate program director walked into Rizzo's office and shut the door behind her triggered plaintiff's post-traumatic stress disorder, anxiety, and other psychological injuries. The workers' compensation judge ruled that the plaintiff failed to prove a compensable workplace incident because childhood sexual abuse, not the office incident, was the cause of the plaintiff's disability, and because the undergraduate program director had not created an objectively stressful condition by closing the office door. Concluding that the judge's factual findings were supported by the record evidence and that the judge applied the correct legal principles in reaching his ultimate decision, the Superior Court affirmed the ruling.
Order by the Court of Appeals for the Tenth District of Ohio affirming the trial court's finding that defendant Ohio State University Mansfield Regional Campus (OSU Mansfield) faculty members did not act maliciously in their treatment of plaintiff, Scott Savage, a former reference librarian at OSU Mansfield, and were therefore entitled to immunity. Savage filed suit against OSU after a dispute arose between Savage and several other book selection committee members when Savage proposed four books for consideration as required reading. Other members of the committee viewed these books as denigrating to gay and lesbian students and faculty. After Savage withdrew from the committee, the members alerted other staff and faculty members of the proffered list, prompting initiations of Human Resource (HR) proceedings against Savage and demands that Savage be fired. Savage later took a leave of absence and then resigned. The Court concluded that because the communication with HR was internal to OSU Mansfield and addressed an issue of general concern to the campus, it could not say that the discussions or the conduct and surrounding circumstances were malicious as a matter of law.
Order by the U.S. District Court for the Southern District of New York denying defendant Marymount Manhattan College's (Marymount) motion for summary judgment. Plaintiff Heather Grabin filed suit against Marymount alleging that it had discriminated against her on the basis of her disability in violation of Section 504 of the Rehabilitation Act by failing to accommodate her disability after she missed several classes due to various hospitalizations and illnesses. Marymount moved for summary judgment on Grabin's claim, arguing that Grabin is not disabled; that it was unaware of her claimed disability; and that it did not fail to accommodate her disability. Because material issues of fact exist over whether Grabin requested an accommodation and whether that requested accommodation was reasonable, the Court denied the defendant's motion.
Letter to U.S. Senators Edward Markey (D-MA) and Orrin Hatch (R-UT) signed by six open-government organizations calling for the Senate to hold hearings on the Family Educational Rights and Privacy Act (FERPA). The letter expresses concern that educational institutions are abusing the law by using it to withhold records in which they argue "the public has a compelling disclosure interest and in which disclosure implicates no legitimate student privacy concerns" by classifying the information as education records that are exempt from state open-records statutes under FERPA. To address this issue, the authors urge the Senators to hold a hearing and to incorporate the diverse perspectives of hearing participants into legislation that would clarify the "boundaries" on FERPA's definition of education records.
Letter from Franklin & Marshall College President Dan Porterfield to the campus community announcing that the College's Board of Trustees voted to provide its sworn campus police officers with firearms beginning this Fall semester. The vote came after an eight-month campus-wide discussion on the issue that included surveys of the campus community, research of other institutions' practices, and consultation of external campus safety experts. Officers will be trained to meet the same standards required of all municipal officers in the state.
Statement issued by the Accrediting Commission for Community and Junior Colleges (ACCJC) proposing a new accreditation policy that would permit any postsecondary institution notified of termination for failure to meet ACCJC standards to apply for restoration of its accreditation prior to the effective date of termination.
Order by the U.S. Court of Appeals for the Sixth Circuit affirming the lower courts' denial of appellants' motion for preliminary injunction. Appellants are non-profit entities affiliated with the Catholic Church that have religious objections to the Affordable Care Act's regulatory requirement that their employer-based health insurance plans cover certain contraception, sterilization methods, and counseling. Lower courts denied appellants' motions for a preliminary injunction because all of the appellants are eligible for either an exemption from the requirement or an accommodation for the requirement. The Sixth Circuit Court affirmed the denials on the grounds that appellants did not establish a strong likelihood of success on the merits of their claims since they did not assert or present evidence that the federal government classifies the contraceptive drugs as abortion-inducing drugs. Therefore, the Court concluded that the appellants did not demonstrate that they will suffer irreparable injury without the injunction.
Order denying defendant Regents of the University of California's motion to dismiss plaintiff's claims to the extent that they are predicated on race or national origin discrimination. Plaintiff Irving Salmeron, a Mexican-American former student at the University of California—San Francisco School of Medicine (UCSF), filed suit against the University, claiming that his race and national origin were the basis for the University's denial of reasonable accommodations for his disability. The Court ruled, contrary to defendant's argument, that it is plausible for the defendant to admit a Mexican-American student and then deny him the same support services it offers non-minority students based on discriminatory stereotypes about Mexican-American students. It thus held that the plaintiff's allegations were sufficient under the liberal pleading standard applicable to survive a motion to dismiss.
Order by the Circuit Court of the Ninth Judicial Circuit in Orange County, Florida, holding that the records that the defendant inadvertently turned over to the plaintiff were private records and thus not subject to disclosure under state law. Petitioner John M. Becker submitted a public records request to defendant, University of Central Florida (UCF), for emails on the University's computer servers relating to the publication of an article in the Social Science Research Journal ("the Journal"). The Journal is owned and published by a private company, Elsevier, Inc. The Court found that UCF: 1) did not provide substantial funds, capital, or credit to the Journal; 2) did not commingle funds with the Journal; 3) did not provide the location for the majority of the Journal's activities, most of which take place online; 4) had no contract with Elsevier; 7) has not contracted with Elsevier for any public services and did not delegate any aspect of its decision-making process to Elsevier; 8) has no obligation to provide any money or resources for the Journal's benefit; 9) did not play any role in the creation of the Journal; 10) has no ownership or financial interest in Elsevier or the Journal; and 11) receives no remuneration for the Journal. Because the totality of the factors demonstrates that no public function has been transferred or delegated by UCF to Elsevier, the Court held that the records Becker sought are not public records. The Court also noted the serious, negative public policy implications that would result if it were to determine that the records sought were public, including discouraging Elsevier from giving its editor position to a professor working in the United States and destroying the anonymity aspect of the peer review process.
Resolution introduced by Representatives Bob Goodlatte (R-VA) and Michael Capuano (D-MA) in the House of Representatives criticizing President Obama's proposed federal college ratings system. The system would reportedly be based on measures of access, affordability, and outcomes. Contending that the proposed system would be "oversimplified" and "reductionist," the resolution cautions that President Obama's proposal would "carry an image of validity that will mislead" prospective students and would "lead to less choice, diversity and innovation." The authors call on their colleagues to oppose efforts to implement such a system.
New guidelines released by the Association of American Medical Colleges (AAMC) regarding the skills and knowledge of medical students. Two versions of the guidelines—one aimed at curriculum planners and one geared toward faculty members and students—are available. Each document includes a list of thirteen activities that all medical students, regardless of specialty, should be able to perform by the time they graduate and begin their residencies. The guidelines are intended to standardize the expectations for both students and teachers and to better prepare students for their roles as clinicians.
Memorandum of Understanding (MOU) between the U.S. Department of Justice and the Missoula County Attorney's Office, the County of Missoula, and Montana Attorney General Tim Fox to resolve its investigation of the County Attorney's Office's response to reports of sexual assault at the University of Montana at Missoula. The Justice Department opened an investigation into allegations of gender discrimination in the Office's response to sexual assault complaints. Among other requirements, the County Attorney's Office has agreed to develop and implement effective sexual assault policies and training for prosecutors, use prosecution techniques that have been shown to result in better sexual assault investigations, and improve communication and coordination with other Missoula stakeholders regarding sexual assault response.
The U.S. Department of Education seeks comments on the proposed information collection request requirements regarding annual state applications under Part C of the Individuals With Disabilities Education Act. To be eligible for a grant under 20 U.S.C. 1433, the Act requires that states must provide assurance to the Secretary of Education that it has adopted a policy ensuring that early intervention services are available to all infants and toddlers with disabilities in the state and their families. Comments must be submitted by August 11, 2014.
Order from the U.S. District Court for the Eastern District of North Carolina granting plaintiff Michael S. Adams' motion for attorney's fees and non-taxable costs. Adams, an associate Professor of Criminology, sued his employer, the University of North Carolina-Wilmington (UNCW), alleging that the University discriminated against him on the basis of protected speech activity by denying him a promotion to full professor. The speech in question involved columns that Adams wrote on academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality. Upon an appeal of an order on summary judgment for the defendant and remand by the Fourth Circuit Court of Appeals, the matter proceeded to jury trial. The jury returned a unanimous verdict, finding that the plaintiff's speech was "a substantial or motivating factor in the defendants' decision to not promote the plaintiff, [and] the defendants [would not] have reached the same decision not to promote the plaintiff in the absence of the plaintiff's speech activity." The District Court awarded the plaintiff $698,131.50 in legal fees and $12,495 in non-taxable costs.
Order from the Court of Appeals for the Second Circuit affirming in part, vacating in part, and remanding the District Court for the Southern District of New York's order of summary judgment in favor of the defendants-appellees. The case began when several authors and authors' associations filed suit against research libraries alleging that their digitalization of copyrighted works without authorization violated the Copyright Act. Individuals with certified print disabilities intervened. The District Court entered summary judgment in favor of defendants-appellees and dismissed the claims of copyright infringement. On appeal, the Circuit Court held that: 1) certain plaintiffs-appellants lack associational standing in light of the Court's previous holding that "the Copyright Act does not permit copyright holders to choose third parties to bring suits on their behalf"; 2) the doctrine of "fair use" allows defendants-appellees to create a full-text searchable database of copyrighted works and to provide those works in formats accessible to those with disabilities, since the libraries did not allow users to view any portion of books or add new, human-readable copies of any books into circulation, but merely permitted users to locate where specific words appeared in digitized books; and 3) that the claims based on the Orphan Works Project were not ripe for adjudication because the library had abandoned the project, and there was no indication of whether and when it would be revived or whether it would infringe copyrights of any proper plaintiffs-appellants.
Same-Sex Marriage: Wolf v. Walker
(June 11, 2014)
Order by the U.S. District Court for the Western District of Wisconsin granting plaintiffs' motion for summary judgment and denying defendants' motion to dismiss. Eight same-sex couples residing in Wisconsin filed suit against Governor Scott Walker and other state officials alleging that the state's constitutional amendment and relevant state statutes limiting state recognition of marriage to couples comprised of a man and woman violate their fundamental right to marry and their right to equal protection of the laws. The Court held that Wisconsin laws prohibiting marriage between same-sex couples "significantly interfere" with the plaintiffs' right to marry—a right recognized by the Supreme Court— by prohibiting them from entering into marriage relationships that will be meaningful for them. In applying heightened scrutiny review under the Equal Protection Clause, the Court concluded that the state laws unconstitutionally discriminate against the plaintiffs on the basis of sexual orientation. The Court also ruled that defendants' and amici's asserted state interests of preserving tradition, encouraging procreation, providing an environment for optimal child rearing, protecting the institution of marriage, proceeding with caution, and helping to maintain other legal restrictions on marriage are not "sufficiently important" to warrant interference with plaintiffs' right to marry and the state ban is not closely tailored to further a legitimate state interest.
Emergency motion for temporary stay of the order issued by the U.S. District Court for the Western District of Wisconsin granting declaratory relief to the plaintiffs. The Court declared that the provisions of the state Constitution and state statutes restricting the legal status of marriage to opposite-sex couples violate the Fourteenth Amendment of the U.S. Constitution. Once the Court entered its order, several county clerks waived the standard five-day waiting period on marriage licenses and began issuing licenses to same-sex couples, while other counties have decided to await further clarification. Appellants argue that an emergency stay order is necessary to avoid widespread public confusion, uncertainty, and the possibility of further litigation regarding the relief granted by the Court while the Seventh Circuit decides how Wisconsin may define the civil institution of marriage. Appellants argue that the state's interests in enforcing its laws and ensuring administrative clarity, as well as individual interests in certainty and avoiding unnecessary expenditures, will be irreparably injured in the absence of a stay.
Executive order signed by President Obama to make an additional five million existing student loan borrowers eligible for an income-based repayment program known as Pay As You Earn. The program allows borrowers to cap their monthly loan payments at ten percent of their discretionary income and to have any remaining loan debt forgiven after twenty years. The President also directed the U.S. Department of Education to improve its publicity of income-based repayment programs through targeted outreach and to study ways to counsel borrowers more effectively.
Florida's Postsecondary Education Textbook and Instructional Materials Affordability Bill (H.B. 355) died in the Senate Appropriations Subcommittee on Education. The legislation would have required the State Board of Education and the State Board of Governors to adopt affordability policies and guidelines relating to textbooks and other instructional materials. It would have also mandated that state colleges and universities post information on their course registration systems and websites describing each course's required textbooks and pricing information.
Florida House Bill 851 signed into law by Governor Rick Scott. The law allows undocumented immigrant students who attended high school in Florida for at least three consecutive years prior to graduating to qualify for in-state tuition at Florida colleges and universities. The law also makes it more difficult for certain public universities to raise tuition rates for Florida students.
Order by the U.S. District Court for the Eastern District of Arkansas granting the defendant's motion for summary judgment. Plaintiff Alda Moore, a tenure-track assistant professor employed by defendant Philander Smith College (the College), filed suit against her employer for alleged gender discrimination in violation of Title VII of the Civil Rights Act of 1964. The College dismissed Dr. Moore after she was arrested and charged with aggravated assault for pointing a gun at her neighbors. The Court held that even if Dr. Moore could establish a prima facie case of gender discrimination, she could not survive the College's motion for summary judgment because its decision to terminate Dr. Moore was supported by a legitimate, non-discriminatory reason—a review of police reports demonstrating that Dr. Moore had engaged in improper and/or illegal conduct in violation of her employment contract. The Court further held that Dr. Moore could not establish a reasonable inference of discrimination by comparing her situation to that of two other, similarly-situated employees because neither employee was an appropriate comparator at the pretext stage. Unlike Dr. Moore, the first employee's charges did not involve a weapon or a threat of violence, and the second employee's situation was handled by a different supervisor.
Per curiam order from the Second Circuit Court of Appeals upholding the district court's grant of summary judgment in favor of the appellee, the State University of New York at Orange (SUNY). Appellant Chester Widomski sued SUNY, alleging that it discriminated against him by preventing him from participating in a phlebotomy clinical program based on a perceived disability and that it retaliated against him in violation of Title II of the Americans with Disabilities Act (ADA). Widomski was told that he would not be allowed to receive a license to draw blood from patients because his hands shook too much. The university's Board of Inquiry later found Widomsky guilty of document falsification and expelled him for submitting summary reports with altered dates to make it appear that his proctor had signed off on his competency. The Second Circuit found that Widomski: 1) failed to raise a genuine dispute of fact as to whether SUNY perceived him as being substantially limited in the major life activity of working, since the Chair of the Laboratory Technology Department told Widomski he would still be employable as a medical technician despite not having a phlebotomy license; and 2) failed to raise a genuine factual dispute as to whether the initiation of disciplinary proceedings against him were false or otherwise pretextual because the Chair had a good faith belief that Widomski had fabricated the summary reports.
Order from the Sixth Circuit Court of Appeals affirming the district court’s grant of summary judgment in favor of the defendant-appellee, Santa Clara University (SCU). Plaintiff-appellant Conchita Franco Serri, a former Director of Affirmative Action at SCU and a Puerto Rican female, filed suit against her former employer alleging that she was wrongfully discharged based on her race and ethnic origin. Her complaint also contained causes of action for breach of her employment contract, retaliation, and harassment in violation of the California Fair Employment and Housing Act, violation of the federal Equal Pay Act, defamation, intentional and negligent infliction of emotional distress, and interference with prospective economic advantage. SCU fired Serri after she failed to produce required Affirmative Action Plans for three consecutive years and for making misrepresentations about the plans she had failed to prepare. The Court held that expert evidence— collected years after the employee’s termination and showing that an employee’s failure to perform an important job function did not result in negative consequences to the employer— does not create a triable issue of fact on the question of whether the employee failed to perform her duties. Thus, the evidence had “limited, if any” relevance to the issue of whether SCU’s stated reasons for terminating Serri were untrue or pretextual such that a reasonable trier of fact could conclude that the employer engaged in discrimination. The Court also granted summary judgment to the defendant for Serri’s remaining causes of action.
Proposed class action settlement agreement between former NCAA student-athletes and defendant Electronic Arts Inc. (EA) in litigation surrounding EA's alleged unauthorized use of the student-athletes' identities and likenesses in the advertisement and sale of video games. In the settlement agreement, EA agrees to pay $40 million, which includes all monetary benefits to the settlement class, participation awards for plaintiffs, attorneys' fees, and all costs and expenses. Class members may object to or exclude themselves from the settlement through a written request by the deadline provided in the Class Notice. The settlement does not resolve the ongoing litigation between the former players and the NCAA.
Legislation to fund Commerce, Justice, Science, and Related Agencies for fiscal year 2015 (S. 2437) was approved by the Senate Appropriations Committee. The bill invests a total of $51.2 billion in public safety, economic growth, job creation, and scientific research. The House Committee on Science, Space and Technology approved similar legislation, the Frontiers in Innovation, Research, Science, and Technology (FIRST) Act (H.R. 4186), on May 28. Unlike the House bill, however, the Senate version does not include provisions that would cut social science research.
Statement released by the Association of American Universities (AAU) on the Senate bill to fund Commerce, Justice, Science, and Related Agencies for fiscal year 2015 (S. 2437), which was recently approved by the Senate Appropriations Committee. The AAU expresses support for the overall funding level provided for NASA and thanks the Committee for placing a priority on investing federal funds in research supported by the National Science Foundation (NSF). It also asserts that the organization will continue working with Congress to ensure that the final appropriation for the NSF meets the higher amount approved by the House in the Frontiers in Innovation, Research, Science, and Technology (FIRST) Act (H.R. 4186).
Report released by a private firm hired by the University of Tennessee (UT) to investigate allegations of sexual misconduct and retaliation against UT's former Director of Judicial Affairs, Jenny Wright. A student-athlete accused Wright of engaging in sexual relations with him and other UT football players, then retaliating against him when he ended the relationship by reprimanding him harshly in a student misconduct case. The report found no evidence that Wright had inappropriate relationships with any student-athletes.
Legislation (S. 2292) to amend the Higher Education Act of 1965 introduced to the Senate Banking Subcommittee on Financial Institutions and Consumer Protection by Senator Elizabeth Warren (D-MA). The Bank on Students Emergency Loan Refinancing Act directs the Secretary of Education to establish a program that would allow individuals with student loan debt to refinance their federal and private loans according to the rates for new borrowers that Congress set for the period beginning July 1, 2013 and ending June 30, 2014. Funding for the bill would be provided through the Buffett Rule, which would require that no household making more than $1,000,000 annually pay a smaller share of their income in taxes than a middle class family pays.
Legislation (S. 2244) to reauthorize the Terrorism Risk Insurance Program approved by the Senate Banking Committee. The original Terrorism Risk Insurance Act of 2002 (TRIA), which has been reauthorized twice, established a public-private risk sharing mechanism to pay the federal share of compensation for insured losses resulting from terrorist acts. This mechanism helps ensure that colleges and universities can purchase adequate and affordable insurance coverage to protect against losses resulting from a terrorist attack. Currently, the program is set to expire at the end of 2014.
Bill (S2194) introduced by Senators Mazie K. Hirono (D-HI), Jack Reed (D-RI), and Sheldon Whitehouse (D-RI). The Pell Grant Protection Act would convert the federal Pell Grant Program into a mandatory spending program with a cost-of-living adjustment and restore year-round Pell Grants. Lawmakers intend for the Act to improve opportunities for low-income students to complete higher education.
Order from the U.S. District Court for the Northern District of Ohio in favor of the plaintiff, Al-Dabagh. Al-Dabagh sued Case Western Reserve University (CWRU) for alleged breach of contract and breach of its obligation of good faith and fair dealing in carrying out that contract after it refused to award him a diploma despite the fact that he completed the medical school curriculum, satisfied the requirements to become a doctor of medicine, and paid all his fees. CWRU refused Al-Dabagh his diploma for allegedly failing to show "professionalism" by not reporting a recent arrest for driving under the influence. The Court found that CWRU arbitrarily and capriciously denied Al-Dabagh a diploma because 1) he was likely to succeed on his breach of contract claim given that character judgments are only distantly related to medical education and thus not deserving of deference; 2) CWRU failed to show that it would suffer irreparable harm if judges, who are not academics or physicians, are allowed to second guess its decisions on non-academic matters; and 3) issuing Al-Dabagh a diploma would benefit the public interest.
Legislation is currently being considered by the Delaware House of Representatives that would remove the publicly-funded state university exemption to certain Freedom of Information Act (FOIA) requirements. Under current law, the University of Delaware and Delaware State University are only required to release records "relating to the expenditure of public funds." Further, only full meetings of each university's board of trustees must comply with the state's open meetings law. The legislation, if adopted, would apply all FOIA requirements to both institutions.
Proposed final decree filed in the U.S. District Court for the Eastern District of Virginia in a lawsuit filed against the Virginia Community College System (VCCS) for violating a student's free speech rights on campus. Christian Parks, a student at Thomas Nelson Community College, sued the VCCS after campus officers stopped him from preaching in a central courtyard based on a policy that allowed only organizations recognized by the college to sponsor demonstrations, restricted such demonstrations to designated areas, and required the groups to register with the president's office prior to the demonstration. The parties came to a settlement in which the VCCS agreed to pay $25,000 in damages and attorneys' fees, to overturn the existing policy and replace it with a new one declaring outdoor areas of campuses venues for free expression, and to only enforce reasonable time, place, and manner restrictions that are not based on content, viewpoint, or speaker identity.
Order from the U.S. District Court for the Northern District of Illinois granting the defendant Board of Trustees of Moraine Valley Community College's (MVCC) motion to dismiss. The case involved a suit by William Silk, a 69 year-old adjunct professor at MVCC who had taken medical leave for heart bypass surgery, against the Board for alleged discrimination based on disability and age, as well as retaliation for complaining about discrimination. The Dean of the Liberal Arts College, Walter Fronczek, put Silk on the "Do Not Hire" list after observing him teaching a sociology course and finding his performance to be below the department's standards. The Court granted the defendant's motion after finding that Silk's uncontested performance evaluation was a non-discriminatory and non-pretextual reason for his termination; that the fact that Silk was one of the most senior members of the Liberal Arts Department and that only one of six people fired in the past few years was under 40 were not sufficient grounds to support an age discrimination claim; and that Silk could not show that he was meeting his employer's expectations, identify any similarly-situated employees treated more favorably than him, or prove a causal connection between his termination and his EEOC discrimination claim—which he filed after being terminated—to support a claim of retaliation.
Policy adopted unanimously by the University of Oregon in response to the United States Supreme Court decision in Garcetti v. Ceballos, which held that public agencies may discipline their employees for statements made pursuant to their official duties while leaving untouched the question of whether the holding applies to speech that relates to scholarship or teaching. The new policy applies to "members of the university community" and protects their "freedom to address, question, or criticize any matter of institutional policy or practice, whether acting as individuals or as members of an agency of institutional governance." The only abuses that may be punished by the institution in light of the new policy are those "that rise to the level of professional misbehavior or professional incompetence."
Report published by the Department of Education's National Center for Education Statistics (NCES) on student enrollment in courses where instructional content was delivered exclusively online. The data was collected through the NCES's Integrated Postsecondary Education Data System (IPEDS), which collects data from higher education institutions eligible for Title IV financial aid. According to the report, roughly a quarter of total enrollment—consisting of approximately 5.5 million students—took at least one online course in the fall of 2012. About 2.6 million of those students were enrolled in fully-online programs, while the rest took both traditional and online courses. The level of school (graduate versus undergraduate), the regions and states in which the students were located, and the for-profit status of the institution also affected online enrollment.
Legislation approved by the California State Senate that would require institutions of higher education that receive state-funded student aid to incorporate an "affirmative consent" standard into their sexual assault policies. Such a standard is defined as "an affirmative, unambiguous and conscious decision" by each party to engage in sexual activity. Affirmative consent must be given when initiating the sexual activity and "ongoing throughout a sexual encounter." The bill would also require these institutions to enter into collaborative partnerships with both on-campus and community-based organizations for the purpose of referring students affected by sexual misconduct and to implement prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking.
Amendment to a North Carolina Senate budget bill proposed by Senator Bill Cook (R-1) passed the Senate by a vote of 47-0. The amendment eliminated a controversial provision in the bill that would have mandated that the Board of Governors at the University of North Carolina dissolve any institutions of higher education where full-time enrollment dropped by more than twenty percent since 2010. This provision would have affected one institution-- Elizabeth City State University, a historically black institution.
Statement issued by the Association of American Universities (AAU) opposing the Frontiers in Innovation, Research, Science and Technology Act (FIRST Act), which would reauthorize programs in National Science Foundation (NSF) and the National Institutes of Standards and Technology (NIST). The bill would also cap overall funding for NSF under the inflation level; impose new grant conditions on the agency's peer review system; and significantly reduce federal funding of the Social, Behavioral, and Economic Sciences and the Geosciences. AAU criticizes the bill for failing to provide adequate funding to support America's research enterprise and adding to existing regulations instead of reducing unnecessary or duplicative regulations.
Legislation designed to protect the freedom of association rights of religious student organizations at public colleges and universities in Oklahoma was signed into law by Governor Mary Fallin. The law forbids these institutions from denying a religious student organization any benefit available to other student organizations and from discriminating against such an organization with respect to these benefits. It also provides a cause of action for students and organizations who believe their rights may have been violated under this law.
Order by the Tenth Circuit Court of Appeals on an appeal by the plaintiff, Dr. Anna Hamilton, affirming a district court's grant of summary judgment in favor of the defendant, Oklahoma City University ("OCU"). OCU hired a man named Jacob Stutzman for a tenure-track position instead of Hamilton, who had also applied for the position. Believing Stutzman to be unqualified for the position, Hamilton filed suit, claiming that the University discriminated against her on the basis of sex in violation of Title VII of the Civil Rights Act. She argued that the fact that Stutzman did not meet the minimum qualifications for the position because he did not have a Ph.D., that the selection committee had only one female member, and that OCU favors males as a general matter provided evidence to show that she was denied the job due to her sex. The Tenth Circuit held that a reasonable jury could not infer, based on Hamilton's evidence, that OCU's proffered reasons for passing over Hamilton and hiring Stutzman were pretextual.
Order by the Tenth Circuit Court of Appeals on an appeal by plaintiff Grace Hwang affirming the district court's dismissal of her complaint against the defendant, Kansas State University ("KSU"). Hwang, an assistant professor who was diagnosed with and treated for cancer, filed suit against KSU after it refused to extend her paid leave of absence based on its policy limiting sick leave periods to six months, thereby effectively firing her. The Tenth Circuit concluded that because Hwang was not able to perform the essential functions of her job, even with reasonable accommodation, based on her own admission, KSU did not violate Rehabilitation Act by denying her more than six months of sick leave. It also held that Hwang failed to state a Rehabilitation Act claim that she was subjected to disparate treatment leave, since the University's policy granted all employees a full six months of sick leave. Finally, the Court held that by offering no facts suggesting that KSU acted with unlawful animus in failing to hire her for either of two alternate positions for which she applied after losing her teaching job, she failed to state a retaliation claim.
Order by the Supreme Court of Indiana affirming the Montgomery Superior Court's grant of summary judgment to the defendant. The matter arose out of the acute alcohol ingestion death of a freshman pledge of Beta Psi, the local chapter of Delta Tau Delta ("the national fraternity") at Wabash College. The student's parents filed a wrongful death suit against the national fraternity, along with its local chapter and the College, and predicated each of their three claims on the alleged negligence of the national fraternity through its agents and officers. After finding that the national fraternity's duty regarding the policies on hazing and irresponsible drinking was purely educational, the Court held that there was no evidence that the national fraternity assumed any duty of preventative, direct supervision and control of the behaviors of its local chapter members. Thus, it affirmed the lower court's grant of summary judgment to the national fraternity.
Letter from Senator Claire McCaskill (D-Mo.) to the American Council on Education ("ACE") renewing her request to provide webinar materials that the organization presented to its member higher education institutions advising them on the congressional investigation process in light of the Senator's survey on campus sexual violence policies. On May 16th, ACE declined McCaskill's initial request to produce the documents—which she alleged had a chilling effect on institutions' participation in the survey—out of respect for its member institutions' confidentiality and rights to association. In the event that ACE again declines her request, McCaskill asks that the organization provide a written response detailing a legal justification for its refusal.
Bill approved by the House Committee on Science, Space and Technology that is intended to increase national investment in scientific research, modernize national research infrastructure, and increase scientific skills in the workforce. The legislation would also cut funding for social and political science research.
Report released by the Foundation for Individual Rights in Education (FIRE) tracking the reported trend of efforts to prevent invited speakers with whom some students and faculty members disagree from speaking on campus. The report argues that although these "disinvitation incidents" are most noticeable around commencement season, they occur throughout the academic year and have been steadily increasing over the past fifteen years. FIRE concludes that this trend is "worrisome" because of its negative impact on students' education and its promotion of a climate that chills free speech.
Letter from the Foundation for Individual Rights in Education (FIRE) expressing concerns over the University of Notre Dame's decision to deny recognition of the student organization, Students for Child-Oriented Policy (SCOP). The organization focuses on Indiana marriage-related policies and "aim[s] to build up a network of students across Indiana that will unite in favor of child-oriented policies." While the University's Club Coordination Council states that it rejected SCOP's bid for recognition because it believes the group's mission and activities are too similar to those of other existing groups, FIRE challenges the University's contention as pretext "to prevent a politically unpopular group from gaining recognition" and calls on the University to reverse its decision.
Email from Representative Bob Goodlatte (R-VA) to fellow lawmakers notifying them of his intent to insert a provision in an upcoming appropriations bill that would prohibit the government from using funds to develop, implement, or administer a federal college ratings system. Representative Goodlatte expresses concern that the proposal would result in "a loss of choice, diversity, and innovation" and urges his colleagues to join him in his effort.
Comment submitted by the American Council on Education (ACE) on behalf of nineteen higher education associations regarding the Notice of Proposed Rulemaking on gainful employment regulations. The signers express support for gainful employment regulations that would exclude underperforming programs from Title IV financial aid eligibility. However, they criticize the proposed regulations for failing to adequately improve the Title IV system while simultaneously adding "excessive layers of reporting and disclosure burdens" that will increase costs and place a disproportionately high burden on institutions with the fewest resources. The Comment identifies four major areas of concern and urges the Department of Education to adopt several revisions to its proposed rule to address these issues.
Order from the U.S. District Court for the Middle District of Florida granting defendants' motions for summary judgment. Plaintiffs, former student registered nurse anesthetists, were enrolled in defendant Wolford College's nurse anesthesia master's degree program and participated in unpaid internships supervised by defendant Collier Anesthesia. Claiming that they were employees rather than student trainees, the plaintiffs sued for payment of minimum wage and overtime compensation under the Fair Labor Standards Act (FLSA). Despite the disputed nature of the benefits the plaintiffs received from their participation in the internship, because the plaintiffs were enrolled in a master's degree program that required participating in the internship, were given the hands-on training, were aware that they would not be paid for the internship, and received course credit and a grade for their participation, the Court concluded that the plaintiffs did indeed receive "clear benefits" through the internship and were thus not employees for the purposes of the FLSA.
Order granting in part and denying in part the defendant's motion to dismiss. Plaintiff, a seventy-year-old African-American woman, filed suit against defendant Bucks County Community College under § 1981 for a hostile work environment based on race and age. The Court concluded that Dunn asserted sufficient allegations of severe and pervasive race and age discrimination based on her claims that her manager made frequent discriminatory and derogatory comments about her race—calling her "ghetto" and stating that "black people get too offended"—and her age—telling her that she would "forget things because of her age" and asking her when she planned to retire. The Court also held that the plaintiff exhausted her administrative remedies prior to filing suit by filing an Equal Employment Opportunity Commission charge asserting that she was being singled out for her age during her employment and that she was later terminated because she was, in her manager's words, "too old." Although the Court granted the defendant's motion to dismiss all claims based on alleged conduct that occurred three hundred days or more prior to the plaintiff's filing of the EEOC charge because the conduct occurred outside the statute of limitations, it granted the plaintiff's request for leave to file a second amended complaint to sufficiently allege discriminatory acts as part of a continuing pattern of discrimination outside the statute of limitations.
A statement issued by Senator Tom Harkin and Congressmen George Miller pushing for Congress to adopt legislation to protect students from deceptive marketing practices and high fees associated with banks and financial institutions that appear to be endorsed by institutions of higher education. Senator Harkin and Congressman Miller have introduced such legislation in both the Senate and the House. The bills are designed to ensure that students are in control of their financial aid and banking products, remove conflict of interest between financial institutions and schools, and encourage transparency in campus marketing arrangements.
A report commissioned by the Association of Private Sector Colleges and Universities in response to the Department of Education's proposed gainful employment regulations, which attempt to define the term "gainful employment" in the Higher Education Act in hopes of identifying for-profit programs that lead students to accumulate unmanageable debt. After finding that many more programs would be affected and many more students would lose federal aid eligibility under the rules than previously estimated, the authors of the report argue that the proposed rule suffers from fundamental flaws and provide an in-depth summary of each of these flaws. The report concludes with a list of five "critical issues" that it recommends the Department address.
Order by U.S. District Judge Claudia Wilken of the U.S. District Court in Oakland, CA, denying the NCAA's motions to continue the trial of the antitrust claims against it and to sever trial issues. The case involves two groups of plaintiffs: the "Right-of-Publicity Plaintiffs," who allege that the NCAA misappropriated their names, images, and likeness for use in NCAA-branded games; and the "Antitrust Plaintiffs," who allege that the NCAA conspired with Electronic Arts Inc. and the Collegiate Licensing Company to restrain competition in two related markets. The judge rejected the NCAA's argument that its Seventh Amendment right to a jury trial on the Right-of-Publicity Plaintiffs' damages claims would be infringed by trying Antitrust Plaintiffs' equitable claims first, as well as its claim that the trial must be delayed in order to send out class notice. The judge also held that severance is not justified in this case because it would not avoid duplicative litigation or conserve judicial resources. Finally, the Court ordered the two cases to be de-consolidated for trial.
Appeal from an order by the New York Supreme Court of Westchester County denying defendant Securitas Security Services USA and security guard Jarrett's motion for summary judgment on their cross claim against defendant Manhattanville College for contractual indemnification, and granting the motion of Manhattanville College for summary judgment on its cross claim for contractual indemnification against Securitas and Jarrett. Plaintiff taxicab driver was allegedly injured in an altercation with several Manhattanville College students in front of Jarrett, who was employed by Securitas Security Services to work on the Manhattanville campus. According to the driver, Jarrett did not intervene when the altercation became physical. The Second Appellate Division held that the lower court erred in denying Securitas and Jarrett's motion because the plaintiff was not a third-party beneficiary of the contract between Securitas and Manhattanville, meaning that Securitas did not assume a duty to exercise reasonable care to prevent harm to the plaintiff by virtue of its contractual duty to provide an unarmed security guard for the campus. However, the Court upheld the lower court's grant of Manhattanville's motion dismissing the complaint against it because the College established that it had taken minimal security precautions against foreseeable criminal acts of third parties and that the assault on the plaintiff was unforeseeable.
Order from the U.S. District Court for the District of Connecticut granting defendant Board of Trustees Community Technical Colleges' motion for summary judgment. Plaintiff, an African-American employed by the Payroll Department at Middlesex Community College, alleged that he had been subjected to a hostile work environment on the basis of his race in violation of Title VII of the Civil Rights Act of 1964. He claimed that, unlike "similarly situated" Caucasian employees, he was required to perform job duties above his classification without commensurate compensation; that his manager made insulting comments and exhibited "foul behavior" toward him and other African-American men in the office; and that he was forced to work in unsanitary environments, among other complaints. After holding that the plaintiff failed to put forth sufficient evidence to convince a jury that the harassment complained of was either sufficiently serious or was perpetrated on the basis of his race, the Court granted the defendant's motion for summary judgment.
Order by the U.S. District Court for the District of Connecticut denying the plaintiff's motion to amend the complaint and dismissing the case without prejudice. In response to the defendants' motion to dismiss the original complaint against defendants Gateway Community College and other school officials in their individual capacities, plaintiff Mpala moved to file an amended complaint, alleging that the defendants violated Section 1983 for claims arising under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The case arose from a series of verbal altercations between defendant Ogbaa, the chief librarian, and Mpala, a visitor to the campus, which centered on Mpala's clothing and identification as bisexual. Ogbaa banned Mpala from the library, and Mpala was later banned from the campus. The Court concluded that the original claims would not survive a motion to dismiss and that each amendment to the complaint would be futile. However, because the plaintiff proceeded pro se, the Court dismissed the case without prejudice and granted the plaintiff an opportunity to reopen the case within twenty-one days.
Appeal from an order by the Berrien County Circuit Court. Suzzette Barnaby failed a class in fall 2008 and was dropped from a graduate studies program after an unsuccessful attempt to dispute the grade through the school's grievance process. Andrews University then filed a complaint against Barnaby alleging that she failed to pay over $37,000 in tuition for her three sons. Barnaby responded by filing an answer and counter-complaint alleging a myriad of claims, including an allegation that the University filed the tuition claim in retaliation for her pursuit of the University's grievance process. The trial court entered a directed verdict for the University on many of Barnaby's counterclaims and dismissed the rest, finding that the University had allowed Barnaby full access to the grievance procedure and that the University's decision to drop Barnaby from the graduate studies program was valid as it was based on her failure to achieve the requirements for her provisional acceptance into the program. The trial court also ordered Barnarby to pay her sons' educational debts. The Michigan Court of Appeals affirmed after finding no errors warranting reversal.
Order from the Appellate Court of Illinois Fourth District affirming the decision of the State University Retirement System (SURS) Executive Committee. Plaintiff Desai was an employee of the University of Illinois-Chicago who, upon applying for retirement benefits, discovered that his certified annuity was significantly less than the amount that SURS had estimated years earlier. After a hearing, the SURS' claims panel affirmed the certified amount based on its finding that the discrepancy resulted from a mistake in the estimate calculations. Desai appealed to the executive committee and later filed a complaint in the Champaign County Circuit Court, arguing that the executive committee erred in denying his appeal and affirming SURS' final retirement annuity calculation because the committee failed to properly interpret Section 15-134.1(b) of the Illinois Pension Code. The court denied the plaintiff's request for review, holding that SURS appropriately calculated plaintiff's pension and that nothing in the record indicated that SURS had acted "other than according to the law." The Appeals Court affirmed, finding nothing in the executive committee's decision that was clearly erroneous.
Bill to reauthorize the Workforce Investment Act. The law is intended to streamline the nation's system for workforce development and apply a standard set of outcome measures to evaluate all federal job training programs. It would also preserve a seat for two-year institutions on local workforce investment boards, eliminate "sequence of service" rules that have forced some unemployed workers to seek jobs before enrolling in college programs, and allow local workforce boards to enter into contracts with community colleges to train students. Members of Congress reached an agreement on the bill, which could be brought to the Senate floor as early as next week and is expected to pass both chambers.
Report on a survey conducted by United Educators and the Association of Governing Boards of Universities and Colleges (AGB) on risk management practices. The report concludes that while there has been a modest increase in colleges' use of risk assessment in high-level decision-making over the past five years, boards and administrators are not yet substantially committed to the practice. The authors encourage college officials to take a more holistic view of risk management by considering risks across the institution as part of the strategic planning process. They also offer six key practice recommendations to help colleges create a strong risk management foundation.
Letter to the President of the NCAA from U.S. Representatives Elijah Cummings and Tony Cárdenas requesting information on its practices, as well as those of its member higher education institutions, to ensure that student-athletes are receiving a "real, valid, and legitimate" education. This request comes in response to public reports suggesting that the NCAA is allowing its member institutions to emphasize their financial interests in student athletic programs at the expense of student athletes' education and academic performance.
Bill (HB4090) passed by the Illinois Senate making it a Class A misdemeanor for a person to knowingly use a false academic degree to obtain employment or promotion within a higher education institution. The law would also apply to false degrees used to acquire admission to an advanced degree program. The measure passed the Senate by a vote of 46 to 0 and will now go back to the House for further consideration.
Revised speech and expression policy at Georgetown University. The changes to the policy came in response to a 2010 decision by the University not to recognize the student group "H*yas for Choice" because its stated purpose "conflict[ed] with Catholic moral teaching." After reviewing surveys and gathering information on students' qualms with the existing speech policy, Georgetown administrators coordinated with the University's Speech and Expression Committee to design and implement changes geared toward expanding student speech rights on campus.
Statement issued by the Department of Education regarding Phase Two of its transition to a new Direct Consolidation Loan process. The statement directs all new applicants to complete the Federal Direct Consolidation Loan Application and Promissory Note through a single process on StudentLoans.gov starting May 18, 2014 because the Department will eventually shut down the previous consolidation system. It also states that the Department will continue to work with applicants whose applications were submitted and partially processed before May 18 and notify any other applicants whose applications will not be processed of the need to initiate a new application.
Corporate filing by Bridgepoint Education, Inc. announcing that it would pay $7.25 million to Iowa's Attorney General for consumer restitution and fees relating to an investigation into whether the sales practices of its Ashford University unit violated state consumer protection laws. As part of the agreement, the University did not admit to any wrongdoing.
Report published by the College Board as part of a consortium on federal grants and work-study— the second of five consortia designed to develop the ideas and recommendations presented by the Reimagining Aid Design and Delivery project. The Report contains five proposals detailing ways to increase access to the federal Pell Grant Program and improve and expand the Program's ability to meet the needs of low-income students.
Letter from the University of Texas at Austin's Vice President of Student Affairs responding to concerns expressed by the Foundation for Individual Rights in Education (FIRE) regarding an alleged lack of transparency and accountability surrounding the University's student-led Events CoSponsorship Board and its process for distributing funds to student organizations. The concerns arose when the Board denied a funding request submitted by the University's Objectivism Society for assistance with an on-campus debate and, upon request for explanation from the Society's President, stated that it was "unable to disclose any information" regarding its decision. The Vice President apologized for the lack of communication and assured FIRE that the University had taken steps to address the issue.
Order by the U.S. District Court for the Western District of Wisconsin granting in part, denying in part, and staying in part defendants' motion for summary judgment. The case arose when the University of Wisconsin-Stout dismissed the plaintiff student from a graduate program after officials concluded that her cerebral palsy prevented her from communicating effectively. The Court denied as "premature and undeveloped" defendants' motion to dismiss plaintiff's claims for damages under the Americans with Disabilities Act and the Rehabilitation Act, concluding that it was premature to determine whether plaintiff can prove the requisite intentional discrimination to recover compensatory damages in light of defendants' failure to develop their argument and their concession that genuine issues of material fact exist regarding the alleged violations. Defendants may reassert their argument against compensatory damages at trial. The Court also denied the defendants' motion for summary judgment under the doctrine of judicial estoppel and stayed its decision on the plaintiff's procedural due process claim to allow her to respond to defendants' argument challenging her property interest in her continued education.
An internal report on the institutional climate at the University of Colorado School of Dental Medicine for underrepresented racial and ethnic minority students, women, foreign nationals, persons who have low income, persons with strong religious beliefs, and LGBTQ individuals. The report concludes that while the School has taken "laudable steps" to create a more inclusive institutional atmosphere, these steps have not yet resulted in "an integrated climate of inclusivity." To address this issue, the authors recommend four objectives and strongly encourage the School to take a series of strategic actions involving the dental program's structure, curriculum, and institutional climate to meet these objectives.
Interim policy (Section 20-13-6 of the Administrative Rules for the University of Hawai?i and Sections 10 and 11 of the Facilities Use Practice and Procedures) adopted by the University of Hawai'i at Hilo in response to a federal lawsuit challenging its free speech and assembly policies. The interim policy will implement the challenged rules "in a manner to permit student speech and assembly without first having to apply for or obtain permission from the University in all areas generally available to students and the community, defined as open areas, sidewalks, streets, or other similar common areas." It will also "permit students to approach others on campus and to distribute non-commercial literature at UH Hilo in all areas generally available to students and the community."
Letter from seven U.S. Senators and Representatives urging the Secretary of Education to establish clear standards of eligibility for "undue hardship" discharge of federal student loans in bankruptcy. The signers note that undue hardship discharges are often blocked by aggressive challenges by contractors from the Department of Education. They encourage the Department to adhere to a list of guiding principles when considering such cases to promote consistency and enable the Department to focus its efforts on cases where there is a more realistic opportunity for collections.
Appeal from an order and judgment of the Superior Court of San Diego County that granted an anti-SLAPP (Strategic Lawsuits Against Public Participation) motion filed on behalf of the Regents of the University of California against Dr. Richard Bellars, an anesthesiologist and University of California faculty member who sued the University for an alleged invasion of privacy. The parties filed a joint motion to vacate judgment due to settlement, stipulating to the reversal of the attorneys' fees award. The Fourth District Court of Appeal accepted the stipulation and reversed the judgment and attorneys' fee order because they were the result of the lower court's granting of the anti-SLAPP motion rather than an adjudication on the merits.
The U.S. District Court for the Eastern District of Pennsylvania granted St. Joseph University's motion to dismiss several claims filed against the University by a male student who was suspended after the University found him responsible for sexually assaulting another student. The plaintiff alleged, among other claims, that the University's failure to follow the procedure outlined in its Student Handbook amounted to a breach of contract and that the University discriminated against him based on his "gender" in violation of Title IX. Regarding the contract claim, the court found that the plaintiff failed to plead sufficient factual content to support his claim that the University breached the contract. The court also held that plaintiff's Title IX claim did not sufficiently allege that his sex motivated the University in investigating and adjudicating the sexual assault accusation.
Note that the Resolution Agreement between the U.S. Department of Education, U.S. Department of Justice, and Arcadia Unified School District is not binding on any institution of higher education, but nonetheless may provide insight into OCR's treatment of transgender issues.
The issue in the underlying complaint was that a transgender student, who consistently presented as a boy over a period of years, alleged that the District denied him educational opportunities when it prohibited him from accessing sex-specific facilities designated for male students. Under the terms of the Agreement, the District must revise its policies related to discrimination to specifically include gender-based discrimination as a form of discrimination based on sex, and state that gender-based discrimination includes discrimination based on a student's "gender identity, gender expression, gender transition, transgender status, or gender nonconformity." Regarding its treatment of the individual student, the District must provide him with access to sex-specific facilities designated for male students, consistent with his gender identity, although the student can request access to private facilities in the interest of privacy and safety. The District must also separately maintain any records containing the student's birth name or assigned sex, and keep them confidential unless the student's parents have given express written consent to disclose. Like any other student who is undertaking, planning to undergo, or has completed a gender transition, the student will have the right to request a support team (which may include an advocate, a medical professional, or other relevant District personnel). Finally, the District must provide annual training to all certified District-level and school-based administrators regarding gender-based discrimination. Administrators, in turn, must provide information to all faculty and staff. The District will have to provide documentation of its compliance with the Agreement on an annual basis.
Legislation introduced by Senator Cory Booker (D-NJ) intended to "[simplify] the financial aid process and [increase] the accessibility and affordability of higher education for students and their families." Higher education associations have issued letters of support for this legislation, including the National Association of Student Financial Aid Administrators (NASFAA) and American Council on Education (ACE).
Final rule issued by the Department of Defense to implement the Voluntary Education Programs for Military Service members, including the final Memorandum of Understanding (MOU) for the Tuition Assistance (TA) Program. Effective July 14, 2014, all institutions participating in the TA program must sign the final version of the MOU, even if they have signed an earlier version.
Draft bill from Senator Orrin Hatch and Senator Edward Markey to amend FERPA. The purpose of the amendment is to extend the same privacy protections that apply to educational institutions to any party outside of the institution that has access to education records with personally identifiable information. Among other mandates, the amendment would require third parties to maintain a record of any person or organization that has requested or obtained access to education records and institute policies regarding information security practices for the education records.
Letter from Senators Claire McCaskill, John D. Rockefeller IV, and Cory Booker requesting that the NCAA provide them with copies of their rules and policies related to various issues to aid the Senate in understanding the operation and role of the NCAA and the protections provided for student-athletes. The senators express concern that there is not sufficient oversight “to ensure that the NCAA and its member institutions are taking adequate steps to protect student-athletes from exploitation.”
Report from the Government Accountability Office (GAO) finding that greater access to independent and objective college advice would improve veterans’ ability to make informed education choices. The GAO recommends that the Department of Veterans Affairs (VA) improve outreach and accessibility of its educational counseling services and more consistently develop and communicate realistic timelines for complying with federal requirements.
Notice and invitation to file briefs in response to NLRB's decision to grant Northwestern University's request for review in Northwestern University v. College Athletes Players Association (CAPA). The NLRB is inviting interested parties and amici to file briefs to address a number of issues, including what test the Board should apply to determine whether grant-in-aid scholarship football players are "employees" under the National Labor Relations Act, what policy considerations are relevant in making that determination, and to what extent the existence or absence of determinations on this question under other statutes or regulations is relevant to the Board's analysis under the NLRA. Briefs must not be more than 50 pages in length and must be submitted no later than June 26, 2014.
Statement by the Amherst College Board of Trustees resolving that student participation in unrecognized, off-campus fraternities and sororities (or similar organizations) will be prohibited as of July 1, 2014. The Resolution comes in response to a 2013 report by the College's Sexual Misconduct Oversight Committee that found that such "underground" organizations were undermining the college's ability to enforce its policies. Penalties for participation in such organizations may include suspension or expulsion.
Policy adopted by the Massachusetts Board of Higher Education requiring all public higher education institutions to include civic learning as a requirement for undergraduate students. The board states that civic learning means "acquisition of the knowledge, the intellectual skills, and the applied competencies that citizens need for informed and effective participation in civic and democratic life; it also means acquiring an understanding of the social values that underlie democratic structures and practices." The board intends to implement the policy on civic learning no later than June 2016.
Letter from the American Council on Education to the Chair of the House Education Committee related to Rep. Kline's May 8 hearing urging Congress, not the National Labor Relations Board, to address the unionization of student-athletes. ACE argues that allowing student-athletes to unionize would "disserve the students' education and impede colleges' and universities' ability to perform their essential missions." ACE contends that the proper forum to address this matter is the legislative branch, not an administrative agency.
Letter of findings and resolution agreement between the Virginia Military Institute (VMI) and the U.S. Department of Education, Office for Civil Rights following an investigation into complaints alleging various forms of sex discrimination against female cadets and that VMI's complaint procedures violate Title IX. The Department's letter of findings states that its investigation determined that VMI's policies and grievance procedures do not comply with Title IX. VMI already has implemented a number of policies, procedures, and practices to improve its response to complaints of alleged sex discrimination and has agreed to conduct annual assessments of sexual harassment and assault and training on sexual assault prevention, among other changes.
Plaintiff, a student who does not have disabilities, sued Drake University under Iowa Code Section 216C when the university barred her from bringing a service dog that she was training to classes and another university event. The District Court of Iowa granted the university's motion to dismiss and held that the state statute created no private enforcement action, but the Iowa Court of Appeals reversed and remanded the lower court's ruling. The Iowa Supreme Court has now vacated the Iowa Court of Appeals' decision and affirmed the District Court's ruling in favor of the university. The Iowa Supreme Court ruled that the legislature intentionally omitted a private right to sue under Iowa Code Section 216C because closely-related statutory chapters expressly create private enforcement actions, while Section 216C does not.
Plaintiff sued Creighton University alleging that the institution violated Title III of the Americans with Disabilities Act by failing to provide various accommodations for his disabilities during medical school. Following a jury verdict in plaintiff's favor, the U.S. District Court for the District of Nebraska granted in part his motion for declaratory, equitable, and injunctive relief. The plaintiff then moved to have the court award him attorneys' and expert fees. The court granted his motion and awarded him $478,000 to cover five years of legal and expert fees.
Dear Colleague Letter from the U.S. Department of Education confirming that the Supreme Court's ruling in Schuette v. Coalition to Defend Affirmative Action, et al. does not prevent higher education institutions, secondary schools, or elementary schools from using all legally permissible methods to achieve their diversity goals. Absent any restrictions in state law, appropriately tailored programs may still consider the race of individual applicants as "one of several factors in an individualized process to achieve the educational benefits that flow from a diverse student body."
Letter from the Foundation for Individual Rights in Education (FIRE) urging the Kansas Board of Regents to revise its policy on the use of social media by faculty members at higher education institutions in Kansas. FIRE argues that the "improper use" provisions are overbroad and present a threat to the academic freedom of faculty members at Kansas' public higher education institutions.
Report from the NCAA Division III Committee on Public Infractions finding that major violations occurred at the University of Wisconsin, River Falls from 2007 through 2011. According to the report, the university allowed the head football coach to arrange financial aid packages and inadequately monitored the financial aid process by neither educating financial aid personnel nor detecting financial aid violations. As a result of these violations, the NCAA placed the university on probation for one year.
Letter from Virginia Attorney General to the State Council of Higher Education, the chancellor of the Virginia community college system, and presidents of Virginia public universities concerning Deferred Action for Childhood Arrivals (DACA) students. The Attorney General clarified that DACA students, unlike students on student visas or temporary visas, are not automatically precluded from establishing domicile in Virginia for purposes of in-state tuition. DACA students, however, still must provide sufficient documentation of the objective indicia of domiciliary intent to become eligible for in-state tuition.
Proposal from the Kansas Board of Regents concerning the use of social media by faculty and staff. The proposal permits the responsible use of social media related to teaching, research, and shared governance. It defines improper use of social media as making a communication that (1) is directed towards inciting or producing imminent violence, (2) is contrary to the best interests of the university, (3) discloses confidential information without lawful authority, or (4) impairs discipline by superiors or harmony among co-workers.
Bill passed by the Connecticut State Senate (and previously the Connecticut State House) seeking to curtail sexual assault on college campuses. The bill requires colleges and universities to: (1) immediately supply sexual assault victims with written statements on their rights, (2) provide annual reports to the Connecticut General Assembly; (3) establish a trained campus response team; (4) maintain a memorandum of understanding with a community-based sexual assault crisis center and domestic violence agency; and (5) provide Title IX coordinators and campus security instruction on how to prevent sexual assault.
Statement from Tufts University reaffirming its commitment to Title IX compliance and announcing the revocation of its signature on the Voluntary Resolution Agreement it entered with the Department of Education Office for Civil Rights (OCR) on April 17, 2014. The Agreement outlines steps taken by the University to address sexual misconduct since complaint number 01-10-2089 was filed with OCR in 2010. The University explains that after the Voluntary Resolution Agreement was signed, OCR then informed the University of its finding that the University's current policies are not in compliance with Title IX. The University contends that OCR's finding after the Resolution Agreement was signed is unsubstantiated and, therefore, revoked its signature from the Agreement.
Memorandum from the American Council on Education on compliance with the Honest Leadership and Open Government Act and other federal ethics and reporting requirements for inviting members of Congress and senior Executive Branch officials as commencement speakers and presenting honorary degrees. The memo outlines who can be invited and what rules related to gifts, travel reimbursement, and honorary degrees apply to public and private institutions.
Report from the White House Task Force to Protect Students from Sexual Assault providing recommendations and action steps intended to combat sexual assault on college and university campuses. The Report's recommendations focus on four action steps: 1) identifying the problem and its extent on campuses, 2) preventing campus sexual assault, 3) responding effectively to student victims, and 4) rendering the federal government's enforcement efforts more effectual and transparent. The Report includes policy recommendations and resources to better execute the action steps. The Task Force also presents information on its next steps, which include reviewing and improving the laws and regulations that address sexual violence, seeking new enforcement resources, and considering the application of the Report's recommendations to public elementary and secondary schools.
Guidance from the Department of Education Office for Civil Rights (OCR) in the form of questions and answers intended to further clarify the legal requirements and guidance articulated in the 2011 Dear Colleague Letter and OCR's 2001 guidance. This Q&A guidance includes "examples of proactive efforts schools can take to prevent sexual violence and remedies schools may use to end such conduct, prevent its recurrence, and address its effects." Topics covered include procedural requirements, reporting, confidentiality, investigations, and trainings, among others. OCR notes that the DCL and the 2001 guidance remain in effect.
Order from the National Labor Relations Board (NLRB) granting Northwestern University's Request for Review of the Regional Director's decision finding that the university's student-athletes receiving scholarships are employees entitled to vote on whether to unionize under the National Labor Relations Act (NLRA). The NLRB will issue a subsequent notice with a schedule for filing briefs on review and calling for amicus briefs.
Ruling from the National Labor Relations Board (NLRB)- Region 19 finding that non-tenure-eligible faculty (excluding faculty in the law school and college of nursing) at Seattle University are eligible to vote on whether to form a union because they are not managers and they share a community of interest. The Regional Director also found that the NLRB has jurisdiction over this matter because the University is not a church-operated institution within the meaning of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).
Report from the Pennsylvania State University Health Care Task Force (comprised of faculty, administrators and staff) on the University's "Take Care of Your Health" initiative. The Task Force's charges included "the benchmarking of health care benefits programs, the assessment of alternative approaches to reduce the rate of increase in the University's health care costs and to improve the health status of employees and their dependents. . ." The report includes an analysis of academic literature on various health insurance programs, results of a survey the practices of peer academic institutions, and analyses of potential policy changes for the University's health care coverage and services.
Letter signed by 24 members of Congress in response to a February Government Accountability Office (GAO) report on campus-sponsored debit cards. The letter encourages the U.S. Department of Education to establish rules to "protect students from unfair banking practices," including prohibiting colleges and universities from entering into a "preferred relationship" with a bank and banning revenue sharing deals with institutions.
Notification from the NCAA that, effective during the 2014-15 academic year, coursework completed at 24 schools affiliated with K12, Inc. will not be used in the initial eligibility certification process.
Amicus brief filed by the American Council on Education (ACE) and five other higher education associations in the U.S. Court of Appeals for the Second Circuit arguing for an analysis of whether a student intern is the primary beneficiary of the relationship when determining whether the student is an employee under the Fair Labor Standards Act (FLSA).
A parent filed complaints against 121 public and private California colleges and universities with the U.S. Department of Education Office for Civil Rights (OCR) alleging that the institutions failed to provide sufficient athletic opportunities for women in violation of Title IX. OCR determined that the institutions failed to satisfy the first two prongs of the Title IX compliance test, but dismissed the claim because there was not enough evidence to find that the institutions did not satisfy the third prong— that even if one sex is underrepresented, their "interests and abilities" are being "fully and effectively accommodated." The parent has now filed the complaints with the U.S. Department of Justice (DOJ) alleging that OCR "deliberately refused to investigate" the institutions despite purported evidence of violations of Title IX.
Press release regarding letter from a bipartisan group of seven U.S. senators asking the White House Task Force to Protect Students from Sexual Assault to adopt three key proposals to address the prevalence of sexual assaults on campus. The senators recommended that the U.S. Department of Education: (1) designate one employee to coordinate enforcement of the Clery Act and Title IX; (2) require colleges and universities to conduct an anonymous, standardized survey of sexual assaults; and (3) create a searchable database on all pending and resolved investigations, enforcement actions, and voluntary resolution agreements for all Title IX and Clery Act complaints and compliance reviews.
Survey of 350 colleges and universities launched by Senator Claire McCaskill (D-MO) to determine how schools handle rapes and sexual assaults on campus, including how such crimes are reported and investigated and how students are notified about available services. The survey is intended to measure the effectiveness of federal oversight and enforcement under Title IX and the Clery Act.
Report from the NCAA Division I Legislative Council that outlines decisions made at their April 15, 2014 meeting, including a modification to a previous council-approved official interpretation of academic misconduct. The council determined that institutions have the authority to determine whether academic misconduct has occurred, consistent with institutional policies that apply to all students. If an institution determines academic misconduct has not occurred, the institution is not required to report an academic misconduct violation to the NCAA. If an institution determines, however, that academic misconduct has occurred, it must report a violation of Bylaw 10.1-(b) to the NCAA when: (1) a staff member is involved in arranging for false credit or transcripts for a student-athlete or future student-athlete; (2) a student-athlete or prospect is involved in arranging for false credit or transcripts; or (3) a student-athlete competes while ineligible as the result of academic misconduct.
Plaintiffs challenged an amendment to Michigan's State Constitution (Article I, Section 26) that was approved and enacted by voters to prohibit state government entities from granting certain preferences in state actions and decisions, including the use of race-based preferences in admissions decisions for state universities. The Sixth Circuit Court of Appeals reversed the lower court's grant of summary judgment in favor of the state of Michigan, holding that the amendment violated precedent established in Washington v. Seattle School District No. 1. Today, the U.S. Supreme Court reversed the Sixth Circuit's ruling, thereby allowing Michigan's constitutional amendment to stand, and held that Seattle is not the applicable standard for the present case. The Court ruled that the question in the instant case is ". . . not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions." The Court held that because there was no specific injury, voters have the right to determine whether race-based preferences should be permitted by state entities. The Court makes clear, however, that this ruling does not change the principle outlined in Fisher v. University of Texas that, "the consideration of race in admissions is permissible, provided that certain conditions are met."
Report from the American Association of University Professors (AAUP) on the University of Colorado at Boulder's response to sexual harassment allegations within the university's Philosophy Department. The report argues that the university violated faculty's academic freedom, shared governance, and due process rights, and recommends that the university rescind specific disciplinary actions, including the suspension of faculty and the suspension of graduate school admissions in the Philosophy Department.
Draft regulatory language proposed by the U.S. Department of Education for review by the negotiated rulemaking panel. The draft regulations propose new eligibility requirements for Parent PLUS loans that would bar parents from taking PLUS loans if they have one or more debts with a total outstanding balance of $2,085 that are 90 or more days delinquent. The proposed regulations under consideration would also decrease the review period for adverse credit history from five years to two years.
Announcement by the Department of Education that OMB has approved a revised Income-Driven Repayment Plan Request Form for lenders and servicers in the Direct Loan and Federal Family Education Loan (FFEL) programs. The revised form includes the addition of information about the terms and conditions of the Income-Based Repayment Plan that are effective for new borrowers on or after July 1, 2014, as well as changes to the name of the form and formatting edits.
Agreement between the University of Connecticut and its graduate assistants after the State Board of Labor Relations verified that a super majority of graduate employees signed cards authorizing the Graduate Employee Union, or GEU-UAW, to represent them in collective bargaining. Bargaining will focus on terms and conditions of employment, not academic issues or the amount of tuition or fees.
Former male students at East Stroudsburg University (ESU) allege that the former Vice President for Advancement and Director of the ESU Foundation, Isaac Sanders, provided gifts, scholarships, and jobs in exchange for inappropriate sexual advances towards them. The U.S. District Court for the Middle District of Pennsylvania dismissed the claims against the university and other former officials who had been named as defendants because the plaintiffs failed to demonstrate that the university had actual knowledge of Sanders' conduct prior to an official complaint to which they did not respond with deliberate indifference. The claims against Isaac Sanders will move to trial.
Under the Virginia Freedom of Information Act ("VFOIA"), the American Tradition Institute ("ATI") requested all the documents, including email messages, that climate scientist and former professor, Dr. Michael Mann, produced and/or received while working at the University of Virginia ("UVA"). The Virginia Supreme Court affirmed the decision of the trial court, holding that emails were exempted from ATI's VFOIA request because they fall within the "information of a proprietary nature" exemption. The court rejected ATI's narrow construction of financial competitive advantage as a definition of "proprietary" because it is not consistent with the state legislature's intent to protect public institutions from suffering competitive harm not limited to financial injury. The court also affirmed the fee that UVA imposed on ATI for its review of records because such review fits within the ordinary meaning of "searching" under the VFOIA.
Legislation passed by the Tennessee General Assembly that would create a program that would cover tuition at two-year colleges for any high school graduate. The program would require students to participate in mandatory meetings to ensure they are meeting requirements, work with a mentor, maintain a 2.0 grade point average, and participate in community service.
Five-year agreement between the University of Utah and leaders of the Ute Indian Tribe that allows the university to use the Ute name and drum-and-feather logo for its athletics organizations without paying a fee to the Ute Tribe. In turn, the university has several commitments to the tribe, including offering scholarships for American Indian students with a permanent scholarship category for Ute members, appointing an advisor for American Indian affairs to its president, and creating programs and activities for Ute Indian Tribe youth.
Proposed legislation requiring that undergraduate professors use the same textbook for at least three years at state institutions, unless the professor successfully appeals to the administration to change the textbook more frequently. The bill would also require professors to post assigned textbooks at least two weeks before registration for a new term. The senate appropriations subcommittee on education approved the bill and it is now with the full Appropriations Committee.
Report by independent counsel, Dowd Bennett LLP, investigating the University of Missouri at Columbia's handling of an alleged rape case involving a former swimmer, Sasha Menu Courey, who committed suicide approximately 16 months after the alleged assault. The report finds that the University of Missouri should have had Title IX policies in place for its employees addressing how they should handle information of a possible sexual assault and that the university should have acted on information that it had in November 2012. The university has already begun addressing some of the report's findings and implementing changes to sexual-assault policies.
The University of Pittsburgh filed a patent infringement suit against Varian Medical Systems alleging infringement of technology that improves radiation therapy that reduces damage to healthy tissue by synchronizing the radiation treatment beam with a patient's movements. A jury first awarded the university $37 million and that amount was increased to $102 million after the patent infringement was found to be willful. The U.S. Court of Appeals for the Federal Circuit reversed the finding that infringement was willful on one portion of the patent. Varian and the university have reached a pre-negotiated settlement agreement under which Varian will not owe any future royalty payments associated with the sale of the technology that incorporates the patent at issue.
Northwestern University filed a Request for Review of the National Labor Relations Board (NLRB) Region 13's ruling that classified its football players who are on athletic scholarships as employees within the meaning of the National Labor Relations Act (NLRA). The university contends that its student-athletes are students first and foremost and argues that the Regional Director ignored evidence of its primary commitment to the education of its student-athletes, erred in applying the common law right of control test rather than the test articulated in Brown University (342 NLRB 483 (2004)), and failed to consider the legal, policy, and tax implications of this decision. The players are set to vote April 25, 2014 on whether they want to be represented by CAPA.
Appropriations bill passed by the Ohio House of Representatives that includes a measure (Sec. 3345.56) specifying that college athletes are not employees of the university.
Notice of the addition of a fourth negotiated rulemaking session from the Department of Education to prepare proposed regulations to address program integrity and improvement issues for Federal Student Aid Programs under Title IV. This additional session will be held on May 19-20, 2014 and will focus on regulations to define "adverse credit" as well as any other remaining issues.
Former student employee filed a "stigma plus" claim against the university alleging that he was deprived of a liberty interest in his good name without due process after an email was sent on the day of his termination warning coworkers to alert campus police and lock their doors if they saw him. The Nebraska Supreme Court affirmed the grant of summary judgment for the university, finding that Potter failed to present evidence that this alert seriously damaged his standing in the community and foreclosed future employment opportunities. Furthermore, the individual defendants, Potter's former supervisors, were protected by qualified sovereign immunity because Potter failed to demonstrate that they violated his due process rights.
The American Council on Education (ACE) and other higher education associations filed an amicus brief in the case Glatt v. Fox Searchlight Pictures, Inc., which deals with the legality of unpaid internships. The brief does not support either party, but amici emphasize the importance of internships and propose a new "primary benefit" standard for student internships, which would first analyze whether an internship experience is integral to a student's education.
Pennsylvania Senator Jake Corman filed a lawsuit against the NCAA arguing that it should not be allowed to decide how to spend the $60 million fine levied against Pennsylvania State University because the state's Endowment Act, which was passed last year, requires that money derived in the state should stay in the state. The Commonwealth Court found that the Endowment Act is constitutional, ordered Penn State to join as a party in the case, and questioned the NCAA's authority to issue the consent decree because former assistant coach Jerry Sandusky was no longer working for the university and the involved children were not affiliated with the university.
Last month, a jury found for the associate professor in an anti-bias suit in which Adams accused the university of improperly denying him a promotion based on his writings and religious views. The United States District Court for the Eastern District of North Carolina has now ordered the university to promote Adams to full professor with pay and benefits relating back to August 2007 when he would have been promoted, as well as $50,000 in back pay and prejudgment interest.
Consensus language from the U.S. Department of Education negotiated rulemaking on regulations to implement the amendments to section 304 of Title III of the Violence Against Women Act (VAWA) (also known as Campus SaVE). As readers will recall, the amendments to VAWA were enacted on March 7, 2013. The changes to VAWA require amendments to the Clery Act in order to accomplish the law's effective implementation. According to the timeline outlined by the Department of Education, the regulations are expected to be finalized on or before November 1, 2014 and will take effect July 1, 2015, meaning changes related to the final regulations will occur in your institution's October 1, 2015 annual security report.* If the Department of Education does not meet the November 1, 2014 deadline, implementation will be delayed beyond July of 2015. Click here for a summary of the proposed Clery implementing regulations, which will be included in the Department of Education's Notice of Proposed Rulemaking (NPRM), to be published later this summer. Note that during discussion of certain issues, negotiators and the Department of Education agreed to include comments regarding those issues either in the preamble to the NPRM or in the Clery Handbook, neither of which have the same authority as the statute or regulations. Those comments are not part of the consensus language.
* The Department of Education issued guidance on May 29, 2013 saying the following: ". . . [f]inal regulations to implement the statutory changes to the Clery Act will not be effective until after the Department completes the rulemaking process. Until those regulations are issued, we expect institutions to make a good faith effort to comply with the statutory requirements in accordance with the statutory effective date (March 7, 2014). The Department expects that institutions will exercise their best efforts to include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014. We understand, however, that institutions may not have complete statistics for the year when the statistics must be issued and reported to the Department."
Latour, an Italian citizen living in New York, sued Columbia University, alleging it committed copyright infringement when it continued to display and use her proposal for a post-graduate architectural program on its Graduate School of Architecture, Planning and Preservation website after Latour was told she could no longer be part of the program. The U.S. District Court for the Southern District of New York granted the university's motion to dismiss the complaint, finding that Latour provided the university with an irrevocable license to the proposal, which is only enforceable as a contractual obligation, not copyright infringement.
The Alliance Defending Freedom sued Oregon State University (OSU) on behalf of the OSU Students Alliance, which published the newspaper The Liberty, after school officials allegedly confiscated the newspaper's distribution bins and threw them next to the dumpster in an effort to beautify the campus. In 2012, the U.S. Court of Appeals for the 9th Circuit had held that OSU officials violated the student group's First Amendment freedoms and OSU has now agreed to pay $101,000 in attorneys' fees and damages to settle the suit.
Louisiana's House Commerce Committee approved HB 340, which would permit employees and applicants for employment, as well as students and prospective students at both K-12 and higher education institutions, to maintain the privacy of their personal email and social media accounts without retaliation from employers or educational institutions. The bill prohibits employers and educational institutions from requiring employees or students to disclose usernames or passwords to personal email or social media accounts.
Proposed legislation by Senators Dick Durbin and Tom Harkin to create a committee that would oversee for-profit colleges. If enacted, the legislation creates a committee composed of representatives from nine federal agencies that currently oversee the for-profit industry. The committee would be tasked with publishing an annual "warning list" of colleges that have violated or abused existing regulations.
Carnegie Mellon University sought to have its judgment award tripled to more than $3.7 billion in its patent infringement case against Marvell Technology because Marvell's infringement was found to be willful. The U.S. District Court for the Western District of Pennsylvania added more than $366 million to the jury's award to reflect damages incurred since the jury's judgment and to punish Marvell for willfully infringing, bringing the total award to $1.54 billion.
Amicus brief filed by seven higher education associations with the National Labor Relations Board (NLRB) in support of Pacific Lutheran University, which is seeking to bar its full-time, non-tenure track instructors from unionizing with Service Employees International. Relying on the language of National Labor Relations Board v. Yeshiva, the brief argues that the instructors are managerial employees ineligible for collective bargaining rights.
Letter from the American Council on Education (ACE) in response to the U.S. Department of Justice (DoJ) notice of proposed rulemaking to incorporate changes made by the ADA American Amendments Act of 2008. ACE encourages DOJ to revise definitions of key terms in the proposed regulations and contends that DOJ significantly under-estimated the costs of complying with the proposed regulations.
A registered nurse whose employment contract was not renewed at a university hospital appealed a summary judgment ruling on her sex discrimination, sexual harassment, and retaliation claims. The United States Court of Appeals for the Fifth Circuit affirmed the lower court's dismissal of the sex discrimination and sexual harassment claims. However, it remanded the retaliation claim because the lower court failed to determine whether plaintiff had established a prima facia case of retaliation, and a reasonable jury could find the reasons given for non-renewal of her employment contract were pretextual.
Plaintiffs were victims of a terrorist bombing in Jerusalem who blamed Iran for the bombings and obtained a $71.5 million judgment against Iran. The U.S. District Court for the Northern District of Illinois granted summary judgment in favor of Iran and the University of Chicago and the Field Museum of Natural History ("the Museums"), ruling that the plaintiffs could not claim Persian antiquities at the Museums to satisfy a default judgment against Iran.
Letter from Higher Education Associations urging leaders of the House and Senate tax-writing committees to include an extension of two higher education tax benefits in any tax extenders legislation they approve this year.
Letter from the Association of American Universities suggesting several changes to improve the Frontiers in Research, Science and Technology (FIRST) Act. The letter points out several problems, including that the bill does not do enough to provide sustained and real growth in agency funding, it imposes unnecessary requirements on grantees, and extends the period before published research would be freely available to the public.
Update to March 14, 2014 posting: The revised notice of proposed rulemaking for the U.S. Department of Education's gainful employment rule was officially published in the Federal Register. The Department seeks to establish (1) an accountability framework for gainful employment programs that will define what it means to prepare students for gainful employment in a recognized occupation and (2) a transparency framework that would increase the quality and availability of information about the outcomes of students enrolled in gainful employment programs. Comments must be received by May 27, 2014.
Labor organization CAPA petitioned the National Labor Relations Board (NLRB) to conduct an election to allow the University’s football players to choose to unionize. Distinguishing this case from an NLRB case involving graduate teaching assistants at Brown, the Regional Director of the NLRB office in Chicago ordered an election to be held, finding that scholarship players are “employees” under Section 2(3) of the National Labor Relations Act (NLRA) because they perform services for the benefit of their employer for which they are compensated in the form of a scholarship and they are under their employer’s control. Northwestern will appeal the ruling to the full NLRB in Washington, D.C.
University sued Konowaloff to quiet title and for declaratory and injunctive relief to retain ownership of the painting The Night Café by Vincent van Gogh, which was a gift from a deceased alumnus. Konowaloff had previously inquired about the University's ownership of the painting, which he alleged had been stolen from his ancestors during the Russian Revolution. The United States District Court for the District of Connecticut granted Yale's motion for summary judgment, finding that the act of state doctrine applies and bars Konowaloff's counterclaims.
Letter sent to numerous colleges by two commissioners of the eight-member U.S. Commission on Civil Rights in their individual capacity advising institutions to consider the "mismatch" literature when revising their admissions policies in light of Fisher v. Texas. The mismatch theory, which is vigorously debated by scholars, suggests that students admitted through affirmative action with lower grades and test scores than average students at an institution are likely to receive low grades in college and change out of their chosen majors. Hence, such students would be better off at a less prestigious institution which better matches their high school grades and test scores.
Please note that on April 7, 2014, the U.S. Commission on Civil Rights (USCCR) confirmed with the American Council on Education (ACE) via e-mail that "the letter that members of your organization received from Gail Heriot and Peter Kirsanow on U.S. Commission on Civil Rights letterhead is not an official request from, nor does it state the position of, the U.S. Commission on Civil Rights. Your members need not take any action in response to said letter from Ms. Heriot or Mr. Kirsanow." Please click here for the full text of the message from USCCR to ACE.
Publication of Iran General License G by the Office of Foreign Assets Control authorizing academic exchanges between the United States and Iran, including the provision of scholarships to Iranian students, and allowing Iranian students to participate in U.S.-based online courses. Previously, U.S. sanctions forced online courses to block students in Iran.
Associate professor sued the University of North Carolina- Wilmington alleging religious and speech-based discrimination when he was denied a promotion to full professor because of his conservative writings and Christian views. A jury for the United States District Court for the Eastern District of North Carolina ruled in the professor's favor, finding that his speech activity was a substantial or motivating factor in the University's decision to not promote him. The Fourth Circuit Court of Appeals had previously remanded this case in a decision that provides a detailed review of the facts.
Report from the California State Auditor finding that the Bureau for Private Postsecondary Education has "consistently failed to meet its responsibility to protect the public's interests." The audit reports a number of shortcomings by the Bureau, including over 1,100 outstanding licensing applications and failing to proactively identify and effectively sanction unlicensed institutions.
Resolution agreement between the University of Montana and the U.S. Department of Education Office for Civil Rights following a 2012 complaint filed by students alleging that the University was discriminating against students with disabilities by using technology that was inaccessible to those students. Under the agreement, the University has agreed to develop new accessibility policies, train employees on disability issues, survey students to identify problems, and develop a grievance procedure.
College instructors filed a class action lawsuit against TIAA-CREF alleging that TIAA-CREF kept money that the instructors' variable annuity accounts earned between the time the instructors tried to transfer or withdraw money and the time TIAA-CREF completed the transaction. The United States District Court for the District of Vermont has given preliminary approval for a settlement in which TIAA-CREF will not admit wrongdoing, but will pay more than $19.5 million to nearly 59,000 educators and $3.3 million in legal fees.
A former student at Tuoro College alleged that the college discriminated against him because of his German national origin and HIV positive status when it dismissed him following his violation of the student code of conduct. The United States District Court for the Southern District of New York granted summary judgment for the college. It ruled that the student failed to establish a prima facie case of discrimination because, among other reasons, the College did not have knowledge of his HIV-positive status or comments made by administrators related to his national origin prior to initiating disciplinary action against him.
Student Robert Van Tuinen sued Yosemite Community College District alleging that the institution violated his First Amendment rights when campus police prohibited him from distributing copies of the U.S. Constitution on campus. Under the settlement agreement, the institution agreed to pay Van Tuinen $50,000 and enact amended speech policies, while reserving the right to revise the new policies to conform with changes in the law and changes in circumstances of the institution.
Bill signed into law by Idaho's Governor that will permit retired law-enforcement officers and individuals who hold concealed-weapons permits to carry guns on college and university campuses, except in dormitories and certain other venues.
A former researcher for the U.S. Department of Education claimed that student loan corporations defrauded the Department of Education in violation of the False Claims Act. The U.S. Court of Appeals for the Fourth Circuit ruled that the lower court erred in dismissing plaintiff's claims against two of the three student loan corporations (Pennsylvania Higher Education Assistance Agency and Vermont Student Assistance Corporation) and remanded for further proceedings.
Revised notice of proposed rulemaking for the U.S. Department of Education's gainful employment rule that includes the same debt-to-earnings standards as the November 2013 version. In response to a 2012 ruling by the U.S. District Court for the District of Columbia, the revised version of the rule proposes evaluating programs on cohort default rates, rather than on loan-repayment rates. Upon publication in the Federal Register, interested parties will have 60 days to submit comments.
A former university student-athlete, who was expelled after being accused of sexual assault by a fellow student, filed eleven claims against the Xavier University and its President. The U.S. District Court of the Southern District of Ohio denied defendants' motion to dismiss plaintiff's claims of breach of contract (university handbook), intentional infliction of emotional distress, libel, and negligence. The court granted defendants' motion to dismiss plaintiff's claim of sex discrimination under Title IX against the President, but did not dismiss those claims against the university.
New Jersey Institute of Technology (NJIT) disaffiliated with its alumni association and formed a replacement organization. The former alumni association sued alleging that it should be allowed to use names trademarked by NJIT. The Superior Court of New Jersey, Chancery Division, ruled that NJIT owns and is entitled to protect the marks "New Jersey Institute of Technology" and "NJIT." Further, the court ruled that NJIT demonstrated a likelihood of confusion from the former alumni association's use of the marks and, therefore, permanently enjoined it from operating under the names "The Alumni Association of New Jersey Institute of Technology," "The Alumni Association of NJIT," or "New Jersey Tech Alumni Association."
Letter from Congressman Elijah E. Cummings, Ranking Minority Member of the Committee on Oversight and Government Reform, updating Secretary Arne Duncan on his investigation of higher education institutions that may have been requiring applicants to submit Free Application for Federal Student Aid (FAFSA) forms or not making clear that FAFSA forms are only required to be considered for federal student aid. Congressman Cummings reported that all of the 111 institutions investigated have revised their websites to clarify requirements for student aid applications and to ensure that they are in compliance with the Higher Education Act.
Proposed legislation by the House Committee on Science, Space, and Technology that would require greater "accountability and transparency" in federal funding for research, including a requirement that National Science Foundation provide written justification that each of its grants serves the national interest. The bill also includes appropriations for fiscal year 2014 and would significantly reduce NSF's funding for research in social, behavioral, and economic sciences.
The Department of Education seeks comments on the Education Department General Administrative Regulations (EDGAR). The Department of Education is particularly interested in public comment addressing whether this collection is necessary to the proper functions of the Department and how the burden of this collection on the respondents might be minimized. Comments are due by May 12, 2014.
Report from the U.S. Government Accountability Office stating that the U. S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, should take increased measures to analyze and identify risks of the Optional Practice Training Program (OPT), which allows foreign students to gain work experience in their field of study during and after completing their academic program. The report includes recommendations for executive action.
Guidance from the U.S. Department of Education's Privacy Technical Assistance Center answering questions and presenting best practices for protection of privacy of students using online educational services.
Amicus curiae brief filed with the U.S. Supreme Court by the Foundation for Individual Rights in Education (FIRE) in support of petitioners in a case involving a First Amendment challenge to an Ohio law that prohibits false statements in electoral campaigns. The brief argues that the U.S. Court of Appeals for the Sixth Circuit erred in dismissing the constitutional challenge to the law and that if the ruling is allowed to stand, other protected speech at public universities will be limited.
Summary of the President's FY 2015 budget proposal prepared by the American Association of Universities that highlights proposed spending and cuts for research and development, student aid, and relevant taxes.
Statement from the Association of American Universities on President Obama's FY15 budget declaring that the modest spending increases for research will not close the nation's "innovation deficit" and that research investments should be a greater priority in the new budget.
Letter from the Foundation for Individual Rights in Education (FIRE) to the White House Task Force to Protect Students from Sexual Assault explaining the importance of advancing the rights of both complainants and accused students in campus tribunals. FIRE suggests that institutions use a "clear and convincing" standard rather than the preponderance of the evidence standard and also allow students to have legal representation at disciplinary hearings.
An anti-abortion student group argued that Oklahoma State University violated its First and Fourteenth Amendment rights by prohibiting display of pictures of aborted fetuses in a high-traffic area of campus. Under the settlement agreement, the university agreed to amend its policies and paid $25,000 to an organization that provided legal representation to the student group.
Letter from the American Council on Education (ACE) and several other higher education associations asking the IRS not to apply its proposed rules on political campaign-related activity to colleges and universities. The proposed rule would prohibit colleges from hosting presidential debates, or other speeches, forums or panels too close to an election, as well as restrict public communications about election-related issues.
Letter from U.S. Department of Education reminding institutions that they must identify their state's student complaint process to be legally authorized by the state. While states may delegate the power to review and act on student complaints arising under state laws to a state agency or the state Attorney General's office, the final authority to resolve the complaint in a timely manner is with the state.
Report by independent counsel, Drinker, Biddle, and Reath, LLP, finding that the University of Connecticut's response to sexual misconduct allegations against a university professor prior to February 2013 was inadequate to provide safety to minors and students on campus. The investigators also found, however, that the university responded with urgency after February 2013.
Order from the Supreme Court of the State of New York dismissing the City University of New York (CUNY) faculty and staff unions' complaint alleging that the university's board did not have the authority to develop and implement a new curriculum intended to ease students' transfer from two-year to four-year colleges. The court held that the faculty and faculty senate were not contractually granted exclusive right to initiate academic policy and thus, the plaintiff's argument was without merit.
Final Audit Report from the Department of Education Office of Inspector General on Title IV compliance issues for distance education programs. The report finds that the Department could reduce the likelihood of financial aid fraud by revising its regulations and requiring schools to use smaller, more frequent disbursements. The report also addresses unique compliance challenges for distance education programs, including verifying a student's identity and determining student attendance.
Materials for two of three negotiated rulemaking sessions with the U.S. Department of Education on regulations to implement the reauthorized Violence Against Women Act, including text of the draft regulations. Issues addressed include reporting of crime statistics and prevention/training programs.
Order by the U.S. Court of Appeals for the Seventh Circuit upholding the lower court's decision to deny Notre Dame's request for an injunction to avoid complying with the contraceptive-care provision of the national healthcare law. The court did not rule on Notre Dame's argument that the provision violates the university's religious freedom. Rather, the court upheld the decision because an injunction would require the court to order Notre Dame's insurance providers to take certain actions and neither provider was a party to the lawsuit.
Study from the U.S. Government Accountability Office addressing concerns with college debit card programs. The report addresses debit card fees, ATM access and providing neutral information about college debit cards and other payment options. The report includes the initial study and findings, as well as comments from the U.S. Department of Education and Bureau of Consumer Financial Protection.
Statement by the Chairman of the Federal Communications Commission (FCC) announcing his plan to propose rules in response to the U.S. Court of Appeals for the District of Columbia's January 2014 decision in Verizon v. Federal Communication Commission. The Commission states that the new rules will satisfy the court's test for preventing improper blocking of and discrimination in internet traffic and preserve the internet as an open platform.
Materials for the first of three negotiated rulemaking sessions with the Department of Education addressing six issues, including clock to credit hour conversion, state authorization for distance education, and state authorization for foreign locations.
Letter from the American Council on Education and other higher education associations to the House and Senate Appropriations Committee asking them to restore or enhance in 2015 previously reduced investments in student aid, institutional support, and scientific research.
Bill approved by the Washington State Legislature that would award need-based grants to students brought to the United States as undocumented immigrants when they were children if they have been given federal "deferred action" status and meet other requirements, such as obtaining a high school diploma in the state.
Consent Decree from the United States District Court for the District of Oregon requiring the university to pay $161,500 to plaintiffs, revise its disability-related policies, and notify students and employees of the revisions, as settlement of student's claims that the university unlawfully limited her use of a service animal. In addition, the university has also agreed to complete a self-audit of its compliance with the Fair Housing Act and provide training on disabilities and housing discrimination to faculty and staff.
Bill approved by the Idaho Senate Affairs Committee that would grant the boards of trustees of the state's colleges and universities the authority to establish rules related to firearms, but would generally prohibit any regulation of weapons in the possession of persons holding enhanced concealed carry permits or retired law enforcement officers exceptin residence halls and public entertainment facilities. The bill also establishes enhanced penalties for person carrying a concealed weapon while under the influence of alcohol or drugs while on a college or university campus.
Sexual Assault: California SB 967
(February 14, 2014)
Proposed California legislation introduced by Senators Kevin de Leon and Hannah-Beth Jackson that would require colleges and universities to adopt a policy on campus sexual violence, domestic violence, dating violence, and stalking that includes provisions such as an affirmative consent standard for sexual activity and a preponderance of the evidence standard for hearings.
Letter from U.S. Representatives John Kline and Virginia Foxx stating that the administration's latest actions on higher education are obstructing legislative progress on the reauthorization of the Higher Education Act. Kline and Foxx contend that higher education leaders oppose the Department of Education's "one-size-fits-all" policies and Obama's pledge to take executive action if Congress does not. They have requested a briefing with the Domestic Policy Council on the President's plans for additional executive actions.
Executive Order announcing that the minimum wage for federal contract workers will be raised to $10.10 for new contracts executed or renewed after January 1, 2015. The Department of Labor will issue regulations regarding this order prior to October 1, 2014. For answers to frequently asked questions about the regulations written by CUPA-HR, click here.
Order by the U.S. District Court for the District of Kansas granting Kansas State University's motion for summary judgment because plaintiff failed to exhaust her administrative remedies, as required under Title VII, by not filing a verified charge of discrimination with the EEOC. Gad submitted an unverified intake questionnaire with an unverified letter claiming that she was discriminated against on the basis of her religion, national origin, and gender. However, she never returned a signed charge form to the EEOC after being interviewed by an EEOC investigator.
Statement from the American Council on Education (ACE) and other higher education associations applauding Congress for releasing its Standards for Immigration Reform and urging the House to move forward on reform this year. ACE emphasizes that the standards need to address providing legal residence and citizenship for undocumented high school students so that they can attend college.
Proposed federal legislation sponsored by New Jersey Representative Scott Garrett that would require the federal government to consider borrowing costs and potential default risks for programs offering loans or loan guarantees when calculating the federal budget. As a result, student loans could appear to be more expensive than they actually are.
Order by the U.S. Court of Appeals for the Ninth Circuit withdrawing and modifying its previous opinion in Demers v. Austin (September 6, 2013). Originally, the court held that "teaching and writing on academic matters" by publicly-employed teachers could be protected by the First Amendment because they are governed by Pickering v. Board of Education, not by Garcetti v. Ceballos. In its 2014 superseding opinion, the court broadened the category of potentially protected speech to "speech related to scholarship or teaching."
The National Labor Relations Board invites briefs from interested parties on two questions: 1) whether a religiously-affiliated university is subject to the Board's jurisdiction; and 2) whether certain university faculty seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees. Briefs should be filed with the Board on or before March 28, 2014 and can be done so electronically at http://mynlrb.nlrb.gov/efile.
Final regulations implementing the employer responsibility provisions of the Affordable Care Act (ACA) under section 4980H of the Internal Revenue Code. The regulations take effect on January 1, 2015. They clarify the definition of "full-time employee" and provide safe harbors intended to make it easier for employers to determine whether the coverage they offer is affordable to employees. A Fact Sheet from the U.S. Treasury Department is available here.
Plan by a joint initiative of the Association of Research Libraries (ARL), the Association of American Universities (AAU), and the Association of Public Land-grant Universities (APLU) to accelerate the process through which research and publications are shared. The plan identifies three areas of change: (1) a distributed registry that organizes publications and research data across repositories; (2) a discovery tool to help parties find research more easily; and (3) content aggregation that facilitates data and text mining of large amounts of content.
Adjunct Faculty: Washington SB 5844
(February 10, 2014)
Proposed Washington legislation introduced by Tim Sheldon and Pam Roach that would modify state collective bargaining law to give adjunct instructors at public community and technical colleges the right to form their own unions and abolish unions jointly representing both part-time and full-time faculty members. The bill was approved by the Senate's Commerce and Labor Committee and will be sent to the Senate's Rules Committee.
Sexual Assault: Maryland HB 19
(February 7, 2014)
Proposed Maryland legislation introduced by delegate Jon Cardin that would require the Maryland Higher Education Commission (the "Commission") to establish procedures for the administration of sexual assault surveys by colleges and universities. Each institution would be required to administer a sexual assault survey every three years to students, faculty, and employees.
Executive Searches: Nebraska LB 1018
(February 7, 2014)
Proposed Nebraska legislation that would allow the University of Nebraska to keep all presidential, vice presidential, and chancellor candidates confidential except the single finalist. Currently, candidates are kept private until the search is narrowed to a final pool of at least four applicants, who must be disclosed.
Yale University's semi-annual report on complaints of sexual misconduct, which details approximately 70 complaints of sexual misconduct that were filed from July 1 to December 31, 2013, statistical summaries of the complaints, and Yale's definitions of related terms. The report reveals that unlike past semesters, the university has not handled any sexual assault cases during the last six months through the "informal complaint" procedure. Most of the complaints involved sexual harassment.
Federal legislation passed by the House of Representations that would require colleges and universities nationwide to charge in-state tuition rates to veterans who reside in the state of a particular institution but are officially residents of another state. The legislation would apply for the first three years after a veteran is discharged from the military.
Proposed federal legislation introduced by Illinois Representatives Peter Roskam and Daniel Lipinski that would amend the Higher Education Act of 1965 to deny federal funds to an institution that participates in a boycott of Israeli academic institutions or scholars.
Report by the American Enterprise Institute's Center on Higher Education Reform on how higher education institutions might fare under the proposed federal system that would rate them on access, affordability, and completion. AEI measured the three metrics by looking at the percentage of undergraduate students who are eligible for Pell Grants, the six-year graduation rate, and the institution's net price.
U.S. District Court for the Eastern District of Michigan granted plaintiff's motion for summary judgment in graduate students' challenge of a Michigan law that effectively barred an administrative hearing to determine whether certain graduate student employees could be granted collective bargaining rights at the University of Michigan. The court found that the law violates the change-in-purpose clause of the Michigan Constitution and is therefore unenforceable.
Notice of Proposed Rulemaking issued by the Department of Justice (DOJ) to amend its Americans with Disabilities Act (ADA) regulations to incorporate the statutory changes in the ADA Amendments Act of 2008. DOJ is proposing to add new sections to its Title II and Title III ADA regulations at 28 CFR Parts 35 and 36, respectively, to provide detailed definitions of "disability" and to make consistent changes in other sections of the regulations. All comments must be submitted on or before March 31, 2014.
Statement by the American Association of University Professors (AAUP) opposing legislation in Maryland and New York that would prohibit public colleges and universities from using state funds to support academic organizations that endorse the academic boycott of Israel. This legislation is in response to the American Studies Association's decision to advocate for an academic boycott of Israeli universities. AAUP contends that the legislation threatens constitutionally protected academic speech and promotes a particular viewpoint.
Letter from 50 organizations, including higher education associations, faculty unions, consumer advocates, and veterans organizations, urging the Obama Administration to issue a stronger set of gainful employment regulations. The letter recommends five elements for the regulations: (1) setting a repayment rate metric for schools to retain eligibility for federal funding; (2) an approval process to eliminate programs that do not prepare students for gainful employment; (3) borrower relief for all students that attend schools deficient under the gainful employment rule; (4) meaningful debt-to-earnings standards; and (5) protection for schools offering low-cost programs in which most students do not borrow.
Memorandum of Agreement between Rutgers University and the American Association of University Professors and American Federation of Teachers on behalf of non-tenure track faculty. Among other terms, the MOA creates a new faculty title series, establishes a promotion pathway for non-tenure track faculty, and sets new minimum salaries for Assistant Instructors and equivalent titles.
Report by the Consumer Financial Protection Bureau (CFPB) analyzing private student loan servicers' payment processing policies. The report highlights the conflicting interests of borrowers, loan holders, and third-party servicers, particularly those related to excess payments and pre-payments, and finds that there is variation amongst servicers in the way early repayments are processed. CFPB also offers recommendations for adjustments to payment processing policies that servicers can make to ensure compliance with the Truth In Lending Act.
Report by independent counsel detailing a fact-finding investigation and policy compliance audit regarding battery and hate crime charges against students stemming from incidents in San Jose State University campus housing. The report concludes "generally that the University staff acted in accordance with its policies in responding to the reports of misconduct at the time the incidents came to its attention.
Letter from 39 members of Congress urging the Department of Education Office for Civil Rights to improve transparency of campus data, investigations, and enforcement actions on same-sex violence and gender discrimination. The letter also calls for a public database that lists the Department's agreements with public institutions regarding Title IX and Clery Act compliance and requests that the Department of Education issue a new Dear Colleague Letter to address such changes.
Report by Pepper Hamilton LLP summarizing the findings of its audit of the University of Colorado Boulder's policies and procedures regarding sexual harassment and sexual assault in response to a recent investigation by the Department of Education Office of Civil Rights. The auditors found that the university's policies and practices "satisfy current legal requirements." However, the report suggests that the University create a single Title IX Coordinator position, enhance its coordination and communication among Title IX staff, and revise its existing policies and complaint response procedures.
Comments from the American Council for Education and 24 other higher education associations in response to the Department of Education's request for information on the proposed Postsecondary Institution Rating System. The associations request that the Department open a public comment period after it has formalized a ratings plan, but before the instrument is fully adopted.
Final report from an independent firm commissioned by Swarthmore College to review the institution's response to sexual harassment. This part of the report includes recommendations on culture, prevention and education, communications, and enhanced training efforts. In accordance with the report, the college will expand training and consent workshops, finalize its interim sexual assault and harassment policies, and establish more comprehensive prevention and education programs.
Statement from the American Council on Education and other higher education associations to the House Subcommittee on Courts, Intellectual Property, and the Internet on the scope of fair use. The statement highlights the importance of fair use to the mission of higher education and says that Congress does not need to significantly alter the flexible doctrine.
Proposed bill in the Florida House of Representatives that will allow foundations and other direct-support organizations to discuss private donations and research strategies in private without having to meet any public meeting requirements. If enacted, organizations that qualify under the law would not have to identify donors or prospective donors.
Webcast of hearing held by the Subcommittee on Higher Education and Workforce Training entitled, "Keeping College Within Reach: Sharing Best Practices for Serving Low-income and First Generation Students." In preparation for the upcoming reauthorization of the Higher Education Act, the hearing informed legislators of institutional efforts to better serve low-income and first generation students and also discussed possible federal policy changes to help disadvantaged students earn a college degree.
Conference report accompanying the Agricultural Act of 2014 (H.R. 2642). The report includes many provisions relating to university research and authorizes a new competitive grants program open to all colleges of agriculture.
Announcement from the Department of Education about the importance of accurately reporting Direct Loan actual disbursement dates to the Common Origination and Disbursement (COD) System, pursuant to 34 C.F.R. 668.164. The actual disbursement date is the date that Direct Loan funds are made available to the borrower. Reporting inaccurate actual disbursement dates may result in unnecessary COD System warning edits being returned on school records or could lead to an audit or program review finding.
EEOC rule clarifying that the list of examples of reasonable accommodations provided in 29 C.F.R. 1630.2(o) covers the most common types of accommodation but is not exhaustive.
Bill passed by the New York Senate in opposition to calls to boycott Israeli colleges and universities. The bill prohibits colleges from using state funds to support an academic entity that takes official action to boycott certain countries. The bill contains a number of exceptions including boycotts of countries that discriminate or sponsor terrorism.
Report by independent counsel on its investigation of alleged bullying and retaliation by Rutgers University coaching staff of a student-athlete. The investigators found that the coach's conduct was inappropriate but did not violate the university's bullying or violence policies and that there was no retaliation. The investigators also concluded that the university responded adequately when the incident was reported.
The Department of Education seeks comments on the American Indian Tribally Controlled Colleges and Universities Program. Information collected will be used to help the Department make funding decisions for institutions who apply for grants under the program authorized under Title III, Part A of the Higher Education Act. Comments are due by February 27, 2014.
Proposed Virginia legislation that would create an exemption under the state's public records law for certain administrative investigations conducted by public higher educational institutions. If enacted, investigators' notes and correspondence related to an active investigation would remain private, only becoming public record after the investigation was completed.
Public Records: Virginia HB 219
(January 28, 2014)
Bill passed by the Virginia House of Representatives that would expand the existing state FOIA exemption for higher education institutions to include "recommendations related to applications for promotion." Currently, only recommendations related to applications for employment are protected from FOIA requests.
In accordance with section 132(h) of the Higher Education Act of 1965, as amended, each postsecondary institution that participates in Title IV federal student aid programs must post a net price calculator on its website that uses institutional data to provide estimated net price information to current and prospective students and their families based on a student's individual circumstances. Institutions can meet this requirement by using the U.S. Department of Education's Net Price Calculator template or by developing their own customized calculator that includes, at a minimum, the same elements as the Department's template. The latest version of the Department's Net Price Calculator template, which reflects data from the 2012-2013 award year, is now available at the Department's Net Price Calculator Information Center.
Report by the House Committee on Education and the Workforce summarizing responses from contingent faculty and instructors collected through e-mail on an eForum finding that adjuncts are underpaid compared to their tenure-line colleagues and many take multiple jobs at multiple campuses to make ends meet. The report states that the median salary for the responding adjuncts was $22,041, which is below the federal poverty line for a family of four and that many rely on government assistance to survive. Seventy-five percent reported that they did not have access to health insurance coverage through their employer or employers. The report advocates for increased budget transparency at institutions and endorses the proposed Part-Time Workers Bill of Rights.
Letter from the Association of Public and Land-Grant Universities (APLU) to Secretary of Education Arne Duncan supporting President Obama's call for transparency and accountability, but arguing for expanded disclosures and stricter standards for receiving federal student aid rather than a ratings system. Specifically, APLU suggests that colleges should be evaluated in three areas: retention and graduation; employment and continuing education; and loan repayment and default. Outcomes would be adjusted by a student readiness index that takes students' demographics into account, and colleges that underperform in these areas would lose or have their federal student aid reduced and those who perform well would be rewarded with more federal aid.
Report authored by sixteen higher education institutions advocating for competency-based education. The report, written in response to a Department of Education request for information, proposes several changes to federal financial aid laws that could enable more students to apply aid to competency-based higher education programs. The report's proposals include decoupling financial aid from time-based measures and offering degree programs that mix competency and credit-hour-based learning.
The Department of Education seeks comments on its Consolidation Loan Rebate Fee Report. The report describes payments by check or Electronic Funds Transfer and will be used by over 850 lenders participating in the Title IV, part B loans program. The information collected is used "to transmit interest payment rebate fees to the Secretary of Education." The deadline for comments is March 24, 2014.
Letter from the Association of American Universities (AAU) in response to the Federal Register Request for Information (RFI) on the President's proposal for a Postsecondary Institution Rating System (PIRS). While AAU supports the President's focus on college affordability, it does not endorse a new ratings system for higher education institutions. AAU details its perspectives on key challenges related to data elements, metrics, and data collection, among other issues.
Statement by UCLA Joint Senate-Administration Task Force on Academic Freedom that was recently published and endorsed by Chancellor Gene D. Block. The Task Force outlines the potential harms of requests for scholarly records and contends that, "faculty scholarly communications must be protected from PRA and FOIA requests to guard the principle of academic freedom, the integrity of the research process and peer review, and the broader teaching and research mission of the university."
Announcement by the Food and Drug Administration (FDA) of a public workshop co-sponsored by the Society of Clinical Research Associates that will provide guidance to clinical research professionals on the mission, responsibilities, and authority of the FDA. Topics will include informed consent, FDA regulations, and inspections of investigators, IRB, and research sponsors. The workshop will be held on March 12-13, 2014 in Newport Beach, California. Registration details are available in 79 Fed. Reg. 15,3830 (Jan. 23, 2014).
The United States Patent and Trademark Office seeks comments on the proposed changes in trademark rules of practice and rules of practice in registering marks. The proposed rules were designed to provide more comprehensive guidance when registering marks with the PTO. Rules 2, 6, and 7 of Title 37 of the Code of Federal Regulations will be revised pursuant to the Madrid Agreement. The deadline for comments is April 23, 2014.
Report by the White House Council on Women and Girls finding that the prevalence of rape is highest in college and that one in five women is sexually assaulted while in college. In the report, President Obama established a White House Task Force to Protect Students from Sexual Assault. It is charged with formulating recommendations for colleges to prevent and respond to sexual assault, increasing public awareness of school track records in addressing sexual assault, and enhancing coordination of federal agencies to hold colleges that do not confront sexual violence accountable.
Order from the U.S. District Court for the Western District of Pennsylvania denying defendant's Motion for Judgment on Laches. The university sued the technology firm in 2009, alleging that defendant infringed two of its patents. A jury rendered a verdict in 2012 in favor of the university and awarded damages in the amount of $1,169,140,271.00. The court rejected defendant's argument that the university should not collect damages for the time prior to the date the complaint was filed because it delayed in filing the complaint. Instead, the court held that the consequences of the university's delay were not substantial enough to outweigh defendant's willful conduct and, further, defendant "should bear the risk of loss for its egregious and illegal behavior.
Bill introduced by Virginia Delegate Rick Morris that would grant students facing serious non-academic charges the right to be represented by an attorney or non-attorney advocate of their choosing at any disciplinary procedure regarding the alleged violation. The bill, HB 1123, grants the right to hire counsel to any student enrolled at a public institution in the state who is accused of a violation of the institution's rules where the violation could result in a suspension of more than ten days or expulsion. The bill, if enacted, would also provide student organizations the same right if accused of certain violations.
Bill introduced by Virginia Delegate Scott Lingamfelter that would prohibit public universities from imposing restrictions on time, place, and manner of student speech that occurs in the outdoor areas of the student's campus when the speech is protected by the First Amendment of the Constitution. The brief language of the bill provides universities the ability to impose restrictions only when the restrictions are reasonable, justified without a reference to the speech's content, narrowly tailored to serve a governmental interest, and leave open ample channels for communication of the information.
Campus Safety: Proposed Bill to Change Campus Crime Reporting Requirements (CA)
(January 8, 2014)
Proposed California legislation, AB 1433, that would require that any report of a Part 1 violent crime (willful homicide, forcible rape, robbery or aggravated assault) or hate crime received by a college or university be immediately reported to local law enforcement agency unless the victim requests anonymity.
Order by the U.S. District Court for the District of Nebraska granting deaf medical student's motion for injunctive relief, requiring the university to provide him with auxiliary aids and services for his effective communication, including Communication Access Real-time Transcription (CART) in didactic settings and sign-supported oral interpreters in small group and clinical settings, for the duration of his tenure at the medical school. The court denied plaintiff's motion for equitable relief for the amount he spent purchasing his own accommodations during his first two years of medical school (over $133,000), finding that the university was not unjustly enriched and did not act in bad faith.
Order from the U.S. Court of Appeals for the D.C. Circuit granting an injunction requested by a group of Catholic institutions including the Catholic University of America. The order temporarily prevents the Obama Administration from enforcing against the schools the Affordable Care Act's requirement for contraceptive coverage. The Act's contraceptive requirements were to take effect on January 1. The D.C. Circuit's decision follows decisions in favor of religious colleges and universities in three other federal courts in recent weeks – in the Western District of Oklahoma; the Western District of Pennsylvania; and the District of Columbia.
Order from the California Supreme Court ruling that “there is a sufficient public interest in the information contained in the admissions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public’s interest in disclosure.” Plaintiffs requested that the California State Bar provide them access to applicants’ bar exam scores, law school attended, grade point averages, Law School Admissions Test scores, and race or ethnicity in order to conduct research on racial and ethnic disparities in bar passage rates and law school grades. Based on its ruling, the court remanded the case to the trial court to determine whether and how the admissions database might be redacted or otherwise modified to protect applicants’ privacy and whether any countervailing interests weigh in favor of nondisclosure.
Final Guidance from the Office of Management and Budget streamlining the federal government’s current guidance on administrative requirements, cost principles, and audit requirements for federal awards. This guidance supersedes and streamlines requirements from eight separate OMB circulars, and is part of the Administration’s efforts to more effectively focus Federal resources on improving performance and outcomes while ensuring the financial integrity of taxpayer dollars. While most of the guidance merely consolidates previous circulars, there are some new substantive obligations and restrictions, particularly in the areas of allowable costs, conflicts of interest, and compliance requirements.
Order from the Court of Appeal of the State of California, First Appellate District reversing a trial court ruling and denying a petition by Thomson Reuters America LLC for the university to release records of returns from investments made with Sequoia Capital and Kleiner Perkins. The court held that because the requested records were not “prepared, owned, used, or retained by the Regents,” they are not public records within the meaning of the state’s public records law.
Citation from the U.S. Department of Agriculture notifying Harvard Medical School that the Department found violations of the Animal Welfare Act regarding the institution’s care of monkeys used in research. The citation and accompanying $24,000 fine cover 11 violations from February 2011 through July 2012.
Amicus brief submitted by the American Council on Education and other higher education associations to the Supreme Court of Virginia supporting the University of Virginia. The University has been engaged in legal proceedings to protect various documents and emails related to a professor’s climate change research, which had been subject to a public records request. The lower court held in favor of UVA, finding that provisions of the Virginia Freedom of Information Act protected many of the records from disclosure. The plaintiffs appealed the case to the state Supreme Court. The associations in their brief argue that protection of academic freedom and research are essential, and that overturning the lower court’s ruling could increase unreasonable and costly demands for records from universities.
Order from Franklin Circuit Court (KY) ruling that National College, a for-profit institution, must pay a fine for failing to respond to a Civil Investigative Demand (CID) from Kentucky’s Attorney General during an investigation of the institution’s business practices under the Kentucky Consumer Protection Act. The court ordered a fine of $1000 per day from July 31 through the date when Plaintiff is fully compliant with the CID. National College argued that FERPA restricted its ability to produce the information requested in the subpoena. The court ruled that because the state’s CID constitutes a subpoena issued for law enforcement purposes and state statute prohibits public release of information beyond those purposes, Plaintiff’s invocation of FERPA was meritless.
Guidance from the U.S. Department of Education broadening the definitions of the terms “marriage” and “spouse” in federal student financial aid programs to include same-sex couples, in accordance with the U.S. Supreme Court’s June decision in United States v. Windsor. Under the guidance, the Department will recognize any marriage of a student or parent that is recognized as legal in the jurisdiction where the marriage was celebrated – regardless of where the relevant student lives or attends college.
Decision by Florida Court of Appeal for the First District finding that the university’s regulation prohibiting storage of firearms in a vehicle on campus violated the state constitution.
The Secretary of Education invites institutions of higher education that participate in the student assistance programs authorized under Title IV of the Higher Education Act of 1965, as amended (the HEA), and other parties, to propose ideas for new institutionally based experiments designed to test alternative ways of administering the student financial assistance programs to be a part of the ongoing Experimental Sites Initiative (ESI). For this set of experiments, the Secretary seeks suggestions for creative experiments to test innovations that have the potential to increase quality and reduce costs in higher education, while maintaining or increasing the programmatic and fiscal integrity of the student financial assistance programs authorized by Title IV of the HEA (Title IV, HEA programs).
Decision by the Ninth Circuit Court of Appeals affirming the lower court’s ruling in favor of the FCC against the Minority Television Project’s suit arguing that a statute that “prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates” violates the First Amendment. The court ruled that the statutory advertising ban under 47 U.S.C. § 399b is constitutional because the government has a substantial interest in “imposing advertising restrictions in order to preserve the essence of public broadcast programming” and the statutory advertising restrictions are narrowly tailored to that end.
Letter from the U.S. Department of Education Family Policy Compliance Office (FPCO) in response to an inquiry from University of Massachusetts regarding how an institution can comply with FERPA without a written agreement when disclosing education records to a state longitudinal data system (SLDS). FPCO advises that while it does not interpret state law, the university may, under these circumstances, disclose requested student records to a state longitudinal data system under FERPA's audit and evaluation exception if it determines that the state educational authority (in this case the Maryland Higher Education Commission) has properly designated the requesting entity (the SLDS) as an authorized representative of the state through a written agreement between the state and the requestor that contains specified required provisions, as outlined in the 2012 FERPA regulatory amendments. Further, the university must determine that the disclosure is in connection with an audit or evaluation of a federal or state-supported education program or compliance with program-related federal legal requirements.
Order by the U.S. District Court of the Eastern District of Michigan denying the University’s motion to dismiss because some acts of harassment, deliberate indifference, and retaliation occurred within the three-year statute of limitations period that are similar to earlier acts. Dibbern was an engineering graduate student who claims that she was subjected to severe and pervasive sexual harassment and discrimination by her male peers, faculty, and university employees and that the University retaliated against her.
Order by the U.S. District Court of the District of Arizona denying the Arizona Board of Regents’ motion for partial judgment on the pleadings because some aspects of Kunzi’s hostile work environment claim took place within the two-year statute of limitations and the facts are sufficient to show a systemic violation under Section 1983. Kunzi was a graduate student that alleges that she was sexually harassed and retaliated against by a professor, with whom she had a relationship with for several months, and that the university administration failed to stop the harassment. Because components of her claim are within the statute of limitations, the court will consider the entire timeline of events.
NCAA report stating that Fordham University failed to adequately monitor its scholarship program. According to the report, Fordham’s staff mistakenly believed that NCAA rules allowed the university to award scholarships to athletes enrolled in just three credit hours over a summer session, though NCAA rules required students to be enrolled in six summer credits to be eligible for scholarship. Fordham must pay a $20,000 fine, take an NCAA rules seminar on compliance, and pass a compliance review by an outside agency, in addition to being subject to two years of probation.
Decision by the Third Circuit Court of Appeals affirming the dismissal of a lawsuit brought by former professors at Louisiana College. In their original complaint, four professors alleged that the college’s president, among others, had defamed them and violated their academic freedom. Further, the professor alleged that provisions of the faculty handbook were not in congruence with the terms of a previous settlement agreement. The Court of Appeals found that an adjudication of the case would require the court to evaluate the truth of certain religious beliefs and to do so would violate the Establishment Clause of the first amendment.
Agreement between Minnesota Attorney General Lori Swanson and Herzing, Inc. Herzing University is a Wisconsin-based for-profit institution that began offering an associates degree program in clinical medical assisting in 2011. The program was not accredited by the American Association of Medical Assistants (AAMA), an accreditation that is favorable to many employers. In the agreement, Herzing has agreed to disclose to students the accreditation status of programs it offers in the state and provide refund options for students who enrolled in the unaccredited program.
Decision by the Maryland Court of Special Appeals affirming the Circuit Court’s decision allowing The Johns Hopkins University to develop an 138-acre farm near the campus. The farm was sold to Hopkins by Elizabeth Banks for a fraction of its market value in 1989. Newell, Bank’s nephew, claims that Banks would have never sold the property had she known of Hopkins’ commercial plans. The court ruled that Banks sold the land solely and unambiguously in terms of permissible uses. The contract permits the University’s plans and thus it should be honored.
The Department of Education has responded to FIRE's inquiry regarding new sexual harassment policies at the University of Montana, which the Department had referenced as a "blueprint" for future sexual harassment policies. Many organizations, including FIRE, voiced issues with the policies to the Office for Civil Rights. The letter, written by assistant secretary Catherine E. Llhamon, responds to some of these issues and states that the Agreement in the Montana case does not represent OCR or DOJ policy.
Proposed federal legislation introduced by Representative Tony Cardenas (CA), which would require high-revenue collegiate athletic departments to provide institutional aid to student-athletes whose scholarships are not renewed due to a qualifying injury or illness, provided they maintain their academic standing and are not in violation of institutional disciplinary standards. Among other requirements, the proposed bill would also mandate that institutions teach athletes about concussions, financial aid and debt management, time management, campus academic resources, and the institution’s obligations for medical costs.
Report by the NCAA Division III Committee on Infractions (“the committee”) finding that the College of Staten Island committed NCAA violations, including impermissible recruiting inducements, unethical conduct by the head coach of the men’s swimming team, and failure of the institution to exercise control and to monitor its athletics program. The committee imposed the following penalties: 4 years of probation, a 4-year “show cause” order for the former coach, and a 2-year postseason ban for the men’s swimming team. The institution has taken several proactive measures including self-reporting the violations and enacting major, self-imposed remedial measures, such as placing athletics under the direct supervision of the president’s office.
The Department of Education has posted a notice in the Federal Register regarding their intentions to create a new rule making committee to cover topics such as Title IV Federal Student Aid Programs and revising the state authorization rule. The enforcement of the state authorization rules has already been pushed back a year.
Decision by the U.S. District Court for the Southern District of New York granting Google’s motion for summary judgment and dismissing the Authors Guild’s copyright infringement case against Google and its “Google Books” project. Judge Denny Chin assumed for purposes of the motion that plaintiffs established a claim of copyright infringement, but found that Google’s use of the copyrighted materials was permissible under the “fair use” doctrine of copyright law. Judge Chin found that Google’s use of the copyrighted works provides significant public benefits and advances the arts and sciences while maintaining respectful consideration of the rights of authors and others; it is highly transformative, serves several important educational purposes, and improves book sales. Judgment was therefore entered in favor of Google, dismissing the complaint.
Letter from the U.S. Department of Education levying a $275,000 fine on Lincoln University (Missouri) for failing to maintain a crime log and distribute annual security reports, and improperly defining its geographic boundaries, among other things. The Department also cited Lincoln for violations related to its sexual assault policies.
New draft of the Department of Education’s proposed gainful employment rule that seeks accountability for vocational programs at for-profit institutions and community colleges. The new draft, which observers say is significantly stricter than the first proposed draft (posted September 3, 2013), includes a loan-default metric and a measure of repayment rates across a program’s entire “portfolio of loans” – measures said to close loop-holes in the original draft that may have been used by programs that experience high dropout rates.
Order by the U.S. District Court for the Northern District of California certifying class-action status for current and former student-athletes seeking an injunction barring the NCAA from prohibiting current and former student-athletes from entering into group licensing deals for the use of their names, images, and likenesses. The court declined to certify class action status for the subclass of former student athletes suing for damages. This subclass failed to satisfy the manageability requirement by not identifying a viable way to determine which members of the subclass were actually harmed by the NCAA’s conduct.
Decision by the U.S. District Court for the District of New Jersey granting summary judgment for Rutgers against a former nursing school student who claimed that Rutgers breached its implied contract and discriminated against him based on his military status. The student was dismissed from Rutgers’ nursing program after he received four grades worse than “B,” which was prohibited under the grading policies. The court found Rutgers did not breach any contract with the student, and provided the student with constitutionally adequate due process; furthermore, the student did not provide any evidence of retaliatory animus or a connection between his dismissal from the program and his military status.
Decision by the Iowa Court of Appeals reversing and remanding the lower court’s dismissal of lawsuit filed against Drake University for denying the plaintiff access to classes while being assisted by a service dog she was training. The lower court dismissed the case, holding there was no private right of action under Iowa Code chapter 216C – which pertains to the rights of persons to have access to public places accompanied by a service dog. The Court of Appeals reversed the decision and held that the Iowa legislature intended for citizens afforded rights under this chapter to be able to seek redress when those rights are violated.
Report by the NCAA Division II Committee on Infractions (“the committee”) finding that Chadron State College did not exercise control over its athletics department. According to the report, the former head football coach maintained outside bank accounts for the football program, an ineligible football student-athlete was allowed to compete, and the school did not ensure that all coaches signed their squad lists before the team’s first game. The committee imposed the following penalties: 3 years of probation, a $5,000 fine, and vacation of wins in which a student-athlete competed while ineligible. The University also self-imposed recruiting restrictions and an external audit of the athletics program.
Voluntary settlement agreement between the U.S. Department of Education’s Office for Civil Rights (OCR) and the State University of New York system (SUNY). OCR reviewed 159 individual cases of alleged sexual harassment (including sexual assault and violence) from four campuses. In some instances, OCR found “deficiencies,” which led OCR to require that SUNY ensure, among other things, that its campuses have designated Title IX coordinators, guarantee that these officials conduct annual reviews of sex-discrimination complaints, revise grievance procedures, assure that campuses do not delay initiating sex discrimination investigations pending the conclusion of a criminal proceeding, provide training to staff and students, and conduct annual “climate checks” of the effectiveness of these measures and report their findings to OCR in 2014, 2015, and 2016. According to the letter and an accompanying press release by the Department, SUNY worked collaboratively with OCR and proactively implemented a number of changes during the investigation in response to OCR’s 2011 “Dear Colleague” Letter.
Notice in the Federal Register announcing the Department of Education’s final regulations to amend the Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan (FFEL) Program, and William D. Ford Federal Direct Loan Program. These regulations respond to changes made to the Higher Education Act by the Student Aid and Fiscal Responsibility Act (SAFRA), which ended the creation of new loans under the FFEL Program; therefore, all new Stafford, PLUS, and Consolidation loans with first disbursement on or after July 1, 2010, will be made under the Direct Loan Program. These regulations also reflect changes made to interest rates in the Direct Loan Program and are meant to provide consistency between the various Title IV loan programs.
Clery Act / Liability: Virginia v. Peterson
(October 31, 2013)
Decision by the Virginia Supreme Court overturning a jury verdict awarding the families of two victims of the 2007 Virginia Tech massacre $4 million each (later reduced to $100,000 because of a state cap on damages). The plaintiffs originally won the wrongful death case on the basis that the special relationship between the university and its students created a duty for Virginia Tech to warn students about potential criminal acts by third parties. Though the Virginia Supreme Court agreed that there was a special relationship, the court found that there was no duty to warn students because it was not known or reasonably foreseeable that the victims would fall victim to criminal harm.
Decision by the U.S. Court of Appeals for the Ninth Circuit reversing the district court’s partial denial of Corinthian’s motion and directing all plaintiffs’ claims to arbitration. Plaintiffs, former students at for-profit schools owned by Corinthian, claim that Corinthian misled prospective students about the quality of its education and its graduates’ career prospects, among other things. The Ninth Circuit held that the Federal Arbitration Act preempts California’s Broughton-Cruz rule that exempts claims seeking injunctive relief for the benefit of the general public from arbitration.
Decision by the U.S. District Court for the Northern District of California denying the NCAA’s motion to dismiss antitrust claims regarding the commercial use of college athletes’ names and likenesses. The court questioned the “sweeping proposition” that student-athletes would be barred from receiving monetary compensation for the commercial use of their names, images, and likeness at any point in their lives. The court also stated that the broadcast-related claims cannot be dismissed based on the First Amendment because it is plausible that at least some of the broadcast footage was used primarily for commercial purposes. Lastly, the court held that the plaintiffs’ claims are not preempted by the Copyright Act because they are based on injury to competition.
Decision by the Superior Court of New Jersey-Appellate Decision reversing the lower court’s ruling that an email between a college basketball coach and university general counsel was discoverable because attorney-client privilege had been waived. The lower court had ruled that because the basketball coach had released the email to the NCAA in a separate investigation, attorney-client privilege had been waived. On appeal, the appellate division ruled that the coach was not acting under the authority of the university when she released the letter, and that the right to waive the privilege is reserved for the organizational client alone.
Statement by the Association of Governing Boards of Universities and Colleges, designed to provide governing boards with guidance regarding their fiduciary duty and overall responsibility to collaborate with institutional leadership to address issues related to sexual misconduct. Among other things, the statement provides a brief overview of applicable laws and guidance; highlights the role of campus culture; and suggests practices for governing boards and institutional administrative leadership. NACUA members and staff participated in the drafting and editing of this statement and are acknowledged at the end of the document.
This MAP, the third in a series published by IES Abroad, is aimed at setting institutional standards for managing individual student health and safety cases, and for managing crises occurring abroad, in order to help protect U.S. college and university students, prevent claims, mitigate risk, and reduce institutional liability. The MAP is authored by NACUA member Bill Hoye, with a preface by NACUA member Peter McDonough.
Notice by the Department of the Treasury and the Internal Revenue Service (IRS) of their request for applicants or nominations for the IRS Advisory Committee on Tax Exempt and Government Entities (ACT) for the following vacancies: 2 employee plans; 2 exempt organizations; 3 federal, state, and local governments; 2 Indian Tribal Governments; and 1 tax-exempt bonds. Selected applicants will participate in an organized public forum in June 2014 and give regular input to the IRS on current or proposed policies during their two-year terms. Applications and nominations are due by November 4, 2013.
Due to the federal government shutdown, institutions are not required to submit their Campus Security and Fire Safety reports to the Department of Education at this time, as required under 34 CFR 668.41(e). The Department will provide further guidance to institutions regarding a new deadline for the required electronic submissions. However, this delay in electronic reporting to the Department of Education has no effect on the institution’s responsibility under the Clery Act to provide the Annual Security Report and Fire Safety Report to its students and employees.
NACUBO, in collaboration with attorneys from Morgan, Lewis & Bockius, authored a comprehensive report that provides background information, advice on drafting a waiver request, best practices for collecting Social Security numbers (SSNs) from students, and a sample response letter to the IRS.
Uniform agreement developed by the Association of American Medical Colleges, and designed to spell out roles and responsibilities between medical education programs and clinical affiliates, comply with accreditation standards, ensure an appropriate learning environment for medical students, and provide a consistent framework for managing an increasing number of students participating in clinical trainings away from their home institutions. The AAMC developed the Uniform Agreement after substantial outreach including a session at the 2013 NACUA Annual Conference, and solicitation of input from individual NACUA attorneys. The stated goal of the Agreement is to eliminate unnecessary time and resources spent negotiating agreements with various clinical affiliates.
Draft report by the American Association of University Professors (AAUP) regarding what it calls increasing “tensions” between universities and their faculty over the ownership of patentable inventions and products of faculty research since the 2011 Supreme Court decision in Stanford v. Roche. The report states that universities have responded to this decision by incorporating new clauses in faculty employment contracts and research agreements, or by having faculty sign letters requiring assignment of all future patent rights, and argues that the Roche decision should bolster faculty’s freedom to control the disposition of their scholarship without such university interference. The report concludes by reproducing principles 11-21 from the intellectual property section of AAUP’s forthcoming book, Recommended Principles to Guide Academy-Industry Relations. In addition to releasing this report, the AAUP states that it is “launching an educational campaign to inform faculty about their rights and to encourage faculty senates and contract negotiating teams to secure the rights the Supreme Court has confirmed.”
Comments filed with the Department of Defense (DoD) by the American Council on Education (ACE) and other higher education associations on a proposed rule by the Department of Defense implementing the Tuition Assistance (TA) program. The comments, similar to the associations’ June 22, 2012 letter on the same topic, highlight the associations’ support for the DoD’s goals, but also note concern or a need for clarification on the following topics: 1) the proposal that institutions return TA money similarly to how they return Title IV funds to the Department of Education; 2) the requirement that TA participants also participate in Title IV; 3) the proposal to limit the use of TA funds to tuition, as opposed to both tuition and fees; and 4) the types of consumer information that need to be provided to service members.
Decision by the U.S. District Court for the District of Maryland ruling that Maryland’s policies and practices of allowing “unnecessary program duplication” at historically black institutions (HBIs) and traditionally white institutions (TWIs) constitute illegal discrimination. The court found that the state’s maintenance of duplicative programs at HBIs and TWIs is a holdover from when it operated a segregated system of higher education, it limits HBI competitiveness in program offerings, and there is no sound educational justification for this to persist. Accordingly, the court recommended that the parties enter mediation to create a suitable plan to address the problem.
Proposed Principles and Model for a New Governance Structure by the Division I Faculty Athletics Representatives Board (1A FAR) detailing how the National Collegiate Athletic Association (NCAA) should be restructured. The 1A FAR Board recommends that there be a new, separate division for Football Bowl Series programs and the consolidation of some NCAA leadership entities to allow for broader representation of upper-level athletic administrators and representatives, including FARs.
Decision by the Superior Court of Pennsylvania denying Jerry Sandusky’s appeal of his conviction, in which he argued the trial court judge mishandled two jury instructions, a prosecutor made improper references to Sandusky not testifying on his own behalf, and his trial lawyers did not have sufficient time to prepare. The court found that the absence of the prompt complaint instruction did not prejudice Sandusky and that the trial court properly instructed the jury on character evidence. Second, because Sandusky merely objected to the prosecutor’s references, he waived his claim. Lastly, Sandusky’s counsel’s own testimony proves that he suffered no prejudice from the trial court’s denial of the continuance requests.
Decision by the U.S. District Court for the Northern District of Alabama granting New Life Art, Inc.’s motion for summary judgment. The University of Alabama originally alleged that artist Daniel Moore infringed on the University’s trademark rights when he depicted Alabama football players in many of his paintings. On June 11, 2012, the 11th Circuit rejected the University’s argument that there could be confusion over whether the paintings were official products of the university and remanded the case to district court. On remand, the district court ruled that although Moore breached one of the licensing contracts, the University acquiesced in New Life’s breach by selling mugs and other products containing Moore’s print.
Decision by the U.S. District Court for Massachusetts granting NIH’s motion for summary judgment, in case where neighborhood residents near Boston University brought suit to enjoin federal funding that would support the construction of a lab to study deadly infectious diseases. The court ruled that the risks posed to the public from accidents or malevolent acts was extremely low or beyond reasonably foreseeable.
Decision by the U.S. District Court for the Western District of Michigan granting law firm Kurzon Strauss’s (“Kurzon”) motion for summary judgment. Cooley Law School argued that attorneys for Kurzon defamed the law school in the course of a previous lawsuit, by saying, among other things, that Cooley “grossly inflates its post-graduate employment data and salary information” and “schools like Thomas Cooley will continue to defraud unwitting students unless held civilly accountable.” The court argued that Kurzon attorneys did not have any subjective awareness of the “probable falsity” of any of their statements.
The University of Montana’s new discrimination and sexual misconduct policy, approved by the Department of Justice and Department of Education, after a settlement agreement with the institution in May 2013.
Announcement that the Department of Education has opened its comment period for the Integrated Postsecondary Education Data System (IPEDS). IPEDS is a web-based system designed to collect basic data from all postsecondary institutions in the United States. Comments are due November 1, 2013.
Announcement that the Department of Education has opened its comment period for the Title V application focused on developing Hispanic serving institutions. The application is used to collect information to evaluate which Hispanic-serving institutions will be awarded congressional appropriations. Comments are due November 1, 2013.
Decision by the U.S. District Court for the District of Columbia granting the Department of Education’s motion to dismiss a lawsuit challenging the 2011 FERPA regulatory amendments. The court ruled that the plaintiffs lacked standing to bring suit because they have not suffered any real injuries from the regulations. Among other things, the 2011 regulations added student ID numbers to the list of “directory information” that institutions can make public, for example, by displaying them on student ID badges. The court rejected the plaintiff’s argument that this could expose students to the risk of identity fraud.
Decision by the U.S. District Court for the Western District of Pennsylvania granting summary judgment in favor of the University of Pittsburgh in a case brought by former head football coach whose employment contract was terminated after he was arrested for domestic battery. Haywood argued that the University breached the written contract and its oral agreement to buy out the remaining term of his contract. The court found that a reasonable jury could find that the University had just cause to terminate Haywood and that it exercised good faith in making that decision. As such, the University had no obligation to buy out the remaining contract and there was no breach. The court denied motion for summary judgment on the University’s breach of confidentiality counterclaim.
Questions & Answers guidance from the U.S. Department of Education and U.S. Department of Justice on the Supreme Court’s June 2013 decision in Fisher v. University of Texas. The Departments reiterate that their 2011 guidance documents “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education” and “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools” remain in effect. The five questions and answers intended to clarify the Fisher decision note that schools can continue to take steps to achieve a diverse student body and that the Supreme Court did not invalidate the use of race as a factor in higher education admissions.
Decision by the United States Court of Appeals for the Fourth Circuit holding that the Virginia Alcoholic Beverage Control Board Commission’s ban on alcohol advertisements is unconstitutional as it applies to college newspapers. The court ruled that the advertising ban is not appropriately tailored to Virginia’s stated aim to curb underage and abusive college drinking. Specifically, the ban prohibits a large population of adults who are 21 years of age or older from receiving truthful information about alcohol, which they can legally consume. The court highlighted the fact that roughly 60% of the newspapers’ readership is age 21 or older in deciding that the challenged regulation is unconstitutionally overbroad.
Principles approved by the Assembly of the National Association for College Admission Counseling (NACAC), which include a change that would allow commissioned agents to recruit students outside the United States. Though federal law bars the use of commissions in recruiting American students, the newly amended section (I.A.3) would allow member institutions to use commissioned agents as long as the agent can ensure “accountability, transparency, and integrity.”
Settlement agreement between the U.S. Department of Education and Dominican College in New York regarding the Department’s findings that the institution failed to comply with crime reporting guidelines in the Clery Act, by failing to properly define its campus and report crime statistics for non-campus property. The institution will pay $200,000 as part of the settlement.
Order by a superior court judge fining the University of Washington $723,290.50 for improperly withholding 12,000 documents that the plaintiff requested in 2009, but the University did not disclose until the end of 2011. The court found that the university violated the Public Records Act. The plaintiff-professor brought a discrimination claim alleging that she was wrongfully denied tenure because of her gender and national origin. The court ruled that the disclosed documents could have helped the plaintiff prove her discrimination case.
Notice in the Federal Register announcing the Department of Education’s technical amendments to the final regulations for improving integrity in the programs authorized under Title IV of the Higher Education Act (HEA). These amendments were made in accordance with a D.C. Circuit order that the Department’s misrepresentation regulations exceeded the HEA’s limits.
Announcement that the Securities and Exchange Commission (SEC) has ruled that college and university board members will be exempt from registering as “municipal advisors” as required by the Dodd-Frank Act. The ruling applies to both elected and appointed trustees of public or private non-profit universities acting in their official capacity, where the university borrows proceeds of a municipal securities offering. Additionally, the announcement states that university employees acting within the scope of their employment are exempt from registration. The rule will become effective 60 days after publication in the Federal Register.
Notice in the Federal Register announcing the Department of Education’s plan to convene a panel to write new reporting rules for campus safety. The panel will be tasked with preparing rules to address recent changes to the campus safety and reporting requirements of the Clery Act. The committee will include representatives of organizations or groups with interests that are significantly affected by the subject matter of the proposed regulations. Nominations for the panel must be received on or before October 21, 2013.
Order from the District Court of Massachusetts granting the College of the Holy Cross’s (“Holy Cross”) motion for summary judgment. The male student plaintiff claimed, among other things, that Holy Cross had violated Title IX by holding a disciplinary hearing for a sexual assault charge that was not equitable or compliant with due process. The court found the Holy Cross Code of Conduct clear and free of bias. Additionally, the court found no triable issues regarding any alleged disparate impact arising from past applications of the Code of Conduct. The court granted summary judgment in favor of Holy Cross on all counts.
Decision by Illinois Appeals Court overturning the lower court’s dismissal of a professor’s free speech and defamation claims. The plaintiff, a tenured professor at Northeastern Illinois University, brought a defamation suit alleging retaliation for her activism on campus. The university did not dispute any elements of the defamation claim and the court found that it failed to meet its burden of proof that the plaintiff’s case was a SLAPP (strategic lawsuit against public participation). This ruling allows the plaintiff to pursue her initial lawsuit against the university in federal court.
Fourth Amendment: Barrett v. Claycomb
(September 16, 2013)
Decision in the Western District of Missouri barring Linn State Technical College (“Linn State”) from requiring all students to undergo drug testing. The court found that the University’s drug testing policy was a suspicionless search, but did not fall within the “closely guarded category of constitutionally permissible suspicionless searches,” and thus constituted a violation of the Fourth Amendment. The court rejected Linn State’s argument that the policy was necessary to promote student safety. Rather, the court found that the policy was instead conceived to promote goals like improving retention and graduation rates. Lastly, the opinion allows Linn State to test students enrolled in certain programs that may require a heightened degree of safety (i.e., the aviation maintenance program).
Report by the NCAA Division I Committee on Infractions (“the committee”) finding that Iowa State University committed NCAA violations, including impermissible telephone calls and text messages to recruits, impermissible coaching activities involving non-scholastic teams, and a failure to monitor. The committee imposed the following penalties: 2 years of probation, reductions in official paid visits, and restrictions on recruiting-related telephone calls. The committee did commend the school because it self-discovered and self-reported the initial violations that led to an internal investigation.
Decision by the U.S. 11th Circuit Court of Appeals affirming the district court’s judgment entered in the plaintiff’s favor. The plaintiffs brought claims against ASU for racial and sexual harassment, stating they were subject to racial slurs, sexual advances, inappropriate behavior, and retaliation at the hands of their superiors. After the district court awarded over $300,000 dollars to each of the plaintiffs, ASU appealed the decision, claiming, among other things, that the district court erred in awarding the plaintiff’s front pay. The Circuit Court rejected the argument, finding that front pay is appropriate because reinstatement would not be a feasible remedy and that the plaintiffs had properly mitigated their damages.
These regulations are effective September 12, 2013. The amendments’ stated purpose is to improve the quality and effectiveness of grant-making decisions and reduce the burden on applicants and grantees.
First Amendment / Attorney’s Fees: Moore v. Watson
(September 6, 2013)
In an order issued on March 29, 2013, but recently made public, the U.S. District Court for the Northern District of Illinois mandated that Chicago State University (CSU) pay $213,231 in court costs and attorney’s fees to the plaintiffs. In 2012, the court held that CSU’s termination of a former faculty advisor in retaliation for the content of the school newspaper violated the First Amendment and ordered that CSU reinstate him. The student could not obtain relief, however, because he voluntarily withdrew from CSU and was free to return after paying his tuition.
First Amendment: Demers v. Austin
(September 6, 2013)
Decision by U.S. Court of Appeals for the Ninth Circuit overturning the lower court’s grant of summary judgment in the university’s favor. The plaintiff, a tenured professor at Washington State University, brought suit alleging that university administrators retaliated against him in violation of the First Amendment for distributing writings that called for changes in the management of the communications school and broadly criticized the university’s administration. The Ninth Circuit ruled that the 2006 U.S. Supreme Court decision Garcetti v. Ceballos does not apply to teaching and academic writing by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by the 1968 Supreme Court ruling in Pickering v. Board of Education. Because his writings addressed a matter of public concern, it was protected under Pickering. This decision creates a split among the federal appeals courts with the Third, Sixth, and Seventh Circuits holding that Garcetti denies public college faculty members the ability to bring retaliation claims for certain types of speech related to their jobs.
Decision by the Pennsylvania Commonwealth Court denying the NCAA’s plea to dismiss a lawsuit filed by Pennsylvania Senator Jake Corman and Treasurer Rob McCord to keep all proceeds from a $60 million dollar fine – levied on Penn State in response to the Jerry Sandusky scandal – within Pennsylvania. The NCAA had expressed its intentions to use the funds on a national campaign to end child abuse. The court found that Corman and McCord have legal standing to sue the NCAA because of their roles in overseeing the endowment into which the PSU money is to be paid. The court also found that the Pennsylvania law created to collect and disperse the money is constitutionally permissible.
Settlement agreement whereby Emory University agreed to pay $1.5 million to settle claims that it violated the federal False Claims Act by improperly billing for clinical trial services at the university’s Winship Cancer Institute. Prosecutors said that there had been no determination of liability in settling the claims.
Brief filed with the U.S. Supreme Court by the University of California, opposing the brief filed by Michigan’s attorney general, which urged the Supreme Court to uphold Michigan’s 2006 ban prohibiting race from being considered in college admission policies. The brief provides an overview of how a statewide ban on the consideration of race has played out in California, and argues that universities in the California system have actually experienced dramatic declines in the percentages of African Americans and American Indians enrolling.
Drafted in preparation for a negotiated rulemaking session, these proposed regulations would establish standards for programs that prepare students for gainful employment in a recognized occupation. This language will be used as a starting point for discussion for the first meeting of the negotiating committee that begins meeting on September 9, 2013.
Decision by U.S. District Court for the District of Vermont granting the defendant university’s motion for summary judgment upholding the dismissal of a student-athlete from the men’s ice hockey team. The plaintiff challenged his dismissal on breach of contract, due process, and defamation grounds. The court found that there was no breach of contract or deprivation of due process because the plaintiff did not attempt to appeal his coach’s decision to dismiss him, which is required under the university’s Student-Athlete Code of Conduct. Furthermore, there was no contract for a scholarship for the next year because NCAA rules prohibit any financial aid awarded for more than one year at a time. At the time of the student’s dismissal, financial aid awards had not been offered for the following year. The court ruled that the coach’s statement that the leadership and staff took time before dismissing the plaintiff was not defamatory because it was true. Additionally, because the statement was not defamatory, there was no viable stigma plus claim resulting in a violation of the plaintiff’s liberty interests.
Decision by the U.S. District Court for the Western District of Washington at Tacoma granting Respondent’s motion to dismiss. Following the D.C. Court of Appeals’ ruling in Noel Canning v. NLRB, the court held that the Petitioner was “without power” to issue the underlying unfair labor practice complaint against Respondent under the National Labor Relations Act. The court ruled that the NLRB Acting General Counsel’s appointment to the post was invalid and, therefore, he could not have lawfully delegated the authority to request a temporary injunction to Petitioner. Specifically, the Acting General Counsel’s appointment was ruled invalid because he was never confirmed by the Senate. Rather, he was serving in the “Acting” capacity pursuant to President Obama’s appointment under the Federal Vacancies Reform Act (FVRA) and he was not a first assistant to the departing General Counsel, as required for an appointment under the FVRA.
Final Rules announced on August 27, 2013, by the U.S. Department of Labor, regarding the hiring and employment of veterans and people with disabilities. One rule updates the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and the other updates Section 503 of the Rehabilitation Act of 1973 – both of which require federal contractors and subcontractors (including many colleges and universities) to affirmatively recruit, hire, train and promote qualified veterans and people with disabilities, respectively. The new rules contain a number of new regulatory obligations for contractors, including the requirement that contractors determine and implement annual benchmarks for hiring protected veterans, and establish a 7% utilization goal for individuals with disabilities. Contractors must also invite all job applicants to identify as disabled or veteran and must collect and document data regarding the number of disabled and veteran applicants and hires. The new regulations will take effect 180 days from publication in the Federal Register.
Announcement that the U.S. Department of Treasury and the Internal Revenue Service (IRS) have ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes, regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage. The ruling implements federal tax aspects of the June 26 Supreme Court decision invalidating Section 3 of the Defense of Marriage Act (DOMA). The ruling does not apply to domestic partnerships, civil unions or similar formal relationships recognized under state law. The announcement also states that Treasury and IRS intend to issue streamlined procedures for employers who wish to file refund claims for payroll taxes paid on previously-taxed health insurance and fringe benefits provided to same-sex spouses; as well as further guidance on cafeteria plans, qualified retirement plans, and other tax-favored arrangements.
North Carolina legislation signed into law on Friday, August 23, guaranteeing any student at the 17 constituent institutions within the University of North Carolina System the right to be represented during a disciplinary hearing, at the student’s expense, by a licensed attorney or non-attorney advocate who may fully participate during the disciplinary procedure. The law includes exceptions to this right for allegations of academic dishonesty, or where the institution has implemented a student honor court fully staffed by students to address disciplinary violations.
Decision by a Florida district court of appeals reducing – from $10 million to $200,000 – the damages awarded to the family of a University of Central Florida (UCF) football player who died following conditioning drills in 2008. The court held that UCF’s control over UCF Athletics Association (UCFAA) was sufficient to afford the association sovereign immunity to civil judgments – meaning that any award over $200,000 must be approved by the legislature. The ruling also reversed the awarding of attorney’s fees and costs of more than $2 million. The court denied UCFAA’s request for a new trial, finding that UCFAA was not denied a fair trial, nor did a medical release signed by the student athlete expressly waive his rights to sue UCFAA.
Order by U.S. District Court for the Southern District of Indiana, denying the NCAA’s motion to dismiss a complaint by a former football player challenging two NCAA bylaws – the prohibition on multi-year scholarships and the cap on the number of allowable scholarships. The complaint alleges that the NCAA bylaws create an illegal horizontal restraint under the Sherman Antitrust Act. This was the third time the court had ruled on this plaintiff’s complaint, and the first time the court found that the complaint alleged sufficient factual allegations to support a plausible antitrust claim. The court cautioned that the burdens at subsequent stages of litigation are significantly higher and noted that the plaintiff may struggle to identify evidence to support some of the allegations that were necessarily accepted as true for purposes of ruling on the NCAA’s motion to dismiss.
Decision by the Iowa Court of Appeals, reversing in part a $1.28 million verdict in a whistleblower case brought against Iowa State University by a former employee. The court found that the employee had been a victim of harassment by his supervisors, but had failed to prove retaliation under the state’s whistle-blower law, which requires that retaliation be in response to a complaint filed with a public official. The court found that the plaintiff’s superiors starting retaliating against him after he made initial complaints to lower-level employees, but before taking his case to a “public official” – in this case, the University President. Thus, the court overturned $784,000 in damages awarded to the plaintiff under the Iowa whistle-blower law, but upheld a $500,000 award for emotional distress.
Complete text (14 pages) of decision by the National Labor Relations Board (NLRB) Division of Judges ruling that Respondent violated Section 8(a)(1) of the National Labor Relations Act by maintaining and requiring its employees to sign an Employee Arbitration Agreement (EAA) that requires employees to waive their rights to maintain class or collective actions and which employees reasonably would believe bars or restricts them from exercising their right to file charges with the NLRB. The Judge also ruled that Respondent engaged in unfair labor practices and violated the Act when it discharged the Complainant for her refusal to sign the Employee Arbitration Agreement. Among other remedies ordered, the college must rescind or revise the EAA to make it clear that the agreement does not constitute a waiver of employees’ right to maintain employment-related class or collective actions and does not restrict the right of employees to file charges with the NLRB. In addition, the college must offer Complainant reinstatement to her previous position and provide restitution for any lost earnings and benefits.
Complete text (6 pages) of letter from the U.S. Department of Education to the Accrediting Commission for Community and Junior Colleges (ACCJC) finding that ACCJC is not in compliance with four federal regulations under the Secretary’s Criteria for Recognition regarding the composition of its evaluation teams, conflicts of interest, clear identification of institutional deficiencies, and compliance deadlines for institutions. The investigation of ACCJC was initiated in response to a complaint filed by the California Federation of Teachers. The Department has ordered that ACCJC must correct these areas of non-compliance within one year.
Complete text of a proposed rule by the Department of Defense implementing the Voluntary Education Programs for Military Service members. The requirements in the proposed rule include: (1) All educational institutions providing education programs through the DoD Tuition Assistance (TA) Program: (a) Will provide meaningful information to students about the financial cost and attendance at an institution so military students can make informed decisions on where to attend school; (b) Will not use unfair, deceptive, and abusive recruiting practices; and (c) Will provide academic and student support services to Service members and their families. (2) Implement rules to strengthen existing procedures for access to military installations by educational institutions. (3) DoD must conduct an annual review and notification is required if there are changes made to the uniform semester-hour (or equivalent) TA caps and annual TA ceilings. (4) Military Departments must provide their Service members with a joint services transcript (JST). (5) Implement the DoD Postsecondary Education Complaint System for Service members, spouses, and adult family members to register student complaints. (6) Authorize the Military Departments to establish Service-specific TA eligibility criteria and management controls. Comment period ends on September 30, 2013. NACUBO has prepared a helpful summary including a redline version of the proposed changes to the draft Memorandum of Understanding that institutions must sign to participate in the TA program.
Ruling by the U.S. District Court for the District of Columbia that the Federal Reserve (Fed) set swipe fees for debit card transactions higher than Congress intended in the Dodd-Frank Wall Street Reform and Consumer Protection Act and thus "clearly disregarded Congress' statutory intent by inappropriately inflating all debit card transaction fees by billions of dollars." According to the National Association of College and University Business Officers (NACUBO), retailers typically have increased the prices of goods to offset the high interchange fee, especially for low-priced items, so with lower swipe fees, institutions and campus stores could pass savings along to students. The Fed must convene a new rulemaking process to lower the cap on fees. Until then, the existing rules remain in effect.
Decision by the Minnesota Court of Appeals holding that a state agency cannot rely on the Federal Copyright Act to refuse to disclose data that is the subject of a request for disclosure under Minnesota’s Government Data Practices Act after the district court determines, without dispute, that the requestor intends only fair use of the data as defined by the copyright act. The National Council on Teacher Quality (NCTQ) had requested copies of course syllabi maintained by the Minnesota State Colleges and Universities, which the colleges had refused to provide, citing its faculty members’ intellectual property rights under the Federal Copyright Act. The district court agreed with NCTQ’s assertion that its use of the syllabi would constitute “fair use” and because the colleges did not contest that ruling, the appeals court affirmed.
Complete text (6 pages) of final rule issued the Bureau of Industry and Security (BIS), U.S. Department of Commerce, and published in the August 9 Federal Register. Section 764.5 of the Export Administration Regulations (EAR) provide for voluntary disclosure of potential EAR violations to the BIS Office of Export Enforcement (OEE). Such disclosures can be accorded great weight by BIS in determining what if any administrative sanctions it may seek. A voluntary disclosure must be followed by submission of a narrative account of the suspected violation, including all
relevant documentation. The final rule establishes a deadline of 180 days from the date of the initial disclosure for submission of the narrative account to BIS. It also sets forth procedures and criteria for extension of the 180 day deadline, including examples of circumstances that might support a request for extension. Lastly, the final rule makes slight changes to the authorized methods for notification by BIS of administrative enforcement proceedings.
Letter from the U.S. Department of Education Office of Postsecondary Education, providing guidance on the documentation of “other actions” that institutions may use to establish they have met the State authorization regulatory requirements set forth in 34 CFR 600.9(a)(1)(i). This letter also provides guidance regarding State recognition of educational programs beyond secondary education. Furthermore, this letter provides guidance on the requirement that States take an “active role” in approving or licensing institutions, including the documentation institutions may use to distinguish between postsecondary and secondary education in order to comply with 34 CFR 600.9(a)(1)(ii)(A). Finally, this letter provides some examples of alternative State approval or licensure processes that can be used by institutions to comply with the State authorization regulatory requirements under 34 CFR 600.9(a)(1)(ii)(B).
Complete text (4 pages) of joint letter from the U.S. Department of Justice, Civil Rights Division (DOJ) and the U.S. Department of Education, Office of Civil Rights (OCR) responding to June 6 letter from the American Association of University Professors Committee on Women in the Academic Profession. In its June 6, letter, the Committee expressed concern regarding the definition of sexual harassment in the May 9 Resolution Agreement entered into by DOJ and OCR with the University of Montana. While commending certain aspects of the resolution agreement, the Committee in its letter expressed concern that the definition of sexual harassment in the agreement may pose a threat to academic freedom in the classroom, and called attention to the AAUP’s Statement on Sexual Harassment: Suggested Policies and Procedures for Handling Complaints. In their joint response, DOJ and OCR assert that “[t]itle IX does not reach curriculum or in any way prohibit or abridge the use or particular textbooks or curricular materials” and that “…neither the Findings Letter nor existing Title IX guidance inhibits academic freedom in the classroom”.
Complete text (11 pages) of decision by the U.S. Court of Appeals for the Sixth Circuit reversing the lower court’s ruling that granted the university’s motion to dismiss. Plaintiff, who travels to public universities to share his religious beliefs with students, alleged that the university’s policies requiring any person not affiliated with the university to obtain sponsorship in order to speak on campus violated his First Amendment right to free speech and his Fourteenth Amendment right to due process. He argued further that the university’s two policies requiring that all speakers who are not affiliated with the university receive sponsorship from a person or organization affiliated with the university in order to speak on campus are unconstitutionally vague. The court ruled that because the two policies are contradictory and do not clearly establish who holds decision-making authority for sponsorships, it is likely that the plaintiff would succeed on the merits of a vagueness challenge and is, therefore, entitled to a preliminary injunction.
Complete text (23 pages) of August 2 letter from the American Council on Education (ACE) and 38 other higher education associations to the leadership of the U.S. House of Representatives Committee on Education and the Workforce. The letter provides numerous recommendations for the Committee as it prepares for reauthorization of the Higher Education Act. Section 2 on Consumer Information (pp. 8 – 12) and Section 8 on Federal Regulatory Burden (pp. 19 – 20) address directly and provide recommendations concerning certain aspects of the regulation of institutions of higher education by the Department of Education pursuant to the Higher Education Act. The Association of American Universities (AAU) joined the ACE letter but also issued a separate letter which at p. 3 and pp. 8-9 also addresses federal regulation of higher education.
Complete text (44 pages) of decision of U.S. Ninth Circuit Court of Appeals in class action complaint by former college athletes alleging that Electronic Arts, Inc. violated their right of publicity under California state law by including their likenesses in its NCAA Football video series. Defendant Electronic Arts, Inc. (EA) filed a motion to strike the complaint under California’s anti-SLAPP (strategic lawsuit against public participation) statute, which the District Court denied. The Court of Appeals affirms, holding that EA’s use of the players’ likenesses is not entitled as a matter of law to First Amendment protection. The Court, noting that in its video series EA seeks to replicate each school’s entire team as accurately as possible, with each player represented by an avatar with the player’s actual jersey number and virtually identical height, weight, build, skin tone, hair color, and unique identifiable playing behaviors, rules that EA does not meet the “transformative use” test under California’s anti-SLAPP jurisprudence which would entitle its use to First Amendment protection.
Complete text (18 pages) of decision by the U.S. Court of Appeals for the Sixth Circuit affirming the district court’s judgment dismissing Plaintiffs’ complaint for failure to state any claim upon which relief could be granted. Plaintiffs, all of whom are graduates of Cooley Law School, sued the school alleging that it had 1) violated Michigan’s Consumer Protection Act; 2) committed common-law fraud under Michigan state law; and 3) committed negligent misrepresentation under Michigan state law. Plaintiffs allege that Defendant misrepresented graduates’ employment and salary statistics in its publications. The Court affirmed the lower court’s ruling that the Michigan Consumer Protection Act did not cover Plaintiffs’ purchasing of a legal education and, further, that Plaintiffs’ reliance on information in Defendant’s Employment Report and Salary Survey was unreasonable and, therefore, they failed to state a claim of fraudulent or negligent misrepresentation under Michigan law.
Complete text of notice published in the July 31 Federal Register by the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture. The notice stays the Final Rule issued by the Department on December 31, 2012 requiring research facilities and other entities regulated by APHIS to develop contingency plans for response to and recovery from emergencies most likely to happen to their facilities and to train their employees on those plans. According to the rule, written contingency plans were required to be in place at all regulated facilities by July 26, 2013, all employees trained by September 27, 2013 and plans be available upon request by APHIS inspectors after September 27, 2013. The plans were required to identify common emergencies that could occur at each facility; outline specific tasks that facility staff will undertake in emergency situations; establish a clear chain of command; identify materials and resources for use during an emergency that are available at the facility or elsewhere; and provide for training of all employees on the contents of the plan. The rule was effective January 30, 2013. In its July 31 Notice staying the rule, APHIS states it is issuing the stay in order to undertake a review and analysis of the rules requirements and to further consider the impact of the required contingency plans on regulated entities.
Complete text (14 pages) of decision by U.S. Fourth Circuit Court of Appeals affirming the decision of the District Court granting summary judgment for defendant university in suit filed by plaintiff alleging, inter alia, that the university’s allegedly deficient investigation and response to a fraternity hosting a party at which plaintiff was raped created a hostile educational environment and was a violation of Title IX. In affirming the District Court, the Court of Appeals notes that, based on state law, the applicable statute of limitations for plaintiff’s Title IX claim was three years, and the only events falling within the three year period were a form letter sent by the university informing plaintiff that she could not seek re-enrollment if she transferred to another institution, and the failure of plaintiff’s father to secure a meeting with the university’s president. The court finds that neither of those events contributed to a hostile educational environment based on sex under Title IX.
Complete text (22 pages) of decision by the Court of Appeals of the State of California, First Appellate District affirming the trial court’s ruling that the names of the UC Davis police officers referenced in reports about a 2011 incident, during which officers were videotaped pepper spraying demonstrators who were protesting nonviolently on the UC Davis campus, must be disclosed. The court denied the petition for writ of mandate from the trial court’s order filed by the Federated University Police Officers Association (FUPOA), a labor union representing University of California police officers, because the information requested by several newspapers under the California Public Records Act (CPRA) does not fall within any category of exempted information under California Penal Code section 832.7, subdivision (a). The court also ruled, however, that the stay order previously issued by the court remains effective until the time for filing a petition for review in the California Supreme Court has expired.
Complete text (19 pages) of July 12 settlement agreement resolving allegations that Louisiana Tech University violated the Americans with Disability Act (ADA) through use of an internet-based learning application that was inaccessible to a blind student. The settlement agreement, which has a term of five years, requires the university to adopt and disseminate revised policies, including specific reference to the requirement of deploying accessible technology and course content. The required content of such policies is set forth in detail in Exhibit 1 of the agreement, which addresses the purchase, acquisition, development and use of instructional technology or materials accessible to persons who are blind or have other vision disabilities. The Exhibit also requires all new and pre-existing university websites comply with the Web Content Accessibility Guidelines 2.0 level AA (“WCAG 2.0 AA”). Other provisions of the settlement agreement require the university to develop annual training programs for all individuals providing course-related instruction to university students, to all university administrators, and to all incoming students, and prescribes the content of such training. The settlement agreement also requires annual reports to the U.S. Department of Justice regarding the university’s compliance with the settlement agreement. Finally, under the agreement, the student filing the complaint is to be paid $23,543. The agreement states the University disputes the Department’s determinations and admits no liability or wrongdoing. The Department announced the settlement in a July 25 press release.
Complete text (26 pages) of report by the Office of Inspector General (OIG), U.S. Department of Education, entitled “Transparency of Proprietary Schools Financial Statement Data for Federal Student Aid Programmatic Decisionmaking”. OIG reviewed the FY2010 audited financial statements for 521 proprietary schools (both privately owned and publicly traded) disbursing Title IV funds, and concludes that the financial statements submitted by such schools to the Department did not provide transparent information because the presentation of instruction and marketing expenses was not consistent across schools. OIG found that the financial statements of 78% of the 294 publicly traded institutions disbursing Title IV funds did not present the amounts spent on instruction and marketing. The report concludes with three recommendations, one of which is that the Department establish uniform account classification rules and procedures for all (emphasis added) postsecondary schools, including proprietary schools, which would include the creation and use of a standard chart of accounts that includes expense classifications that clearly define the types of costs to be recorded under each expense account. In its response to OIGs recommendations, the Department indicated that regulatory changes would be needed to establish uniform account classification rules, and that it would be at least two years before a negotiated rulemaking could begin.
Complete text (34 pages) of decision by the U.S. District Court for the Eastern District of Michigan, Southern Division granting Defendant’s motion to dismiss. Among Plaintiff’s five claims, he asserts that the university retaliated against him for constitutionally protected speech and engaged in viewpoint discrimination in violation of the First Amendment and treated him differently than similarly situated students in violation of his Equal Protection rights under the Fourteenth Amendment. The court held that Plaintiff’s “expressions of lust” for his instructor and lewd descriptions of the instructor’s physical appearance in his writing assignments for the course are not protected speech under the First Amendment and, therefore, dismissed his constitutional claims under Fed. Rule of Civ. Pro. 12(b)(6) and held that Defendant did not violate Plaintiff’s First Amendment rights when they disciplined him in response to those writings.
Complete text (15 pages) of decision by U.S. District Court (S.D. Ohio) granting plaintiff’s motion for a temporary restraining order and, citing the U.S. Supreme Court decision in United States v. Windsor, ordering Ohio state official to recognize the same-sex marriage of Ohio residents married in Maryland, although Ohio law prohibits the legal recognition of same-sex marriages. The court rules that plaintiffs established a substantial likelihood of success that they will prevail at trial on their claim that by treating same-sex marriages lawful in other states differently than it treats opposite sex marriages lawful in other states, Ohio law violates the Equal Protection Clause of the U.S. Constitution, and that failure to grant the temporary restraining order would result in irreparable harm to the plaintiffs.
Complete text of July 15 letter from the American Council on Education and six additional higher education associations supporting H.R. 2637, which would repeal the State Authorization, Gainful Employment and Credit Hour rules. The legislation would also prohibit the Secretary of Education from issuing new state authorization or gainful employment regulations until the Higher Education Act is reauthorized for a period of at least two fiscal year; and completely prohibit the Secretary from issuing any regulation with respect to the definition of a credit hour.
Link to U.S. Department of Labor (DOL) website with public database containing permanent labor certifications (PERMs) filed by employers asserting that they have been unable to find minimally qualified U.S. workers to fill positions for which they are sponsoring qualified foreign workers. The database also contains employer filings related to foreign employee visas, described in by DOL in a Labor Certification Registry Document Availability Schedule.
Complete text (5 pages) of July 16 letter to U.S. Treasury Department from the American Council on Education (ACE) and eight other higher education associations. The letter follows an earlier March 18 letter on the proposed rule issued by the Internal Revenue Service (IRS) implementing the employer shared responsibility mandate of the Affordable Care Act. The Act generally requires covered employers to offer minimum essential and adequate health insurance coverage to full time employees (those working 30 hour or more per week) or make a “shared responsibility” payment to the federal government. With respect to student employees, the associations in their March 18 letter requested that the IRS issue guidance clarifying that for purposes of calculating a student’s hours under the ACA, institutions may apply the standards developed by the Department of Labor under the Fair Labor Standards Act (FLSA). With respect to Work-Study students, the associations request guidance clarifying that institutions may exclude the hours worked by a student who is enrolled in classes at least half time and who receives a wage as part of a job under a work-study program. In their July 16 letter, the associations renew their request that the IRS include those safe harbors for student employees when the IRS issues a final rule. They also call attention to a third category of student employees, those working as part of internship or cooperative educational programs. The letter expresses concern that employers may be reluctant to participate in such programs if required by the ACA to provide health insurance coverage to such student employees. The associations propose that the final regulations permit employers deem students working as part of a college-or university-sponsored internship or cooperative education program as per se seasonal employees exempt from the employer’s obligation to offer health insurance coverage under the employer shared responsibility requirement.
Complete text (11 pages) of decision by the U.S. District Court for the District of Kansas granting Defendant's motion to dismiss employee Plaintiff's lawsuit alleging that the university violated Title VII of the Civil Rights Act. Plaintiff claimed that the university discriminated against him based on his race and then retaliated against him after he filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). The university argued that Plaintiff's discrimination charge is barred because he failed to exhaust the university's administrative remedies and that both the discrimination and retaliation charges fail to state a claim upon which relief may be granted. The Court agreed with the Defendant and ruled that Plaintiff failed to allege sufficient facts to support any of his claims against the university and, therefore, granted Defendant's motion to dismiss.
Complete text (62 pages) of decision by the 4th Circuit Court of Appeals, on remand from the Supreme Court, rejecting plaintiff university’s challenge to the individual and employer mandates in the Patient Protection and Affordable Care Act (ACA) and affirming the judgment of the district court. Plaintiffs argued that the employer mandate was not a valid exercise of Congress’ authority under the Commerce Clause; Congress does not have authority under Article I of the Constitution to enact the employer mandate; the mandates violate their rights to free exercise of religion; and the ACA religious exemptions violate the Establishment Clause and their Fifth Amendment equal protection rights. The court found that plaintiffs had standing to challenge the ACA mandates, but dismissed the complaints on their merits for failing to state a claim upon which relief could be granted. The court also exercised judicial discretion in ruling that no circumstance existed that would justify its consideration of plaintiffs’ post-remand brief challenges to the ACA implementing regulations, given that these claims were not raised in the district court. Plaintiffs have announced that they will file a petition for writ of certiorari in the Supreme Court.
Complete text (51 pages) of unanimous decision by the 7th Circuit Court of Appeals reinstating plaintiff’s case alleging that ITT knowingly submitted false claims to the Department of Education in order to receive funding from federal student financial assistance programs. The court ruled that plaintiff’s claims are not substantially similar to prior public disclosures and, therefore, the federal district court has jurisdiction over plaintiff’s lawsuit under the False Claims Act and her case can proceed on the merits. The court reversed the lower court’s dismissal of plaintiff’s case and the monetary sanctions imposed on plaintiff’s counsel, and remanded the case for further proceedings.
Complete text (3 pages) of Internal Revenue Service Notice 2013-45 providing the transitional guidance promised in the Treasury Department’s announcement that it will provide an additional year (until January 1, 2015) before the Affordable Care Act (ACA) mandatory employer and insurer reporting requirements in §6055 and §6056 of the ACA take effect; and the same would apply to the §4980H employer shared responsibility provisions and no employer shared responsibility payments will be assessed for 2014. The Notice states that both the information reporting and employer shared responsibility provisions will be fully effective for 2015. The Notice also states that once the proposed information reporting rules are issued, employers are encouraged to voluntarily comply with such provisions for 2014.