LRS Document Archive

Complete text (4 pages) of policy posted on March 29 to the website of the NIH Office of Biotechnologies Activities. The policy establishes regular review of U.S. Government funded research with certain high-consequence pathogens or toxins with potential to constitute Dual Use Research of Concern (DURC) (defined as life sciences research that can be reasonably anticipated to provide knowledge, information or technologies that could be directly misapplied to pose a significant threat to public health and safety, to agricultural crops, animals, the environment or national security). Under the policy federal departments or agencies that fund life sciences research are directed to conduct a review to identify all life sciences research projects that involve specified agents or toxins or specified categories of experiments in order to determine which projects constitute DURC, and to conduct risk assessment and develop risk mitigation plans for such projects. Risk mitigation plans may include determining the venue and mode of communication of research results (including content, timing and extent of distribution of information). Risk mitigation plans may also include voluntary redaction of research publications or communications, classification of research, or termination of funding. Funding departments or agencies have 60 days to report the aggregate number of projects involving the specified agents, toxins or specified categories of experiments, and 90 days to report on the number of current and proposed DURC projects along with a summary or risks and current or proposed mitigation measures. Thereafter departments and agencies are directed to submit similar reports biannually.

Complete text (22 pages) of decision by Chief Judge, U.S. Department of Education Office of Hearings and Appeals finding that Virginia Tech University did not fail to provide a timely warning to its campus community on the morning of April 16, 2007, when a gunman shot and killed 32 individuals on campus; and that a technical deviation from its stated policy on the means of issuing timely warnings does not warrant a financial penalty.

Complete text (11 pages) of Sec. 485 (f) of the Higher Education Act (also known as the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act) as it would be amended by Sec. 304 of the proposed Reauthorization of the Violence Against Women Act (S. 1925 [388 pages]) reported to Senate by Judiciary Committee. Among other items, the proposed amendment would add reporting of crimes based on the national origin and gender identity of the victim; require reporting of domestic violence, dating violence and stalking incidents reported to campus security authorities or local police agencies; add a definition of “sexual assault”; require development and distribution of policies and procedures to prevent domestic violence, dating violence sexual assault and stalking and the procedures the institution will follow once an incident is reported; dictate the content of such policies and procedures; provide that a student or employee who reports they have been a victim of domestic violence, dating violence, sexual assault or stalking shall be provided a written explanation of their rights and options; requires the Secretary of Education to consult with and seek the advice and counsel of the Attorney General in providing technical assistance to individual institutions and concerning the development of best practices concerning campus safety and emergencies and of best practices about preventing and responding to incidents of domestic violence, dating violence, sexual assault, and stalking, including elements of institutional policies that have proven successful based on evidence-based outcome measurements; and forbids retaliation against any individual for exercising their rights and responsibilities under Sec. 485(f).

Complete text (6 pages) of decision by Administrative Law Judge (ALJ), Board of Alien Labor Certification Appeals, U.S. Department of Labor vacating and remanding the decision of the Certifying Officer. The Certifying Officer had denied the university’s Application for Permanent Employment Certification for a position of “Instructional Coordinator” on the ground that the position was not for a college or university teacher and therefore did not qualify for special recruitment and documentation procedures under 20 C.F.R. §656.18. The Certifying Officer’s asserted that the phrase “instructional activities” and other responsibilities listed in the application did not encompass teaching, evaluating and advising students within an assigned instructor workload in a classroom setting. The ALJ notes that there is no definition of “college or university teach” in 20 C.F.R. §656.18 and finds the phrase “instructional activity” is synonymous with teaching. The ALJ also notes that additional documentation submitted by the university, including the position description, supports a finding that the position is that of a university teach for purposes of the regulations.

Complete text (12 pages) of decision by U.S. District Court (N.D. New York)denying motion for dismissal by defendants City of Ithaca and Cornell University in case alleging liability for negligence in the failure to prevent the death of student who committed suicide by jumping from bridge on university campus. The court holds that despite the fact the student exhibited no outward signs of suicidal behavior prior to his suicide, based on prior suicides and attempted suicides by students jumping from campus bridges, the student’s suicide was foreseeable. The court further holds that it is premature for it to conclude, as a matter of law, that the bridge in question was not in an unreasonably dangerous condition at the time of the student’s suicide, and that the student’s affirmative act of jumping from the bridge was not an intervening, superceding act that would cut off any liability on the part of defendants because in this case the intervening act was the foreseeable harm. Finally, the court dismisses all claims against defendant individual university administrators because there is no evidence that the named administrators had control over the bridge or that they or their departments had any contact with the student.

Complete text of Clery Act clarifications approved by the Department of Education and distributed on March 26 to institutional Clery Act reporting contacts by Westat, the research firm responsible for maintaining the U.S. Department of Education's (ED) Clery Act data collection portal. The clarifications address the F.B.I. revision of the definition of forcible rape for purposes of the Uniform Crime Reporting (UCR) Summary Reporting Program; status of institutional Title IX coordinators as Campus Security Authorities under the Clery Act; and reporting for additional campuses and non-campus locations, including locations in foreign countries.

Complete text (3 pages) of final rule issued by the Civil Rights Division, U.S. Department of Justice (DOJ) and published in the March 20 Federal Register. The final rule extends until May 21, 2012 the deadline for compliance with the accessible entry and exit requirements applicable to swimming pools, wading pools and spas contained in DOJ’s final rule issued on September 15, 2010 and generally effective on March 15, 2012. In addition, DOJ has also issued a Notice of Proposed Rulemaking seeking comments on a possible additional extension of the compliance deadline to September 17, 2012. Comments on the proposed rule are due by April 4. The extension follows issuance by DOJ of a January 31 memorandum entitled “Accessible Pools—Means of Entry and Exit”. The memorandum indicated that for existing pools at public accommodations covered by Title III, installation of a fixed lift or other accessible means of entry would be required to the extent readily achievable, and that the lifts must be available and in working condition at poolside during all open hours. If use of a fixed lift were not deemed readily achievable, only then could use of a portable pool lift be utilized. The memorandum indicated that existing pools at public entities covered by Title II were subject to the Title II program accessibility standard, which did not require that every pool be made accessible, but stated that when institutions implement steps required to achieve program accessibility, fixed and portable lifts must meet the 2010 standards, including independent operation by individuals with disabilities and availability of accessible pool features whenever the facility is open to the public. According to the memorandum, sharing of accessible equipment between pools would not be permitted unless providing equipment at each pool would be an undue burden. DOJ had earlier refused to extend the deadline in response to detailed objections to the contents of the memorandum filed by the American Hotel and Lodging Association in response to an earlier DOJ letter.

Complete text (36 pages) of decision by New York State trial court dismissing complaint by law school graduates alleging that publication by defendant law school of employment and salary data of its graduates constituted unlawful practices under New York General Business Law Sec. 349, and also constituted fraud and negligent misrepresentation. The court finds that defendant law school’s marketing materials were not misleading in a material way to reasonable consumers under Sec. 349. The court cites plaintiffs’ own exhibits which identify sources of information regarding the realistic employment prospects of law school graduates that were readily accessible to plaintiffs, college graduates seriously considering law school, whom the court characterizes as a sophisticated subset of education consumers. The court further finds that, with respect to their fraud and misrepresentation claims, plaintiffs could not have reasonably relied on defendant law school’s alleged misrepresentations, again due to the ample information available to them from additional sources. Finally, the court finds that plaintiffs’ theory of damages, the difference between what they paid for their law degree and it’s alleged lesser intrinsic worth, is entirely too speculative and remote to be a remedy under the law.

Complete text (28 pages) of decision by U.S. Supreme Court holding that a process reciting the laws of nature is not patent eligible unless the patent claims have additional features that provide assurance that the process in question is a genuine application of the laws of nature rather than a drafting effort designed to monopolize the laws themselves. The additional steps in the process at issue in the case before the court (involving correlations between patient metabolic levels and identification with precision of the likely harm or ineffectiveness of certain drug dosages) are not sufficient to transform the nature of the claim beyond a claim of patent of a law of nature. Simply appending conventional steps, specified at a high level of generality, to laws of nature, natural phenomena and abstract ideas cannot render those law, phenomena or ideas subject to patent.

Link to Department of Labor website with Frequently Asked Questions (FAQ) regarding implementation of the summary of benefit and coverage requirements of the Affordable Care Act and the Department’s implementing regulations and guidance for compliance.

Complete Text (18 pages) of final rule issued by the Department of Health and Human Services (HHS) and published in the March 21 Federal Register. HHS has issued a Fact Sheet describing the primary changes in the final rule from the proposed rule issued in February 2011. The Fact Sheet notes that the Final Rule clarifies that the student health plans of non-profit religious institutions of higher education qualify for a one-year transition, temporary enforcement safe harbor from the new contraceptive coverage requirement, similar to that afforded non-profit religious employers pursuant to HHS Guidance issued on February 10. The temporary enforcement safe harbor is in effect until the first plan year that begins on or after August 1, 2013. The rule is effective 30 days after publication in the Federal Register. In an Advance Notice of Proposed Rulemaking (8 pages) also published in the March 21 Federal Register, HHS (as well as the Department of Labor and Department of Treasury) announced its intention to propose amendments to current regulations on preventive health care services required to be provided under the Affordable Care Act. These amendments would accommodate non-exempt, non-profit religious organizations’ religious objections to covering contraceptive services, while assuring that participants and beneficiaries covered under such organizations’ plans receive contraceptive coverage without cost sharing. The Departments intend to finalize these amendments to the final regulations so that they are effective by the end of the temporary enforcement safe harbor. The final regulation concerning student health insurance plans states that this intention extends to student health insurance plans arranged by non-profit religious institutions of higher education with such objections. Comments in response to the Advanced Notice of Proposed Rulemaking are due 90 days after its publication in the Federal Register.

Complete text (35 pages) of decision by U.S. District Court (C.D. Illinois) granting defendant institution’s motion for summary judgment in Title IX claim based on sexual assault of a student. The court holds that prior incidents on defendant institution’s campus, none of which had common perpetrators and all of which had known perpetrators, did not give institution actual notice of the impending random sexual assault of plaintiff by an unknown assailant. The court further holds that the institution could not be found to be deliberately indifferent since the identity of the assailant was unknown and the court therefore cannot find that the institution had control over the assailant in order to take remedial action. Finally the court holds the institution’s response to the sexual assault of plaintiff was not deliberately indifferent or unreasonable once it became aware of it.

Complete text (10 pages) introducing the scope, and limits, of academic freedom. Written in a question-and-answer format, the primer offers a balanced view of faculty and institutional rights and responsibilities. It is a potential resource for administrators, trustees, and faculty seeking to enhance their understanding of this key concept. Funded by the Ford Foundation’s Difficult Dialogue initiative, the primer is a companion to the A Guide to Academic Freedom by Frederick Schaffer.

Complete text (14 pages) of decision by U.S. District Court (DC) denying defendant university’s motion to dismiss plaintiff’s Age Discrimination in Employment Act (ADEA) claim based on defendant’s failure to hire plaintiff as a law school faculty member. Plaintiff’s complaint is predicated on his submission of an application via the Association of American Law School’s (AALS) Faculty Appointments Register and his participation, and that of defendant institution, in the AALS annual Faculty Recruitment Conference. The court concludes that plaintiff’s complaint contains sufficient factual allegations, if accepted as true, to state a claim for relief that is plausible on its face. The court dismisses plaintiff’s claims for compensatory and exemplary damages, as these are not available under the ADEA).

Complete text (5 pages) of Notice of Interpretation issued by the Office of Civil Rights (OCR), U.S. Department of Education and published in the March 14 Federal Register. In the Notice, OCR announces its intent to initiate rulemaking to amend the Department’s regulations under Sec. 504 to adopt the 2010 Title II ADA Standards for new construction or alterations commencing on or after March 15, 2012. OCR further states that for new construction or alterations commenced on or after September 15, 2010, institutions have the option of using the Uniform Federal Accessibility Standards (UFAS) currently incorporated in the Department’s Sec. 504 regulations, or the 2010 Title II ADA Standards, for purposes of compliance with Sec. 504. Use of the 2010 Title II ADA Standards will not be required as means of compliance with Sec. 504 until the Department revises its Sec. 504 regulations to formally adopt the 2010 Title II ADA Standards in lieu of UFAS. For institutions subject to Title II of the ADA as well as Sec. 504, OCR states that for new construction and alterations commenced on or after March 15, 2012, the 2010 Title II ADA Standards will be used by OCR in its enforcement of Title II regulations.

Complete text (40 pages) of opinion by U.S. District Court (N.D. Illinois) finding that, because Illinois state law declares student newspapers at public universities to be public forums, campus advisors of student newspapers are protected against retaliation for the protected speech of student journalists. The court further finds that the evidence supports a finding of retaliation and orders plaintiff, the former campus advisor to the student newspaper, reinstated to the same or similar position at the institution. The court further orders that all negative information in plaintiff’s personnel file relating to his termination be removed.

Complete text (18 pages) of decision by U.S. District Court (M.D. Pennsylvania) holding inter alia that alleged statements by personnel of defendant university to prospective employers of plaintiff following her termination indicating that she had voluntarily resigned her employment and that she was not a team player were not sufficiently stigmatizing to support her due process claim for deprivation of a liberty interest.

Complete text (7 pages) of document issued by the Internal Revenue Service (IRS) summarizing significant changes to the 2011 Form 990, including schedules and instructions.

Complete text (18 pages) of decision by Colorado Supreme Court affirming the decision of the Court of Appeals the Colorado Concealed Carry Act applies to Colorado state colleges and universities, and therefore the complaint by respondents alleging that the Board of Regents’ Weapons Control policy states a claim for relief.

Complete text (6 pages) of decision by Montana trial court holding that the Family Educational Rights and Privacy Act (FERPA) does not bar the release of records of an investigation of employee misconduct, because the records only tangentially, not directly, related to the students involved in the investigation.

Complete text of February 28 notice from the U.S. Equal Employment Opportunity Commission (EEOC) announcing the issuance of revised Commission guidance on the employment of veterans with disabilities. According the Commission, the revised guides reflect changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood -- such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully. The revised guides are the Guide for Employers and the Guide for Wounded Veterans.

Complete text (46 pages) of decision by U.S. District Court (DC) holding that the National Labor Relations Board did not exceed its authority under the National Labor Relations Act in promulgating Subpart A of its Final Rule on Notification of Employee Rights Under the National Labor Relations Act. Under the rule most private sector employers are required to post a notice advising employees of their rights under the National Labor Relations Act. The court holds, however, that the provision of Subpart B of the rule deeming every failure to post the notice to be an unfair labor practice, and the provision tolling the statute of limitations in unfair labor practice actions against employers failing to post the notice, exceeded the authority of the NLRB under the NLRA. During the pendency of the case, the Board postponed the effective date of the rule to April 30, 2012.

Complete text (36 pages) of decision U.S. Tenth Circuit Court of Appeals rejecting plaintiffs’ attempt to use the “state created danger” theory to hold defendants liable for the death of a patient who died of an epileptic seizure while, due to the policies and contrary to false representations of defendants, was left unattended by hospital staff while being withdrawn from his epilepsy medication. Plaintiffs sued under 42 U.S.C. §1983, alleging that defendants deprived the patient of life without due process of law by acting pursuant to policy and custom, and with reckless disregard to the decedent’s right not to be subjected to serious dangers created by and under control of the defendants. The court rejects use of the “state created danger” theory because the decedent was not in state custody against his will, because the policies that led to the patient’s death are not the type of affirmative conduct required by the state created danger theory, and finally because the state created danger theory only applies in cases of acts of private violence, and the complaint makes it clear that the immediate or direct cause of decedent’s death was negligence by state actors.

Complete text (36 pages) of publication issued by the JED Foundation.

Complete text (8 pages) of advanced notice of proposed guidance (ANPG) issued by the Office of Management and Budget and published in the February 28 Federal Register. The ANPG outlines ideas for reform of federal grants policies, including potential changes affecting OMB Circulars A-21, A-87, A-110 and A-122, as well as Circulars A-89, A-102, A-133, A-50 (regarding Single Audit follow-up) and the Cost Principles for Hospitals codified at 45 CFR Part 74, Appendix E. The ANPG poses are series of questions, including questions on Single Audits, Cost Principles, and Administrative Requirements. Comments are due no later than March 29.

Complete text of letter sent on behalf of the American Council on Education (ACE) and other higher education associations urging the U.S. Secretary of Health and Human Services (HHS) to issue final rules governing student health insurance under the Affordable Care Act (ACA). The letter notes that proposed rules were issued on February 11, 2011 with comments due by April 12, 2011, yet HHS has not yet issued final rules. ACE earlier prepared a summary of the major provisions of the proposed rule and along with other higher education associations filed comments on the proposed rule.

Complete text (26 pages) of decision by Virginia Supreme Court affirming but on different grounds the decision of the circuit court. The courts holds that the University of Virginia, as an agency of the state, does not constitute a “person” under the Virginia Fraud Against Taxpayers Act, and therefore could not be a proper subject of civil investigative demands (CIDs) filed by the Virginia Attorney General investigating alleged potential violations of the Act. The CIDs, including interrogatories and a demand for the production of documents, had been issued by the Attorney General seeking information related to a state-funded research grant dealing with climate change.

Complete text (7 pages) of complaint filed in the U.S. District Court for the District of Columbia seeking an injunction setting aside as unlawful the amendments to the Family Educational Privacy Rights Act (FERPA) regulations issued by the Department of Education on December 2, 2011. The amendments modified the definitions of the terms “authorized representative”, “directory information”, and “education program” as used in the statute in order to allow greater longitudinal data sharing to facilitate the ability of states to evaluate education programs.

Link to ScotusBlog site containing key documents relating to Fisher v. University of Texas at Austin. On February 21, the U.S. Supreme Court granted certiorari on this question: “Whether this Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin's use of race in undergraduate admissions”. The site contains links to the underlying District Court and Court of appeals decisions, and briefs by the parties and amici. The case will be argued in the Court’s next term.

Complete text of letter sent by the American Council on Education and numerous other higher education associations and accrediting organizations urging members of the U.S. House of Representatives to vote for H.R. 2117, which would repeal the state authorization and credit hour rules promulgated by the U.S. Department of Education as part of the program integrity rules issued in October 2011 and effective July 1, 2011. A House of Representatives vote on H.R. 2117 is expected this week.

Complete text (81 pages) of report U.S. Government Accountability Office. The report analyzes financial trends in public and non-profit institutions of higher education, including increased reliance on tuition revenues and declines in state and local appropriations. The report also discusses trends in instructional and other types of institutional spending, graduation rates, and disclosure of required information on cost of attendance, graduation rates and future employment.

Complete text (8 pages) of decision by U.S. District Court (W.D. Pennsylvania) granting defendant institution’s motion to dismiss plaintiff’s claim of denial of procedural due process arising out of his termination for cause as defendant institution’s football coach. The court finds that plaintiff failed to allege a property interest protected by the Fourteenth Amendment. The court finds that because plaintiff’s contract could be terminated without cause, as well as with cause, he did not have a property interest arising from the contract and therefore was not entitled to procedural due process under the Fourteenth Amendment.

Complete text (9 pages) of proposed rule issued by the Centers for Medicare and Medicaid Services (CMS), U.S. Department of Health and Human Services and published in the February 16 Federal Register. The proposed rule implements provisions of the Affordable Care Act requiring health care providers receiving Medicare funds to report and return any overpayments within 60 days of the date on which the overpayment is identified, or the date on which any corresponding cost report is due, whichever is later. The proposed rules includes definitions and examples of overpayment and identification. Comments on the proposed rule are due on April 16.

Complete text of Notice issued by the U.S. Environmental Protection Agency (EPA) and published in the February 15 Federal Register. The Notice extends the comment period on the agency’s proposed revisions to its underground storage tank regulations from February 16 to April 16. According to the EPA, the proposed revisions are designed to increase emphasis on properly operating and maintaining UST equipment. Among other items, the proposed rule adds secondary containment requirements for new and replaced tanks and piping; adds operator training requirements for UST system owners and operators; adds periodic operations and maintenance requirements for UST system; update codes of practice and update state program approval requirements to incorporate the proposed changes. EPA has provided a summary of the proposed changes, including a comparison of the existing and proposed regulations.

Complete text (10 pages) of decision of Connecticut Supreme Court holding that under the Connecticut Freedom of Information Act a public agency need not be engaged in a “trade” in order to claim the benefit of the trade secret exemption contained in the Act. Accordingly, the university was entitled to withhold from disclosure under the act lists of season ticket holders to athletic department events; and lists of individual event ticket purchasers and prospects from the university’s performing arts center. With respect to a request for a list of donors to the university library, the court affirms the trial court order that such a list could be a trade secret but remanding the issue to the Freedom of Information Commission for a determination as to whether that information was “not being generally known to, and not being readily ascertainable by proper means by, other persons” as required by the trade secret exemption in the Act.

Complete text of statement issued by the White House on Friday announcing a new policy on the required provision of contraceptive services by religious employers. Under the new policy, religious employers will not be required to provide, pay for or refer for contraception coverage. However, the insurance company providing health insurance to the employees of religious employers will be required to directly offer contraceptive care free of charge. According to the statement, the administration will propose and finalize a new regulation to implement the new policy during the one-year transition period until August 1, 2013 announced last month for non-profit employers who, based upon religious beliefs, do not currently provide contraceptive coverage in their health insurance plans, to add such coverage to non-grandfathered plans. In August 2011 the Department published an interim final rule, under the Patient Protection and Affordable Care Act requiring most non-grandfathered health insurance plans to cover by August 1, 2012 preventive services for women, including contraceptive services, without a co-pay, co-insurance, or deductible. The interim final rule exempted certain religious employers, defined as an employer that (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. The effect of the new policy announced by the White House will be to expand the exemption contained in the interim final rule.

Complete text of additional proposed rules issued by the United States Patent and Trademark Office to implement the American Invents patent reform Act and published in the February 10 Federal Register. The proposed rules address changes to implement derivation proceedings (14 pages); changes to implement Inter Partes review proceedings (20 pages); changes to implement post-grant review proceedings (21 pages); changes to implement a new transitional post-grant review proceeding for covered business method patents (16 pages); and a rule setting forth a proposed definition of “technological invention” for purposes of the transitional program for covered business method patents (14 pages). Comments on the proposed rules are due on or before April 10.

Complete text of announcement posted to U.S. Department of Labor web page extending by 14 days the comment period on the Office of Federal Contracts Compliance proposed rule on the Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors Regarding Individuals With Disabilities. Comments on the proposed rule are now due by February 21. Under the proposed rules, federal contractors and subcontractors would be required to: set a hiring goal of having 7% of their employees be workers with disabilities in each job group of the contractors’ workforce; invite all applicants to voluntarily identify as an individual with a disability at the pre-offer and post-offer stages of the hiring process; to survey all employees annually to in order to invite their anonymous self-identification; maintain records on the number of individuals with disabilities applying for positions and the number hired; develop detailed written procedures for processing requests for reasonable accommodation and disseminate those procedures to employees; to annually review their personnel processes to ensure their affirmative action plan obligations are being met, including providing explanations for rejecting individuals with disabilities for job vacancies or training programs and describing the reasonable accommodations considered; to annually review and document their outreach and recruitment efforts to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities; to conduct an annual data analysis of applicants and new hires including calculation of applicant and hiring ratios for individuals with disabilities to all applicants and all new hires; and engage in three types of specific outreach and recruitment efforts for individuals with disabilities, including establishing linkage agreements with three specified external entities, and evaluate annual the effectiveness of those outreach and recruitment efforts. OFCCP issued a Fact Sheet, FAQ and Media Release to accompany the proposed rule.

Complete text (29 pages) of decision by U.S. Eleventh Circuit Court of Appeals affirming in part and reversing in part the decision of the District Court. The court affirms the District court’s denial of defendant’s motion for summary judgment based on defendant-appellant university president’s alleged qualified immunity, viewing the facts alleged in the light most favorable to plaintiff, defendant public university president violated plaintiff-appellee’s due process rights when he ordered student’s administrative withdrawal without providing the student with pre-withdrawal notice of the charges against him and an opportunity to be heard concerning those charges. The court affirms the District court’s decision that defendant university president is not entitled to qualified immunity for his action ordering plaintiff’s administrative withdrawal, because plaintiff’s due process rights were well-established law and the president acted contrary to the advice of counsel. The court notes that defendant can re-assert his qualified immunity defense at trial in a motion for judgment as a matter of law. The court reverses the District court’s denial of summary judgment to defendant-appellant Board of Regents, ruling that the Board had not waived its Eleventh Amendment immunity from suit in federal court on plaintiff-appellee’s breach of contract claim.

Complete text of Q & A document issued by the U.S. Equal Employment Opportunity Commission (EEOC) clarifying an earlier EEOC informal discussion letter. The informal discussion letter declared that an employer may not apply a high school graduation requirement to an applicant who was unable to graduate from high school due to a learning disability unless the employer can demonstrate the high school graduation requirement was job related and consistent with business necessity. In addition, even if the requirement is job-related and consistent with business necessity, the employer may still have to determine whether a particular applicant whose learning disability prevents him or her from meeting a high school graduation requirement can perform the essential functions of the job, with or without accommodation.

Complete text (17 pages) of decision by U.S. District Court (N.D. Ohio) granting defendants' motion for summary judgment on First Amendment retaliation claim brought by plaintiff, former Associate Vice President for Human Resources of defendant institution, who was dismissed after she wrote a letter to the editor of a local newspaper objecting to the view that homosexuals are "civil rights victims" and declaring that homosexuality is purely a matter of choice. The court holds that because plaintiff had hiring and firing authority and she was charged with enforcing the university's policies prohibiting discrimination on the basis of sexual orientation, her policy views related to her employment responsibilities. Speaking in a manner contrary to her employer's policy raised a presumption of insubordination which plaintiff failed to rebut. The court further holds that even if the presumption did not apply, the damage or potential damage to the university's interests resulting from plaintiff's speech outweigh her interest in making comments on a matter of public concern.

Complete text (13 pages) of report prepared by the American Association of University Professors (AAUP) Committee A on Academic Freedom and Tenure. The report address steps in the accommodation process, including defining the essential functions of faculty positions, establishing the nature and extent of a faculty member’s disability, discussion accommodations, and addressing evaluation and performance issues. It includes a sample ADA policy for faculty members who have disabilities and an analysis of litigation over the dismissal of faculty members with disabilities.

Complete text (6 pages) of unpublished decision by U.S. 9th Circuit Court of Appeals affirming the decision of the District Court and rejecting plaintiff’s claim that defendant acted with deliberate indifference to another student’s previous claim of sexual assault, which failure plaintiff alleged led to her own sexual assault. The court further rejects plaintiff’s claim that failure to expel all three of the assailants (instead of one) constituted deliberate indifference to her complaint of sexual assault because it would require her to be in contact with the other two students following the expiration of their suspensions. Lastly the court rejects plaintiff’s contention that the institution’s action following the disciplinary hearing of temporarily prohibiting unsupervised social interaction between her and members of the men’s basketball team constituted retaliation against her for her sexual assault complaint.

Complete text of January 31 press release by U.S. Department of Homeland Security (DHS) announcing administrative reforms designed to attract and retain highly skilled immigrants. Among the changes, which according to the press release will be completed in the near future are expansion of eligibility for a 17-month extension of optional practical training (OPT) for F-1 international students to include students with a prior degree in Science, Technology, Engineering and Mathematics (STEM); allowing additional part-time study for spouses of F-1 students and expanding the number of Designated School Officials (DSOs) at schools certified by DHS to enroll international students; providing work authorization for spouses of certain H-1B visa holders; and allowing outstanding professors and researchers to present a broader scope of evidence of academic achievement.

Complete text (35 pages) of updated report from the Acting General Counsel of the National Labor Relations Board on fourteen recent NLRB cases presenting emerging issues in the context of social media. The cases review the lawfulness of discipline of employees for postings to social media sites, including whether employer policies governing employee postings to social media sites were overbroad due to their potential to chill employee exercise of their NLRA Section 7 rights to engage in concerted activities, and whether particular employee postings constituted protected or unprotected activity under Section 7. The report follows an earlier report issued in August 2011.

Complete text (16 pages) of decision by U.S. District Court (N.D. New York) denying plaintiff’s motion for a preliminary injunction enjoining defendants from applying the institution’s Use and Fee policies to prevent plaintiff or others from engaging in protected speech activities. The court finds that plaintiff has failed to establish a likelihood of irreparable harm because in the time since the filing of plaintiff’s motion defendants’ adopted a new policy applicable to the campus at which plaintiff wishes to speak the terms of which make it unlikely that plaintiff will experience the First Amendment violations alleged in his complaint. The court further holds that based on the record before it plaintiff has failed to establish a likelihood of success on the merits of his challenge to the previous Use and Fee policies.

Complete text (61 pages) of Notice of Proposed Rulemaking issued by the Wage and Hour Division, U.S. Department of Labor and scheduled for publication in the Federal Register. The proposed rules would implement amendments to the Family Medical Leave Act (FMLA) enacted by the fiscal 2010 National Defense Authorization Act. Those amendments extended the FMLA’s military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of serious injury or illness to include those resulting from the aggravation of a preexisting condition. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces (previously limited to family members called to active duty in the National Guard or Reserves) and also added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country. The Department has a website devoted to the proposed rule including a FAQ, a Fact Sheet on the Proposed Rulemaking, and a Fact Sheet on the Proposed Changes to the Military Family Leave Provisions. Comments on the proposed rule are due on or before April 16.

Complete text (32 pages) of Code of Best Practices in Fair Use for Academic and Research Libraries issued by the Association of Research Libraries (ARL). The code identifies eight principles representing the library community’s current consensus about acceptable practices for the fair use of copyrighted material.

Complete text (16 pages) of proposed rule issued by the U.S. Patent and Trademark Office (USPTO) and published in the January 25 Federal Register. The proposed rule would amend the rules of practice in patent cases to implement the supplemental examination provisions of the Leahy-Smith America Invents Act. The supplemental examination provisions permit a patent owner to request supplemental examination of a patent by the USPTO to consider, reconsider or correct information believed to be relevant to the patent.

Complete text (22 pages) of decision by U.S. Sixth Circuit Court of Appeals reversing the decision of the District Court and reinstating plaintiff graduate counseling student’s claims that her expulsion from the counseling program violated her free speech and free exercise of religion rights under the First Amendment. While participating in a required practicum course, plaintiff, citing her religious beliefs, had requested to refer to another counselor a client seeking counseling regarding a same-sex relationship. The institution, citing the American Counseling Association Code of Ethics and a program policy against permitting referrals by practicum students, dismissed her from the counseling program. In reversing the District Court’s grant of summary judgment, the court finds that construing the facts in the light most favorable to plaintiff a reasonable jury could find that her professors ejected her from the counseling program because of hostility to her speech and faith, and not due to violation of the ACA code of ethics or a policy against referrals. The court affirms the District Court’s denial of plaintiff’s cross motion for summary judgment, and the District Court’s denial of defendant’s motion seeking qualified immunity. The court distinguishes its holding from that of the Eleventh Circuit in a similar recent case, Keeton v. Anderson-Wiley.

Complete text (8 pages) of decision by New York trial court holding that defendant institution failed to comply with its own guidelines and policies regarding the conduct of student academic integrity hearings and annulling as arbitrary and capricious the finding of the institution’s Judicial Hearing Panel that plaintiff had violated the institution’s Academic Integrity Policy.

Complete text of January 20 statement by U.S. Secretary of Health and Human Services announcing a delay until August 1, 2013 for non-profit employers who, based upon religious beliefs, do not currently provide contraceptive coverage in their health insurance plans, to add such coverage to non-grandfathered plans. In August 2011 the Department published an interim final rule, under the Patient Protection and Affordable Care Act requiring most non-grandfathered health insurance plans to cover by August 1, 2012 preventive services for women, including contraceptive services, without a co-pay, co-insurance, or deductible. The interim final rule exempted certain religious employers, defined as an employer that (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. In order to take advantage of the delay, employers not meeting the terms of the exemption contained in the interim final rule will need to certify that they qualify for the delayed implementation.

Complete text (43 pages) of Amici brief filed by the American Council on Education (ACE) and three additional higher education associations in the Colorado Supreme Court asking the court to affirm the decision of the Court of Appeals holding that the Regents of the University of Colorado were entitled to quasi-judicial immunity in §1983 case challenging the dismissal of tenured professor as a violation of his First Amendment rights.

Complete text (37 pages) of Report and Recommendation of U.S. Magistrate Judge (District of Columbia) concluding, inter alia, that selection by OFCCP of a federal contractor for a desk audit for compliance with Executive Order 11246 was subject to the Fourth Amendment prohibition against unreasonable searches as seizures. The Report and Recommendation further concludes that OFCCP failed to demonstrate that the contractor was selected pursuant to an administrative plan containing specific neutral criteria as required by the Fourth Amendment. Specifically, OFCCP failed to demonstrate whether certain contractors listed above the plaintiff contractor on the random computer-generated list used by OFCCP to select contractors for audit had been selected or rejected for review prior to the date on which plaintiff contractor was selected. However, the Report and Recommendation goes on to conclude plaintiff waived any Fourth Amendment objection to its selection when it produced the documents requested by OFCCP for the desk audit, despite OFCCP’s prior written assurance in response to plaintiff’s inquiry that plaintiff contractor had been selected for audit based on the random computer list.

Complete text of opinion letter issued by the Attorney General of Texas declaring that the 2007 ruling of the Texas Supreme Court in HEB Ministries, Inc. v. Texas Higher Education Coordinating Board did not hold that religious institutions were exempt from the Higher Education Coordinating Board’s complaint procedures, since that decision addressed only religious, not secular, programs of study. Secular programs of study offered by religious institutions are therefore subject to the Board’s complaint procedures, and, states the opinion, in the absence of U.S. Department of Education guidance indicating that religious programs offered by religious institutions must also be subject to a complaint procedure, the Board is able to comply with both the HEB Ministries decision and the U.S. Department of Education’s state authorization rule requiring institutions participating in federal financial aid programs to be subject to a state complaint procedure.

Complete text (14 pages) of U.S. Department of Labor Administrative Review Board decision holding that respondent university was not obligated to pay petitioner H-1B Visa holder for nine days separating her arrival in the U.S. and when she reported for work. The respondent was also not obligated to pay the petitioner for time following the date she reported for work when she was voluntarily unavailable, with the exception that respondent was required to pay the petitioner for two weeks during this period devoted to application for and receipt of a social security card. Finally, although petitioner notified respondent of her termination effective August 31, 2007, petitioner was obligated to pay wages through December 12, 2007, the date when it notified USCIS of her termination, since notification to USCIS is one of three steps required to effect a bona termination of an H-1B employee pursuant to Department regulations.

Complete text (11 pages) of decision by U.S. District Court (N.D. California) dismissing First Amendment and Title VI claims brought by Jewish students against the University of California based on the university’s alleged failure to adequately secure and monitor what plaintiffs claim was a hostile campus environment caused by actions of members of Muslim student groups. The court dismisses the First Amendment freedom of assembly and free exercise of religion claims, stating that state actors have no constitutional obligation to prevent private actors from interfering with the constitutional rights of others. It dismisses the Title VI claim because the facts alleged failed to show that the alleged conduct by the student group members was so severe, pervasive and objectively offensive that it denied the plaintiffs equal access to education, or that the university acted with deliberate indifference to the alleged conduct. The court notes that much of the alleged conduct is pure political and expressive conduct, or occurred at times and places where plaintiffs were not present. The court further notes that plaintiffs did not allege facts showing they were denied access to the university’s educational services in any meaningful sense. Lastly the court notes the university’s actions in arresting disruptive protestors and engaging in an ongoing dialogue with the various opposing student groups did not indicate deliberate indifference on the part of the university.

Complete text (39 pages) of decision by U.S. Supreme Court holding that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches claiming termination in violation of employment discrimination laws. The Court affirms that there is a “ministerial exception” that precludes the application of employment discrimination legislation to claims concerning the employment relationship between a religious institution and its ministers. The Court also holds that the ministerial exception is not limited to the heads of religious congregations, but can extend to others depending on the circumstances of their employment, including the respondent in the current case, a teacher at a church-operated school. Factors bringing the respondent within the ministerial exception include the fact that the church held her out as a minister with a distinct role; that the title of minister was accorded to respondent after a significant degree of required religious training and a formal commissioning process; that respondent also held herself out as a minister; and that as a source of religious instruction, respondent had a role in conveying the church’s message and carrying out its mission.

Complete text of letter from President of the Southern Association of Colleges and Schools (SACS), regional accrediting body for seven southern states, to the Governor of Florida advising that if the governing board of Florida public university were to suspend the university president at the direction of the governor, they would jeopardize the institution’s accreditation.

Complete text (7 pages) of Notice of Proposed Rulemaking issued by the U.S. Patent and Trademark Office and published in the January 5, 2012 Federal Register. The proposed rule would implement miscellaneous post patent provisions of the America Invents Act, including expanding the scope of information that parties may site in patent file to include written statements made by a patent owner before a Federal court or the USPTO. Comments on the proposed rule must be received on or before March 5, 2012.

Complete text (10 pages) of Notice of Proposed Rulemaking issued by the U.S. Patent and Trademark Office and published in the January 5, 2012 Federal Register. The proposed rule would change the rules of patent practice to provide a mechanism for third parties to submit to the USPTO any patents, published patent applications, or other printed publications of potential relevance to the examination of the applications. Comments on the proposed rule must be received on or before March 5, 2012.

Complete text (22 pages) of Notice of Proposed Rulemaking issued by the U.S. Patent and Trademark Office and published in the January 6, 2012 Federal Register. The proposed rule would revise and clarify the existing rules of practice regarding the inventor’s oath or declaration, including reissue oaths or declarations, assignments containing oath or declaration statements from inventors, and oaths or declarations signed by parties other than the inventors. The proposed rule would also revise and clarify rules of practice for power of attorney and prosecution of an application by a designee. Comments on the proposed rule must be received on or before March 6, 2012.

Complete text (50 pages) of proposed rule issued by the Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor and published in the December 9 Federal Register. Under the proposed rules, federal contractors and subcontractors would be required to: set a hiring goal of having 7% of their employees be workers with disabilities in each job group of the contractors’ workforce; invite all applicants to voluntarily identify as an individual with a disability at the pre-offer and post-offer stages of the hiring process; to survey all employees annually to in order to invite their anonymous self-identification; maintain records on the number of individuals with disabilities applying for positions and the number hired; develop detailed written procedures for processing requests for reasonable accommodation and disseminate those procedures to employees; to annually review their personnel processes to ensure their affirmative action plan obligations are being met, including providing explanations for rejecting individuals with disabilities for job vacancies or training programs and describing the reasonable accommodations considered; to annually review and document their outreach and recruitment efforts to evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities; to conduct an annual data analysis of applicants and new hires including calculation of applicant and hiring ratios for individuals with disabilities to all applicants and all new hires; and engage in three types of specific outreach and recruitment efforts for individuals with disabilities, including establishing linkage agreements with three specified external entities, and evaluate annual the effectiveness of those outreach and recruitment efforts. OFCCP issued a Fact Sheet, FAQ and Media Release to accompany the proposed rule. Comments on the proposed rule are due by February 7.

Complete text (49 pages) of Government Accountability Office (GAO) Report entitled “Higher Education and Disability: Improved Federal Enforcement Needed to Better Protect Students’ Rights to Testing Accommodations”. The report recommends that the Department of Justice take steps to develop a strategic approach to target its enforcement efforts related to testing accommodations requested by providers of standardized tests used to gain admission to postsecondary education or to receive a professional license.

Complete text of December 22 announcement posted by the U.S. Department of Education, Office of Postsecondary Education. The announcement notes that the gainful employment rules promulgated by the Department provided that institutions operating gainful employment programs must disclose the employment placement rate for student completing a GE program, as determined under a methodology to be developed by the National Center for Education Statistics (NCES). The announcement goes on to state that since NCES has been unable to develop a job placement rate methodology until further notice institutions do not have to disclose placement rate information unless they are required by an accreditor or state agency to calculate a placement rate.

Complete text of Notice issued by the National Labor Relations Board (NLRB) and published in the December 30 Federal Register. In the Notice, the NLRB announces that it is again delaying the effective date of its final rule on Notification of Employee Rights Under the National Labor Relations Act. The rule had originally been scheduled to take effect on November 14, 2011. In October the NLRB postponed the effective date to January 31, 2012. In response to a request from the U.S. District Court for the District of Columbia, which is considering a challenge to the rule, the NLRB now postpones the effective date of the rule to April 30, 2012.

Complete text (3 pages) of Notice of Proposed Rulemaking issued by the U.S. Copyright Office and published in the December 20 Federal Register. The Notice seeks comments on proposals to exempt certain classes of works from the prohibition on circumvention of technological measures that control access to copyrighted works. Comments addressing the proposed classes of works are due by February 10. Reply comments are due by March 1.

Complete text (25 pages) of decision by U.S. First Circuit Court of Appeals affirming the decision of the District Court and finding that appellant faculty member’s suspension with pay, prohibition from entering campus and removal as Department Chair did not violate his due process rights. The court also affirms the District Court’s denial of appellants claims of false arrest.

Complete text (52 pages) of final rule adopted by the National Labor Relations Board and published in the December 22 Federal Register. The final rule shortens the period within which elections can be held and revises pre-election procedures to provide that pre-election hearings will be limited to the question of whether an election should be held, and deferring until after the election hearings on such matters as the appropriate composition of bargaining groups and eligibility of employees to participate in the election. The final rule also makes Board review of hearing officer rulings discretionary. The Board has provided issued a press release, summary and a document comparing the final rule with the prior rule. The final rule is effective April 30, 2012. The U.S. Chamber of Commerce has filed suit seeking an injunction blocking the rule.

Complete text (49 pages) of decision by U.S. District Court on motion by Boston College seeking to quash subpoenas issued at the request of the United Kingdom for confidential interview materials collected as part of an oral history project documenting the history of the conflict in Northern Ireland. The subpoenas were issued pursuant to the United Kingdom Mutual Legal Assistance Treaty. The court holds that it has the discretion to quash such subpoenas, but that the standard of review is a deferential one analogous to that used in reviewing grand jury subpoenas, where the subpoena recipient has the burden of proving the subpoena is unreasonable. In response to Boston College’s assertion of academic privilege protecting confidentiality of academic research, the court after reviewing First Circuit precedents agrees that subpoenas targeting confidential academic information deserve heightened scrutiny. Therefore, while denying the college’s motion to quash the subpoenas, the court grants the college’s request for in camera review of the subpoenaed material in order to balance the government’s treaty obligations and the public’s interest in legitimate criminal proceedings against the potential chilling effects of a grant of the subpoenas on academic research.

Complete text of December 13 statement issued by president of the NCAA recommending that every campus have protective policies and means for anonymous reporting of suspected child abuse.

Complete text (208 pages) of report issued by the Presidential Commission for the Study of Bioethical Issues. The Commission is charged to determine if federal regulations and international standards adequately guard the health and well-being of participants in scientific studies supported by the federal government. The Commission finds that current U.S. regulations for human subjects protection provides substantial protection for the health, rights and welfare of research subjects and, in general, serves to protect people from harm or unethical treatment when they volunteer to participate as subjects in scientific studies supported by the federal government. The Commission also finds significant room for improvement in several areas, and provides fourteen recommendations where, according to the Commission, immediate changes can be made to increase accountability and thereby reduce the likelihood of harm or unethical treatment.

Complete text (3 pages) of letter from 52 U.S. Senators to Secretary of Defense Panetta requesting delay in the implementation of DoD’s Memorandum of Understanding (MOU) governing institutional participation in the Department’s military tuition assistance program. The Department has set a deadline of January 1 for institutions to sign the MOU in order to become or remain eligible for participation in the program. Note: In a letter to Senator Harkin dated December 15, the Department extended the deadline for signature of the MOU by 90 days, until March 30, 2012. The letter said the extension will permit the Department to address the concerns expressed concerning the terms of the MOU.

Complete text of tables setting forth current state laws allowing undocumented college students to establish residency for purposes of in-state tuition at public institutions, and of state laws restricting access to postsecondary education, provided courtesy of NACUA member Professor Michael Olivas from his forthcoming book, No Undocumented Child Left Behind.

Complete text (49 pages) of brief in opposition filed with the U.S. Supreme Court on behalf of respondents University of Texas et al. in response to the petition for writ of certiorari seeking review by the Court of the decision by the U.S. Fifth Circuit Court of Appeals. The Fifth Circuit held inter alia that a Texas state law requiring admission of students in the top ten percent of their high school graduating class is not a sufficiently race-neutral alternative under the U.S. Supreme Court decision in Grutter v. Bollinger, 539 U.S. 306 (2003), to bar the use by the respondent university of a holistic admissions procedure, that takes race into account as one factor, for the admission of students to the remaining admission slots unfilled by those admitted under the ten percent statutory formula.

Complete text (23 pages) of decision by Tennessee Court of Appeals holding that the District Court did not err in determining that cy pres relief was available to Fisk University in seeking to modify the terms of a gift of artwork by the artist Georgia O’Keefe. Compliance with the terms of the fit, requiring that the university display and maintain the donated collection, was impracticable due to the university’s financial condition. The court further affirms the finding of the trial court that a motivating factor in Ms. O’Keefe’s dispositional design was the placement of the collection at Fisk University and propriety of the trial court’s consideration of this factor in its determination of the nature of cy pres relief. The court also affirms the trial court’s approval of a sharing agreement with a second museum as the form of available cy pres relief most closely approximating Ms. O’Keefe’s charitable intent. However, the court reverses the trial court’s requirement that Fisk use $20 million of the $30 million of proceeds of the sale of an undivided fifty percent interest in the sale of the collection to the second museum to establish an endowment, the income of which would be used to maintain the collection, and remands the case for reconsideration of whether further measures are necessary to accomplish the purposes of the gift.

Complete text (39 pages) of amicus curiae brief filed with the Minnesota Supreme Court. Appellant Tatro is appealing the decision of the Minnesota Court of Appeals holding that Facebook postings by mortuary science student referring to the cadaver she had been assigned and also to a “death list” materially and substantially disrupted the work and discipline of the university. The appeals court held the university’s discipline of the student did not violate her First Amendment rights and affirmatively rejected the student’s assertion that the appropriate standard by which to judge her first amendment claims was that of whether her statements constituted “true threats”.

Complete text (10 pages) of decision by U.S. Court of Appeals for the District of Columbia affirming the decision of the District Court and ruling that although plaintiff/appellant, an academically dismissed medical student, has established that she suffered from a mental impairment, and also that she experienced a significant limitation on the major life activity of learning, the District Court did not clearly err in concluding that appellant had failed to meet her burden to demonstrate that her impairment caused her limitation on learning. The District Court identified many reasons aside from her impairment that could explain why appellant had done poorly on her examinations.

Complete text (30 pages) of decision by Idaho District Court. Plaintiff student resident of university family housing apartment brought suit alleging that the university’s housing agreement and policies prohibiting possession of firearms on campus were preempted by state law and also violated his right to keep and bear arms under the U.S. and Idaho constitutions. The court holds, inter alia, that plaintiff knowingly waived his rights by entering into the university housing agreement; that the provision of the housing agreement prohibiting possession of firearms was not an unconstitutional condition because plaintiff was free to seek housing off-campus; that university policies and agreements prohibiting the possession of firearms on campus were not pre-empted by 2008 state legislation creating a uniform set of laws for the regulation of firearms, because such legislation expressly reserved the right of the university to regulate matters relating to firearms; that the Idaho state constitution provides no greater protection of the right to keep and bear arms than does the Second Amendment of the U.S. Constitution; that an intermediate level of scrutiny is appropriate for review of plaintiff’s alleged violation of his Second Amendment rights because the university policies at issue do not substantially burden the fundamental constitutional right embodied in the Second Amendment, which the U.S. Supreme Court in U.S. v. Heller held was to protect the right law-abiding citizens to possess firearms in their homes for the purpose of self-defense, since plaintiff could easily exercise his right by re-locating to non-university housing. The District Court further observes that the university regulations at issue fall within the Supreme Court’s list of presumptively lawful regulatory activities articulate in Heller, and that plaintiff’s campus apartment is not the traditional home the Supreme Court envisioned in Heller. Finally the court finds that the university’s policies prohibiting possession of firearms are substantially related to the Regents’ important interest in promoting the university’s property as a safe learning environment, there therefore they do not violate plaintiff’s constitutional right to keep and bear arms.

Complete text (174 pages) of report of the Advisory Commission on Accessible Instructional Materials in Postsecondary Education for Students with Disabilities. The Commission was created pursuant to the Higher Education Opportunity Act of 2008 (HEOA) and charged with studying the current state of accessible materials for students with disabilities in postsecondary education, including barriers and systemic issues that affect delivery of materials, and writing a report that makes recommendations for improving students’ access to and dissemination of such materials. The report contains 18 recommendations, including that the Department of Justice and the Department of Education consider providing additional guidance on legal requirements concerning postsecondary institutions’ policies and procedures regarding the documentation of disability under Title II and III of the ADA and according to Section 504, “to reduce the barriers currently presented by some institutions’ requirements for documentation of disability.” The Commission also recommends that Congress should authorize the United States Access Board to establish guidelines for accessible instructional materials that will be used by government, in the private sector and in postsecondary academic settings.

Complete text (7 pages) of decision by U.S. Seventh Circuit Court of Appeals affirming the decision of the District Court and holding that an erroneous reference in a letter advising dental student of his academic dismissal does not negate the more than adequate process accorded to him by the school.

Complete text (13 pages) of opinion by Idaho Supreme Court holding that because there was no evidence that plaintiff tenured faculty member’s job responsibilities included making public statements on behalf of the university concerning the subject matter of columns, letters and paid advertisements by plaintiff in local newspapers, plaintiff’s speech was that of a private citizen. The court further holds that the subject matter of the paid advertisement placed by plaintiff in a local newspaper, speculating about the possible creation of a medical school at the university, was a matter of public concern. However, the court also holds that there is no evidence that plaintiff suffered any adverse employment action by the university in retaliation for his speech.

Complete text (51 pages) of amicus curiae brief filed in the Supreme Court of Ohio by the American Council on Education (ACE) and seven additional higher education associations asking that the court deny the writ of mandamus sought by plaintiff ESPN. The writ of mandamus seeks copies of emails, letters, memos and other records relating to recent incidents and investigations involving the Ohio State University football team.

Complete text (16 pages) of decision by the District of Columbia Office of Human Rights ruling that the Catholic University of America did not violate the District of Columbia Human Rights Act by eliminating all mixed-gender campus residence halls and requiring students living on campus to live in single-sex residence halls.

Complete text (3 pages) of joint letter from the Association of American Universities (AAU), the Association of Public and Land-Grant Universities (APLU) and the Council on Governmental Relations (COGR) to the chairmen of the House Committee on Oversight and Governmental Reform and the House Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform on H.R. 3433, the Grant Reform and Transparency (GRANT) Act of 2011. In their letter, the associations express concern about the required posting of certain grant award information as prescribed in Sec. 7404 of the proposed legislation.

Complete text (5 pages) of comments by the Association of American Universities (AAU) and the Association of Public and Land-Grant Universities on proposed revisions to the Centers for Disease Control (CDC) and Animal and Plant Health Inspection Service (APHIS) regulations on the possession, use and transfer of select agents and toxins. The proposed rules would add new personnel and security requirements for agents assigned to Tier 1. In addition, the rule adds new training requirements for individuals working with select agents reduces to three years the time that a security risk assessment for working with select agents is valid.

Complete text of Notice issued by the National Institutes of Health (NIH) and published in the December 1 Federal Register. The Notice states that effective January 1, 2012 institutions receiving Public Health Service support for animal activities must base their animal care and use programs on the 8th edition of the Guide for the Care and Use of Laboratory Animals (243 pages) issued by the Institute for Laboratory Animal Research (ILAR) of the National Research Council. Currently recipients of NIH funding base their compliance with the Public Health Service (PHS) Policy on Humane Care and Use of Laboratory Animals on the 1996 edition of the Guide. The Notice further states that covered institutions must complete at least one semiannual program review and facilities inspection using the 8th Edition of the Guide by December 31, 2012. The NIH Office of Laboratory Animal Welfare (OLAW) has developed position statements that clarify how covered institutions are expected to implement use of the 8th Edition of the Guide, including matters such as cost, animal housing specifications, food and fluid restrictions, and other issues. NIH invites comments on the position statement through January 29, 2012.

Complete text (57 pages) of final regulations issued by the Office of Management, U.S. Department of Education and published in the December 2 Federal Register. The regulations amend the previous regulations under the Family Educational Rights and Privacy Act (FERPA) in order to allow greater longitudinal data sharing in order to facilitate the ability of states to evaluate education programs, while also building in safeguards to ensure the privacy of shared data. On its web page announcing the final regulations, the Family Policy Compliance Office (FPCO) has also posted an overview of the revised regulations for state and local educational agencies, an overview for parents and students, a guidance for reasonable methods and written agreements and a new model notification for Postsecondary Officials. The regulations are effective January 3, 2012.

Complete text (10 pages) of guidance issued by the Office of Civil Rights (OCR), U.S. Department of Education and the Civil Rights Division of the U.S. Department of Justice. The guidance replaces OCR’s August 28, 2008 guidance entitled “The Use of Race in Postsecondary Student Admissions”. The letter reviews the legal framework governing the use of race to achieve diversity in postsecondary education and provides examples of specific approaches that institutions may consider consistent with the U.S. Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger. The Departments also provided guidance for elementary and secondary education. In a “Dear Colleague” letter accompanying the guidance OCR and DOG offer to provide technical assistance or to respond to questions about the application of the guidance to educational institutions.

Complete text (3 pages) of letter to U.S. Secretary of Defense by the American Council on Education and five other higher education associations requesting that the Department withdraw the Memorandum of Understanding governing institutional participation in the Department’s military tuition assistance program and reopen discussion of ways to modify the MOU in order to ensure the ability of more institutions to participate in the program without compromising their academic policies. Institutions are required to submit a signed MOU before January 1, 2012 in order to maintain eligibility to participate in the tuition assistance program next year.

Complete text (89 pages) of proposed rule issued by the U.S. Environmental Protection Agency and published in the November 18 Federal Register. The EPA is proposing revisions to the federal underground storage tank (UST) regulations to increase emphasis on properly operating and maintaining UST equipment. Among other items, the proposed rule adds secondary containment requirements for new and replaced tanks and piping; adds operator training requirements for UST system owners and operators; adds periodic operations and maintenance requirements for UST system; update codes of practice and update state program approval requirements to incorporate the proposed changes. EPA has provided a summary of the proposed changes, including a comparison of the existing and proposed regulations. Comments on the proposed rule are due by December 19.

Complete text of Notice and request for information issued by the Bureau of Consumer Financial Protection and published in the November 17 Federal Register. The Dodd-Frank Act requires the Bureau to prepare a report on Private Education Loans and Private Education Lenders. The Bureau requests information to assist it in preparing the report, including information on loans made to students by higher education institutions. Comments are due by January 17, 2012.

Complete text (13 pages) of ruling by the Board of Alien Labor Certification Appeals (BALCA) reversing a Certifying Officer prevailing wage determination and holding that Children’s Hospital Corporation was an affiliated entity with the Harvard University Medical School even though there exists no legal relationship between the two entities. Applying the definition of “affiliated or related nonprofit entity” in the PERM regulations, the Board determines that by virtue of the Statement of General Policies governing the relationship between the Hospital and the Medical School, the Hospital is attached to the Harvard Medical School as a member of the school’s consortium of teaching hospitals and is therefore an affiliated non-profit entity. Accordingly, the Hospital was entitled to have the determination of prevailing wage take into account only employees of institutions of higher education or affiliated non-profit entities in the area of employment.

Complete text (3 pages) of document prepared by EDUCAUSE summarizing key concerns of higher education institutions with the proposed Stop Online Piracy Act (H.R. 3261). The document highlights four main aspects of the bill that are problematic for higher education: broad definitions of infringing websites; new monitoring mandates that contravene the DMCA safe harbor provisions; potential felony liability for good faith, non-profit users; and required domain name system (DNS) filtering and redirection. EDUCAUSE has posted additional information on the Stop Online Piracy Act here.

Link to U.S. Department of Health and Human Services Office of Civil Rights (HHS OCR) web site announcing HIPAA Privacy and Security Audit Program. HHS OCR is piloting a program to audit up to 150 covered entities to assess compliance with the HIPAA privacy and security rules. Audits will begin in November 2011 and be completed by December 2012. Business Associates will be included in future audit programs. HHS OCR supplied a sample audit notification letter.

Complete text (55 pages) of report (current as of April 2010) by Children's Bureau, Administration on Children Youth and Families, U.S. Department of Health and Human Services, detailing state laws requiring mandatory reporting of child abuse. According to the report, 18 states require any person who suspects child abuse or neglect to report. Another report from the same agency summarizes penalties for failure to report.

Complete text of opinion of California Court of Appeals affirming the decision of the trial court sustaining former tenured law faculty member’s claim for rescission of the buy-out of his employment agreement due to fraud and negligent misrepresentation. Specifically, the court finds that statements by representatives of defendant/appellant institution concerning the pay, future course load, possible abrogation of tenured faculty contracts due to financial exigency, and the deadline for decisions regarding acceptance of the buy-out offer were misrepresentations upon which the faculty member relied. The court affirms the trial court’s order of reinstatement and award of compensatory damages, but reverses the award of punitive damages.

Complete text (3 pages) of letter to the Chair and Ranking Member of the House Judiciary Committee from Library Copyright Alliance (comprised of the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries). The letter expresses concern about two provisions in the “Stop Online Piracy Act” (H.R. 3261) currently pending before the Committee. According to the letter, the legislation as currently enacted will increase the possibility of criminal liability for willful infringement by including within it acts currently classified as ordinary infringement. In addition, the legislation would for the first time authorize both misdemeanor and felony penalties for non-commercial public performances of copyrighted works. A companion Senate Bill, the Protect-IP Act (S. 968) drew wide-ranging criticism earlier this year in a letter signed by 108 law professors.

Complete text (55 pages) of monograph entitled “A Guide to Academic Freedom” author by NACUA member Frederick P. Schaffer, General Counsel and Senior Vice President for Legal Affairs, The City University of New York. The work was commissioned in connection with the Difficult Dialogues initiative, a joint project of The Thomas Jefferson Center for the Protection of Free Expression, the Association of Governing Boards of Universities and Colleges (AGB) and the Ford Foundation.

Complete text (13 pages) of decision by Ohio Supreme Court holding that university owned property devoted to commercial and residential leases was not exempt from property taxation, even though the income derived from rent paid by the commercial and residential tenants was used for the support of the university. According to the court under the terms of applicable state law in order to qualify for exemption the property itself must be used for the support of the university.

Complete text (18 pages) of report by Education Sector describing the results of a survey on institutional compliance with five disclosure requirements enacted by the Higher Education Opportunity Act (HEOA) of 2008: Pell Grant graduation rates; credit transfer and articulation agreements; employment and graduate school placement; textbook prices and private student loans. The survey discovered varying degrees of compliance among the 152 institutions examined and concludes with a discussion of policy implications of the survey results and policy recommendations.

Complete text (97 pages) of preliminary analysis and discussion document issued by U.S. Copyright Office that addresses the issues raised by the intersection between copyright law and the mass digitization of books. According to the Copyright Office, “the purpose of the Analysis is to facilitate further discussions among the affected parties and the public – discussions that may encompass a number of possible approaches, including voluntary initiatives, legislative options, or both. The Analysis also identifies questions to consider in determining an appropriate policy for the mass digitization of books.” The Analysis was posted to a Copyright Office web site along with further background documents.

Redacted text (18 pages) of OCR decision letter and resolution agreement with Spring Arbor University finding that the university violated Section 504 by, among other things, placing conditions for readmission on a student the university perceived to be an individual with a mental disability, without properly determining whether the student was a “direct threat.” Importantly, in its analysis, OCR states that the “direct threat” standard applies only to situations where a student poses a threat to others. This breaks with OCR’s traditional standard – which allowed institutions to consider threat to self or others – and tracks the Department of Justice’s new ADA Title II regulation, which expressly limits the definition of “direct threat” to threats to others.

Complete text (9 pages) of comments filed by the Association of American Universities (AAU) and the Association of Public and Land-Grant Universities (APLU) in response to the Advance Notice of Proposed Rulemaking (ANPR) issued by the U.S. Department of Health and Human Services and published in the July 26 Federal Register. The ANPR requests comments on how current regulations for protecting human subjects who participate in research (the Common Rule) might be modernized and revised to be more effective. Comments on the proposed ANPR are due by September 26. HHS also provided a table matching provisions of the current regulation with changes being considered and a FAQ regarding the ANPR. The Council on Governmental Relations (COGR) also provided comments in response to the ANPR.

Complete text of Executive Summary of survey conducted by the Foundation for Individual Rights in Education (FIRE) of the standard of evidence used by colleges and universities in student sexual harassment and assault cases. The survey was undertaken to determine the impact of the April 4, 2011 “Dear Colleague” letter issued by the Office of Civil Rights (OCR), U.S. Department of Education, which, among other items, mandated the use of a preponderance of the evidence standard in the adjudication of allegations of sexual harassment or assault.

Complete text (26 pages) of decision of U.S. District Court (M.D. Louisiana) in action by former faculty member alleging, inter alia, that he was terminated in retaliation for his criticism of the U.S. Army Corps of Engineers following Hurricane Katrina. Ruling on defendants’ motions for summary judgment, the court finds that in making his criticisms plaintiff was not acting within his official job duties, citing actions by administrators of defendant university which, according to the court, made it clear that the university considered plaintiff to be acting outside the scope of his employment when he spoke on matters relating to Hurricane Katrina. Accordingly, plaintiff’s speech was not exempt from First Amendment protection pursuant to the U.S. Supreme Court holding in Garcetti v. Ceballos, 547 U.S. 410 (2006). Applying instead the analysis of Pickering v. Bd. of Education, 391 U.S. 563 (1968), the court further finds that plaintiff’s criticism of the Corps of Engineers addressed a matter of public concern and that a genuine issue of material fact exists as to whether plaintiff’s interest in speaking as a citizen outweighs the defendant university’s interest promoting efficiency in its operations.

Complete text (4 pages) of Notice of Inquiry issued by the U.S. Copyright Office and published in the October 27 Federal Register. In the Notice, the Copyright Office announces a study to assess whether and how the current legal system hinders or prevents copyright owners from pursuing infringement claims that have a relatively small economic value, and to recommend potential changes to improve the adjudication of these small copyright claims. The Notice describes challenges posed by the current legal system for the pursuit of small copyright claims, potential alternatives for adjudicating these claims, and issues for consideration, including the definition of a “small copyright claim”, impact on defendants, and available remedies. The Copyright Office seeks comments on the issues encompassed by the study. Comments are due by January 16, 2012.

Complete text (6 pages) of summary order issued by U.S. Second Circuit Court of Appeals affirming the District Court and holding that, under the doctrine of collateral estoppel, the adjudication of plaintiff-appellant’s Article 78 claims in New York state court barred her litigation of Title VII claims in federal court. The court holds that plaintiff had a full and fair opportunity to litigate the underlying issues of alleged discrimination in the state court proceeding.

Complete text (18 pages) of report issued by the U.S. Register of Copyrights summarizing the priorities of the U.S. Copyright Office over the next two years. Priorities in the area of copyright policy include studies on the legal treatment of pre-1972 sound recordings and on mass book digitization and supporting congressional consideration of possible legislation addressing rogue websites, public performance rights in sound recordings, orphan works, and copyright exceptions for libraries. Priorities in the area of administrative law include rulemakings on the prohibition on circumvention of measures controlling access to copyrighted works and on an electronic system for the designation of agents under the DMCA.

Complete text (15 pages) of annotated Memorandum of Understanding (MOU) issued by the Department of Defense on October 20 and pertaining the Department’s Tuition Assistance Program. The annotated MOU includes embedded clarifications based on frequently asked questions the Department has received concerning the MOU. The MOU is accompanied by a cover letter explaining that the Department may authorize amending the standard language of the MOU when it conflicts with state law or regulation. The letter provides instructions on how institutions may request changes and the information that must be provided.

Complete text (3 pages) of October 20 “Dear Colleague” letter issued by U.S. Department of Education, Office of Postsecondary Education urging institutions to take steps to detect and prevent fraud in federal student aid programs at institutions offering distance education. The letter is issued as part of the Department’s response to the Department’s Office of Inspector General report describing the widespread operation of fraud rings targeting financial aid awarded in connection with distance education programs. The letter describes how the fraud rings operate and recommends steps institutions can take to combat fraud in the award of federal financial aid, including implementing automated protocols to detect when large numbers of students are using the same Internet Protocol or email address to submit admissions applications or participate in on-line academic programs; and modification of financial aid disbursement rules for students participating exclusively in distance learning programs.

Complete text (4 pages) of letter from American Bar Association (ABA) Section on Legal Education and Admissions to the Bar responding to a letter from U.S. Senator Barbara Boxer and describing steps the Section, which is responsible for the accreditation of law schools, is taking to expand the collection and publication of law school placement information.

Complete text (6 pages) of letter from U.S. Representative John Conyers to the Chairman of the House Judiciary Committee requesting that the Committee schedule hearings on antitrust and due process issues in intercollegiate athletics, particularly as they relate to the impact of conference realignments and recent legal disputes on minority conferences and athletes. Issues noted in the letter include conference realignments, NCAA rules regarding the control of athletes’ likenesses, NCAA by-laws affecting the due process rights of athletes, responsibility for injury to athletes, and NCAA limitations on the duration of athletic scholarships.

Complete text (21 pages) of proposed rule issued by the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (HHS) and published in the October 3 Federal Register. The proposed rule would create tiers in the select agent list of pathogens and toxins, with the most dangerous agents assigned to Tier 1. The proposed rule would add new personnel and security requirements for agents assigned to Tier 1. In addition, the rule adds new training requirements for individuals working with select agents reduces to three years the time that a security risk assessment for working with select agents is valid. Comments on the proposed rule are due December 2.

Text of letter from U.S. senators to Inspector General of the U.S. Department of Education requesting data on law school enrollment, tuition, student indebtedness, and bar passage and job placement rates, including placement in jobs that require a law degree.

Complete text of supplemental briefs filed by the Trustees of the University of Illinois and the Chicago Tribune with the U.S. Seventh Circuit Court of Appeals, responding to the court’s request for clarification on whether the case is within the subject matter jurisdiction of the federal courts. The University is seeking reversal of a District Court decision, which held that The Family Educational Rights and Privacy Act (FERPA) did not specifically prohibit disclosure of education records for purposes of the Illinois Freedom of Information Act, reasoning that FERPA instead merely conditions the receipt of federal student financial aid funding on non-disclosure. The University’s principal brief can be found here.

Complete text (5 pages) of letter from the Chairman of the House Ways and Means Committee Subcommittee on Oversight to the Commissioner of the Internal Revenue Service (IRS) posing questions concerning tax-exempt organizations, including questions relating to the revised Form 990, unrelated business income, audits, tax-exempt enforcement initiatives, tax-exempt hospitals and colleges and universities (including the IRS’s colleges and universities compliance project).

Complete text of statement by National Labor Relations Board (NLRB) announcing the postponement of the effective date of the Board’s final rule on Notification of Employee Rights Under the National Labor Relations Act from November 14, 2011 to January 31, 2012. Under the rule most private sector employers are required to post a notice advising employees of their rights under the National Labor Relations Act.

Complete text (13 pages) of decision by U.S. District Court (C.D. California) in copyright infringement suit arising out of the University of California-Los Angeles’ use of streaming video derived from DVDs licensed from plaintiff Ambrose Video Publishing (AVP) on the university’s network and the internet. The court holds that the Regents and officers of the university named as defendants are immune from suit on the copyright claims under the Eleventh Amendment. The court further holds that plaintiff Association for Information Media and Equipment (AIME) lacks associational standing to bring the copyright claim because neither it nor its members own the copyrights at issue; and that AIME also lacks standing because it has not suffered any injury. The court further holds that the university’s streaming of the DVDs over the over the university’s network and the internet is within the license granted to the university by (AVP) to public perform the DVD’s and the fact that the DVD’s may be viewed by students and faculty outside of the classroom does not remove the public performance from the educational context. Finally, the court holds that the university’s copying of the DVD’s for purposes of placing them the university’s network was incidental to its right to publicly perform the DVD’s and therefore non-infringing fair use.

Complete text (8 pages) of proposed rule issued by the Copyright Office, Library of Congress and published in the September 28 Federal Register. The proposed rule would update the current interim regulations governing the designation by online service providers of agents to receive notifications of claimed copyright infringements. Designation of an agent is a pre-condition for on-line service providers to qualify for the limitations of liability contained in Sec. 512 of the Copyright Act. The Copyright Office maintains a list of designated agents including those designated by many colleges and universities. The proposed rule would implement an on-line designation system. All service providers would be required to re-file and if necessary update their previously filed designations of agents to receive notifications of claimed infringement. Service providers that have filed an on-line designation would then be required to periodically re-validate the information set forth in their designations in response to automatic notices generated by the Copyright Office. Comments on the proposed rule are due by November 28.

Complete text (14 pages) of proposed rule issued by the Office of Postsecondary Education, U.S. Department of Education and published in the September 27 Federal Register. The proposed rule would amend the application process for new gainful employment programs set forth in the rule issued by the Department on October 29, 2010 by limiting the new gainful employment programs for which an institution must apply to the Department to those programs that are (1) the same as, or substantially similar to, failing programs that the institution voluntarily discontinued or programs that became ineligible under the debt measures for gainful employment programs, and (2) programs that are substantially similar to failing programs. The proposed rule would also revise the documentation that must be included in an institution’s application to establish eligibility of a new gainful employment program. Comments on the proposed rule are due by November 14.

Complete text (12 pages) of decision by Oregon Court of Appeals holding that administrative rule promulgated by the Oregon State Board of Higher Education and the Oregon University System prohibiting the possession of firearms on university property was an exercise of authority to regulate firearms and therefore pre-empted by state law.

Complete text (44 pages) of final rule issued by the Federal Communications Commission (FCC) and published in the September 23 Federal Register. The rule requires that providers of broadband Internet access service disclose accurate information regarding their network management practices, performance and commercial terms of their broadband services for the benefit of consumers and content, application, service and device providers. The rule also prohibits, subject to reasonable network management practices (defined as practices appropriate and tailored to achieving a legitimate network management purpose) the blocking of lawful content, applications, services, or non-harmful devices or the blocking of consumers from accessing lawful websites. Finally, the rule prohibits unreasonable discrimination in the transmission of lawful network traffic over a consumer’s broadband internet access service. A complaint procedure is also set forth in the rule. The rule is effective November 20, 2011. EDUCAUSE, the Association of Research Libraries (ARL) and the American Library Association (ALA) had filed comments on the proposed rule.

Complete text (16 pages) of comments filed by the American Council on Education (ACE) and three additional higher education associations opposing the Department of Labor’s proposed rule narrowing the advice exemption contained in Sec. 203(c) of the Labor-Management Reporting and Disclosure Act of 1959. Sec. 203(b) of the Act requires employers and labor relations consultants to file periodic disclosures with the Department of Labor describing agreements the object of which is to directly or indirectly persuade employees concerning their exercise of their organizing and collective bargaining rights under the National Labor Relations Act (NLRA). Sec. 203(c) of the Act exempts from such disclosure among other items agreements to provide advice to employers. The Department’s proposed rule would exclude from the exemption and require disclosure of any agreement to provide material or communications to, or engaging in other actions, conduct or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively. Reporting would be required for any agreement which in whole or in part calls for the consultant to engage in such activities, regardless of whether advice is also given. In their letter, among other items, the association’s assert that the Department’s proposed rule would violate the attorney-client privilege and require disclosure of attorney-client confidences, a position also taken by the American Bar Association (ABA) in its comments to the Department on the proposed rule.

Complete text (13 pages) of decision by U.S. District Court (E.D. Wisconsin) rejecting the testimony of plaintiff’s expert witness and granting defendant’s motion for summary judgment in case involving alleged rape in a residence hall room. Plaintiff’s expert had relied on the recommended practices of the International Association of Campus Law Enforcement Administrators (IACLEA) with respect to residence hall entry doors requiring prop alarms and the escorting of residence hall guests by residents. However, the court finds that the IACLEA standards are designed to represent optimum crime prevention standards for colleges and universities rather than establishing the standard of care for specific institutions. The court goes on to find’s plaintiff’s expert witness testimony inadmissible because his conclusion that the alleged rape was foreseeable was based on an increase in acquaintance sexual assaults at the college in previous years. However, the court notes that all of those sexual assaults were instances of acquaintance rape, whereas the case before it involved an assault by strangers. A reasonable person exercising ordinary care, says the court, would not implement increased security measures in response to a problem (acquaintance rape) that cannot be prevented by increased security.

Complete text (65 pages) of decision by U.S. First Circuit Court of Appeals affirming in part and reversing in part the decision of the District Court and reinstating the jury’s award of statutory damages of $675,000 against college student who had engaged in copyright infringement by using file-sharing software to download and distribute music recordings without permission of the copyright owners. The District Court had held that the damages award was excessive and in violation of the defendant’s due process rights. The court remands the case to the District Court for consideration of plaintiff’s motion for remittitur based on excessive damages.

Complete text (5 pages) of Notice 2011-72 issued by the Internal Revenue Service (IRS) and describing the tax treatment of employer-provided cell phones. The Notice states that when an employer provides an employee with a cell phone primarily for non-compensatory business reasons, the IRS will treat the employee’s use of the cell phone for reasons related to the employer’s trade or business as a working condition fringe benefit, the value of which is excludable from the employee’s income and no substantiation is required. The Notice further states that the IRS will treat the value of any personal use of a cell phone provided by the employer primarily for non-compensatory business purposes as excludable from the employee’s income as a de minimis fringe benefit. The rules set forth in the Notice apply to any use of an employer-provided cell phone occurring after December 31, 2009. The IRS has also issued guidance to its agents regarding employers that reimburse their employees for the business use of an employee's personal cell phone.

Complete text of updated (September 2011) memorandum issued by the American Council on Education (ACE) describing permitted and prohibited activities by colleges and universities, and their personnel, in campaigns for public office. The memorandum includes a list of illustrative permitted activities and a list of illustrative prohibited or questionable activities.

Complete text (38 pages) of booklet issued by the NCAA Office of Inclusion. Page 13 of the booklet includes a statement of NCAA policy on transgender student-athlete participation as follows: “1. A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone for diagnosed Gender Identity Disorder or gender dysphoria and/or Transsexualism, for purposes of NCAA competition may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team. 2. A trans female (MTF) student-athlete being treated with testosterone suppression medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism, for the purposes of NCAA competition may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment.”

Complete text (17 pages) of resource packet issued by the Association of Research Libraries (ARL). The resource packet includes general information on orphan works (copyrighted works whose holders cannot be identified or located), an FAQ about orphan works, and a legal memorandum by NACUA member and ARL legal counsel Jonathan Band on the lawfulness of the Hathitrust’s use of orphan works. (The Hathitrust is a consortium that shares the digitized holdings of 50 research universities among the consortium members.) The Hathitrust, along with the University of Michigan, Indiana University, the University of California and Cornell University have been sued by the Authors Guild and several authors groups for copyright infringement. The suit seeks to impound the digitized holdings of the institutions until federal legislation is enacted dealing with the use of digitized works.

Complete text (11 pages) of proposed rule issued by U.S. Department of Energy and published in the September 7 Federal Register. Among other items the proposed rules add regulations to address “deemed exports”. Entities seeking to employ foreign nationals in positions involving a proposed transfer of nuclear technology are provided information on the documentation required to be submitted when such transfers require specific authorization. Comments on the proposed rule are due November 7.

Complete text (27 pages) of final regulations issued by the Internal Revenue Service (IRS) and published in the September 8 Federal Register. According to the IRS, the final regulations are necessary to implement the redesigned Form 990, ‘‘Return of Organization Exempt From Income Tax”. The final regulations make revisions to the previous regulations to allow for new threshold amounts for reporting compensation, to require reporting of compensation on a calendar year basis, and to modify the scope of organizations subject to information reporting requirements upon a substantial contraction. The regulations also change the public support computation period for publicly supported organizations to five years, consistent with the revised Form 990, and clarify that support must be reported using the organization's overall method of accounting. The regulations are effective September 8, 2011.

Complete text of order by U.S. Sixth Circuit Court of Appeals granting the petition for en banc rehearing and vacating the earlier opinion and judgment of the three-judge panel holding that Article I, Section 26 of the Michigan Constitution, approved by state referendum in 2006 and prohibiting the state and its political subdivisions (including state colleges and universities) from discriminating against, or granting preferential treatment to; any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting, violated the Equal Protection Clause of the U.S. Constitution by altering Michigan’s political structure to impermissibly burden racial minorities.

Complete text (20 pages) of Issue Brief authored by NACUA member Rachel Levinson-Waldman, Senior Counsel for the American Association of University Professors (AAUP). The paper, entitled “Academic Freedom and the Public’s Right to Know: How to Counter the Chilling Effect of FOIA Requests on Scholarship was issued by the American Constitution Society (ACA).

Complete text of Notice published in the September 9 Federal Register requesting comments on the report of the International Research Panel of the Presidential Commission for the Study of Bioethical Issues. The Commission is charged to determine if federal regulations and international standards adequately guard the health and well-being of participants in scientific studies supported by the federal government. Comments on the report and its recommendations are due by October 11.

Complete text (32 pages) comments by the American Council on Education (ACE), the Association of American Universities (AAU), the National Association of Independent Colleges and Universities (NAICU) and the College and University Professional Association for Human Resources (CUPA-HR) opposing the National Labor Relation Board’s proposed rule on representation case procedures. The proposed rule would make substantial changes to representation and election procedures following the filing of a union petition for representation with the NLRB. Among the changes in the proposed rules; pre-election hearings would be scheduled within 7 days after the notice of hearing and post-election hearings within 14 days after tallying of ballots; voter eligibility issues involving less than 20% of the proposed unit would be deferred until after a representation election; parties would have to identify all disputed issues at a pre-election hearing or be barred from raising such issues later; employers would be required to produce a preliminary voter list by the opening of the pre-election hearing; and an electronic voter list including phone numbers and email addresses when available within two work days after the direction of an election; and the Board would have discretion to deny review of post-election rulings by regional directors. The Board has prepared a summary and fact sheet to accompany the proposed rule, as well as a red-line version showing the changes to the existing regulations.

Complete text (152 pages) of H.R. 1249 patent reform legislation as passed by the U.S. Senate and sent to the president for signature. Among other items the Act changes the U.S. patent system from a “first to invent” to a “first to file” system. The Act also creates new post-issuance opposition proceedings as an alternative to litigation for challenging patents. Major higher education associations supported the legislation, and six associations issued a joint statement applauding passage of the Act.

Complete text of August 22 letter issued by the Department of Education describing what institutions should do to be entitled to an extension of the effective date of July 1, 2011 applicable to §600.9(a) of the Department’s Program Integrity rules. §600.9(a) describes the requirements for an institution to be considered by the Department to be legally authorized by the state in which it is located to offer post-secondary education for purposes of participation in federal student financial aid programs. The Department noted in its preamble to the Program Integrity rules (p. 66863) one commentator on the proposed rule estimated that 37 states would have to amend, repeal or otherwise modify their laws to bring their state authorization procedures into compliance with the requirements of the rule. Accordingly the Department in the preamble made allowance for institutions to request up to two one-year extensions of the July 1, 2011 deadline. To receive an extension, institutions need to obtain from their state an explanation of how a one-year extension will permit the State to modify its procedures to comply with §600.9. In its letter, the Department explains that institutions requiring an extension should not submit extension requests, or documentation of extension requests, to the Department, but instead should maintain documentation demonstrating that the institution qualifies for each extension and be able to produce the State’s written explanation for each extension upon request by the Department. The letter states the Department may request such documentation when an institution is seeking certification or re-certification to participate in federal financial aid programs, or if a question arises due to a complaint, program review or audit.

Link to website maintained by the State Higher Education Executive Officers (SHEEO) listing the regulatory requirements for offering postsecondary education in each state. The site reflects responses received from state regulatory agencies in response to a survey distributed by SHEEO in July. According to SHEEO, the website will be continuously updated as additional survey responses are received.

Link to new Department of Education website with questions and answers on various aspects of the Program Integrity rules, including State Authorization, Retaking Coursework, Definition of Credit Hour, Ability-to-Benefit, Incentive Compensation, Misrepresentation, Return of Title IV Funds, Satisfactory Academic Progress and Gainful Employment.

Complete text (29 pages) of NLRB decision and order finding that Nova Southeastern University’s campus-wide “no solicitation” policy violated Section 8 of the National Labor Relations Act by prohibiting employees of the university’s maintenance contractor from engaging in organizational handbilling at their place of work – specifically, in the parking lot during non-working hours. The Board found that the rights of the off-duty employee to engage in organizing activities on property outweighed the university’s various property interests.

Complete text (19 pages) of Region 29 NLRB decision and order finding that Research Assistants, Teaching Assistants, and Graduate Assistants are not statutory employees under the National Labor Relations Act, pursuant to the NLRB’s holding in Brown University, 342 NLRB 483 (2004), which remains controlling law on the issue of student employees.

Federal Register notice extending the comment period for the Advanced Notice of Proposed Rulemaking regarding the Common Rule, which was initially published in the July 26, 2011 Federal Register. The comment period has been extended to October 26, 2011.

Complete text (45 pages) of final rule issued by the National Labor Relations Board requiring all employers subject to the National Labor Relations Act (NLRA) to post notices informing their employees of their rights under the NLRA. The final rule establishes the size, form, and content of the notice, and sets forth provisions regarding the enforcement of the rule. The rule will be effective November 14, 2011.

Complete Text of the Final Rule from the National Institutes of Health (“NIH”) governing researchers’ financial conflicts of interest in federally sponsored medical research, published in the August 25 Federal Register. In an effort to increase accountability and transparency in federally funded research, the rules change NIH’s 1995 regulations to expand the nature and extent of information that researchers and institutions must disclose.

Complete text (6 pages) of letter from U.S. Department of Education to Washington State University announcing the Department’s intention to imposes fines totally $82,500 for alleged violation of the Clery Act. In the letter, the Department claims that the university failed to properly compile and report two forcible sex crimes and that the university’s campus security reports omitted required policy statements. The university has indicated it intends to appeal the fine.

Complete text (34 pages) of proposed rule issued by the U.S. Departments of Health and Human Services, Labor and Treasury and published in the August 22 Federal Register. The proposed rule implements Sec. 2715 of the Public Health Service act as amended by the Affordable which directs the Departments to develop standards for use group health plans and health insurance issuers in compiling and providing a summary of benefits and coverage (SBC) that accurately describes the benefits and coverage under the applicable plan or coverage. “Group health plans” include both insured and self-insured plans. The proposed rule proposes standards for group health plans and their plan administrators and health insurance issuers offering group or individual coverage that will govern who provides an SBC, when it will be provided and how it will be provided. The Departments have separately published for comment a recommended template for the SBC and a recommended uniform glossary of terms. Section 2715 generally directs group health plans and issuers to comply with the SBC requirement by March 23, 2012. Comments on the proposed rule and on the recommended template and uniform glossary of terms are due by October 21.

Complete text (3 pages) of letter to the Office of Civil Rights (OCR), U.S. Department of Education from the Association of American University Professors (AAUP). OCR’s April 4 Dear Colleague letter on sexual violence mandated the use of a preponderance of the evidence standard in cases of alleged sexual harassment or sexual violence. In an earlier letter to OCR the AAUP noted that use of a preponderance of the evidence standard is inconsistent with its Recommended Institutional Regulations on Academic Freedom and Tenure which provide that in cases of faculty dismissal the burden of proof will be satisfied only by clear and convincing evidence. In its second letter, the AAUP re-affirms that concern and urges reconsideration of the preponderance of the evidence standard, stating that preserving a higher standard of evidence is vital in achieving a fair and just treatment for all. The letter also urges that required training on sexual harassment explain the differences between educational content, harassment, and “hostile environments” and the appropriate respect due to the professional judgment of faculty members with respect to course content and discussion.

Complete text (12 pages) of Model Protection of Charitable Assets Act approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and recommended for enactment by the states. Sections 4 and 5 of the Model Act address registration and annual reporting by covered entities. According to NCCUSL, “[t]he Model Protection of Charitable Assets Act will articulate and confirm the role of the state Attorney General in protecting charitable assets. The Attorney General’s authority is broad and this Act will not limit or narrow that authority. The Act provides the Attorney General (the term is used in the act to mean the charity regulator in the state) with an inventory of basic information without overburdening the charities or the Attorney General with excessive reporting requirements. The Act specifies which transactions and legal proceedings require notice to the Attorney General and provides for registration and annual reports for some charities.” NCCUSL also provided a version of the Model Act with commentary.

Complete text of report (73 pages) entitled “Ensuring Academic Freedom in Politically Controversial Academic Personnel Decisions” released by the American Association of University Professors (AAUP). The AAUP has also supplied an executive summary of the report.

Complete text (147 pages) of decision by U.S. District Court (E.D. California) holding that the University of California – Davis did not discriminate against women on its wrestling team when they were cut from the team, ruling they were not cut from the team because of their gender but rather because they could not compete at Division I level intercollegiate wrestling. However, the court also holds that the institution failed over a period of years to replace opportunities for competition for female athletes that were lost when two women’s teams were eliminated. The court therefore finds that the institution could not demonstrate compliance with Title IX under Part Two of the Three Part Test for Title IX compliance, which requires that institutions show a continual expansion of athletic opportunities for the underrepresented sex.

Complete text (25 pages) of decision by U.S. Ninth Circuit Court of Appeals holding that the recognized student organization program at San Diego State University is a limited public forum, that the university’s policy prohibiting discrimination by recognized student organizations was reasonable in light of the program’s purpose of promoting diversity and non-discrimination and that the university’s non-discrimination policy for recognized student organizations is view point neutral and therefore the policy on its face does not violate plaintiffs’ First Amendment rights of free speech and expressive association. However, because the record did not adequately explain why some other recognized groups at the university appear to have membership policies that violate the non-discrimination policy, the court remands for consideration by the District Court whether the non-discrimination policy as applied by defendant university violated plaintiffs’ free speech, expressive association, free exercise and equal protection rights.

Complete text of Notice published by U.S. Department of Education in the August 2 Federal Register establishing November 15, 2011 as the deadline for reporting to the Department required information on Gainful Employment Programs pertaining to the 2010-2011 award year. The Notice also states that while information for earlier award years is due to the Department by October 1, 2011, the Department will continue to accept information for those years through November 15, 2011. The reporting requirements are set forth in §668.6 of the Department’s Program Integrity Rules, published in the Federal Register on October 29, 2010 (see pp. 66948-66949).

Complete text 48 pages of updated outline from Session 1F at the NACUA Annual Conference (Navigating the Regulatory Highway: A Practical Guide to Interpreting, Implementing and Complying with DOE's Program Integrity Rules). The outline includes an updated attachment on gainful employment programs and updated text at page 7 on gainful employment programs and pp. 28 – 29 on application of the incentive compensation rule to salary adjustments.

Complete text (38 pages) of decision by U.S. District Court (D.C.) finding upon remand from the Court of Appeals that, while the plaintiffs had standing to challenge funding of embryonic stem cell research by the National Institutes of Health (NIH) because an expanded scope of NIH funded research would increase the number of NIH grant applications and reduce the pool of research funds for which plaintiffs compete, the NIH reasonably interpreted the executive order directing it to remove restrictions on stem cell research, and that a provision of federal law that plaintiffs argued prohibited the research was ambiguous.

Complete text (105 Pages) of decision by U.S. Federal Circuit Court of Appeals, reversing the decision of the District Court and holding that isolated genomic DNA is not simply a product of nature, and therefore is subject to patent.

Complete text (2 pages) of June 27 letter from the American Association of University Professors (AAUP) to the U.S. Department of Education Office of Civil Rights (OCR) requesting that OCR rescind the mandate, contained in its April 6 “Dear Colleague” letter, that institutions must use a preponderance of the evidence standard in adjudicating allegations of sexual harassment or sexual violence. The AAUP notes that use of a preponderance of the evidence standard is inconsistent with its Recommended Institutional Regulations on Academic Freedom and Tenure which provide that in cases of faculty dismissal the burden of proof will be satisfied only by clear and convincing evidence.

Complete text (20 pages) of Advance Notice of Proposed Rulemaking (ANPR) issued by the Office of the Secretary of the U.S. Department of Health and Human Services (HHS), in coordination with the Office of Science and Technology Policy (OSTP) and published in the July 26 Federal Register. The ANPR requests comments on how current regulations for protecting human subjects who participate in research (the Common Rule) might be modernized and revised to be more effective. Comments on the proposed ANPR are due by September 26. HHS also provided a table matching provisions of the current regulation with changes being considered and a FAQ regarding the ANPR.

Complete text (8 pages) of survey by State Higher Education Executive Officers (SHEEO) on individual state authorization requirements. The survey was sent last week to each state agency and U.S. Territory. The deadline for completing the survey is August 10, 2011. SHEEO hopes to compile the results and have a final report available by late summer/early fall 2011.

Complete text (6 pages) of decision by the Board of Alien Labor Certification Appeals holding that an employer utilizing the optional special recruitment and documentation procedures for college and university teachers and electing the option to place advertisements in a professional journal may satisfy the advertising requirement even if the professional journal is only available in electronic form.

Complete text (55 pages) of complaint filed in U.S. District Court (DC) by the Career College Association (d/b/a the Association of Private Sector Colleges and Universities [APSCU]) challenging the constitutionality of the gainful employment rules recently finalized by the U.S. Department of Education.

Complete text of the amicus brief filed by the American Council on Education (ACE) on behalf of itself and nine other higher education associations, in support of the Board of Trustees of the University of Illinois, in case currently pending before the U.S. Seventh Circuit Court of Appeals. Amicus briefs in support of the University of Illinois were also filed by the U.S. Department of Justice, eight additional Illinois Public Universities, and the Electronic Privacy Information Center (EPIC). The briefs urge reversal of a district court decision which held that the Family Educational Rights and Privacy Act (FERPA) did not specifically prohibit disclosure of education records for purposes of the Illinois Freedom of Information Act, reasoning that FERPA instead merely conditions the receipt of federal student financial aid funding on non-disclosure. The University of Illinois Board of Trustees filed its principal appellate brief on July 13, 2011.

Complete text of opinion by of Ohio Court of Appeals reversing in part the decision of the trial court and finding that statements in report of special faculty committee investigating alleged plagiarism by graduate students in university department could constitute defamation of the faculty advisor of some of the graduate students.

Complete text (76 pages) of brief filed by defendant/appellant Board of Trustees of the University of Illinois with the U.S. Seventh Circuit Court of Appeals. The brief argues for reversal of the decision of the District Court, which held that The Family Educational Rights and Privacy Act (FERPA) did not specifically prohibit disclosure of education records for purposes of the Illinois Freedom of Information Act, reasoning that FERPA instead merely conditions the receipt of federal student financial aid funding on non-disclosure.

Complete text (20 pages) of decision by Minnesota Court of Appeals, applying the standard set forth in Tinker v. Des Moines Independent Community School District (393 U.S. 503 [1969]) and holding that Facebook posting by mortuary science student referring to the cadaver she had been assigned and also to a “death list” materially and substantially disrupted the work and discipline of the university. The court therefore holds the university’s discipline of the student did not violate her First Amendment rights. The court affirmatively rejects the student’s assertion that the appropriate standard by which to judge her first amendment claims is that of whether her statements constituted “true threats”.

Complete text (41 pages) by U.S. District Court (DC) granting in part and denying in part the motion for summary judgment filed by plaintiff Career College Association d/b/a Association of Private Sector Colleges and Universities in litigation filed challenging the State Authorization, Incentive Compensation and Misrepresentation rules. While upholding the Incentive Compensation and Misrepresentation rules, the court holds that the portion of the State Authorization rule requiring institutions offering postsecondary education through distance education in states in which it is not physically located to meet any requirements in such states for it to be legally offering postsecondary distance education in that state to be invalid because the Department failed to provide notice and opportunity for comment on that section of the rule.

Complete text of Resolution Agreement and Corrective Action Plan entered into between the Office of Civil Rights (OCR), U.S. Department of Health and Human Services (HHS) and UCLA Hospital System. The agreement resolves alleged violations of the HIPAA Privacy and Security Rules arising from complaints that health system employees repeatedly and without permissible reason examined protected health information of patients. The agreement is not admission of liability by the health system. Under the agreement, the health system agrees to payment of a fine and enters into a corrective action plan requiring employee training and appointment of an independent monitor to review and report on the health systems compliance with the corrective action plan. HHS OCR issued a press release accompanying the resolution agreement.

Complete text of notice posted on June 24 by the U.S. Department of Education, Office of Postsecondary Education to its Gainful Employment Information web page. The letter clarifies that nearly any educational program that leads to a certificate or other non-degree credential awarded by a public or private non-profit institution, regardless of the length of the program, is a gainful employment programs. The letter includes a series of questions for institutions to use in determining if a program is a gainful employment program and therefore subject to the Gainful Employment Rules. The American Council of Education (ACE) has also posted a Q & A and decision tree to assist institutions in determining if a program is a gainful employment program.

Complete text (7 pages) of opinion of Virginia Attorney General stating that the University of Virginia has the authority to promulgate policies prohibiting individuals from openly carrying firearms in areas covered by the policies. However, because the university imposed its prohibition by means of a policy instead of a regulation (as had been done in DiGiacinto v. The Rector and Visitors of George Mason University) the Attorney General also declares that the university cannot enforce its policy against persons who have a concealed carry permit, reasoning that prohibition via a policy, unlike a regulation, does not have the force of law and therefore does not meet the exception in the Virginia concealed weapons statute prohibiting possession of concealed weapons in places where such possession is otherwise prohibited by law.

Complete text (8 pages) of Request for Information issued by the U.S. Department of Education (the Department) and published in the July 6 Federal Register. Pursuant to Executive Order 13563 entitled “Improving Regulation and Regulatory Review” issued by the President on January 18, the Department on May 18 submitted to the Office of Management and Budget (OMB) its preliminary plan for retrospective analysis of its existing regulations (also included as Appendix A to the Request for Information). The preliminary plan the plan (1) lists the factors and processes the Department proposes to use to set priorities for the retrospective review of its regulations; (2) identifies an initial list of existing regulations that are candidates for review; (3) explains how the Department intends to coordinate with other Federal agencies that have overlapping jurisdiction or similar interests; and (4) sets forth the proposed components of its retrospective cost-benefit analysis. The Department seeks comments on the elements of the plan in order to formulate a final retrospective review plan and establishing processes for on-going review at the Department. Comments are due to the Department by July 25. On August 22 the Department issued its final Plan for Retrospective Analysis of Existing Regulations.

Complete text (59 pages) of decision by U.S. Sixth Circuit Court of Appeals reversing the decision of the District Court and holding that Article I, Section 26 of the Michigan Constitution, approved by state referendum in 2006 and prohibiting the state and its political subdivisions (including state colleges and universities) from discriminating against, or granting preferential treatment to; any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting, violates the Equal Protection Clause of the U.S. Constitution by altering Michigan’s political structure to impermissibly burden racial minorities.

Complete text (16 pages) of guidance issued by the Family Policy Compliance Office (FPCO) and posted to the FPCO web page.

Complete text (9 pages) of resolution agreement between the Office of Civil Rights (OCR), U.S. Department of Education and the University of Notre Dame. The resolution agreement prescribes numerous actions, including modifications to the university's policies and procedures, and provided for detailed reporting requirements. The agreement was accompanied by a letter to the university and a press release issued by OCR. The university also issued a press release.

Complete text (36 pages) of proposed rule issued by the National Labor Relations Board (NLRB) and published in the June 22 Federal Register. The proposed rule would make substantial changes to representation and election procedures following the filing of a union petition for representation with the NLRB. Among the changes in the proposed rules; pre-election hearings would be scheduled within 7 days after the notice of hearing and post-election hearings within 14 days after tallying of ballots; voter eligibility issues involving less than 20% of the proposed unit would be deferred until after a representation election; parties would have to identify all disputed issues at a pre-election hearing or be barred from raising such issues later; employers would be required to produce a preliminary voter list by the opening of the pre-election hearing; and an electronic voter list including phone numbers and email addresses when available within two work days after the direction of an election; and the Board would have discretion to deny review of post-election rulings by regional directors. The Board has prepared a summary and fact sheet to accompany the proposed rule, as well as a red-line version showing the changes to the existing regulations. Comments on the proposed rule are due by August 22.

Complete text (5 pages) of Notice issued by U.S. Customs and Immigration Enforcement, Department of Homeland Security and published in the June 10 Federal Register. The Notice suspends certain regulatory requirements relating to employment authorization and engagement in a full course of study for F-1 students from Libya who were lawfully present in the U.S. in F-1 status on February 1, 2011, are currently maintaining F-1 status, and are experiencing severe economic hardship as a direct result of the civil unrest in Libya. The Notice suspends the requirement that limits on- and off-campus employment of such students to 20 hours per week; and also suspends the requirements that students seeking authorization of off-campus employment must have been in F-1 status for one full academic year and demonstrate that the employment will not interfere with the student’s ability to carry a full course of study. Undergraduate students granted employment authorization under the terms of the Notice will be deemed to be engaged in a full course of study for the duration of their employment if they remain registered for a minimum of six semester/quarter hours of instruction per academic term; graduate students must remain registered for a minimum of three semester/quarter hours. The Notice is effective June 10 and will remain in effect until December 31. The Department of State issued a parallel Notice applying to college and university student from Libya in J-1 status.

Complete text (16 pages) of motion filed by Boston College seeking to quash subpoenas issued at the request of the United Kingdom for confidential interview materials collected as part of an oral history project documenting the history of the conflict in Northern Ireland.

Complete text of H.R. 2117, introduced in the U.S. House of Representatives on June 3 by Representative Virginia Foxx. The bill would repeal the State Authorization and Credit Hour rules included in the Program Integrity rules issued by the Department of Education on October 29 and effective July 1. The bill would also bar the Department from promulgating or enforcing any regulation or rule that defines the term “credit hour” in the future. The American Council of Higher Education (ACE) on behalf of numerous higher education associations and accrediting organizations sent a letter to Representative Foxx declaring support for the bill, which is scheduled for committee mark-up on Wednesday, June 15. The bill passed the House Education and Workforce Committee on June 15.

Complete text (31 pages) of decision by U.S. Supreme Court holding that the Bayh-Dole Act does not automatically vest title to federally funded inventions in federal contractors or authorize contractors to unilaterally take title to such inventions. The Court reasons that patent law has long held that right in an invention belong to the inventor and that the definition of “subject invention” in the Act does not alter that rule. Stanford University issued a statement following the ruling.

Complete text (13 pages) of decision by Regional Director, Region 13 of National Labor Relations Board (NLRB) finding that Saint Xavier University is not a church-operated institution within the meaning of NLRB v. Catholic University of Chicago, 440 U.S. 490 (1979) but rather functions as a secular educational institution. The regional director therefore approves the petitioned for bargaining unit of part-time faculty and directs that an election be held.

Complete text (12 pages) of Internal Revenue Service (IRS) Announcement 2011-36 requesting comment on several issues related to Form 990, including thresholds for reporting compensation to key employees, highest compensated employees, and former officers, trustees and key employees; reporting on audited financial statements; indirect foreign expenditures; and scope of related organization reporting. Comments are due by August 1, 2011.

Complete text (154 pages) of final rule issued by U.S. Department of Education and effective July 1, 2012. The rule applies to programs that provide training leading to gainful employment in a recognized occupation, and thus applies to nearly all for-profit institutions and to certificate programs at public and non-profit institutions. The rule requires institutions to disclose to the public how each of an institution’s covered programs are performing under specified student indebtedness measures. Programs will be considered to lead to gainful employment if they meet one of three metrics: at least 35% of former students are re-paying loans; the estimated annual loan payment of a typical program graduate does not exceed 30% of his or her discretionary income; or the estimated annual loan payment of a typical graduate does not exceed 12 percent of his or her total earnings. Programs that fail to meet the debt metric for the first time must disclose to students why the metric was missed. If the metric is not met for a second time in three years, programs must inform students that their debts may be unaffordable after graduation and that the program is at risk of losing eligibility to participate in Federal student aid programs. Programs failing to meet the metric for the third time in four years will lose eligibility to participate in Federal student aid programs. The Department issued a press release with associated documents to accompany the rule. The American Council on Education (ACE) released a Summary of the Gainful Employment Regulations along with an accompanying Q & A, including a decision tree for determining if a program is program leading to gainful employment in a recognized occupation and therefore subject to the gainful employment rules.

Link to Department of Education web site with resources related to the Gainful Employment rule(s). The web site includes links to current regulations (additional gainful employment regulations are pending and expected soon), Dear Colleague Letters and other announcements, FAQs, and additional resources.

Complete text (4 pages) of letter to the National Institutes of Health from the Council on Governmental Relations (COGR), Association of American Universities (AAU), and the Association of American Medical Colleges (AAMC) responding to the proposed adoption by NIH of the 8th edition of the Guide for the Care and Use of Laboratory Animals (243 pages) issued by the Institute for Laboratory Animal Research (ILAR) of the National Research Council. Currently recipients of NIH funding base their compliance with the Public Health Service (PHS) Policy on Humane Care and Use of Laboratory Animals on the 1996 edition of the Guide. Under NIH’s proposed implementation plan for use of the new Guide, institutions would be required to complete at least one semiannual program and facility evaluation, using the new edition of the Guide as the basis for evaluation, by March 31, 2012. In their letter, COGR, AAU and AAMC recommend that NIH delay implementation of the 8th edition of the Guide, conduct an assessment of the costs that would be associated with implementation, and then determine which elements incorporated in the new edition of the Guide will be required under PHS policy.

Link to Internal Revenue Service (IRS) website describing the Employee Plans Compliance Unit project to assess compliance by institutions of higher education sponsoring 403(b) employee retirement plans with the Universal Availability and Written Plan document requirements for such plans. The Universal Availability rule provides that if any employee is permitted to make elective salary deferrals to a 403(b) plan, then all employees, with limited optional exclusions, must be provided the same opportunity. The Written Plan requirement requires employers to formalize their 403(b) plan terms and to specify how statutory and regulatory requirements will be met. As part of the compliance project, 300 public and private institutions offering 403(b) plans will be mailed a compliance contact letter and asked to complete and return a 21 question survey (Form 886-A). According to the IRS, the project will provide institutions with the opportunity to identify problems with their plans and correct them in accordance with terms specified in follow-up letters from the IRS.

Complete text (24 pages) of proposed rule issued by the Office of Civil Rights, Department of Health and Human Services and published in the May 31 Federal Register. Prior to the HITECH Act, disclosures of protected health information (PHI) to carry out treatment, payment and health care operations were excluded from the requirement of the HIPAA privacy rule that covered entities make available to an individual upon request an accounting of disclosures of their PHI during the six years prior to the request. Section 13405(c) of the HITECH Act removed this exemption. Accordingly, the Department proposes to revise the Privacy Rule by creating two separate rights for individuals: a right to an accounting of disclosures, and a right to an access report. The access report would provide information on who has accessed electronic PHI in a designated record set (including access for purposes of treatment, payment and health care operations), while the accounting of disclosures would provide additional information about the disclosure of designated record set information (whether electronic or hard copy) to persons outside the covered entity and its business associates for certain purposes. Comments on the proposed rule are due by August 1, 2011.

Complete text (69 pages) of decision of U.S. Supreme Court holding that provisions of Arizona Legal Workers Authorization Act providing that the licenses (including articles of incorporation, partnership certificates and other forms of authorization to do business in the state) of state employers who knowingly or intentionally employ unauthorized aliens may be suspended or revoked are not expressly or impliedly preempted by the Immigration Reform and Control Act (IRCA). The Court also holds that provisions of the same law requiring that all Arizona employers use the federal government’s E-Verify system to check the work authorization status of employees are not impliedly preempted by IRCA.

Complete text of “Dear Colleague” letter and accompanying FAQ list regarding emerging educational technologies issued by the Office of Civil Rights (OCR), U.S. Department of Education. The letter and FAQ list follow the joint “Dear Colleague” letter issued by OCR and the Department of Justice in June 2010 asking institutions to refrain from requiring the use of electronic book readers or similar technology in a teaching classroom environment if such devices are inaccessible to individuals who are blind or have low vision. The new letter and FAQ makes it clear that the earlier letter applies to other forms of emerging educational technology, including on-line course platforms and on-line applications for admissions or university services. The new letter also asserts that the obligation under the ADA and Sec. 504 to ensure equal access to the educational benefits and opportunities afforded by new technology, and equal treatment in the use such technology, applies to pilot or other programs of short duration, and to classes or schools where no students with visual impairments, or other disability affecting the ability to use print materials, are enrolled.

Complete text (3 pages) of letter to U.S. Department of Education from the American Council on Education (ACE) and other higher education associations providing comments on the Department’s proposed changes to the FERPA regulations. Separate comments were also filed by the National Association of Independent Colleges and Universities (NAICU) and the American Association of Collegiate Registrars and Admissions Officers (AACRAO).

Complete text (5 pages) of decision by Arizona Superior Court, Pima County, holding that documents scattered throughout a database, and only located by a keyword search, are not “maintained” by the institution for purposes of the Family Educational Rights and Privacy Act (FERPA). Therefore defendant Community College was required to disclose email messages to, from, or about a designated student in response to a state public records act request because they were not maintained in a permanent file.

Complete text (15 pages) of memorandum from presidents of six higher education associations urging support for H.R. 1249, the America Invents Act, as amended and reported out by the House Judiciary Committee. The memorandum describes important features of the bill for higher education and includes a comparison of the bill with parallel legislation (S.23) passed earlier this year by the Senate.

Complete text (21 pages) of final regulations issued by the Internal Revenue Service (IRS) and published in the May 9 Federal Register. The final rule implements withholding from governmental payments for services and property under Section 3402(t) of the Internal Revenue Code, added by Sec. 511 of the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA) (Pub. L. No. 109-222). Under the final rule, after December 31, 2012, all Government entities, including political subdivisions and instrumentalities of states, making $100,000,000 or more in payments per year for property and services, will be required to deduct and withhold a tax in an amount equal to 3 percent from payments of $10,000 or more. The commentary accompanying the final rule discusses exceptions to and interpretations of the rule. The rule is effective May 9, 2011.

Complete text (19 pages) of decision by U.S. District Court (Kansas) holding that defendant university officials did not violate plaintiff faculty member’s due process, first amendment or academic freedom rights as a result of responding to complaints about plaintiff’s discourteous behavior by students and university personnel and by prescribing that plaintiff develop a corrective action plan.

Link to resource page posted by SHEEO (State Higher Education Executive Officers). SHEEO has undertaken to develop a directory of state regulators and compendium of state regulations. The resource page includes information on that effort, and additional useful links, including preliminary summaries of fees by state and complaint procedures by state. NACUA members are participating on the advisory board SHEEO has established to assist it in vetting the survey instruments it will use to collect information from the various state agencies involved in authorization. NACUA has also created a State Authorization Rule Resource Page as well as a NACUALINK group devoted to discussion of issues arising from the State Authorization Rule. For instructions on how to join a NACUALINK group, click here.

Complete text (5 pages) of letter sent by the American Council on Education (ACE) on behalf of 70 higher education associations and accrediting organizations to the Chairman and ranking minority member of the Committee on Education and the Workforce of the U.S. House of Representatives. The letter requests legislation to block the State Authorization rule and the rule setting forth a federal definition of a credit hour. These rules were included in the Program Integrity rules issued by the U.S. Department of Education last October and effective July 1, 2011.

Complete text (7 pages) of settlement agreement entered into by the Law School Admissions Council (LSAC); the National Federation of the Blind (NFB) and the National Federation of the Blind of California; and the United States of America. The settlement agreement resolves litigation pending in California state court alleging that LSAC was in violation of the California state Disabled Persons Act because its website was inaccessible to blind individuals using screen reader technology. The United States participated in the settlement because the Disability Rights section of the U.S. Department of Justice is pursuing similar complaints based on the Title III of the ADA against several law schools.

Complete text (7 pages) of letter issued by the U.S. Department of Education on April 20 providing guidance on new requirements contained in the Department’s Program Integrity and Gainful Employment rules, issued on October 29, 2010 and effective July 1, 2011, with respect to educational programs that prepare students for gainful employment (GE programs). The rules established new reporting and disclosure requirements pertaining to students and prospective student in GE programs, and also require 90 days advance notice to the Department of the establishment of new GE programs. On page 3 of the letter, the Department describes the GE programs at public and domestic non-profit institutions that are subject to the rules. According to the Department, it is likely even public or non-profit institutions have one or more GE programs. The reporting requirements for students enrolled in GE programs (summarized on page 4) take effect on July 1 and first reports are due to the Department no later than October 1. The Department has provided a preliminary list of 28 data items for which reporting may be required with respect to each student. The disclosure requirements for prospective GE program students also takes effect on July 1 and in the letter the Department lists seven items that institutions must disclose in promotional materials and on its website until the Department issues its own disclosure form. With respect to new GE programs, the letter advises that institutions must notify the Department by July 1 of any new GE program where the first day of class will be on or after July 1, 2011 and before October 1, 2011. For new GE programs where the first day of class will be after October 1, 2011, notice must be provided to the Department at least 90 days prior to the first day of class.

Complete text (18 pages) of decision by Board of Alien Certification Appeals, U.S. Department of Labor holding that institutions recruiting under the basic recruitment process for university faculty may not include job-related preferences in their advertisements for the position, but may only include the position requirements included on the institution’s Form 9089. Although the institution may use its job-related preferences in evaluating the relative qualifications of applications, the Board reasons that permitting the inclusion of preferences in position advertisements for university faculty will have a chilling or restrictive effect on the recruitment of U.S. applicants, and thus treats the inclusion of preferences in advertising as additional requirements. The Board also rejects the argument that U.S. applicants are entitled to fair notice of the factors institutions plan to use in evaluate their applications for university faculty positions.

Complete text (3 pages) of letter issued by the U.S. Department of Education on April 20 providing guidance on State authorization in the context of distance learning under the Program Integrity rules. Section 600.9(c) of the State Authorization rule included in the Program Integrity rules issued by the Department on October 29, 2010 and effective July 1, 2011 states that if an institution is offering postsecondary education through distance education to students in states in which it is not physically located the institution must meet any State requirements for it to be legally offering distance education in such states, and be able to document state approvals to the Department. In the “Dear Colleague” letter, the Department declares that it will not initiate any action to establish repayment liabilities or limit student eligibility for distance education activities undertaken before July 1,2014, so long as an institution is making good faith efforts to identify and obtain necessary State authorizations before that date. The letter further advises that evidence of good faith efforts by institutions could include any one or more of the following items: 1) Documentation that an institution is developing a distance education management process for tracking students' place of residence when engaged in distance education; 2) Documentation that an institution has contacted a State directly to discuss programs the institution is providing to students in that State to determine whether authorization is needed; 3) An application to a State, even if it is not yet approved; 4) Documentation from a State that an application is pending. The Department also announces its commitment to work with appropriate parties to develop a comprehensive directory of state requirements and to post the directory once it is developed to the Department’s web site. The Department had also issued earlier “Dear Colleague” letters providing guidance on compliance with the State Authorization, Incentive Compensation and Misrepresentation rules, and with the Credit Hour rule.

Complete text (9 pages) of comments file by the American Council on Education (ACE) and other higher education associations on the proposed rule on student health insurance issued in February by the Department of Health and Human Services (HHS). ACE earlier prepared a summary of the major provisions of the proposed rule.

Complete text (30 pages) of final rule issued by the Wage and Hour Division, U.S. Department of Labor and published in the April 5 Federal Register. The final rule updates various aspects of the Department’s regulations under the Fair Labor Standards Act as a result of various amendments to the Act and recent case law. Among other items, the final rule addresses commuting time, tipped employees, and compensatory time-off. The rules are effective May 5, 2011.

Complete text (12 pages) of decision by New Hampshire Supreme Court affirming the decision of the lower court holding that claims by alumni association members, arising from an action by the college board of trustees increasing the number of college trustees nominated by the Board, while not maintaining an equal number of trustees nominated by the Alumni Association, were barred by res judicata. Appellants claimed the action by the Board constituted a breach of contract with the alumni association concerning the composition of the college’s board of trustees; however, the court holds that an earlier stipulated dismissal with prejudice of an identical action filed by the alumni association itself is res judicata and binding upon the appellant association members, rejecting various challenges by appellants to the application of res judicata to the current case. The court also rejects appellants’ third party beneficiary contract claim.

Complete text (45 pages) of petition for writ of certiorari to the U.S. Supreme Court from decision of U.S. Eleventh Circuit Court of Appeals holding that Florida state law prohibiting the expenditure of state funds and funds contributed by third party grantors but administered by the state for travel by state employees to countries on the federal government list of “State Sponsors of Terrorism” was not preempted by federal law and did not violate the federal government’s power over foreign affairs.

Complete text (14 pages) of Notice of Proposed Rulemaking (NPRM) issued by U.S. Department of Education and published in the April 8 Federal Register. According to the Department, the proposed changes to the current FERPA regulations would give states the flexibility to share data, as well as increase accountability for institutions that handle FERPA protected records. Under the NPRM, enforcement provisions of FERPA would be strengthened; institutions will be able to implement directory information policies that limit disclosure of directory information to specific parties or for specific purposes, or both; and the audit or evaluation and the studies exceptions to the prohibition on disclosure of personally identifiable information will be amended and expanded. According to the Department, the proposed changes are necessary to allow for the effective use of data in statewide longitudinal data systems. The Department issued a press release and a statement entitled Safeguarding Student Privacy accompanying the NPRM. Comments on the NPRM are due by May 23.

Complete text (29 pages) of decision by U.S. Fourth Circuit Court of Appeals affirming in part and reversing in part the decision of the District Court and holding that appellant faculty member’s columns, publications and presentations, submitted in support of his application for promotion to full professor, were speech related to scholarship or teaching at the time of their creation and remained so when submitted with his application. The court declines to find them to be “speech pursuant to official duties” and therefore unprotected by the First Amendment under the U.S. Supreme Court decision in Garcetti v. Ceballos. The court instead analyzes appellant’s speech under the Pickering and Connick balancing test and finds that appellant’s columns, publications and presentations were speech by a public employee on matters of public concern. The court remands for determination of whether appellant’s speech was a substantial factor in the denial of his application for promotion.

Complete text (178 pages) and McFayden, Wilson and Archer v. Duke University et al. complete text (223 pages), decisions by U.S. District Court (M.D. North Carolina) dismissing in whole or in part numerous claims filed by plaintiff unindicted university lacrosse players against defendant university and health system and various university officials and employees. Plaintiffs’ claims arise out of the investigation and ensuing events related to an alleged off-campus sexual assault in 2006 involving members of the lacrosse team, allegations later determined by the state attorney general to be meritless. Plaintiffs’ claims going forward include narrow claims for alleged failure to follow institutional student disciplinary procedures, allegedly improper dorm room and car search, alleged promises of confidentiality, release of student key card data and cooperation with city police, and a sexual assault nurse examiner’s actions. Plaintiffs’ complaints also included numerous claims against the city of Durham and agencies and employees of the city, some of which are also dismissed in whole or in part.

Complete text (14 pages) of Statement issued by the Association of Governing Boards of Universities and Colleges (AGB). The Statement includes a list of seven principles, recommendations for chief executives, board members and chief academic officers, an illustrative charge to a board academic affairs committee, and a list of additional resources.

Complete text (19 pages plus 2 page Executive Summary) of Dear Colleague Letter (DCL) issued on April 4 by the Office of Civil Rights (OCR), U.S. Department of Education. According to OCR, it is issuing the DCL to remind schools of their responsibility to take immediate and effective steps to respond to sexual violence in accordance with the requirements of Title IX. The DCL provides detailed guidance on procedural requirements under Title IX pertaining to sexual harassment and sexual violence, including the required notice of non-discrimination, the appointment of a Title IX coordinator and grievance procedures for sex discrimination complaints. Among other items, with respect to grievance procedures, the DCL states that institutions must use a preponderance of the evidence standard, rather than a clear and convincing evidence standard, when investigating allegations of sexual harassment or violence. The DCL also states that in allegations involving sexual assault, mediation is never appropriate, even on a voluntary basis; that schools should not wait for the conclusion of any criminal investigation or proceeding to begin their own investigation; that all persons involved in implementing grievance procedures must have training or experience in handling complaints of sexual harassment or violence; and that grievance procedures must include designated time frames for all major stages of the procedure.

Complete text of response by University of Wisconsin to public records act request by Wisconsin Republican Party seeking copies of email messages of University professor containing certain designated terms.

Letter from the U.S. Department of Education to Virginia Tech University, announcing the Department’s intent to fine Virginia Tech $55,000 – the statutory maximum – for violations of the Clery Act related to the university’s response to the campus shootings of April 16, 2007. This letter follows the Department’s Final Program Review and Determination, issued December 9, 2010, which found that the university did not comply with the timely warning requirements of the Clery Act or it own policies on the issuance of timely warnings.

Complete text (17 pages) of decision by U.S. District Court (D. Minn) dismissing a suit by the Turkish Coalition of America over a statement on a website maintained by the University of Minnesota’s Center for Holocaust and Genocide Studies, which classified the Turkish Coalition of America’s website as “unreliable” based on its views about the killing of Armenians during World War I. The court rejected the Coalition’s claims that this statement amounted to viewpoint discrimination or defamation, finding instead that the statement was within the purview of the University’s academic freedom to comment on and critique academic views expressed by others.

Complete text (48 pages) of decision of U.S. District Court (S.D.N.Y) rejecting the proposed settlement of the class action litigation between the Authors Guild (and other plaintiffs) and Google involving the Google Book Search Library Project.

Complete text of motion to dismiss or in the alternative for summary judgment, and accompanying memorandum of law, filed by the U.S. Department of Education in lawsuit brought by the Career College Association (d/b/a the Association of Private Sector Colleges and Universities) challenging the State Authorization, Incentive Compensation and Misrepresentation rules included in the Program Integrity rules issued by the Department last October and effective July 1, 2011.

Complete text (43 pages) of final regulations issued by the Equal Employment Opportunity Commission (EEOC) and published in the March 25 Federal Register. The final regulations revise the Commission’s regulations under Title I of the Americans with Disabilities Act (ADA) to conform with changes to the ADA enacted by the ADA Amendments Act of 2008 (ADAAA). The regulations include interpretive guidance (p. 17003) and are effective May 24, 2011.

Complete text (15 pages) of letter released by the U.S. Department of Education on March 18 and providing information and guidance regarding the definition of “credit hour” included in the Program Integrity Rule released by the Department on October 29, 2010 and effective July 1, 2011. The letter reiterates that in the award of Federal student aid institutions must use the definition of credit hour in the regulations, although institutions may define a credit hour using other metrics or measures of student progress and learning outcomes for academic and other non-Federal purposes. The letter also provides detailed guidance to accrediting agencies with respect to their responsibility to conduct effective reviews and evaluations of the reliability and accuracy of institutions’ assignments of credit hours used for Federal financial aid program purposes.

Complete text (15 pages) of March 17 letter released by the U.S. Department of Education and providing additional guidance on the State Authorization, Incentive Compensation and Misrepresentation regulations included in the Program Integrity Rule issued by the Department on October 29, 2010 and effective July 1, 2011.

Complete text (24 pages) of Policy Memorandum issued by U.S. Citizenship and Immigration Services (USCIS) on December 22, 2010. The Policy Memorandum provides guidance to USCIS officers who adjudicate Form I-140 petitions for immigrant visas for Aliens of Extraordinary Ability, Outstanding Professors or Researchers, or Aliens of Exceptional Ability. The Policy Memorandum is issued to conform with the two-part step for the evaluation of such petitions set forth by the U.S. Ninth Circuit Court of Appeals in Kazarian v. USCIS (March 4, 2010).

Complete text (14 pages) of letter to Chairwoman of U.S. House of Representatives Subcommittee on Higher Education and Workforce Training by the American Council on Education (ACE) on behalf of more than 70 higher education associations and accrediting organizations. The letter asks for the subcommittee’s assistance in obtaining a one-year extension of the July 1, 2011 effective date for these two rules. The letter includes copies of two earlier letters to U.S. Secretary of Education Arne Duncan requesting that the two rules be rescinded.

Complete text (7 pages) of decision by U.S. District Court (N.D. Illinois) holding that the Family Educational Rights and Privacy Act (FERPA) did not specifically prohibit disclosure of information for purposes of the Illinois Freedom of Information Act. The court reasons that since FERPA doesn’t specifically prohibit the release of education records, but instead conditions the receipt of federal student financial aid funding on non-disclosure, the university is not forbidden by FERPA from releasing the records. The court notes that the university may still be able to refuse disclosure under other exemptions in the Illinois Freedom of Information Act.

Complete text (34 pages) of final rule issued by the Copyright Royalty Board and published in the March 9 Federal Register. §380.20 et seq. (p. 13054) establishes rates and terms, including requirements for royalty payments, recordkeeping and reports of use for the public performance of sound recordings in certain digital transmissions made by Noncommercial Educational Webcasters (as defined in §380.21) and the making of Ephemeral Recordings during the period January 1, 2011 – December 31, 2015. By its action the Copyright Royalty Board adopts the agreement between SoundExchange and College Broadcasters, Inc. as the basis for rates and terms for non-commercial educational webcasters for the period 2011 – 2015. CBI had earlier posted a summary of the agreement.

Complete text (32 pages) of decision by U.S. Fourth Circuit Court of Appeals affirming the decision of the District Court and holding that while plaintiff had standing to pursue challenges on behalf of its members to the Department of Education’s interpretive guidelines under Title IX regarding the effective accommodation of the interests and abilities of male and female athletes and to the actions taken by defendant university in an effort to comply with the interpretive guidelines, the interpretive guidelines did not violate Title IX, the Equal Protection Clause or the Administrative Procedures Act (APA). The court also rejects a variety of state and federal law claims against the defendant university.

Complete text (57 pages) of U.S. Government Accountability Office (GAO) report entitled “Export Controls: Improvements Needed to Prevent Unauthorized Technology Releases to Foreign Nationals in the United States”. The report notes that from 2004-2009 about 1.05 million specialty occupation visas in high-technology fields were issued for foreign nationals from 13 countries of concern, while during the same period deemed export licenses were issued to 3,200 foreign nationals from these countries. The report recommends that that the Department of Commerce, in cooperation with the Department of Justice and the Department of Homeland Security conduct a study to assess the extent to which foreign nationals from countries of concern who were issued specialty occupation visas also should have been covered by deemed export license applications.

Complete text (3 pages) of letter to the U.S. Secretary of Education by the American Council on Education (ACE) on behalf of 60 higher education and accrediting organizations. The letter requests that the Secretary rescind the provisions (§600.9; §668.43) in the Department’s recently released Program Integrity rules establishing minimum standards to determine whether an institution is legally authorized by a State to offer postsecondary education for purposes of participation in federal student financial aid programs.

Complete text (304 pages) of updated U.S. Department of Education handbook. The updated Handbook reflects amendments to the Clery Act and to the Higher Education Act of 1965 made by the Higher Education Opportunity Act, enacted in 2008, and the regulations implementing those amendments. According to the Foreword, the updated Handbook also includes new examples and enhanced explanations of topics based on questions asked of the Department’s Campus Safety and Security Help Desk. The Handbook replaces the 2005 Handbook entitled The Handbook for Campus Crime Reporting (216 pages).

Complete text (45 pages) of decision by U.S. 11th Circuit Court of Appeals affirming in part the decision of the District Court and holding pursuant to Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) that the Copyright Clause in Article I of the U.S. Constitution is not a valid basis for the abrogation of the sovereign immunity of the states under the Eleventh Amendment contained in the Copyright Remedies Clarification Act (CRCA) of 1990. The court distinguishes and declines to extend the holding of Central Virginia Community College et al. v. Katz, dealing with the Article I Bankruptcy Clause, to cases arising under the Copyright Clause. The court further holds that plaintiff failed to allege a due process violation arising from the deprivation of its property interest in its copyrights, because plaintiff could point to no state procedure which had as its purpose the deprivation of its property interest, and pre-deprivation due process was therefore otherwise impractical. Plaintiff did not challenge the district court’s holding that the state of Georgia provided adequate post-deprivation remedies. Absent an actual violation of the plaintiff’s constitutional rights, plaintiff could not invoke the abrogation of state sovereign immunity in the CCRA as an exercise of Congress’s power under Section 5 of the Fourteenth Amendment.

Complete text (10 pages) of final rule issued by the U.S. Department of Health and Human Services (HHS) and published in the February 23 Federal Register. The final rule rescinds all but the enforcement provisions of the previous final rule issued in December 2008. The Provider Conscience regulation was designed to implement the provisions of several "provider conscience" statutes enacted by Congress over the past three decades. It sought to clarify that non-discrimination protections applied to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS; required recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights; and designated the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the regulation. In rescinding the previous final rule, HHS asserts it has led to confusion because it was unclear and potentially overbroad in scope, while emphasizing that the rescission does not alter or affect federal statutory health care provider conscience regulations.

Complete text (2 pages) of February 11 Notice from the Defense Security Service (DSS) to cleared contractors and facilities under the National Industrial Security Program notifying them of their obligations to protect classified information and to follow established and authorized procedures for accessing classified information. The Notice asserts that the recent disclosure of U.S. Government documents by Wikileaks has caused damage to U.S. national security and states that “…classified information, whether or not already posted on public websites or disclosed in the media, remains classified and must be treated as such, until it is declassified by an appropriate original classification authority”. The Notice sets forth a number of obligations of cleared contractor employees with respect to classified information.

Complete text (8 pages) of letter to the Securities Exchange Commission (SEC) by the American Council on Education (ACE) and several additional higher education associations, providing comments on the Commission’s proposed rule on the registration of municipal advisors. Under the proposed rule, certain employees and board members of non-public institutions, and appointed board members of public institutions may be considered “municipal advisors” subject to regulation by the Municipal Securities Rulemaking Board (MSRB). They would be required to register with the SEC, including disclosure of extensive personal, employment and financial information. The Association of Governing Boards of Colleges and Universities (AGB ) also filed comments with the Commission on the proposed rule.

Complete text (15 pages) of decision by U.S. Sixth Circuit Court of Appeals affirming conviction of university professor for violation of the Arms Export Control Act. Defendant argued that data from a phase of the project involving testing on non-military aircraft were not defense articles or services, and therefore his disclosure of such data was not a violation of the Act. The court rejects that argument, holding that the regulations under the Arms Export Control Act extend export controls to all stages of defense projects that are covered by the Act, not just the final stages when military devices are directly involved. The court also holds that in order to prove a willful violation of the Act, the government need only prove that the defendant acted with knowledge that his conduct was unlawful, not that the specific items exported were on the Munitions List.

Complete text (3 pages) of letter sent to the U.S. Secretary of Education by the American Council on Education (ACE) on behalf of more than 70 higher education associations and accrediting organizations. The letter requests that the Secretary immediately rescind the provision (Sec. 600.2) in the Department’s recently released Program Integrity rules creating a federal definition of credit hour.

Complete text (16 pages) of proposed rule issued by the Department of Health and Human Services (HHS) and published in the February 11 Federal Register. Under the proposed rule, student health plans would be treated as “individual health insurance coverage” under the terms of the Patient Protection and Affordable Care Act (PPACA), and therefore would satisfy the PPACA individual coverage mandate, provided they meet certain conditions. The proposed regulation would take effect on January 1, 2012. The American Council on Education (ACE) has prepared a summary of the major provisions of the proposed rule. Self-insured student health plans are not covered by the proposed rule. Comments on the proposed rule are due on or before April 12, 2011.

Complete text (24 pages) of amicus brief filed with the U.S. Supreme Court by the American Council on Education (ACE) and six other higher education associations in support of petition for writ of certiorari filed by the University of Wisconsin seeking review of the decision by the U.S. Seventh Circuit Court of Appeals in Badger Catholic, Inc. et al. v. Walsh et al. The Seventh Circuit held that the University of Wisconsin-Madison violated the first amendment rights of the members of the plaintiff recognized student organization (RSO) when it denied funding for activities it deemed to involve worship, proselytizing and religious instruction. In their brief, amici higher education associations note that many other public institutions have RSO funding restrictions similar to those established by the University of Wisconsin. Amici further note that a recognized student organization program is a limited public forum and therefore public universities may restrict access to such a forum as long as the restrictions are reasonable and viewpoint neutral. Amici assert that the First Amendment permits, but does not require, public institutions to fund religious worship, instruction and proselytization as part of a RSO program.

Complete text (7 pages) of decision by U.S. District Court (M.D. Louisiana) granting defendant university’s motion for partial summary judgment and holding that plaintiff not entitled to de facto tenure. The court notes that plaintiff’s position classification was expressly designated by the university as one that does not acquire tenure, and further that the university had a formal, written procedure for conferring tenure upon employees.

Complete text (13 pages) of decision by Washington Supreme Court reversing the decision of the lower court and holding that under the state Administrative Procedure Act (APA) the university properly closed faculty disciplinary hearing to the public. The court holds that the provision of the university’s faculty handbook authorizing the closure of faculty disciplinary hearings was “a provision of law expressly authorizing closure” under the APA because it was promulgated by the university’s governing board pursuant to a legislative delegation of authority. The court also holds that a provision of the Washington state constitution stating that “Justice in all cases shall be administered openly and without undue delay” does not apply to quasi-judicial proceedings of administrative agencies.

Complete text (21 pages) of decision by U.S. District Court, (M.D. Florida) granting in part and denying in part defendant university’s motion for summary judgment. The court declines to grant summary judgment on plaintiff’s allegation of retaliation in violation of Title IX, finding there is a genuine issue of material fact as to whether plaintiff was engaged in protected activity and as to whether defendant’s proferred reason for terminating plaintiff from her position as Provost was pretextual. The court grants defendant’s motion for summary judgment on plaintiff’s claims alleging Title IX violations due to sex discrimination and a sexually hostile work environment, finding that, with respect to plaintiff’s claim for monetary damages, her Title IX claims are pre-empted by Title VII, and that she lacks standing to pursue her claim for injunctive relief.

Complete text (7 pages) of Final Rule issued by the Office of Foreign Assets Control (OFAC), U.S. Department of Treasury and published in the January 28 Federal Register. The Final Rule is issued pursuant to the President’s January 14 announcement and supersedes in part the Department’s June 16, 2004 Interim Final Rule. Among other items, the Final Rule creates a new general license authorizing accredited U.S. graduate and undergraduate institutions to engage in Cuba travel-related transactions incident to certain educational activities. The general license replaces some of the required and more restrictive specific licenses and license terms established under the former Interim Final Rule, including the limitation to full-time permanent employees of an institution (to the exclusion of adjunct and part-time employees); and the requirement that students may only participate in academic activities in Cuba through the U.S. academic institution at which they are pursuing a degree. The final rule also includes some new and less restrictive specific license provisions. The Final Rule is effective January 28, 2011.

Complete text of presidential memorandum dated January 18 directing federal agencies with broad regulatory compliance and enforcement responsibilities to develop plans to make public information concerning such activities accessible, downloadable and searchable on-line.

Complete text (12 pages) of decision by U.S. Supreme Court holding that the discharge of the fiancé of an employee filing a Title VII complaint with the Equal Employment Opportunity Commission could constitute retaliation under Title VII, and further that the fiancé was a “person aggrieved” under Title VII and thus could pursue a cause of action for violation of Title VII. The court holds that the term “person aggrieved” in Title VII authorizes suit by any plaintiff with an interest arguably sought to be protected by the statute, but not by plaintiffs meeting only the minimum Article III standing requirement.

Complete text (34 pages) of decision by U.S. District Court (Hawaii) granting defendant University’s motion for summary judgment in suit filed by terminated women’s basketball coach. Plaintiff claimed his termination was in retaliation for his complaints about Title IX violations regarding equal treatment for the women’s team with the men’s basketball team and was also a violation of his First Amendment rights. The court rejects plaintiff’s First Amendment claim, finding that plaintiff’s complaints regarding alleged unequal treatment of the women’s basketball team were made in his official capacity head coach of the women’s basketball team, and pursuant to the holding of the U.S. Supreme Court decision in Garcetti v. Ceballos not protect by the First Amendment. The court further holds that the failure of the First Amendment claim does not preclude plaintiff’s claim of retaliation under Title IX, but finds that defendant university had legitimate, non-discriminatory and non-pretextual reasons for terminating plaintiff based on prior discipline of plaintiff and plaintiff’s subsequent statements and actions with respect to members of the women’s basketball team and their ensuing complaints.

Complete text (43 pages) of decision by U.S. District (E.D. California) granting defendant university’s motion for summary judgment and dismissing plaintiff student’s claimed violations of Title IX arising from sexual assault by three members of university athletic team. Specifically, the court rejects plaintiff’s claim that defendant acted with deliberate indifference to another student’s previous claim of sexual assault, which failure plaintiff alleged led to her own sexual assault. The court further rejects plaintiff’s claim that failure during the disciplinary hearing to provide her testimony with greater weight than that of the alleged assailants, and failure to expel all three of the assailants (instead of one) constituted deliberate indifference to her complaint of sexual assault. Lastly the court rejects plaintiff’s contention that the institution’s action following the disciplinary hearing of temporarily prohibiting unsupervised social interaction between the men’s and women’s basketball teams constituted retaliation against her for her sexual assault complaint.

Complete text (27 pages) of decision of U.S. District Court (Mass.) dismissing many claims of student arising from alleged sexual harassment at internship site, but denying motions for summary judgment on claims of alleged negligence committed by individual university defendants supervising plaintiff’s internship and on claim against university for violation of Title IX arising from alleged deliberate indifference by university defendants to plaintiff’s claim of severe and pervasive sexual harassment occurring at the internship site.

Complete text (86 pages) of decision by U.S. 5th Circuit Court of Appeals holding inter alia that Texas state law requiring admission of students in the top ten percent of their high school graduating class is not a sufficiently race-neutral alternative under the U.S. Supreme Court decision in Grutter v. Bollinger, 539 U.S. 306 (2003), to bar the use by the respondent university of a holistic admissions procedure, that takes race into account as one factor, for the admission of students to the remaining admission slots unfilled by those admitted under the ten percent statutory formula.

Complete text of Executive Order issued by the President on January 18. Sec. 6(b) of the order requires each federal agency to develop a plan to periodically review its existing significant regulations to determine whether they modified, streamlined or repealed in order to make the agency’s regulatory program more effective or less burdensome.

Complete text (16 pages) of decision by Virginia Supreme Court holding that campus regulation of George Mason University prohibiting the possession and carrying of weapons in campus buildings or at sporting, entertainment or educational events does not violate the Second Amendment to the U.S. Constitution or Article I, §13 of the Virginia State Constitution. The court notes that in District of Columbia v. Heller, 554 U.S. 570 (2008) the U.S. Supreme Court stated that its opinion should not be taken to cast doubt on laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and holds that the university is such a sensitive place, and further that the university’s regulation is narrowly tailored, restricting weapons only those places where people congregate and are most vulnerable—inside campus buildings and at campus events.

Complete text (146 pages) of proposed rule issued by the Securities and Exchange Commission (SEC) and published in the January 6 Federal Register. Under the proposed rule, certain employees and board members of non-public institutions, and appointed board members of public institutions may be considered “municipal advisors” subject to regulation by the Municipal Securities Rulemaking Board (MSRB). They would be required to register with the SEC, including disclosure of extensive personal, employment and financial information. “Municipal advisors” are deemed to have fiduciary duties to the entity for which they are deemed a municipal advisor, and may be subject to civil or criminal penalties for violation of the rules of the MSRB or of the SEC. Comments on the proposed rules are due by February 22.

Complete text (32 pages) of January 2011 report issued by the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS). The report summarizes the results of a survey of 250 National Institutes of Health (NIH) grantee institutions undertaken by OIG to determine if institutions have in place policies and procedures relating to institutional financial interests and institutional conflicts of interest, and the frequency of such conflicts. The report finds that 70 of 156 responding institutions have such policies in place. Eighteen institutions identified institutional financial interests that constituted institutional conflicts of interest under their policies. Based on the survey results, OIG renews its recommendation that NIH require grantee institutions to identify, report and address institutional conflicts of interest in a consistent and uniform manner to NIH. The report notes that pending proposed rules issued by NIH in May 2010 address researcher conflicts of interest, but do not address institutional conflicts of interest.

Complete text (26 pages) of Decision and Direction of Election issued by the Acting Regional Director, Region 2 of the National Labor Relations Board (NLRB). The Acting Regional Director rules that, based on his interpretation of the evidence, although the employer College is a Catholic institution, its primary purpose is secular and not the propagation of a religious faith. Accordingly, the Board was not barred by the U.S. Supreme Court decision in National Labor Relations Board v. Catholic Bishop, 440 U.S. 490 (1979) from exercising jurisdiction over the institution and ordering a union representation election for part-time faculty with an adjunct academic rank.

Complete text (18 pages) of decision by U.S. Supreme Court affirming the decision of the U.S. Eighth Circuit Court of Appeals upholding revised Treasury Department regulations stating that the services of full-time employees are not incident to and for the purpose of pursuing a course of study and therefore wages paid to full-time medical residents were subject to FICA taxes. Applying the two-part analysis of agency regulations set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Court holds that the Department’s regulation is a reasonable construction of §3121(b)(10) of the Internal Revenue Code excluding from FICA taxation “service performed in the employ…of a school, college, or university…if such service is performed by a student who is enrolled and regularly attending classes…”.

Complete text (5 pages) of letter sent by the Foundation for Individual Rights in Education (FIRE) to the presidents of 300 public colleges and universities across the country. The letter reviews recent federal court decisions involving First Amendment challenges to campus speech, civility and harassment codes, and asserts that administrators run the risk of being held personally liable if they maintain unconstitutional “speech codes” at their institutions.

Complete text (25 pages) of decision by U.S. Ninth Circuit Court of Appeals upholding the preliminary injunctions issued by the District Court requiring defendant to allow visually impaired plaintiff to take the Multistate Bar Exam using the accommodation technologies JAWS and ZoomText. JAWS is an assistive screen-reader program that reads aloud text on a computer screen. ZoomText is a screen magnification program.

Complete text (31 pages) of decision by U.S. First Circuit Court of Appeals finding that town ordinance authorizing police officers to post a prominent notice on buildings where they have been summoned to disperse gatherings constituting a substantial disturbance does not violate the First Amendment or procedural due process rights of university students, tenants or landlords.

Complete text (57 pages) of amicus brief filed by higher education associations and more than 40 universities with the U.S. Supreme Court in support of petitioner Stanford University and seeking reversal of the decision of the Federal Circuit Court of Appeals. The Federal Circuit held that, although a Stanford researcher working on federally-funded research had executed an agreement to assign future inventions arising from such research to Stanford, a subsequent agreement he executed with a biotechnology company wherein he immediately assigned all future inventions to the company was controlling. In their amicus brief, amici argue that the Bayh-Dole Act disposes of rights in federally funded inventions by operation of law, and inventors are not free to assign them to third parties. The text of all briefs filed in the case with the Supreme Court can be accessed here.

Complete text (15 pages) of final rule issued by the Food and Drug Administration and published in the January 4 Federal Register. The final rule amends the FDA’s current informed consent regulations to require that informed consent documents and processes for certain clinical investigations (described in Sec. IV(F) at page 263) include a specific statement (set forth in §50.25 on page 270) that a description of the clinical trial will be available in the National Institutes of Health/National Library of Medicine clinical trial registry databank. The rule is effective March 7, 2011. The compliance date will be 1 year after the effective date of the final rule for all informed consent documents and processes related to a clinical investigation that is initiated on or after the compliance date (see discussion of compliance date in Section III beginning on page 257).

Complete text (10 pages) of decision by Ohio Supreme Court in declaratory judgment action seeking interpretation of insurance policy held by private college. The court holds that pursuant to a clause of the policy defining in part an “insured” as “[a]nyone else while using with your permission a covered “auto” you own, hire or borrow”, a driver employed by a third party transportation company the college contracted with to transport its baseball team to Florida for spring competition was an insured under the policy because the college hired the bus used to transport the team from the third party transportation company and granted permission to the driver to drive the bus.

Complete text (11 pages) of proposed rule issued by that National Labor Relations Board (NLRB) and published in the December 22 Federal Register. The proposed rule would require employers subject to the National Labor Relations Act (NLRA) to post notices informing their employees of their rights under the NLRA. The proposed notice would have the same content as the Department of Labor’s final rule requiring federal contractors to post notices of employees’ NLRA rights. Under the proposed rule, failure to post the required notices would be an unfair labor practice, and the statute of limitations would be tolled for filing unfair labor practice charges against employers failing to post the notices. The knowing failure to post the notices would also be considered evidence of unlawful motive in unfair labor practice cases. Comments on the proposed rule are due by February 22, 2011.

Complete text (7 pages) of Request for Information issued by the Wage and Hour Division, U.S. Department of Labor and published in the December 21 Federal Register. The Patient Protection and Affordable Care Act (PPACA) amended Sec. 7 of the Fair Labor Standards Act (FLSA) to require that employers provide non-exempt employees with reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth, and to provide a place other than a bathroom which may be used by an employee to express milk. The Request for Information contains the Department’s preliminary interpretations of the law’s requirements on issues such as unpaid break time, reasonable break time, provision of space for expressing breast milk, notice to the employer and enforcement. The Department indicates it does not plan to issue implementing regulations at this time, but seeks information and comments on the issues addressed in the Request for Information. Comments are due on or before February 22, 2011. The Department has also issued a Fact Sheet and FAQ related to the express breast feeding break time requirement. Department resources related to the requirement are collected here.

Complete text (73 pages) of decision by U.S. District Court (E.D. N.Y.) denying defendants’ motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff alleged in its complaint seeking $30 million in damages that defendants, a former professor and former doctoral student, failed to disclose patentable inventions discovered while they were employed and/or studying at plaintiff institution; and failed to assign to plaintiff licensing revenues from patents subsequently obtained on those inventions. The complaint alleges, inter alia, breach of contract; breach of fiduciary duty; fraudulent failure to disclose the value and patentability of research; fraudulent conveyance; unjust enrichment; and conversion.

Complete text of the Department of Commerce’s Proposed Rule, published December 9th, authorizing a broad new Strategic Trade Authorization (“STA”)license exception for exports. Issued as part of President Obama’s Export Control Reform Initiative, the STA license exception will eliminate export licensing requirements for a broad range of goods and technology to countries that pose limited risk of unauthorized use.

Link to a downloadable file that consolidates export screening lists of the Departments of Commerce, State and the Treasury into one spreadsheet as an aid to industry in conducting electronic screens of potential parties to regulated transactions. According to the website, “In the event that a company, entity or person on the list appears to match a party potentially involved in [an] export transaction, additional due diligence should be conducted before proceeding. There may be a strict export prohibition, requirement for seeking a license application, evaluation of the end-use or user to ensure it does not result in an activity prohibited by any U.S. export regulations, or other restriction.”

Complete text (10 pages) of OCR letter and voluntary resolution agreement (11 pages) following Title IX compliance review at Eastern Michigan University; and complete text (9 pages) of OCR letter and voluntary resolution agreement following Title IX compliance review at Notre Dame College. The letters and voluntary resolution agreements address numerous compliance requirements relating to Title IX prohibitions of sex discrimination, including sexual harassment. Items addressed include detailed requirements concerning Title IX grievance procedures relating to alleged discrimination or harassment involving employees, third parties and students; required notices of non-discrimination and Title IX Coordinators; and required training of Title IX Coordinators and other university personnel.

Complete text (28 pages) of Final Program Review and Determination (FPRD) issued by the U.S. Department of Education following its review of the compliance by Virginia Tech University with the “Timely Warning” provisions of the Clery Act with respect to the April 16, 2007 shootings on the university’s campus. The FPRD was preceded by a January 21, 2009 Program Review Report and an April 21, 2009 response by the university. In the FPRD, the Department concludes that the university did not comply with the timely warning requirements of the Clery Act, and did not comply with its own policies on the issuance of timely warnings as published in its campus security reports. The Department further advises that the FPRD has been referred to the Department’s Administrative Actions and Appeals Division for consideration of a possible adverse administrative action. The university issued a response to the FPRD.

Complete text (19 pages) of decision by U.S. District Court (E.D. Kentucky) denying cross motions for summary judgment by plaintiff and defendant university. Plaintiff alleged he was denied a position as director of defendant’s astronomical observatory on the basis of his religion. The university contended that it did not consider plaintiff’s religion, but only his public comments that there were scientific problems with the theory of evolution, which the search committee believed would impair plaintiff’s ability to serve effectively as director of the astronomical observatory. The court holds that both parties have produced evidence to support their claims, and therefore denies each party’s motion for summary judgment.

Complete text (24 pages) of report dated December 6 and issued by the Congressional Research Service (CRS). The report discusses the possibility of criminal prosecution for the publication of leaked classified information, such as that recently available on the WikiLeaks website. The report addresses potentially applicable U.S. statutes, including the Espionage Act; potential First Amendment issues; and pending legislation.

Complete text of letter sent last week by the Motion Picture Association of America (MPAA) to college presidents reminding of institutional obligations imposed by the Higher Education Opportunity Act (HEOA) to develop plans to combat the unauthorized distribution of copyrighted material by institutional network users. The letter suggests two websites, http://www.respectcopyrights.org/highered.html and http://www.educause.edu/HEOArolemodels as possible resources for compliance.

Complete text (47 pages) of Guidance issued by the Office of Human Research Protections (OHRP), U.S. Department of Health and Human Services, and announced in the December 1 Federal Register. The Guidance is intended to assist IRBs in carrying out their continuing review of research responsibilities under applicable federal regulations by providing recommendations on the approval criteria, process and frequency for continuing review of research to assure the protection of the rights and welfare of human subjects participating in research. Items addressed include key IRB considerations when evaluating research undergoing continuing review; the process for conducting continuing review; when expedited review procedures may be used by an IRB for continuing review; determining the frequency of continuing review; lapses in IRB approval; communicating IRB continuing review determinations; suspension or termination of IRB approval via continuing review; and identifying when continuing review is no longer necessary.

Complete text (11 pages) of Guidance issued by the Office of Human Research Protections (OHRP), U.S. Department of Health and Human Services, and announced in the December 1 Federal Register. The Guidance addresses a number of items, including: what does IRB approval or research with conditions mean?; what circumstances permit an IRB to approve research with conditions?; how do conditions on IRB approval at the time of initial review affect the initiation of research?; and what must IRB records include regarding documentation of IRB approval of research?

Complete text of policy issued by the American Medical Association (AMA) on considerations for physicians when maintaining an on-line presence. The policy states that physicians much refrain from posting identifiable patient information, and when interacting with patients on-line, must maintain the professional ethical boundaries of the physician-patient relationship. The policy also indicates that physicians who observe unprofessional on-line behavior by other physicians should call such behavior to the attention of the individual(s); and failing any corrective action on the part of such individual(s), should report the matter to the appropriate authorities if it significantly violates professional norms.

Complete text of Frequently Asked Questions (FAQ) issued by the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) concerning, among other items, actions employers should take upon receipt of a “no-match” letter from the Social Security Administration (SSA) (A “no-match letter” advises an employer that the name and social security number of an employee do not match SSA’s records). OSC also issued information for employees regarding “no match” letters.

Complete text of Presidential Memorandum ordering the Presidential Commission for the Study of Bioethical Issues to conduct a review of human subjects protection to determine if federal regulations and international standards adequately guard the health and well-being of participants in scientific studies supported by the federal government.

Complete text (66 pages) of decision by the Colorado Court of Appeals affirming the decision of the District Court and holding that the Regents of the University of Colorado were entitled to quasi-judicial immunity in §1983 case challenging the dismissal of tenured professor as a violation of his First Amendment rights. In affirming, the court also rejects appellant’s claim that the university’s investigation of his academic work constituted an adverse employment action and denies appellant’s motion for reinstatement or money damages.

Complete text (32 pages) of decision by New Jersey Supreme Court holding that statute of limitations did not bar state wage discrimination claim filed by female faculty members based on allegedly discriminatory pay decisions occurring outside the limitations period. The court holds that each payment of wages based on discriminatory pay decisions constitutes a separate actionable wrong under the state’s anti-discrimination law, and the two year statute of limitations merely cuts off-the untimely portion of such claims thereby limiting the damages recoverable.

Complete text (10 pages) of H.R. 6425, introduced in the U.S. House of Representatives on November 18. (An identical bill has been introduced in the Senate). The bill would amend the Higher Education Act to require institutions of higher education to have an anti-harassment policy prohibiting harassment, as defined in the bill, of enrolled students by other students, faculty and staff, both on and off campus, or through the use of computers and communications network owned, operated or contracted for use by an institution; and to have procedures for timely institutional action in cases of alleged harassment.

Complete text (7 pages) of decision by Supreme Judicial Court of Massachusetts holding that a search of a residence hall room by campus police officers was not consented to by the occupants of the room, and alternatively, that even if actual consent was given, such consent was not voluntary. Accordingly, drugs and other evidence seized from as a result of the illegal search was properly suppressed by the trial court.

Complete text (9 pages) of order by U.S. Ninth Circuit Court of Appeals denying request by petitioner Christian Legal Society (CLS) that the court remand the case to the District Court with instructions to consider petitioner’s claim that the Hastings College of Law selectively applies its non-discrimination policy against CLS. The court holds that CLS has not properly preserved for adjudication the issue of selective enforcement.

Complete text (9 pages) of amendment to the Interim Final Rules for group health plans and health insurance coverage relating to status as a grandfathered health plan under the Patient Protection and Affordable Care Act (PPACA) issued by the Departments of Treasury, Labor and Health and Human Services and published in the November 17 Federal Register. The amendment provides that a group health plan does not cease to be a grandfathered health plan (and therefore exempt from many though not all of the new requirements for employer health plans imposed by the PPACA) merely because the plan or its sponsor enters into a new policy, certificate or contract of insurance after March 23, 2010. However, if the new policy, certificate or contract of insurance includes changes described in paragraph (g)(1) of the Interim Final Rules, the plan ceases to be a grandfathered health plan. The amendment applies to such changes made to group health insurance coverage that are effective on or after November 15, 2010. Comments on the amendment are due by December 17, 2010.

Complete text (18 pages) of indictment charging in-house counsel for pharmaceutical company with one count of obstructing an official proceeding, one count of concealing and falsifying documents to influence a federal agency, and five counts of making false statements to a federal agency (the Food and Drug Administration). The alleged offenses occurred as a result of responses defendant Stevens made to inquiries from the FDA regarding possible promotion by the company of a drug for off-label uses. The company has not been charged with a crime.

Complete text of Executive Order issued November 9 and published in the November 15 Federal Register. The Executive Order establishes within the Department of Homeland Security an interagency Federal Export Enforcement Coordination Center to coordinate on matters of export enforcement among the Departments State, Treasury, Defense, Justice, Commerce, Energy, Homeland Security and the Office of the Director of National Intelligence. Among other functions, the Center is charged with serving as the primary forum within the Federal Government for executive departments and agencies to coordinate and enhance their export control enforcement efforts and identify and resolve conflicts that have not been otherwise resolved in criminal and administrative investigations and actions involving violations of U.S. export control laws.

Complete text (28 pages) of decision by Supreme Court of California, reversing the decision of the state Court of Appeals and holding that a California statute (Ed. Code, §68130.5) according undocumented students and others in-state resident tuition status does not violate 8 U.S.C § 1623 or 8 U.S.C. § 1621. With respect to § 1623, the court states “Section 1623 provides that an alien not lawfully present in this country shall not be eligible on the basis of residence within a state for any postsecondary education benefit unless a citizen or national of this country is eligible for that benefit. In general, nonresidents of California who attend the state’s colleges and universities must pay nonresident tuition. (Ed. Code, § 68050.) But section 68130.5, subdivision (a), exempts from this requirement students — including those not lawfully in this country — who meet certain requirements, primarily that they have attended high school in California for at least three years. The question is whether this exemption is based on residence within California in violation of section 1623. Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California. Rather, it is based on other criteria. Accordingly, section 68130.5 does not violate section 1623.”

Complete text (4 pages) of unpublished decision by U.S. Ninth Circuit Court of Appeals affirming the judgment of the District Court and holding (citing the U.S. Supreme Court decision in Garcetti v. Ceballos) that it is far from clearly established that university professors have a First Amendment right to comment on faculty administrative matters without retaliation. As a result, all of the university officers named as defendants in appellant’s §1983 suit are entitled to qualified immunity.

Complete text (29 pages) of final rule issued by the Equal Employment Opportunity Commission (EEOC) and published in the November 9 Federal Register. The rule implements Title II of the Genetic Information Nondiscrimination Act of 2008 and is effective January 10, 2011.

Complete text (46 pages) of amicus brief filed by the U.S. Department of Justice (DOJ) with the U.S. Court of Appeals for the Federal Circuit in the pending appeal of the decision of the U.S. District Court challenging patents of isolated genomic DNA (gene patents). According to DOJ, unmodified genomic DNA is a product of nature and therefore not subject to patent, and isolation does not transform it into a patentable man-made invention.

Complete text (13 pages) of final rule issued by U.S. Department of Education and published in the October 29 Federal Register. The rule establishes a process through which institutions must apply for approval of new educational programs designed to lead to gainful employment in recognized occupations (as distinguished from Associates, Bachelor’s, Graduate or Professional degrees). Under the rule, institutions must notify the Secretary at least 90 days before the first day of class when it intends to add such an educational program. In the notice, the institution must describe how it determined the need for the program and how it is designed to meet local, regional or national market needs; describe how the program was reviewed, approved by or developed in conjunction with external advisory committees or agencies; and submit documentation that the program has been approved by its accrediting agency or is otherwise encompassed in the institution’s current accreditation. The rule is effective July 1, 2011.

Complete text (145 pages) of final program integrity rules issued by U.S. Department of Education and published in the October 29 Federal Register. Among other items the rules define the requirement of “state authorization” to offer post-secondary education, including authorization to operate in other states; and including a requirement that a State have a process to review and appropriately act on complaints concerning the institution; prescribe a federal definition of “credit hour” for purposes federal financial aid programs and require accrediting agency review of credit hour allocation; eliminate the twelve safe harbors contained in the previous rule prohibiting incentive compensation for student recruiting, admission, or matriculation; and prohibit false or misleading statements concerning the nature of educational programs, the nature of financial charges, or the employability of graduates. The rules are effective July 1, 2011. The Department also provided a summary of the new regulations.

Complete text (6 pages) of Internal Revenue Service (IRS) FAQ addressing how institutions and individual medical residents can obtain a refund on the employer and employee share of FICA taxes withheld and paid to the IRS prior to April 1, 2005. The FAQ deals with claims already filed and notes that the deadline for filing new claims for amounts withheld prior to April 1, 2005 has expired.

Complete text (31 pages) of decision by U.S. District Court (N.D. Georgia) denying in its entirety motion for summary judgment by academic publishers in copyright infringement action based on the maintenance and distribution of on-line course reserves and reading material at Georgia State University. The court grants the motion by defendant officers of Georgia State University on plaintiffs claims based on claims of direct and vicarious copyright infringement, but denies defendants’ motion for summary judgment on plaintiffs’ claim of contributory copyright infringement. The court also rules that mere maintenance by defendants’ of electronic reserves or course management systems does not constitute contributory infringement, nor does the defendants’ Copyright Policy on its face demonstrate an intent to encourage copyright infringement. The court reserves for further proceedings the question of whether the implementation of the Copyright Policy by defendants encourages copyright infringement and improper application of the fair use defense.

Complete text (26 pages) of decision by Appellate Division, Superior Court of New Jersey holding that the Environmental Law Clinic at the Rutgers University Law school is subject to the New Jersey Open Public Records Act.

Complete text (10 pages) of October 26 letter sent by the Office of Civil Rights (OCR), U.S. Department of Education to schools, colleges and universities providing guidance on institutional obligations to protect students from student-on-student racial and national origin harassment, sexual and gender-based harassment, and disability harassment. The letter describes when student bullying may violate anti-discrimination laws and includes examples in the contexts of race, color or national origin harassment; sexual harassment; gender-based harassment and disability-based harassment.

Complete text (12 pages) of decision of U.S. District Court (Massachusetts) holding that a contractual choice of law provision stating that “...the contractor agrees to bring any federal or state legal proceedings arising under this Contract in which the Commonwealth or the University is a party, in a court of competent jurisdiction within the Commonwealth of Massachusetts” did not constitute a waiver of the university’s Eleventh amendment immunity from suit in federal court.

Complete text (23 pages) of decision of U.S. District Court (N.D. Texas) granting plaintiffs’ motion for attorneys’ fees, costs and expenses in the amount of c. $243,000 for representation of the prevailing student plaintiffs in litigation involving First Amendment challenge to defendant community college district’s policies regulating speech on campus.

Complete text (9 pages) of majority opinion by Louisiana Court of Appeals affirming the decision of the lower court and holding that testamentary gift of funds to university was unconditional, despite testator’s statement in will that she had confidence university beneficiary would continue to use her gifts for the development and use of a specific college at the university. University therefore did not violate the terms of the gift when it merged the named college along with other colleges at the university into a single undergraduate college. Two judges dissented.

Complete text of Internal Revenue Service Notice 2010-69, issued October 12, 2010. The Patient Protection and Affordable Care Act of 2010 (PPACA) requires that the aggregate cost of employer-sponsored health coverage be reported on Form W-2. In the Notice, the IRS advises that the reporting requirement is not mandatory for Forms W-2 issued for 2011. The IRS indicates that further guidance on the reporting requirement will be forthcoming.

Complete text (19 pages) of Draft Guidance issued by the Food and Drug Administration (FDA) and announced in the October 14 Federal Register. The Guidance is entitled “Investigational New Drug Applications (INDs)—Determining Whether Human Research Studies Can Be Conducted Without an IND”. According to the announcement published in the Federal Register, the FDA receives frequent inquiries from the academic research community concerning whether various types of research studies can be conducted without an IND. The Guidance is intended to assist sponsors and clinical investigators in determining whether an IND should be submitted for their planned research. The FDA requests comments on the Draft Guidance by January 12, 2011.

Complete text (16 pages) of decision by U.S. Second Circuit Court of Appeals reversing the decision of the District Court and holding that defendants did not violate any established constitutional right when they removed faculty member from his position as Dean. Plaintiff faculty member claimed that his demotion was in retaliation for his exercise of his First Amendment right to free speech and that his demotion constituted deprivation of a property interest without due process. The court rejects plaintiff’s First Amendment claim, stating that “the management of a public institution, such as a university, is not required to retain in a management or policymaking position a person who publicly opposes its policies.” The court also rejects plaintiff’s due process claim, ruling that, even assuming plaintiff had a property right in his position as Dean, no clearly established law required that he receive more process than he in fact received.

Complete text (58 pages) of October 2010 report issued by U.S. Government Accountability Office. In its report, GAO recommends that the Department of Education strengthen its monitoring and enforcement of the Higher Education Act ban on the payment of commissions, bonuses and other financial incentives to individuals based on their success in enrolling students, including strengthening procedures provided to program auditors, improving the Department’s ability to target high-risk schools, and updating Department guidance used to set fines and settlement payments to establish appropriate financial penalties. An appendix to the report includes copies of a slide presentation that accompanied a briefing to congressional staff.

EDUCAUSE, Internet2, and the Higher Education Information Security Council (HEISC) are among a broad number of higher education organizations supporting October as National Cyber Security Awareness Month (NCSAM). Conducted every October since 2001, NCSAM is a national public awareness campaign to encourage everyone to protect their computers and our nation’s critical cyber infrastructure. No individual, business, or government entity is solely responsible for cyber security. Everyone has a role and everyone needs to share the responsibility to secure their part of cyber space and the networks they use. Colleges and universities are encouraged to observe NCSAM by holding cyber security awareness promotions and events throughout the month of October. HEISC has assembled a NCSAM Resource Kit, including a listing of 2010 campus events, available at https://wiki.internet2.edu/confluence/display/itsg2/NCSAM+Resource+Kit. A recent resource, “Top Information Security Concerns for Campus Executives and Data Stewards,” is available at https://wiki.internet2.edu:443/confluence/x/P4By.

Complete text (29 pages) of renewed Civil Investigative Demand (CID) issued by the Virginia Attorney General to the University of Virginia including interrogatories and a demand for the production of documents related to a state-funded research grant dealing with climate change. The revised CID follows Virginia court decision finding that the Attorney General lacked an objective basis to believe the Virginia Fraud Against Taxpayers Act had been violated when he issued an earlier CID against the university. The revised CID narrows the scope of the demand to a single research grant and includes an attachment (p. 17 – 28) seeking to supply the required “objective basis in fact” for the CID.

Complete text (9 pages) of Interim Final Guidance issued by the Office of Management and Budget (OMB) and published in the September 14 Federal Register. In the Interim Final Guidance, OMB provides standard wording for an award term that each agency must include in grant and cooperative agreement awards it makes on or after October 1, 2010 requiring recipients to report information about first-tier sub-awards equal to or over $25,000 awarded on or after October 1, 2010, and in some cases executive compensation. The Interim Final Guidance is issued to implement the Federal Funding Accountability and Transparency Act of 2006 and parallels similar guidance provided earlier to federal contractors under federal procurement regulations. See §170.110 (b) for exceptions to the reporting obligation. For detailed information on the reporting requirement, see this August 27, 2010 OMB Memorandum (51 pages). See Appendix C of the memorandum for a complete list of the required reporting elements. The effective date of the Interim Final Guidance is September 14, 2010. Comments on the Interim Final Guidance are due by October 14, 2010.

Link to report of Joint Committee on Taxation explaining tax provisions of the Small Business Jobs Act of 2010 (H.R. 5297). Sec. 2043 of the Act removes cellular phones from the definition of listed property for which an employer must substantiate that all or a portion of the use of the listed property is by employees in the employer’s trade or business. Pages 23 – 25 of the report explain the purpose and impact of the Section.

Complete text (50 pages) of September 2010 report by U.S. Government Accountability Office (GAO) entitled “Postsecondary Education: Many States Collect Graduates’ Employment Information, but Clearer Guidance on Student Privacy Requirements is Needed”. The report addresses the following questions: (1) To what extent and for what purposes are states collecting employment-related information on postsecondary graduates, and what challenges have they faced in doing so? (2) What are the potential approaches and challenges to expanding the collection of graduates’ employment information across states and nationwide? (3) How do selected states and postsecondary institutions collaborate with employers to align education and workforce needs? In the report, GAO recommends that the Department of Education clarify the means by which states can collect and share graduates’ employment information under the Family Educational Rights and Privacy Act (FERPA) and establish a time frame for doing so. The response of the Department is at page 41.

Complete text (15 pages) of the decision of the Nebraska Supreme Court reversing the decision of the lower court and overturning disturbing the peace conviction of university student for sending insulting and offensive emails to professor. Analyzing the U.S. Supreme Court’s decision in Chaplinsky v. New Hampshire [315 U.S. 568 (1942)] the court holds that the state cannot constitutionally criminalize speech solely because it inflicts emotional injury, annoys, offends or angers another person. The court also holds that the emails in question were not “fighting words likely to provoke an immediate breach of the peace” if for no other reason than the professor upon receipt of the emails did not know who sent them or where to find the author.

Complete text (8 pages) of decision by Minnesota Court of Appeals holding that the defendant university’s failure to consider the effects of a student disciplinary sanction on the student (alleged in this case to be $750,000 due to the effect of a suspension resulting in lost tuition and stipends paid for by the U.S. military and the delay in the start of the student’s professional career) was arbitrary and capricious. The court remands the case for a hearing on the issue of sanctions.

Complete text (4 pages) of Internal Revenue Service (IRS) Notice 2010-63. In the Notice, the IRS notes that the Patient Protection and Affordable Care Act (PPACA) extended the existing non-discrimination rule regarding highly compensated employees, currently applicable to self-insured medical reimbursement plans, to (non-grandfathered) insured group health plans. The Notice goes on to describe the resulting difference in penalties for violation of the non-discrimination rule for self-insured plans (loss of tax exemption by highly compensated individuals) and violation of the non-discrimination rule by insured plans (plan or plan sponsor liability for excise taxes, civil monetary penalties and/or filing of a civil action to enjoin noncompliant acts and practices). The IRS is considering issuing guidance on the extension of the non-discrimination requirement to insured group health plans, and requests comments on what additional guidance relating to the application of the non-discrimination requirement to such plans would be helpful. Comments are due by November 4, 2010.

Complete text (27 pages) of decision U.S. Ninth Circuit Court of Appeals reversing the decision of the District Court and finding that plaintiff student lacked standing to pursue First Amendment challenge to defendant community college district’s sexual harassment policy. The court finds that there was no credible threat to discipline plaintiff under the harassment policy, that plaintiff failed to prove his intent to violate the policy, or that the defendant community college district was likely to enforce the policy against him.

Complete text (2 pages) of letter to Senate majority and minority leaders from the American Council on Education (ACE) and twenty-five additional higher education associations urging Senate passage of the Development, Relief and Education for Alien Minors (DREAM) Act.

Complete text (22 pages) of decision by U.S. District Court (S.D. New York) upholding the authority of New York University to withhold MBA degree of student who pled guilty to conspiracy to commit securities fraud three months after completion of his MBA degree requirements.

Complete text (9 pages) of decision by U.S. Fifth Circuit Court of Appeals holding that student code of conduct provision prohibiting “extreme, outrageous or persistent acts, or communications that are intended or reasonably likely to harass, intimidate, harm or humiliate another” was neither overbroad nor impermissibly vague under the First Amendment.

Complete text (25 pages) of decision by U.S. District Court (N.D. Illinois) holding inter alia that by adopting the Illinois College Campus Press Act the state of Illinois voluntarily ceded any ability it may have had to control the content of the student newspapers at state institutions. As a result, such student newspapers are designated public forums for student speech and adverse actions against such publications based on the views expressed therein are subject to strict constitutional scrutiny.

Complete text (8 pages) of comments filed with the Department of Education by the American Council on Education (ACE) and 52 additional higher education and accrediting associations. The comments are in response to the Department’s proposed program integrity rules on gainful employment. Under existing law and regulations, preparation for gainful employment in a recognized occupation is an element of program eligibility for all non-degree programs whether offered by for-profit or non-profit institutions. In the comments, the associations point out that of the estimated 53,000 programs subject to the proposed gainful employment regulations, more than 40,000 are at public and non-profit institutions, including undergraduate certificate, post-baccalaureate certificate and graduate and professional certificate programs in a wide variety of fields. Among other items, the associations ask the Department to remove from the coverage of the rule certificate programs that require an associate or bachelor’s degree as a pre-requisite for enrollment and also certificate programs that are fully accepted for credit as an integrated part of a degree program. The American Association of Community Colleges also filed comments on the proposed rule.

Complete text (17 pages) of decision by U.S. District Court (M.D. Pennsylvania) holding inter alia that a “class of one” claim under the Equal Protection Clause of the Fourteenth Amendment cannot be maintained on basis of plaintiff’s expulsion from a Ph.D. program at defendant university. A later August 3, 2012 decision in the same case dismissed the remainder of the plaintiff’s claims against the University and the two named individual defendants, finding insufficient evidence in the record to support her claims.

Complete text (57 pages) of decision by U.S. District Court (N.D. Georgia) holding that public university president violated student’s due process rights when he ordered student’s administrative withdrawal without providing the student with pre-withdrawal notice of the charges against him and an opportunity to be heard concerning those charges. The court further rules that the university president is not entitled to qualified immunity for his action ordering plaintiff’s administrative withdrawal, because plaintiff’s due process rights were well-established law and the president acted contrary to the advice of counsel. The court also rules that the university’s student handbook constituted a valid, written contract between the student and the university’s governing board and that the board breached its contract with the student when it did not abide by the rules and processes set forth in the handbook for student disciplinary procedures.

Complete text of August 30 White House press release describing planned reform of the export control system. Planned reforms include new criteria for determining what items need to be controlled and common policies for determining when an export license is required; a “three-tier” system of export control; a “bright line” between the U.S. Munitions List and the Commerce Control List; and description of controlled items using objective criteria.

Complete text (32 pages) of decision by U.S. Seventh Circuit Court of Appeals holding that the University of Wisconsin-Madison violated the first amendment rights of the members of the plaintiff recognized student organization when it denied for activities it deemed to involve worship, proselytizing and religious instruction. The court holds that funding such activities would not violate the Establishment Clause of the First Amendment, and further holds that under the Supreme Court’s decision in Board of Regents of the University of Wisconsin System v. Southworth et al. 529 U.S. 217 (2000) the activities must be funded because the university’s recognized student organizations are a public forum and under the university’s rules for funding recognized student organization activities similar programs and activities espousing a secular perspective are eligible for reimbursement.

Complete text (21 pages) of report by the American Association of University Professors (AAUP) recommending that contingent faculty with appointments to teaching-intensive positions be brought under the tenure system.

Complete text (12 pages) of decision by U.S. Eleventh Circuit Court of Appeals holding that Florida state law prohibiting the expenditure of state funds and funds contributed by third party grantors but administered by the state for travel by state employees to countries on the federal government list of “State Sponsors of Terrorism” was not preempted by federal law and did not violate the federal government’s power over foreign affairs.

Complete text (118 pages) of petition for certiorari to U.S. Supreme Court filed by American Civil Liberties Union. The petition seeks review of the decision by the U.S. Fourth Circuit Court of Appeals upholding a regulation of the Virginia Alcoholic Beverage Control Board prohibiting advertisements for alcohol in college student publications.

Complete text (24 pages) of report prepared by the Association of Governing Boards of Universities and Colleges (AGB) and the Commonfund Institute. The report concludes that the Uniform Prudent Management of Institutional Funds Act (UPMIFA) has provided boards with greater flexibility to distribute funds from underwater endowments, but has also forced them to develop new processes for making decisions regarding spending and accumulation. The report includes several tables, includes tables devoted to spending from underwater endowment funds, use of the UPMIFA provision allowing for release or modification of restrictions on older and smaller endowments, governance practices under UPMIFA, and conflict of interest policies related to investment decision makers.

Complete text of proposed rule issued by the Federal Trade Commission (FTC) and published in the August 27 Federal Register. The proposed rule includes the text of three proposed model notices to be issued by consumer reporting agencies (CRAs) under the Fair Credit Reporting Act (FCRA). The three notices are a model summary of rights to be included with consumer reports provided to consumers by CRAs; a model notice of obligations under FCRA provided to furnishers of information to CRAs; and a model notice to users of consumer reports of their obligations under FCRA.

Complete text (6 pages) of opinion by Virginia Circuit Court Judge in action filed by Virginia Attorney General seeking documents relating to sponsored research conducted by a faculty member at the University of Virginia. The court rules that in order to file a civil investigative demand (CID) seeking such documents, the Attorney General must have an objective basis to believe the Virginia Fraud Against Taxpayers Act (FATA) has been violated and that such objective basis must be stated in the “nature of the conduct” section required in CIDs. The court further rules that the Attorney General failed to state such an objective basis in his CID to the university. The court further holds that only one of the five research grants in question involve state funds, and only that grant is therefore subject to investigation by the Attorney General.

Complete text (44 pages) of Motion to Remand filed by Appellant Christian Legal Society in the Ninth Circuit Court of Appeals seeking an order remanding the case to the District Court for further proceedings on the issue of whether defendant Hasting University College of Law selectively enforced its “all comers” rule regarding membership in recognized student organizations (the policy otherwise found constitutional under the First Amendment in the Supreme Court’s June 2010 decision in Christian Legal Society v. Martinez et al.) Appellant argues in its Motion that it has preserved the issue of selective enforcement for adjudication. Appellee Hastings College of Law filed a motion in opposition to remand. Appellant filed a reply to the motion in opposition to remand.

Complete text (15 pages) of decision by U.S. District Court (DC) granting plaintiff’s motion for a preliminary injunction preventing the National Institutes of Health Guidelines for Human Stem Cell Research from taking effect. The court holds that the Dickey-Wicker Amendment unambiguously prohibits the expenditure of federal funds on research in which a human embryo or embryos are destroyed and embryonic stem cell research as authorized in the Guidelines necessarily depends upon the destruction of human embryos.

Complete text (5 pages) of August 18 Order by Board of Alien Labor Certification Appeals, U.S. Department of Labor, granting Employer petition for en banc review of earlier decision and order by a Board panel denying employer’s application for permanent employment certification filed on behalf of faculty member, and inviting interested parties to participate as amicus curiae. Persons or entities desiring to participate as amicus must file notice of intent within 30 days from the date of the Order.

Complete text (21 pages) of decision by State of Tennessee Chancery Court holding that compliance by Fisk University with the terms of a gift of artwork by the artist Georgia O’Keefe requiring that the university display and maintain the donated collection is impracticable due to the university’s financial condition. The court however rejects a proposed agreement for sale of a joint ownership interest to a third party museum because it would not most closely approximate the donor’s charitable intent, as required for the exercise by the court of its powers under the cy pres doctrine. The court notes that in this case there is no evidence that the donor’s intent including perpetuating the existence of Fisk University, and also points out several provisions in the proposed joint ownership agreement that either have the potential to divest the university of more than 50% ownership of the collection or are otherwise contrary to conditions imposed by the original donor. The court directs the parties to submit new proposals for disposition of the collection that would more closely approximate the donor’s original charitable intent.

Complete text (28 pages) of decision by U.S. District Court (S.D. Georgia) denying preliminary injunction requested by graduate counseling student who refused to complete remediation plan required by counseling program faculty. The court holds that plaintiff did not demonstrate a likelihood of success on the merits on her claim that the remediation plan, which required plaintiff by various means to address issues of multicultural competence concerning gay, lesbian, bisexual and transgendered individuals, violated the free speech and establishment clauses of the First Amendment.

Complete text (46 pages) of decision of U.S. Third Circuit Court of Appeals holding unconstitutional certain provisions of defendant university’s student conduct code. The court finds that provisions of the code of conduct prohibiting “[c]ommitting, conspiring to commit, or causing to be committed any act which causes or is likely to cause serious physical or mental harm or which tends to injure or actually injures, frightens, demeans, degrades or disgraces any person”; “[d]isplaying in the Field House, softball field, soccer field, cafeteria and [the] Center for the Arts any unauthorized or obscene, offensive or obstructive sign”; and “Conduct Which Causes Emotional Distress: This includes conduct which results in physical manifestations, significant restraints on normal behavior or conduct and/or which compels the victim to seek assistance in dealing with the distress” to be overly broad restrictions on freedom of speech and therefore violations of plaintiff’s First Amendment rights.

Complete text (11 pages) of comments submitted by the Association of American Medical Colleges (AAMC), the Association of American Universities (AAU), the American Council on Education (ACE) and the Association of Public and Land-Grant Universities (APLU) in response the proposed rule regarding conflicts of interest in federally-funded research issued by the U.S. Department of Health and Human Services (HHS) on May 21. The Council on Governmental Relations (COGR) also filed comments on the proposed rule.

Complete text (11 pages) of decision by North Carolina Court of Appeals holding that Davidson College is a religious institution under the Establishment Clause of the U.S. Constitution. The court therefore finds that the delegation by the state of the police power to the College by certifying the College as a “campus police agency” and commissioning employees of the campus police department as police officers is a violation of the Establishment Clause because it fosters excessive government entanglement with religion under Lemon v. Kurtzman 403 U.S. 602 (1971).

Complete text (7 pages) of final rule issued by the U.S. Department of Agriculture (USDA) and published in the August 13 Federal Register. The rule defines research misconduct and establishes USDA requirements for the conduct of investigations of alleged incidents of research misconduct related to USDA funded extramural research. The rule is effective August 13, 2010.

Complete text (5 pages) of letter to U.S. Department of Health and Humans Services (HHS) from the American Council on Education (ACE) and other higher education associations. The letter requests that HHS provide regulatory clarifications with respect to certain provisions of the Patient Protection and Affordable Care Act (ACA) so that colleges and universities can continue to offer student health plans.

Complete text of brief and appendix filed in the Supreme Court by the University of Minnesota and the Mayo Foundation. The deadline for filing Amicus briefs is August 13.

Complete text (24 pages) of letter from U.S. Department of Justice (DOJ),Office of Special Counsel for Immigration-related Unfair Employment Practices, indicating that decisions not to hire individuals based solely on their need for visa sponsorship or their need for a written employer submission to the United States Customs and Immigration Service (USCIS), either currently or in the future, would generally not be actionable under the Immigration and Nationality Act’s (INA) citizenship status or national origin anti-discrimination provisions. The letter notes that only certain “protected individuals” are protected against citizenship status discrimination under 8 U.S.C. § 1324b of the INA, including U.S. citizens, U.S. nationals, temporary residents, recent lawful permanent residents, refugees and asylees, and that temporary visa holders or applicants for adjustment of status to permanent residence are not protected individuals for purposes of citizenship status discrimination.

Complete text (15 pages) of Consent Decree and Order issued by U.S. District Court (N.D. New York) setting forth agreed remedy following the court’s March 22 decision holding that under Sec. 7(a)(2)(B) of the National Voter Registration Act (NVRA) Disabled Student Services (DSS) Offices at each campus within the State University of New York (SUNY) and City University of New York (CUNY) systems, as well as community college campuses in the State of New York, should be designated as mandatory voter registration agencies. The NVRA requires each state to “designate agencies for the registration of voters in elections for Federal office[,]” 42 U.S.C. §1973gg-5(a)(1), and requires specifically that “all offices in the state that provide State-funded programs primarily engaged in providing services to persons with disabilities” be so designated. 42 U.S.C. § 1973gg-5(a)(2)(B).

Complete text (17 pages) of comments filed by the American Council on Education (ACE) on its own behalf and on behalf of 65 other higher education associations and accrediting organizations. The comments are directed at the Department of Education’s proposed rules on Program Integrity issued on June 18; and in particular at proposals with respect to the definition of a credit hour; on the state authorization of institutions of higher education; on misrepresentation and misleading statements; on incentive compensation tied to admission or graduation of students; on reporting and disclosures related to the gainful employment requirement for certificate programs; and on taking attendance in connection with the return of Title IV funds.

Complete text of letter (4 pages) sent by four higher education associations (AAU, APLU, COGR and NAFSA) to U.S. Citizenship and Immigration Services (USCIS) reiterating their opposition to the proposed addition by USCIS of a “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States” to Form I-129. The proposed certification would require H-1B petitioners to state whether or not a deemed export license will be required for the petition beneficiary. The letter is in response to a 30-Day Notice of Information Collection Under Review: Form I–129, Petition for Nonimmigrant Worker issued by USCIS and published in the June 30 Federal Register. Click here for a copy of the revised form I-129 proposed by USCIS. The proposed Certification appears on page 5, Part 6.

Complete text (14 pages) of report by the Congressional Research Service (CRS) reviewing the application of the Americans with Disabilities Act (ADA), including a discussion of reported court decisions. On July 26, the Department of Justice published an Advance Notice of Proposed Rulemaking re Accessibility of Web Information and Services. Comments in response to the Advance Notice are due by January 24, 2011.

Link to Department of Justice (DOJ) web page with further links to complete text of final rules revised DOJ regulation implementing Title II (state and local government services) and Title III (public accommodations) of the Department’s ADA regulations. The revised rules address the sale of tickets for accessible seating, service animals, and accessibility to wheelchairs and other power-driven mobility devices (including Segways®). The revised rules also adopt revised 2010 ADA design standards for a variety facilities, including exercise machines and equipment, golf facilities, and swimming pools. The revised rules will become effective six months after publication in the Federal Register. Compliance with the revised design standards will be required for new construction and alternations eighteen months after publication in the Federal Register. The DOJ web page includes fact sheets summarizing the major elements of the Title II and Title III revised regulations and the revised design standards.

Complete text (78 pages) of decision by U.S. Fifth Circuit Court of Appeals affirming in part and reversing in part the District Court’s denial of a preliminary injunction challenging defendant university’s speech policy regulating the time, place and manner and other matters relating to speech by non-students on defendant’s campus. The court affirms the denial of a preliminary injunction barring enforcement of provisions of the speech policy requiring 7 days advance filing of a request for permit to assemble; limiting the amount of time an individual or organization may speak to no more than 2 hours once per week; requiring the disclosure of personal information about permit applicants, and limiting assemblies and demonstrations to three specific areas on campus. The court finds the restrictions relate to either a public forum or limited public forum, are content-neutral on their face and are narrowly tailored to serve significant governmental interests. The court however reverses the district court and grants a preliminary injunction barring enforcement of the section of defendant’s policy requiring applicants to be responsible for the cost of security beyond that normally provided by the university, because the policy gives the university sole discretion to determine the need for and the amount of security without reference to objective factors to be relied upon in making the determination.

Complete text (50 pages) of decision by U.S. District Court (E.D. Michigan) holding that a university’s academic dismissal of a student from a counseling program for refusal to follow the requirements of the American Counseling Association (ACA) Code of Ethics did not violate the student’s First Amendment rights to free exercise of religion and freedom of speech. The counseling student had refused to counsel gay clients on same-sex relationship issues. The ACA code of ethics requires counselors to respect the dignity of clients, to avoid imposing values that are inconsistent with counseling goals, and prohibits condoning or engaging in discrimination based on sexual orientation. The ACA code of ethics was part of the curriculum of the counseling program and was required to be taught in order for the program to be accredited.

Complete text (8 pages) of Advance Notice of Proposed Rulemaking (ANPR) issued by U.S. Department of Justice (DOJ) and published in the July 26 Federal Register. In the ANPR, DOJ asserts that web sites of state and local government entities are covered by title II of the Americans with Disabilities Act (ADA) and that web sites of public accommodations are subject to title III of the ADA, describes the barriers to web accessibility encountered by disabled individuals, and announces its intention to revise the regulations implementing titles II and III of the ADA in order to establish requirements for making the web sites of state and local government entities and of public accommodations accessible to individuals with disabilities. DOJ seeks public comment on 19 specific inquiries to assist it in formulating and revised rules. Comments in response to the ANPR are due by January 24, 2011.

Complete text (9 pages) of Advance Notice of Proposed Rulemaking (ANPR) issued by the U.S. Department of Justice (DOJ) and published in the July 26 Federal Register. In the ANPR, DOJ announces its intention to revise regulations under titles II and III of the Americans with Disabilities Act to ensure that equipment and furniture used in programs and services provided by public entities and public accommodations are accessible to individuals with disabilities. DOJ seeks public comment on 24 specific inquiries to assist it in formulating revised rules, including inquiries relating to medical equipment and furniture, exercise equipment and furniture, beds in guest rooms and sleeping rooms, electronic information technology and other types of equipment and furniture. Comments in response to the ANPR are due by January 24, 2011.

Complete text (15 pages) of final rule issued by the Copyright Office, Library of Congress to be published in the July 27 Federal Register. The Digital Millennium Copyright Act (DMCA) prohibits the circumvention of technology that controls access to a copyrighted work. The Librarian of Congress periodically determines if there are any classes of works that will be exempt from the DMCA prohibition. In the Final rule, the Librarian announces six classes of work that will be exempt from the prohibition, including “Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances: i) Educational uses by college and university professors and by college and university film and media studies students; ii) Documentary filmmaking; or iii) Noncommercial videos. The previous exemption, promulgated by the Librarian in 2006, had been for a class of “[a]udiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.” The final rule is effective July 27.

Complete text (3 pages) of Advance Notice of Proposed Rulemaking (ANPR) issued by the Office of Federal Contract Compliance Programs (OFCCP) and published in the July 23 Federal Register. Section 503 of the Rehabilitation Act of 1973 requires covered federal contractors to ensure equal employment opportunity for people with disabilities, including taking affirmative action to employ individuals with disabilities. In the ANPR, OFCCP announces its intention to reexamine its affirmative action provisions under Sec. 503 to make them more effective. In particular, OFCCP is considering adopting measures similar to those required under the Executive Order 11246 program for supply and service contractors. Under that program, covered contractors are required, among other things, to compare the percentage of women and minorities in each job group at an establishment with the availability of women and minorities to work in the job group. Before publishing a proposed regulation, OFCCP seeks comments in response to 18 specific inquiries. Comments are due by September 21, 2010.

Complete text (36 pages) of Interim Final Rules issued by the U.S. Departments of Treasury (Internal Revenue Service), Labor (Employee Benefits Security Administration) and Health and Human Services and published in the July 26 Federal Register. The Interim Final Rules implement provisions of the Patient Protection and Affordable Care Act (PPACA) governing group health plan internal claims and appeals and external review processes. The Interim Final Rule does not apply to grandfathered health insurance plans. Comments on the rule are due by September 21, 2010.

Complete text (94 pages) of proposed rule issued by the U.S. Department of Education and published in the July 26 Federal Register. Under existing law and regulations, preparation for gainful employment in a recognized occupation is an element of program eligibility for all non-degree programs whether offered by for-profit or non-profit institutions. Comments on the proposed rule are due by September 9.

Complete text (5 pages) of Final Rule issued by U.S. Immigration and Customs Enforcement (ICE) and published in the July 22 Federal Register. The final rule permits employers to complete, sign, scan and store Form I-9 electronically as long as certain performance standards set forth in the rule for the electronic filing system are met.

Complete text (95 pages) of decision by U.S. District Court (Connecticut) holding that competitive cheerleading is not a collegiate sport for purposes of compliance with Title IX. The court orders the defendant university to continue its women’s volleyball team for the 2010-2011 season and to file a plan outlining how it intends to comply with Title IX requirements.

Complete text (2 pages) of notice of extension of comment period and request for comments issued by the Department of Health and Human Services (HHS) and published in the July 21 Federal Register. On May 21 HHS published a proposed rule regarding conflicts of interest in federally-funded research with a request for comments by July 20. In its notice, HHS extends the comment period to August 19 and also seeks comments on whether it should clarify how the regulations apply in circumstances in which an investigator or Public Health Service (PHS) funded research project transfers from one institution to another, or in which a new institution and investigators become involved in an on-going PHS research funded project. HHS also seeks comments on whether the regulations should further clarify the enforcement option available to the Department.

Complete text (13 pages) of proposed rule issued by the Nuclear Regulatory Commission (NRC) and published in the July 20 Federal Register. The proposed rule would implement requirements of the Energy Policy Act of 2005 by requiring research and test reactor licensees to obtain fingerprint-based criminal history records checks before granting individuals unescorted access to a reactor facility. Certain provisions of the proposed rule reflect earlier orders by the Commission. Comments on the proposed rule are due by October 4.

Complete text (35 pages) of Interim Final Rules issued by the U.S. Departments of Treasury (Internal Revenue Service), Labor (Employee Benefits Security Administration) and Health and Human Services and published in the July 19 Federal Register. The Interim Final Rules implement provisions of the Patient Protection and Affordable Care Act (PPACA) requiring non-grandfathered health insurance plans to cover specific preventive health services and eliminate cost sharing requirements for such services. The Interim Final Rules are effective on September 17, 2010. Comments are due on or before September 17, 2010.

Complete text (58 pages) of proposed rule issued by the U.S. Department of Health and Human Services (HHS) and published in the July 14 Federal Register. The proposed rule would update the HIPAA Privacy, Security and Enforcement Rules to conform with changes made by the Health Information Technology for Economic and Clinical Health (HITECH) Act. The proposed changes include changes to the definition of “business associate” to include subcontractors of business associates; and changes to provisions of the Privacy Rule, including to the definition of “marketing, to the rules governing the sale of PHI, research authorizations, fundraising, notices of privacy practices for protected PHI, the right of patients to request restrictions of uses and disclosures of PHI, and the right of patient access to PHI. Comments on the proposed rule are due by September 13, 2010.

Complete text (5 pages) of Notice issued by the Internal Revenue Service (IRS) requesting comments on implementation by the IRS of the expanded payment reporting requirement enacted by Section 9006 of the Patient Protection and Affordable Care Act of 2010. The Act amended Sec. 6041(a) of the Internal Revenue Code to require that businesses, including non-profit and tax-exempt organizations, annually report (via Form 1099) to the IRS payments they made to suppliers of goods and services during the previous year totaling more than $600. A copy of the reports must also be provided to the corresponding vendors. Purchasers of goods and services are also required to obtain a Taypayer Identification Number (TIN) from vendors to include on the relevant Form 1099 or withhold 28% of the purchase price on behalf of the IRS. (According to the Notice credit card payments will be exempt from the reporting requirement). The expanded reporting requirement takes effect January 1, 2012. In the Notice, the IRS requests comments on methods of implementing the requirement that will minimize duplicative reporting and on the burden associated with implementing the new requirements on different types of taxpayers and businesses. The IRS also seeks comments on the appropriate time and manner of reporting, including any needed changes to Form 1099 to implement the requirement, and ways to minimize the burden of payors obtaining TINs or implementing the withholding requirement. Comments are due by September 29, 2010.

Complete text (33 pages) of brief in support of the Petition to Set Aside Civil Investigative Demands filed by the University of Virginia against the Virginia Attorney General. The Civil Investigative Demands (CIDs) in question were issued by the Virginia Attorney General’s office seeking all data, materials and communications created, presented or made by a faculty member in connection with five research grants. The Attorney General’s answer to the Petition is here.

Complete text (3 pages) of joint letter issued June 29 by the U.S. Departments of Justice and Education and sent to college and university presidents. The letter asks institutions to refrain from requiring the use of electronic book readers or similar technology in a teaching classroom environment if such devices are inaccessible to individuals who are blind or have low vision.

Complete text (17 pages) of decision by U.S. Magistrate Judge (S.D. New York) holding that plaintiff company could not assert attorney-client privilege to shield from discovery communications with its unlicensed in-house counsel where plaintiff had made no effort over a period of eight years to ascertain his status as a licensed attorney. Counsel had once been licensed in California but had taken inactive status and never returned to active status until a month before his termination by plaintiff.

Complete text (85 pages) of decision by U.S. Supreme Court affirming the decision of the Ninth U.S. Circuit Court of Appeals and holding that a public institution that conditions recognized student organization (RSO) status on each organization accepting all interested students (“all-comers”) as members does not violate the First Amendment rights of organization members because such a restrction is a reasonable, viewpoint-neutral condition on access to the RSO limited public forum.

Complete text (214 pages) of decision by U.S. Supreme Court holding that the Fourteenth Amendment of the U.S. Constitution incorporates and applies to the states the Second Amendment right to keep and bear arms for the purposes of self-defense as defined by the Court in District of Columbia et al. v. Heller 554 U.S. ___ (2008).

Complete text (22 pages) of decision by New York Court of Appeals reversing the decision of the Appellate Division of the Supreme Court and affirming the use of eminent domain power by the defendant New York State Urban Development Corporation to acquire a tract of land for the development of a new campus by a private institution of higher education. The court asserts that under New York law the judicial review and reversal of a finding of blight in eminent domain proceedings is limited to instances when such a finding is irrational or baseless.

Complete text (39 pages) of decision by U.S. District Court (W.D. Texas) upholding the refusal of the Texas Higher Education Coordinating Board to approve plaintiff’s application to offer a Master of Science Degree with a major in Science Education from a Biblical scientific creationist viewpoint. Plaintiff asserted that denial of the application infringed its First Amendment rights of free speech and free exercise of religion and its Due Process and Equal Protection rights under the Fourteenth Amendment.

Complete text (3 pages) Administrator’s Interpretation issued June 22 by the Wage and Hour Division, U.S. Department of Labor. The interpretation states that an individual who does not have a legal or biological relationship with a child but intends to assume the responsibilities of a parent and provides either day-to-day care or financial support for the child, or both, would be eligible for FMLA leave under the statute and regulations “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A) - (C); 29 C.F.R. § 825.200.

Complete text (2 pages) of revised policy of the Accreditation Committee of the American Association of Museums (AAM) on Statements of Support from Parent Organizations. Among other items, the revised policy requires museums with a parent organization to submit evidence (issued or approved by the parent organization’s governing body) that demonstrates the parent organization’s commitment to use its resources to support the museum and its commitment to following AAM and museum field standards, particularly with regard to the museums collection’s, the use of deaccessioning proceeds, and collecting and gift acceptance policies. The AAM issued a press release on the revised policy statement.

Complete text (52 pages) of answer filed by Virginia Attorney General in response to Petition to Set Aside Civil Investigative Demands filed by the University of Virginia. The Civil Investigative Demands (CIDs) in question were issued by the Virginia Attorney General’s office seeking all data, materials and communications created, presented or made by the faculty member in connection with five research grants.

Complete text (34 pages) of Interim Final Rule issued by U.S. Departments of Health and Human Services, Treasury and Labor and published in the June 17 Federal Register. The interim final rule describes which existing employer group health plans will be grandfathered and considered exempt from many though not all of the new requirements for employer health plans imposed by the Patient Protection and Affordable Care Act (PPACA), and what actions will result in the loss of grandfathered status. Under the rule, grandfathered status is linked to plans as maintained by an employer on March 23, 2010, the date of enactment of the PPAHCA. The rule requires that records documenting the terms of a plan or policy on March 23, 2010 be maintained so that continuing grandfathered status can be verified if necessary. Comments on the Interim Final Rule are due by August 16, 2010. The Department of Health and Human Services has issued a fact sheet and FAQ to accompany the interim final rule.

Complete text (26 pages) of decision by U.S. Supreme Court holding that, assuming without deciding that a public employee had a privacy interest in text messages sent over his employer-provided personal digital assistant (PDA), the employer’s search of those messages was reasonable under the analysis set forth in O’Connor v. Ortega (480 U.S. 709). The search was motivated by a legitimate non-investigatory work-related purpose and, since only two months of records were searched and only messages sent during work hours were examined, it was also not excessive in scope.

Complete text (86 pages) of proposed rule issued by Office of Postsecondary Education, U.S. Department of Education, and published in the June 18 Federal Register. The proposed rule would make a number of changes in Department rules designed to ensure the integrity of federal financial aid programs. Among the key changes is the elimination of the current regulatory safe harbors for the payment of incentive compensation for the recruitment of students (see discussion beginning at p. 34816); a requirement that institutions have a method for determining the validity of a student’s high school diploma (p. 34823); a proposed definition of a “credit hour” (p.34809); a strengthened rule regarding misrepresentation and deceptive advertising and sales practices (p. 34824); greater regulation and oversight of administration and approval of “ability to benefit” testing (p. 34837); and a requirement that institutions more closely monitor the satisfactory progress of federal financial aid recipients (p. 34820). Comments on the proposed rules are by August 2, 2010.

Complete text (7 pages) of final rule issued by the U.S. Department of Education and published in the June 146 Federal Register. The rule revises and updates the Department's rules for processing requests under the federal Freedom of Information Act (FOIA). The rule includes procedures for submitting FOIA requests, processing of requests by the Department, and applicable fees.

Complete text (26 pages) of decision by U.S. District Court (S.D. Ohio) holding that participation by college librarian on committee charged with recommending required reading for incoming freshmen was encompassed within his official duties and therefore under the Supreme Court’s decision in Garcetti v. Ceballos could not support a claim of retaliation for exercise of his First Amendment rights. According to the court, plaintiff’s recommendations to the committee of possible titles for the required reading list were a matter of public concern, but they were made not as a citizen but rather as part of his job duties. The court also holds that participation in the committee did not constitute “scholarship or teaching” and thus could not be subject to any academic freedom exception to the general rule set forth in the Garcetti decision.

Complete text (4 pages) of letter issued June 4 by the U.S. Department of Education. The letter describes the requirements set forth in the Higher Education Opportunity Act of 2008 and the Department’s implementing regulations concerning institutional obligations to combat the unauthorized distribution of copyrighted material via illegal downloading or peer-to-peer file sharing. The letter covers required institutional plans, offering legal alternatives to illegal downloading, and required consumer information and distribution. The letter also includes a model summary of Federal civil and criminal copyright penalties that institutions can use to meet the requirement that institutions include such a summary in the information provided upon request to prospective or enrolled students.

Order of U.S. Supreme Court granting writ of certiorari to review the decision of the U.S. Eighth Circuit Court of Appeals upholding revised Treasury Department regulations stating that the services of full-time employees are not incident to and for the purpose of pursuing a course of study and therefore wages paid to full-time medical residents were subject to FICA taxes. Amici briefs in support of the petition for certiorari had been filed by the Association of American Medical Colleges (AAMC); the American Council on Education (ACE); the Association of American Universities (AAU) and the Association of Public and Land-Grant Universities (APLU); by the American Hospital Association (AHA); by several institutions of higher education; and by the Board of Trustees of the University of Illinois.

Complete text (8 pages) of policy memorandum dated May 24, 2010 issued by the Under Secretary of Defense for Acquisition, Technology and Logistics, U.S. Department of Defense (DoD). The memorandum includes clarifying guidance to ensure that DoD grants, contracts and negotiations within the research community are compliant with National Security Decision Directive 189 (NSDD 189) regarding fundamental research. The policy memorandum notes that DoD must not place restrictions on subcontracted unclassified research that has been determined to be fundamental research within the definition of NSDD 189.

Complete text of press release issued May 28 by the Federal Trade Commission (FTC) announcing another delay in FTC enforcement of the Commission’s Identity Theft Red Flags Rule. The FTC had earlier delayed enforcement until June 1, 2010. The latest announcement delays enforcement until December 31, 2010 while Congress considers legislation that would affect the scope of entities covered by the Rule.

Complete text (12 pages) of Petition to Set Aside Civil Investigative Demands filed by the University of Virginia in response to an investigation by the Virginia Attorney General of scientific research conducted by a former faculty member of the University. The Civil Investigative Demands (CIDs) in question were issued by the Virginia Attorney General’s office seeking all data, materials and communications created, presented or made by the faculty member in connection with five research grants.

Complete text (4 pages) of Notice issued by the Internal Revenue Service (IRS) requesting comments regarding the application certain requirements imposed on 501(c)(3) tax-exempt hospitals by new Internal Revenue Code Sec. 501(r), added by the Patient Protection and Affordable Care Act. The requirements include the conduct and reporting of community health needs assessments; establishment of financial assistance policies with certain required elements; limitations on amounts charged for emergency or other medically necessary care to individuals eligible for assistance under the hospital’s financial assistance policy; and limitations on collection actions. The Notice seeks comments regarding the requirements, including the need for the IRS to issue guidance regarding the requirements. Comments are due by July 22, 2010.

Complete text of final consent judgment issued by the U.S. District Court (N.D. Florida) prohibiting defendant R.K. Netmedia, Inc. from infringing on plaintiff’s marks or making any statements or undertaking any acts likely to lead the public to believe that products or services of defendant are in anyway associated with plaintiff institution. Defendant had produced and displayed on a website a pornographic video with references to the institution, its mascot and school colors. Defendant is also required to use its best efforts to prevent third parties from displaying the video, to fund to scholarships at the institution, and to pay an amount in satisfaction of defendants’ attorneys fees.

Complete text (26 pages) of proposed rule issued by the Department of Health and Human Services (HHS) and published in the May 21 Federal Register. The proposed rule would revise existing rules issued in 1995 governing conflicts of interest. In particular the proposed rule would lower the threshold for investigator reporting of potential financial conflicts of interest from $10,000 to $5,000. Institutions would be required to review investigator reports of financial interests to determine whether a financial interest is related to the research for which investigators are receiving federal funding. If a conflict of interest is identified, institutions would be required to develop formal plans to manage the conflict of interest and to monitor researchers’ compliance with such plans. Institutions would also be required to report identified conflicts of interest and associated management plans to HHS, and to post information on identified financial conflicts of interest on a publicly accessible website. Comment on the proposed rule are due by July 20.

Complete text (36 pages) of final rule issued by the Office of Labor-Management Standards, U.S. Department of Labor and published in the May 20 Federal Register. The final rule implements Executive Order 13496 issued by the President on January 30, 2009. The rule requires covered federal contractors and subcontractors to post a detailed notice informing employees of their rights under the National Labor Relations Act (the text of the required notice appears on pages 28399-28400 of the final rule). The rule includes requirements for both the physical and electronic posting of the notice. The rule also includes provisions regarding complaint procedures, enforcement and available sanctions, including contract cancellation and debarment. The rule is effective June 21, 2010. The rule does not apply to government contracts resulting from solicitations issued before the effective date.

Complete text (15 pages) of decision by U.S. Ninth Circuit Court of Appeals holding that racially charged emails sent by faculty member over institutional email distribution list were speech protected by the First Amendment and therefore could not constitute harassment for purposes of suit brought by college employees alleging violation of their rights under the Equal Protection clause of the U.S. Constitution due to the college’s failure to take steps to prevent the faculty member from disseminating such email messages.

Complete text (13 pages) of Program Review Report issued January 21, 2010 by U.S. Department of Education with preliminary finding that Virginia Tech University violated the timely warning requirements of the Clery Act in its response to the shootings on the Virginia Tech campus on April 16, 2007. The university filed a response to the report on April 20, and released both documents on May 18, accompanied by a statement on the Department’s findings.

Complete text (256 pages) of handbook published by the Association for the Advancement of Science (AAAS), with participation by the Association of American Universities (AAU), entitled Handbook for Diversity and the Law: Navigating a Complex Legal Landscape to Foster Greater Faculty and Student Body Diversity in Higher Education. As described in an announcement accompanying its release, the Handbook provides a robust legal resource for college and university lawyers, with in-depth legal analysis of particular models and types of faculty, post-doctoral fellow, and graduate and undergraduate diversity programs. While the Handbook does not substitute for the legal analysis of an institution’s own lawyers, it is intended to help higher education attorneys determine what can be done to design and implement effective and legally sustainable programs to increase faculty and student diversity on campus. The Handbook covers a host of Constitutional, statutory and regulatory regimes, and includes nuanced summaries of the primary federal and state case law. It is formatted as a convenient resource for the practicing higher education attorney. Print copies of the handbook may be ordered from AAAS.

Complete text (79 pages) of interim report issued by the Internal Revenue Service (IRS) on its Colleges and Universities Compliance Project. The report is based on responses to a questionnaire sent by the IRS in October 2008 to 400 colleges and universities, and focuses on unrelated business income; investment, management and use of endowment funds; executive compensation practices; and governance. The IRS is conducting examinations of 13 institutions that failed to respond to the questionnaire, and of a subset of the responding institutions. It anticipates issuing a final report including information learned from the examinations and further analysis of the questionnaire responses.

Complete text (28 pages) of report by the Congressional Budget Office (CBO). The report describes a theory of “indirect arbitrage” that would identify bonds earning arbitrage profits on the basis of the total assets that were implicitly available as bond collateral rather than requiring a direct relationship between the proceeds of tax-exempt bonds and investment assets. For example, if an institution held assets that were greater in value than its holdings of either outstanding or new bond issues (after specifying a certain amount as a reasonable operating reserve) those bond issues would be classified as earning returns from tax arbitrage, because in theory the institution chose to use tax-exempt debt to finance capital projects rather than selling investment assets because it could earn a rate of return on those assets that was higher than the interest it was obligated to pay on the tax-exempt bonds.

Complete text (3 pages) of Request for Information (RFI) issued by the Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS) and published in the May 3 Federal Register. Sec. 13405(c) of the Health Information Technology for Economic and Clinical Health (HITECH) Act requires HHS to revise the HIPAA Privacy Rule to require covered entities to account upon request by an individual for disclosures of their protected health information to carry out treatment, payment and health care operations if such disclosures are through “an electronic record”. These disclosures had been exempt from the accounting requirements of the Privacy Rule. In the RFI, HHS seeks information to assist them in understanding the interests of individuals in learning of such disclosures, the administrative burden on covered entities and business associates of accounting for such disclosures, and other information that may assist the Department’s rulemaking. In particular the RFI seeks responses to eight specific questions. Comments are due by May 18.

Complete text (52 pages) of decision by Kentucky Supreme Court holding that a state appropriation of funds to construct a school of pharmacy at a religious institution violated Sec. 189 of the Kentucky state constitution which states that “No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.”

Complete text (2 pages) of Fact Sheet released April 21 by the U.S. Department of Labor, Wage and Hour Division. The Fact Sheet examines the circumstances under which unpaid interns placed at for-profit companies will nonetheless be deemed to be “employees” of the company under the Fair Labor Standards Act (FLSA) and therefore entitled to minimum wage and overtime pursuant to the terms of the FLSA. The Fact Sheet sets forth six criteria which must be applied and satisfied in order to determine that an internship does not constitute an employment relationship. The Fact Sheet also notes that unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible, but states that the Department is reviewing the need for additional guidance on internships in the public and non-profit sectors.

Complete text (27 pages) of order and amended opinion issued by U.S. Ninth Circuit Court of Appeals. The opinion amends the court’s earlier decision issued February 8 to clarify that when calculating athletic competition “participation opportunities” for purposes of Title IX compliance, athletes who participate in more than one sport are counted as a participant for each sport they play.

Complete text of Policy Clarification dated April 20, 2010 issued by the U.S. Department of Education, Office of Civil Rights (OCR). In the Policy Clarification OCR withdraws its 2005 Additional Clarification of the same title which had advised that institutions seeking to achieve Title IX compliance in their athletic programs through use of Part Three of the Three-Part compliance test set forth in the Department’s 1979 Policy Interpretation on Title IX and Intercollegiate Athletics could rely on student survey results to measure student interest in participating in intercollegiate sports. The Policy Clarification also withdraws the User’s Guide to Developing Student Interest Surveys Under Title IX issued in connection with the 2005 Additional Clarification. The Department’s 1996 Clarification of Intercollegiate Athletics Policy Guidance remains in effect, as does the July 2003 Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance. The new 2010 Policy Clarification describes a broad range of indicators OCR will now use under Part Three or the Three-Part Test in determining whether an institution has unmet interest and ability to support an intercollegiate team in a particular sport and states that OCR does not consider survey results alone as sufficient evidence of lack of interest under Part Three. The Clarification also states that OCR does not sanction or endorse any particular survey, but provides information institutions may wish to consider in developing their own surveys, including survey content, target population, response rates and treatment of non-responses, confidentiality, and survey frequency. OCR also issued Questions and Answers and a Fact Sheet to accompany the new Clarification. The U.S. Civil Rights Commission, in a recent report, had recommended that OCR continue to encourage institutions to use student surveys as set forth in the 2005 Clarification as a method for attaining compliance with Part Three of the Three-Part Test.

Complete text (74 pages) of oral argument before the U.S. Supreme Court on April 19.

Complete text (40 pages) of report entitled “Campus Attacks: Targeted Violence Affecting Institutions of Higher Education” issued by the United States Secret Service, U.S. Department of Education and the Federal Bureau of Investigation (FBI). The report is the result of a recommendation included in the Report to the President on Issues Raised by the Virginia Tech Tragedy issued June 13, 2007 by the U.S. Health and Human Services, Education and Justice Departments. The report offers preliminary findings from a review of 272 incidents of campus violence in the U.S. from 1900 – 2008.

Complete text (30 pages) of decision by Colorado Court of Appeals reversing the decision of the state District Court and holding that the Colorado Concealed Carry Act applies to Colorado state colleges and universities.

Complete text (38 pages) of report issued by the American Association of State Colleges and Universities (AASCU) and the National Association of Educational Procurement. The report summarizes the results of a survey of procurement officials at public colleges and universities concerning state regulation of the procurement process and includes recommendations for both states and institutions and systems. An executive summary is also available.

Complete text of proposed rule published in the April 14 Federal Register. Under the terms of the proposed rule, allowable labor relations costs incurred by federal contractors could not include costs of any activities undertaken to persuade employees of any entity to exercise or not exercise the right to organize and bargain collectively. Examples of unallowable costs include preparation and distribution of materials, hiring or consulting legal counsel or consultants, meetings, and planning or conducting activities. Comments on the proposed rule are due by June 14.

Complete text (15 pages) of decision by Texas Court of Appeals (First District) affirming the trial court and holding that the provisions of the Lilly Ledbetter Fair Pay Act of 2009 describing when an unlawful employment practice occurs should apply to claims of compensation discrimination brought under the Texas Commission on Human Rights Act. Under the Ledbetter Act, an unlawful employment practice occurs when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits or other compensation is paid. Plaintiff-Appellee’s claim of pay discrimination on the basis of race and national origin was therefore timely filed within 180 days of her most recent paycheck she contends is discriminatory.

Complete text (2 pages) of letter sent by the Association of American Universities (AAU) and the Council on Governmental Relations (COGR) to U.S. Citizenship and Immigration Services (USCIS) objecting to the proposed inclusion by USCIS of a “Deemed Export Acknowledgement” question to Form I-129 (click here for a copy of the proposed form; see Part 7 for the proposed deemed export inquiry). The proposed question would require H-1B petitioners to state whether or not they will be required to have a deemed export control license. The letter from AAU and COGR, among other items, points out that USCIS has no responsibility for export control enforcement or compliance and questions the authority of USCIS to regulate or collect information regarding deemed exports. The letter also points out that most research conducted by foreign nationals at institutions of higher education is fundamental research, which is excluded from export control requirements. NAFSA, the Association of International Educators, also filed comments on the proposed revision to Form I-129.

Complete text (9 pages) of decision by North Dakota Supreme Court affirming the decision of the district court and dismissing suit brought by committee seeking to enforce settlement agreement in litigation between appellee North Dakota State Board of Higher Education, the University of North Dakota (UND) and the National Collegiate Athletics Association (NCAA). The settlement gave the Board and UND until November 30, 2010 to obtain from North Dakota Sioux tribes namesake approval for UND’s continued use of its athletic team nickname and logo of “fighting Sioux”. Appellant committee members sought to require that UND not transition to a new nickname until the expiration of the November 30, 2010 deadline. The court holds that the settlement agreement clearly permits UND to transition to a new nickname and logo if it chooses any time prior to the expiration of the approval period.

Complete text (20 pages) of decision by U.S. Fourth Circuit Court of Appeals reversing the District Court and upholding a regulation of the Virginia Alcoholic Beverage Control Board prohibiting advertisements for alcohol in college student publications. Appellee student newspapers had challenged the regulation under the First Amendment as an unconstitutional regulation of commercial speech.

Complete text (5 pages) of letter sent by New York Attorney General to the presidents of more than 300 colleges and universities across the country. The letter describes problems in school-endorsed student health insurance programs the Attorney General claims to have discovered as part of an on-going investigation, and concludes with a list of suggestions for re-evaluation of student health insurance programs. The New York Attorney General’s office has also established a website devoted to student health insurance.

Complete text (208 pages) of report issued by U.S. Commission on Civil Rights (the Commission). The report follows hearings held by the Commission in 2007 on the U.S. Department of Education, Office of Civil Rights (OCR) 2005 Additional Clarification of Intercollegiate Athletics Policy. In the Additional Clarification, OCR advised that institutions seeking to achieve Title IX compliance in their athletic programs through use of Part 3 of the Department's three-part compliance test could rely on student survey results to measure student interest in participating in intercollegiate sports. The Clarification also included a Model Survey instrument to measure student interest in participating in intercollegiate varsity athletics. In its report, the Commission finds that the Model Survey currently provides the best method available for attaining Prong Three compliance, and recommends that OCR continue to encourage institutions to use the Model Survey as a method of complying with Title IX.

Complete text (25 pages) of decision by U.S. District Court (M.D. North Carolina) granting defendant university’s motion for judgment on the pleadings in suit by former member of university golf team alleging breach of contract arising from his removal from the university golf team and denial of access to athletic facilities. Citing the U.S. Supreme Court decision in Ashcroft et al. v. Iqbal et al. the court holds that plaintiff’s allegations that statements made to him by defendant institution's former golf coach, along with defendant institution’s policy manuals, formed a legally enforceable contract do not state a claim to relief that is plausible on its face as required by Federal Rule of Civil Procedure 12(c).

Complete text (156 pages) of decision by U.S. District Court (S.D. New York) holding that genes isolated from the DNA sequence are not patentable because the DNA’s existence in an isolated form neither alters the fundamental nature of the DNA as it exists in the body nor the information it encodes. The court also holds that claimed comparisons of DNA sequences are abstract mental processes and therefore also unpatentable.

Complete text (27 pages) of decision by U.S. District Court, (M.D. Pennsylvania) holding that in Title VII wage discrimination claim, under the Lilly Ledbetter Fair Pay Act, if plaintiff faculty member can demonstrate that her wages were the result of a discriminatory decision to pay her less than her male co-workers, she may recover for each paycheck received during the Title VII 300-day statute of limitations period and need not show that a discriminatory pay-setting decision occurred within the 300-day period. The court also holds, however, that the Fair Pay Act, which states that each paycheck paid pursuant to a discriminatory pay structure is an independent, actionable employment practice, precludes application of the continuing violation theory to support recovery by plaintiff of amounts attributable to discrimination represented in paychecks issued prior to the 300 day limitation period. The court also discusses application of the Discovery Rule and Equitable Tolling to extend the 300 day limitation period and the application of the Fair Pay Act to Plaintiff’s Title IX, Sec. 1983 and 1985 claims.

Complete text (12 pages) of Statement issued by the Association of Governing Boards of Universities and Colleges (AGB). The Statement is a revision of an earlier AGB Statement on Institutional Governance issued in 1998, and includes eight principles intended to guide boards in the governance of colleges, universities and systems.

Complete text (72 pages) of en banc decision by U.S. Court of Appeals for the Federal Circuit reversing the denial by the District Court of petitioner’s motion for judgment as a matter of law in patent infringement suit brought by Ariad Pharmaceuticals and three institutions of higher education. The court holds that patent applications must contain a specific written description of the claimed invention in addition to enabling language explaining how to make and use the invention. In its opinion, the court asserts that patents are not awarded for academic theories, no matter how necessary to the later patentable inventions of others. Requiring a written description of the invention, according to the court, limits patent protection to those who conceive of the complete and final invention with all its claimed limitations.

Complete text (3 pages) of Request for Information (RFI) issued by the Office of Science and Technology Policy (OSTP) and the National Economic Council and published in the March 25 Federal Register. Responses to the RFI will be used to shape the federal government’s policy on the commercialization of federally funded research. The RFI solicits examples of promising practices and successful models for fostering the commercialization and diffusion of university research, metrics for evaluating the success or failure of initiatives to promote commercialization of university research, and changes in public policy and research funding the administration should consider that would promote the commercialization of university research. Responses are due by April 26.

Complete text (9 pages) of final rule published in the March 23 Federal Register. The final rule implements the Federal Awardee Performance and Integrity Information System (FAPIIS), designed to improve the federal government’s ability to evaluate the business ethics and expected performance quality of prospective contractors. Under the final rule, contracting officers will be required to review information in FAPIIS in connection with contracts over the simplified acquisition threshold and document in the contract file how information in FAPIIS was considered. Before making a non-responsibility determination based on information in FAPIIS, contracting officers must provide contract offerors with an opportunity to provide additional information demonstrating their responsibility. Vendors submitting proposals on federal contracts over $500,000 and having more than $10 million in active contracts and grants as of the time of proposal submission must report in FAPIIS certain information pertaining to criminal, civil or administrative proceedings resulting in a determination of fault. If a contract is awarded, the information must be updated by the contractor on a semi-annual basis. Contractors will be notified whenever the government posts new information to the contractor’s record in FAPIIS and contractors will have the ability to post comments on such information. The rule is effective April 22, 2010.

Complete text (20 pages) of decision by U.S. Supreme Court holding that where petitioner United Student Aid Funds received notice of debtor’s Chapter 13 plan proposing only partial repayment of government-sponsored student loan debts, such notice satisfied petitioner’s due process rights and debtor’s failure to also initiate the required adversary proceeding for determination of undue hardship as required by the Federal Bankruptcy Rules of Procedure does not entitle petitioner to relief under Federal Rule of Civil Procedure 60(b)(4) from the Bankruptcy Court order confirming debtor’s Chapter 13 plan. The court further holds that although the failure of the Bankruptcy Court to affirmatively make a finding of undue hardship was legal error, the subsequent order confirming the Chapter 13 plan was enforceable and binding on petitioner because it had actual notice of the error and failed to object or timely appeal. Finally the court rejects the lower court holding that a bankruptcy court must confirm a plan proposing discharge of student loan indebtedness without an undue hardship determination in an adversary proceeding if there is no timely objection from the creditor. According to the court, the undue hardship determination is a self-executing requirement that should prevent confirmation even absent objection or appearance by the creditor.

Complete text (56 pages) of decision by U.S. District Court (N.D. Texas) holding that under its Student Handbook policy prohibiting disruptive activities, defendant college district may prohibit the handing out of leaflets in classrooms and hallways by students advocating for the right to carry concealed weapons on campus. The court goes on to hold, however, that under such policy defendant college district may not prohibit students participating in an “empty holster” protest from wearing empty holsters in classrooms and hallways, or in public forum areas on campus such as streets, sidewalks, and outdoor common areas, based on a mere expectation that such expressive speech will cause a disruption. Finally, the court also holds that defendant college district’s policy prohibiting the cosponsorship of events by off-campus persons or organizations is overly broad and therefore violates the First Amendment.

Link to briefs filed in the case of Christian Legal Society v. Martinez, currently pending before the U.S. Supreme Court and scheduled for oral argument in April, including brief in support of respondent by the American Council on Education (ACE) and thirteen additional higher education associations, brief in support of respondents filed by the American Association of Law Schools, and brief in support of respondents filed by state universities and state university systems.

Complete text (29 pages) of final rule issued by the U.S. Department of the Interior and published in the March 15 Federal Register. The rule implements provisions of the Native American Graves Protection and Repatriation Act (NAGPRA) by adding procedures for the disposition of culturally unidentifiable Native American human remains in the possession or control of museums or Federal agencies.

Complete text (37 pages) of decision by Illinois Supreme Court affirming the denial of a state charitable real property tax exemption to non-profit 501(c)(3) religious hospital. In support of its decision, the court cites, inter alia, the fact that for the tax year in question, only 302 of an estimated 110,000 patients were granted reductions in their bills, with the amount of such reductions equal to 0.723% of total revenues. The court additionally asserts that there was little to distinguish the way in which the hospital provided charity from the way in which a for-profit institution would write off bad debt.

Complete text (39 pages) of decision by U.S. District Court (S.D. North Carolina) holding that plaintiff faculty member’s inclusion of his columns, publications and presentations in support of his application for promotion to full professor rendered them expressions made pursuant to his official duties as a faculty member, and therefore not subject to First Amendment protection, pursuant to the U.S. Supreme Court decision in Garcetti v. Ceballos. The court holds that the columns, publications and presentations therefore cannot support plaintiff’s claim that his promotion was denied in retaliation for First Amendment-protected speech.

Complete text (4 pages) of letter sent by Virginia Attorney General to the Presidents, Rectors and Visitors of Virginia Public Colleges and Universities advising that the law and public policy of Virginia prohibit a college or university from including sexual orientation, gender identity, gender expression or like classifications as a protected class within its non-discrimination policy.

Complete text (3 pages) of letter to the Federal Communications Commission (FCC) from representatives of 11 higher education associations supporting adoption by the FCC of net neutrality policies and outlining proposed principles to be embodied in such policies. The letter is in response to a proposed rule on preserving the open internet and broadband industry practices issued by the FCC on November 30.

Complete text (7 pages) of proposed rule issued by the Equal Employment Opportunity Commission and published in the February 18 Federal Register. The proposed rule seeks to define the term “reasonable factor other than age” as used in the EEOC’s proposed rule issued March 31, 2008 revising rules under the Age Discrimination in Employment Act to reflect the holding of the U.S. Supreme Court in Smith v. City of Jackson, 544 U.S. 228 (2005). Specifically, the March 2008 proposed rule states that an employment practice that has an adverse impact on individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a "reasonable factor other than age". (RFOA). The proposed rule issued February 19 defines RFOA and lists factors to be used in determining whether an employment practice cited as being a RFOA is reasonable. A useful summary of the proposed rule is here.

Complete text (16 pages) of report issued February 23 by the U.S. Government Accountability Office (GAO). The report is issued pursuant to a study mandated by the Higher Education Opportunity Act (HEOA) on the Higher Education Act ban on incentive compensation to individuals based on their success in enrolling students or securing financial aid for students.

Complete text (80 pages) of report issued February 23 by the U.S. Government Accountability Office (GAO). The report, mandated by the Higher Education Opportunity Act, describes the size and change in value of college and university endowments over the last 20 years, restrictions on endowment funds, and institutional distribution of endowment assets. The report also includes detailed information on the endowments of 10 institutions selected as case studies for the report.

Complete text of final rules issued by the Federal Reserve System and published in the February 22 Federal Register. The rules implement numerous provisions of the Credit Card Accountability Responsibility and Disclosure Act of 2009 (the Act) that are effective on February 22, 2010, including Sec. 304 of the Act requiring public disclosure of agreements between card issuers and institutions of higher education for the purpose of marketing a credit card, requiring the submission by creditors of annual reports to the Federal Reserve Board regarding college credit card agreements, and prohibiting the offering of certain inducements to college students to apply for a credit card or plan covered by the rule. The final rule covers many issues unrelated to student credit cards. NACUBO has prepared a summary that focuses only on the sections of the rule dealing with student credit cards.

Complete text of amici briefs filed by the Association of American Medical Colleges (AAMC); the American Council on Education (ACE); the Association of American Universities (AAU) and the Association of Public and Land-Grant Universities (APLU); by the American Hospital Association (AHA); by several institutions of higher education; and by the Board of Trustees of the University of Illinois in support of the Petition for Certiorari to the U.S. Supreme Court filed by the Mayo Foundation for Medical Education and Research, the Mayo Clinic and the Regents of the University of Minnesota seeking review of the decision of the U.S. Eighth Circuit Court of Appeals upholding revised Treasury Department regulations stating that the services of full-time employees are not incident to and for the purpose of pursuing a course of study and therefore wages paid to full-time medical residents were subject to FICA taxes.

Complete text (8 pages) of paper prepared by the Library Copyright Alliance, the American Library Association (ALA), the Association of Research Libraries (ARL) and the Association of College and Research Libraries (ACRL). The paper analyzes the application of fair use, the Teach Act and Sec. 110(2) of the Copyright Act to the streaming of entire films to remote, non-classroom locations for education purposes.

Complete text (15 pages) of proposed rule issued by the Food and Drug Administration (FDA) and published in the February 19 Federal Register. The proposed rule would require sponsors (see footnote 1 of proposed rule for discussion of the scope of the term “sponsor” as used in the rule) to report information indicating that any person has, or may have, engaged in the falsification of data in the course of reporting study results, or in the course of proposing, designing, performing, recording, supervising, or reviewing studies that involve human subjects or animal subjects conducted by or on behalf of a sponsor or relied on by a sponsor. Reporting would be required no more than 45 calendar days after the sponsor becomes aware of the falsification. Comments are due by May 20, 2010.

Complete text (21 pages) of proposed guidance issued by the U.S. Office of Management and Budget (OMB) and published in the February 18 Federal Register. The proposed guidance would implement section 872 of the Duncan Hunter National Defense Authorization Act which requires establishment of a government-wide data system to contain specified information related to the integrity and performance of certain entities awarded federal grants and contracts, and use of the information by federal officials making grant or contract awards. The proposed guidance would apply to federal grants; a proposed rule to implement section 872 with respect to federal contracts was issued on September 3, 2009. Under the proposed guidance, appropriate federal officials would be required to report on terminations of grant awards due to material failures to comply with award terms and conditions, administrative agreements with entities to resolve suspension or debarment proceedings; and findings that entities were not qualified to receive federal grants. Grant recipients with cumulative total value of grant awards greater than $10,000,000 would be required to provide information about certain civil, criminal, and administrative proceedings that reached final disposition within the most recent 5-year period and were connected with the award or performance of a Federal or State grant, and to report semi-annually thereafter to maintain data currency. The proposed guidance would also require applicants, recipients and first tier sub-recipients to obtain Dun & Bradstreet Data Universal Numbering system numbers and to register in the Central Contractor Registration. Comments on the proposed guidance are due on or before April 19.

Complete text (17 pages) of decision by U.S. District Court (N.D. California) denying motions by defendants National Collegiate Athletics Association (NCAA) and Collegiate Licensing Company (CLC) for dismissal of plaintiff O’Bannon’s class action complaint (73 pages) that their licensing of the images of former college athletes to various third parties, while excluding the former players from exercising licensing rights, violates Section 1 of the Sherman Antitrust Act. The court grants dismissal of other claims in the complaint.

Link to Internal Revenue Service website with links to updated and finalized Form 990 and Schedules for filing for tax year 2010-2011. The IRS has also supplied a summary of the significant changes to Form 990 and its accompanying schedules.

Complete text (31 pages) of Statement of Interest filed by the U.S. Department of Justice in response to the amended settlement agreement (173 pages) of the class action litigation between the Authors Guild and the American Association of Publishers and Google, Inc. The Department asserts that the amended settlement agreement still incorporates elements that exceed the proper bounds of a class action settlement and elements that raise antitrust concerns.

Complete text (25 pages) of decision by U.S. Ninth Circuit Court of Appeals holding that plaintiffs in an action alleging failure by defendant university to effectively accommodate the interests and abilities of female athletes under Title IX were not required to provide defendant a pre-litigation notice and opportunity to cure the alleged violation before filing suit.

Complete text (3 pages) of Notice of Regulatory Guidance issued by the Federal Motor Carrier Safety Administration (FMCSA), U.S. Department of Transportation and published in the January 27 Federal Register. The guidance clarifies that FMCSA’s current safety regulations prohibit “texting” by drivers of commercial motor vehicles (as defined at 49 C.F.R. 390.5, reproduced on page 1 of the Notice) in interstate commerce. According to the Notice, FMCSA recently completed a study that concluded that the odds of being involved in a “safety-critical event” is 23.2 times greater for drivers who are texting while driving than for those who do not.

Complete text (14 pages) of decision by U.S. Court of Appeals for the Federal Circuit affirming the decision of the Trademark Trial and Appeals Board refusing registration of the University of South Carolina’s Carolina Baseball logo mark and granting the University of Southern California’s motion for summary judgment on the University of South Carolina’s counterclaim for cancellation of a trademark registration held by the University of Southern California.

Complete text (19 pages) of Final Consent Judgment in settlement of civil complaint brought against defendant institution by the Attorney General of New Jersey alleging that the institution, its president and board chairman mismanaged the institution’s finances and endowments and excessively compensated its president. The New Jersey Attorney General issued a press release summarizing the consent judgment.

Complete text of Notice issued by the Employment Benefits Security Administration, U.S. Department of Labor and published in the January 15 Federal Register. The Notice announces the availability of amended model health care continuation notices to conform with the extension of the COBRA subsidy pursuant to provisions in the Fiscal Year 2010 Defense Appropriations Act (H.R. 3326), which extended the eligibility period for COBRA premium reductions to February 28, 2010 and the maximum period for receiving the subsidy from nine to fifteen months.

Complete text (9 pages) of document entitled “Responding to FOIA Requests: Facts and Resources” issued by the National Association for Biomedical Research (NABR) in cooperation with the Society for Neuroscience (SfN) and the Federation of American Societies for Experimental Biology (FASEB). The document provides information about the federal Freedom of Information Act (FOIA) and state open records acts along with suggestions to assist researchers and university administrators and advisors when responding to records requests, particularly those from animal rights organizations.

Link to American Council on Education (ACE) web page with resources on the Honest Leadership and Open Government Act of 2007 (HLOGA).

Complete text (25 pages) of decision by U.S. District Court (E.D. Michigan) granting plaintiff’s motion for summary judgment and finding that defendant university violated Sec. 504 of the Rehabilitation Act of 1973 by not accommodating plaintiff’s cognitive impairment disability by waiving its policy limiting on-campus housing to students enrolled in degree-granting programs. The court enjoins defendants to provide plaintiff on-campus housing.

Complete text (39 pages) of decision by U.S. District Court (W.D. Virginia) granting defendants’ motion for dismissal in suit brought challenging the legality of the “Three-Part Test” embodied in the Department of Education’s 1979 Policy Interpretation on Title IX and Intercollegiate Athletics. The court also rejects various state and federal law claims brought by plaintiffs challenging the legality of the elimination by defendant James Madison University of seven men’s sports and three women’s sports in order to satisfy the first prong of the Three-Part test.

Complete text (4 pages) of guidance letter issued by the Family Policy Compliance Office (FPCO). The letter describes Census Bureau planned procedures for campus visits by representatives of the Census Bureau conducting Group Quarters or group housing data collection for the American Community Survey (ACS). Unlike the decennial census, the ACS is an on-going monthly survey of housing units or Group Quarters. The letter further describes what student information may be disclosed to Census Bureau representatives conducting the ACS, and mirrors the FPCO’s earlier guidance letter regarding disclosures to Bureau representatives conducting the 2010 Census.

Complete text (19 pages) of decision by New Jersey Court of Appeals reversing decision of the trial court and holding that defendant university’s failure to enforce its alcohol policy and plaintiff-decedent’s violation of the alcohol policy did not negate plaintiff-decedent’s status as a beneficiary of defendant university’s charitable works, and therefore defendant university is entitled to immunity under the New Jersey Charitable Immunity Act.

Complete text (7 pages) of proposed rule issued by the Food and Drug Administration (FDA) and published in the December 29 Federal Register. The proposed rule would update the FDA’s informed consent regulations to require that informed consent documents and processes for certain clinical investigations (described in Sec. IV on page 68752) include a statement that clinical trial information for such investigations has been or will be submitted for inclusion in the clinical trial registry databank. Comments on the proposed rule are due by March 1, 2010.

Complete text of statement by Assistant Secretary of the Employee Benefits Security Administration (EBSA) on the extension of the COBRA subsidy for an additional two months pursuant to provisions in the Fiscal Year 2010 Defense Appropriations Act (H.R. 3326). The eligibility period for COBRA premium reductions is extended to February 28, 2010 and the maximum period for receiving the subsidy is extended from nine to fifteen months.

Complete text (56 pages) of report prepared by the Association of Governing Boards of Universities and Colleges (AGB) and the National Association of College and University Business Officers (NACUBO). The report is an analysis of responses provided to the Internal Revenue Service (IRS) 2008 College and University Compliance Questionnaire.

Complete text of press release issued by the Advisory Committee on Student Financial Assistance (ACSFA) seeking comments on all regulations promulgated pursuant to the Higher Education Act. The Committee is conducting a congressionally mandated study to determine which regulations are duplicative, no longer necessary, inconsistent with other federal regulations or overly burdensome. Earlier the Committee sought comments strictly on regulations related to Title IV of the Higher Education Act. The committee now seeks comments on all Higher Education Act regulations. Comments may be submitted via the Committee’s public comment web page.

Complete text (6 pages) of Supplemental Notice sent on December 14 to authors, publishers and other rightsholders advising of material changes to the original settlement agreement contained in the amended settlement agreement (173 pages) of the class action litigation between the Authors Guild and the American Association of Publishers and Google preliminarily approved by the U.S. District Court (S.D.N.Y.) on November 19. The Supplemental Notice includes an appendix entitled “Your Rights Under the Amended Settlement Agreement” including deadlines for opting out of the Amended Settlement Agreement or filing objections to the terms of the Amended Settlement. Detailed information on the class litigation including an updated FAQ is available on the Google Book Settlement web page. A final settlement/fairness hearing before the court is scheduled for February 18.

Complete text (11 pages) of a Memorandum for the Heads of Executive Departments and Agencies entitled “Open Government Directive” issued December 8 by the Office of Management and Budget (OMB). The directive is intended to implement the Presidential Memorandum on Transparency and Open Government issued January 21, 2009. Among other items, the Directive requires executive departments and agencies to take prompt steps to expand access to information by making it available on-line in open formats and creates a presumption in favor of openness. Such steps include timely publication of information on-line in an open format that can be retrieved, downloaded, indexed and searched via commonly used web applications. The Directive states that to the extent practical, agencies should proactively use modern technology to disseminate useful information, rather than waiting for FOIA requests. Each agency is directed to create within 60 days an Open Government Webpage to serve as a gateway for agency activities related to the Open Government Directive. Each agency is also directed to develop and publish on its Open Government Webpage an Open Government Plan describing how it will improve transparency and integrate public participation and collaboration into its activities. The Directive includes a detailed description of the required components of agency Open Government Plans.

Complete text (19 pages) of decision by Oklahoma Supreme Court holding that the taking of land by the Appellee Board of Regents in order to construct an athletic village was for a valid public purpose, and that the landowners did not have standing to challenge the constitutional composition of the Board of Regents.

Complete text (10 pages) of decision by U.S. District Court (N.D. California) holding that the U.S. Supreme Court decision in Garcetti v. Ceballos does not apply to plaintiff faculty member’s speech occurring during classroom instruction. The court therefore denies defendant community college officials’ motion for summary judgment on plaintiff’s claims of retaliation and discrimination based on her exercise of her First Amendment rights with respect to her classroom speech. The court holds that plaintiff’s classroom speech is subject to First Amendment protection unless defendants can show their action in terminating her employment based on that speech was reasonably related to legitimate pedagogical concerns.

Complete text (18 pages) of report issued on December 1 by the Congressional Research Service (CRS). The report summarizes the development of registration and reporting requirements for lobbyists since passage of the Lobbying Disclosure Act in 1995, including various restrictions introduced by the current administration regarding lobbying with respect to Emergency Economic Stabilization Act funds and American Recovery and Reinvestment Act (ARRA) funds.

Complete text (65 pages) of decision by New York Supreme Court, Appellate Division, rejecting the use of eminent domain powers by defendant New York State Urban Development Corporation to acquire a tract of land for the development of a new campus by a private institution of higher education.

Complete text (16 pages) of decision by New York Supreme Court, Appellate Division, holding that defendant institution’s denial of admission to plaintiff’s son to institution’s College of Arts and Sciences did not violate the terms of a settlement of tenure litigation with plaintiff, a former faculty member. The settlement agreement provided that plaintiff’s children would be provided tuition remission upon admission to the institution and that their admission would be on the same basis and courtesies afforded other tenured faculty members in plaintiff’s school. The court notes that permitting a trial on plaintiff’s breach of contract action would be contrary to the principle of judicial deference to academic decision making and the faculty’s professional judgment.

Complete text (9 pages) of comments filed by the American Council on Education (ACE) and the College and University Professional Association for Human Resources (CUPA-HR) in response to proposed regulations issued by the Equal Employment Opportunity Commission (EEOC) implementing the ADA Amendments Act of 2008.

Complete text of statement released by the board of directors of the Association of Governing Boards of Universities and Colleges (AGB). The statement sets forth 12 principles college and university boards should consider in formulating and administering their board conflict of interest policies.

Complete text (47 pages) of report by the Office of Inspector General (OIG), U.S. Department of Health and Human Services (HHS). Based on a survey of 41 institutions reporting conflicts of interest to the National Institutes of Health (NIH) in 2006, OIG concludes that vulnerabilities exist in grantee institutions' identification, management and oversight of financial conflicts of interest, and sets forth nine recommendations for NIH in order to ensure that research conflicts are managed appropriately.

Complete text (261 pages) of final rule on mandatory reporting of greenhouse gases (GHG), issued by the U.S. Environmental Protection Agency (EPA) and published in the October 30 Federal Register. Subpart C, beginning on page 261, is the likely relevant source category for most colleges and universities that could be subject to the Rule's reporting requirements. Institutions with an aggregate maximum rated heat input capacity from all stationary fuel combustion units in excess of 30 million British Thermal Units (BTUs) per hour, and with annual CO2 emissions of 25,000 metric tons or more, are subject to the rule's recordkeeping and reporting requirements. The rule is effective December 29, 2009, with initial reports for calendear year 2010 due on March 31, 2011. Covered institutions must also have a written GHG monitoring plan in place by April 1, 2010.

Link to U.S. Department of Labor website with Questions and Answers on Pandemic Flu and the Fair Labor Standards Act (FLSA) (5 pages) and the Family Medical Leave Act (FMLA) (7 pages). The Occupational Safety and Health Administration (OSHA) has also created a website on Workplace Safety and H1N1 with guidance for workers and employers.

Complete text (173 pages) of revised proposed settlement of Google Books class action litigation filed with the U.S. District Court (S.D. New York). The revised settlement agreement seeks to address concerns raised by the U.S. Department of Justice in its Statement of Interest regarding the initial proposed class settlement agreement. The revised agreement includes a proposed Supplemental Notice to Authors, Publishers and Other Book Rightsholders summarizing the changes to the original settlement agreement. The parties have also supplied a short summary and FAQ about the revised agreement.

Complete text (10 pages) of decision by World Intellectual Property Organization (WIPO) administrative panel ordering the transfer of the domain name emoryhealthcare.com to the complainant university. Respondent is the listed owner of more than 2,400 domain names. The panel finds that the disputed domain name is confusingly similar to complainant university's trademarks, that respondent has no rights or legitimate interests in the disputed domain name, and that the respondent registered the domain name in bad faith.

Complete text (22 pages) of report issued by the American Association of University Professors (AAUP) reviewing the impact of the 2006 U.S. Supreme Court decision in Garcetti v. Ceballos and subsequent lower court decisions on faculty speech related to matters of institutional governance. The report calls upon faculty at both public and private institutions to develop policy statements that explicitly incorporate protection for faculty speech on institutional academic matters and governance.

Complete text (15 pages) of report prepared by the Congressional Research Service (CRS).

Link to Office of Management and Budget (OMB) website with Frequently Asked Questions (FAQ) about the American Recovery and Reinvestment Act of 2009 (ARRA), including FAQs re required recipient reporting on the use of ARRA funds.

Complete text (13 pages) of Order by U.S. District Court (N.D. Texas) granting in part and denying in part plaintiff students' motion for a temporary restraining order (TRO) barring application of defendant institution's regulations on student demonstrations to plaintiffs' participation in an "empty holster" protest on defendant's campuses. The court finds that plaintiffs have a substantial likelihood of success on their claim that the institution's student demonstration regulations, the permit system used to administer those regulations, and the relegation of student speech to designated free-speech zones are an impermissible prior restraint on speech. The court enjoins defendants from prohibiting plaintiffs or other students from wearing empty holsters, wearing t-shirts depicting empty holsters, discussing handgun regulations, and distributing pamphlets on handgun regulation in traditional public forum areas on defendant's campus, including public streets, sidewalks and common or park areas. The court however declines to issue a TRO barring application of defendant institution's student demonstration regulations to plaintiffs' wearing empty holsters in classrooms or adjacent hallways.

Complete text (4 pages) of decision by U.S. District Court (Oregon) adopting the opinion of the magistrate judge and rejecting plaintiff student's First Amendment challenge to the application of defendant's code of student conduct to plaintiff's comments made in an on-line class discussion board.

Link to Internal Revenue Service (IRS) website with tips and FAQ pertaining to new Form 990 reporting requirements on reporting transactions with interested persons on Schedule L of Form 990.

Complete text (48 pages) of updated IRS Publication 4221-PC. The updated compliance guide includes information on the redesigned Form 990.

Complete text (29 pages) of decision by U.S. District Court holding that an artist's depiction in fine art paintings and prints of football players in the uniform and colors of plaintiff university does not infringe on trademarks held by the university.

Complete text of Draft Guidance issued November 6 by the Office for Human Research Protections (OHRP). The draft guidance responds to recommendations made by the Secretary's Advisory Committee on Human Research Protections (SACHRP). OHRP also issued a Notice in the November 6 Federal register describing its response to the SACHRP recommendations. Comments on the draft guidance are due by January 5, 2010.

Complete text of Draft Guidance issued November 6 by the Office for Human Research Protections (OHRP). The draft guidance responds to recommendations made by the Secretary's Advisory Committee on Human Research Protections (SACHRP). OHRP also issued a Notice in the November 6 Federal Register describing its response to the SACHRP recommendations. Comments on the draft guidance are due by January 5, 2010.

Complete text (4 pages) of amendments made to Family Medical Leave Act (FMLA) by Sec. 565 the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647), signed into law by the President on October 28. The FMLA amendments extend military caregiver leave to family members of veterans for up to 5 years following military service for service-related injuries incurred or aggravated while on active duty. The amendments also extend eligibility for "qualified exigency" leave to family members of active duty service members.

Complete text (9 pages) of interim final rule issued by the U.S. Department of Health and Human Services and published in the October 30 Federal Register. The interim final rule implements the enhanced civil and monetary penalties for violations of the HIPAA Administrative Simplification rules (including the HIPAA Privacy and Security rules) contained in the Health Information Technology for Economic and Clinical Health (HITECH) Act. The interim final rule applies to violations of the HIPAA rules occurring on or after February 18, 2009 and in accordance with the provisions of the HITECH Act establishes categories of violations that reflect increasing levels of culpability and establishes tiers of increasing penalty amounts. The interim final rule is effective November 30, 2009. Comments on the interim final rule are due no later than December 29, 2009.

Complete text of press release issued October 30 by the Federal Trade Commission (FTC) announcing another delay in FTC enforcement of the Commission's Identity Theft Red Flags Rule. The FTC had earlier delayed enforcement until November 1. The latest announcement delays enforcement until June 1, 2010.

Complete text (23 pages) of final regulations issued by the Department of Education and published in the October 27 Federal Register. The regulations implement certain provisions of the Higher Education Opportunity Act of 2008 (HEOA) relating to accreditation and recognition of accrediting agencies, including provisions relating to distance education and correspondence education, expanded due process requirements for accrediting agencies, changes to agency disclosure requirements, and the requirement that accrediting agencies confirm that institutions have transfer of credit policies. The regulations are effective July 1, 2010.

Complete text (69 pages) of final rules issued by the Office of Postsecondary Education, U.S. Department of Education and published in the October 29 Federal Register. The Final Rules cover a wide variety of general and non-loan programmatic issues based on provisions of the Higher Education Opportunity Act of 2008, including requirements concerning copyright and P2P File Sharing; hate-crime reporting; emergency response, evacuation, timely warning and emergency notification; missing student notification policies and fire safety reporting. The regulations are effective July 1, 2010.

Complete text (44 pages) of final regulations issued by the U.S. Department of Education and published in the October 28 Federal Register. The regulations implement certain provisions of the Higher Education Opportunity Act of 2008 (HEOA), including, inter alia, provisions relating the definition of preferred lender arrangements and private education loans, preferred lender arrangement and private education loan disclosures, annual reporting regarding preferred lender arrangements, development of a code of conduct with respect to preferred lender arrangements and Federal Family Education Loan (FFEL) Program loans and private education loans, and other institutional and lender disclosure obligations. The regulations are effective July 1, 2010.

Complete text (38 pages) of decision by U.S. Second Circuit Court of Appeals holding that non-renewal of employment contract of university employee with term appointment constitutes an adverse employment action for purposes of establishing a prima facie case of gender and age discrimination under Title VII and the ADEA.

Complete text (58 pages) of report issued by the National Postsecondary Education Cooperative (NPEC). The stated purpose of the report is to help colleges and universities identify and meet their obligation to disclose information as required by the Higher Education Act (HEA), as amended by the HEOA of 2008. It includes suggestions to help institutions make HEA-required disclosures more accessible and understandable to consumers and more comparable across institutions.

Complete text (7 pages) of decision by Florida District Court of Appeals holding that, before the law school at a public institution could revoke his admission because of its alleged procurement through fraudulent activity, a law school student was entitled to written notice of the charges against him and a hearing.

Complete text (210 pages) of proposed rules issued by the Federal Reserve System and published in the October 21 Federal Register. The proposed rules implement numerous provisions of the Credit Card Accountability Responsibility and Disclosure Act of 2009 (the Act) that are effective on February 22, 2010, including Sec. 304 of the Act requiring public disclosure of agreements between card issuers and institutions of higher education for the purpose of marketing a credit card, requiring the submission by creditors of annual reports to the Federal Reserve Board regarding college credit card agreements, and prohibiting the offering of certain inducements to college students to apply for a credit card or plan covered by the rule. The proposed rules re college credit cards are here; the section analysis of the proposed college credit card rules are here, and the official staff interpretations of the proposed college credit card rules are here. Comments on the proposed rules are due by November 20.

Complete text (39 pages) of decision by U.S. District Court (N.D. Ga.) granting defendant accrediting agency's motion for summary judgment and rejecting the claim by plaintiff institution that the accrediting agency's withdrawal of the institution's accreditation on the ground of failure to demonstrate financial stability violated common law due process. Plaintiff institution asserted that the agency's accreditation process was fundamentally unfair, alleging that the agency failed to follow its own procedures, did not provide adequate notice of its standards of accreditation and did not provide the institution a meaningful opportunity to be heard.

Complete text (14 pages) of decision by U.S. District Court (E.D. Mich.) finding that a for-profit copying business that maintained master copies of coursepacks supplied to the business by university professors, which it then provided to students for purposes of copying them on the copying machines maintained on the business's premises, was engaged in copyright infringement.

Complete text (34 pages) of Interim Final Rules issued by the U.S. Department of Labor, U.S. Department of Health and Human Services and the U.S Department of the Treasury, and published in the October 7 Federal Register, implementing sections 101 through 103 of the (GINA) which prohibit group health plans and health insurance issuers in group and individual markets from discriminating based on genetic information, and from collecting such information. The rules are effective for group health plans and group health insurance issuers for plan years beginning on or after December 7, 2009. Comments on the interim final rules are due on or before January 5, 2010. In addition, the Department of Health and Human Services, Office for Civil Rights published a proposed rule in the October 7 Federal Register to modify the HIPAA Privacy Rule in order to implement the provisions of GINA regarding the privacy and confidentiality of genetic information. Comments on the proposed rule are due no later than December 7, 2009. The Equal Employment Opportunity Commission issued proposed rules under GINA on March 2. The Office of Human Research Protections has issued Guidance regarding GINA for Investigators and Institutional Review Boards.

Complete text (6 pages) of Final Rule issued by the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement and published in the October 7 Federal Register. The final rule rescinds the Department's October 2008 Final Rule on Safe Harbor Procedures for Employers Who Receive a No-Match Letter. The October 2008 final rule established a safe harbor for employers who followed the safe harbor procedures set forth in the rule after receipt of a "no match letter" from the Social Security Administration (SSA) or "Notice of Suspect Documents" letters from DHS. (SSA sends "no match" letters to some (though not all) employers when the combination of an employee's name and social security number on an employer's W-2 earnings reports do not match SSA records. DHS sends similar letters if after review of an employer's I-9 forms it cannot confirm that an immigration status document or employment authorization document referenced on the I-9 has been issued to the applicable employee.) Employers who followed the safe harbor procedures were shielded from the possibility of a finding of "constructive knowledge" of employment of a person ineligible to work in the U.S. and the resulting liability.

Complete text (17 pages) of decision by Supreme Court of Pennsylvania holding unconstitutional the Pennsylvania Trademark Counterfeiting Statute. The Court finds the statute facially overbroad under the First Amendment because it makes it unlawful to reproduce any trademark for any use, including constitutionally protected activity, without the permission of the intellectual property owner.

Complete text (45 pages) of September 1, 2009 Congressional Research Service (CRS) report entitled "The 2009 Influenza Pandemic: Selected Legal Issues." The report covers legal issues related to Emergency Measures, Vaccinations, Civil Rights, Liability Issues, and Employment Issues.

Complete text (14 pages) of April 13, 2009 Congressional Research Service (CRS) report entitled "Legal Analysis of Religioius Exemptions for Photo Identification Requirements."

Complete text (16 pages) of opinion by Florida District Court of Appeals holding that the transcript of a hearing of the NCAA Committee on Infractions, and the Committee's response to an institution's appeal of the imposition of sanctions by the Committee, were public records subject to disclosure under the Florida state constitution and public records act, even though the records were never in the physical custody of the institution or its agents. The documents in question had been made available to attorneys representing the institution for viewing only via a secure website. The public records section of the Florida constitution covers "any public record made or received in connection with the official business of any public body, officer or employee of the state, or persons acting on their behalf". The court holds that the term "received" encompasses a public agent examining a document residing on a remote computer.

Complete text of Notice published in the September 25 Federal Register advising federal contractors that have received awards funded in whole or in part by the American Recovery and Reinvestment Act of 2009 on how to use the FederalReporting.gov web site to meet their quarterly reporting requirements on their use of the awarded federal funds.

Complete text (36 pages) of report issued by the Congressional Research Service (CRS) providing an overview of actions taken by the World Health Organization (WHO), federal agencies and state and local governments in response to the outbreak of H1N1 influenza.  CRS has also issued a report (11 pages) on Mandatory Vaccinations:  Precedent and Current Laws.

Complete text (119 pages) of report prepared by the Congressional Research Service responding to requests from members of Congress for an in-depth examination of the reporting and disclosure requirements applicable to institutions of higher education that participate in Title IV federal student aid programs.  The report identifies and describes the reporting and disclosure requirements under Title I and IV of the Higher Education Act that applied to institutions prior to the enactment of the Higher Education Opportunity Act of 2008 (HEOA) and those that were amended or newly established by HEOA.  The report includes 21 Tables summarizing the reporting requirements discussed in individual sections of the report.

Complete text (4 pages) of guidance letter issued by the Family Policy Compliance Office (FPCO). The letter describes Census Bureau planned procedures for census taker visits to colleges and universities and what student information may be disclosed to census takers by school officials under FERPA. See also this document issued by the Census Bureau earlier this year describing census procedures for college campuses.

Complete text (20 pages) of proposed rules issued by the Equal Employment Opportunity Commission (EEOC) and published in the September 23 Federal Register. The proposed rules revise the EEOC's current ADA regulations and interpretive guidance to implement changes to the Americans with Disabilities Act (ADA) enacted by the ADA Amendments Act of 2008. The EEOC has also issued Questions and Answers to accompany the proposed rules. Comments are due by November 23.

Complete text (7 pages) of opinion by U.S. District Court (C.D. CA) denying defendants' motion for reconsideration of the court's earlier ruling granting a preliminary injunction barring enforcement or publicity of the Los Angeles Community College District Sexual Harassment Policy on the basis of its overbreadth under the First Amendment. The court rejects defendants' argument that the language contained in the enjoined policy is found in federal and state statutes and regulations, and distinguishes earlier caselaw as either arising in the employment (rather than student) context or not involving First Amendment challenges.

Complete text (14 pages) of proposed rule issued by U.S. Department of State and published in the September 22 Federal Register. The proposed rule revises and updates the procedures for designated Program sponsors and addresses overall Program administration under the Exchange Visitor Program. The proposed rule also proposes new requirements regarding applications for designation and redesignation, a change in the required amount of health insurance coverage, the identification of an Employer Identification Number (EIN) and Dun & Bradstreet numbers by sponsors and third party entities, the collection of employment authorization information and validation of the SEVIS record on an exchange visitor’s accompanying spouse and dependents, and criminal background checks on all Responsible Officers and Alternate Responsible Officers. Comments on the proposed rule are due by November 23.

Complete text of report entitled "Road to Implementation: Enterprise Risk Management for Colleges and Universities" by Arthur Gallagher Risk Management Services, Inc. See in particular pp. 28-29 re addressing potential litigation risks arising from enterprise risk management documents.

Complete text (22 pages) of guide issued by U.S. Citizenship and Immigration Services. The guide provides information for federal contractors required to participate in the E-Verify system pursuant to Executive Order 13,465 and its implementing regulations. The requirement became effective for covered federal contracts and solicitations entered into or submitted on or after September 8. See in particular Section 4.0 of the guidance on pages 14 - 15 for options for colleges and universities that are party to covered federal contracts.

Complete text (74 pages) of report issued by the U.S. Government Accountability Office (GAO) reviewing efforts by the Department of Labor and the Internal Revenue Service to enforce proper classification of workers as employees or independent contractors. The report includes recommendations for enhanced enforcement of worker classification, improved outreach to workers and improved interagency cooperation.

Complete text (50 pages) of decision by U.S. District Court (E.D. Wis.) allowing a discrimination case brought by a former dean at defendant institution to proceed to trial. Plaintiff had been dismissed from his position as dean due to alleged of misuse of school funds, and brought suit against Board of Regents of defendant institution and four individual administrators alleging discrimination and retaliation claims under Title VII. He also brought suit for equal protection, due process, First Amendment, and conspiracy violations under §1983. The court dismissed plaintiff’s due process and conspiracy claims, but denied defendants’ motion for summary judgment on plaintiff's, First Amendment, Title VII and Equal Protection claims.

Link to Internal Revenue Service (IRS) website with tips and FAQ pertaining to the new Form 990 reporting requirements regarding foreign activities of exempt organizations, including how passive and related organization investments should be reported on Schedule F of Form 990.

Complete text of opinion by Hawaii state Circuit Court enjoining defendant Governor of the state of Hawaii and other named defendants from unilaterally implementing a three-day-per-month furlough plan, previously announced by an Executive Order issued by the Governor, with respect to unionized executive branch employees including unionized employees of the University of Hawaii. The court finds the Governor's executive order in violation of Article XIII, Section 2 of the Hawaii state constitution granting collective bargaining rights to public employees of the state of Hawaii.

Complete text (20 pages) of Guidance issued by the U.S. Department of Education. See in particular Part III, Federal Student Aid (FSA) and other postsecondary education issues (pp. 7 - 14) and Part V, Family Educational Right and Privacy Act (FERPA) issues (pp. 18-19).

Complete text (24 pages) of opinion by U.S. District Court (S.D. MD.) upholding the legality of Executive Order 13,465 requiring certain federal contractors to agree to use an electronic employment eligibility verification system (later designated as the Department of Homeland Security E-Verify system) to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract, and the legality of the Department's implementing regulations. Per a notice published in the June 5 Federal Register the requirement will become effective for covered federal contracts and solicitations entered into or submitted on or after September 8.

Complete text (32 pages) of interim final rule issued by the Office of Civil Rights (OCR), U.S. Department of Health and Human Services (HHS) and published in the August 24 Federal Register. Sec. 13402 of the Health Information Technology for Economic and Clinical Heath (HITECH) Act requires HIPAA covered entities and their business associates to provide notification in the case of breaches of unsecured protected health information (PHI) that compromise the security or privacy of PHI. "Unsecured protected health information" is PHI that is not secured through a technology or methodology specified in the Guidance issued by HHS and published in the April 27 Federal Register (an updated version of the Guidance is included in the background information accompanying the interim final rule). The interim final rule provides definitions of the terms "breach" and "compromises the security or privacy of protected health information" and sets forth the time, method and content for providing notification of breaches to individuals, the media and the Secretary of HHS. The interim final rule is effective September 23, 2009. Comments on the interim final rule are due by October 23, 2009.

Complete text (85 pages) of proposed rules issued by the Office of Postsecondary Education, U.S. Department of Education and published in the August 21 Federal Register. The Notice covers a wide variety of general and non-loan programmatic issues based on provisions of the Higher Education Opportunity Act of 2008, including requirements concerning copyright and P2P File Sharing (proposed regulations 668.14(b)(30)(i) (pp. 42429-42430) and 668.43(a)(10) (pp.42438-42439); hate-crime reporting (proposed regulation 668.46(c)(3) (p. 42440); emergency response, evacuation, timely warning and emergency notification (proposed regulations 668.46(a), 668.46 (b)(13), 668.46(e)(3), 668.46(g) (p. 42440); missing student notification policies (proposed regulations 668.46(b), (h)(pp. 42440-42441); and fire safety reporting (proposed regulations 668.49(a)(b)(c) (page 42441). Comments on the proposed regulations are due September 21.

Complete text of Notice issued by the National Science Foundation (NSF) and published in the August 20 Federal Register. In the Notice, NSF announces that effective January 4, 2010 it will require that at the time of proposal submission for NSF research funding, proposing institutions must certify that they have a plan to provide appropriate training and oversight in the responsible and ethical conduct of research to undergraduates, graduate students and postdoctoral researchers whose participation in the research will be supported by NSF funding.

Link to Centers for Disease Control (CDC) website providing guidance for institutions of higher education in responding to influenza outbreaks, including H1N1 influenza outbreaks, during the 2009-2010 academic year. The website includes links to a communications toolkit for institutions of higher education and a technical report providing background on the CDC guidance.

Complete text (5 pages) of notice published by U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security and published in the August 19 Federal Register. The notice announces the proposed rescission of the Department's October 2008 Final Rule on Safe Harbor Procedures for Employers Who Receive a No-Match Letter. The October 2008 final rule established a safe harbor for employers who followed the safe harbor procedures set forth in the rule after receipt of "no match letters" from the Social Security Administration (SSA) or "Notice of Suspect Documents" letters from DHS. (SSA sends "no match" letters to some (though not all) employers when the combination of an employee's name and social security number on an employer's W-2 earnings reports do not match SSA records. DHS sends similar letters if after review of an employer's I-9 forms it cannot confirm that an immigration status document or employment authorization document referenced on the I-9 has been issued to the applicable employee.) Employers who followed the safe harbor procedures were shielded from the possibility of a finding of "constructive knowledge" of employment of a person ineligible to work in the U.S. and the resulting liability. The October 2008 final rule and a predecessor rule were challenged in litigation filed by the AFL-CIO. In its notice of proposed rescission, DHS states that it has determined that improvements in the Department's E-Verify program, along with other DHS programs, provide better tools for employers to reduce incidences of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees. Comments on the proposed rescission are due by September 18.

Complete text (43 pages) of decision by U.S. District Court (W.D. TX) upholding the admissions policies of defendant university. Plaintiffs alleged that the admissions policies, which permit the consideration of race and ethnicity as a factor in admissions decisions, failed to comply with the requirements for race-conscious admissions policies set forth by the U.S. Supreme Court in it 2003 decision in Grutter v. Bollinger. The court holds that the university was not required to define in numerical terms the critical mass of minority students needed to achieve the educational benefits of a diverse student body in order to demonstrate a compelling interest justifying adoption of race-conscious policies to achieve those benefits. The court suggests that Grutter would preclude such a definition. The court also rejects plaintiff's argument that demonstration of a compelling interest in achieving the educational benefits of a diverse student body precludes a policy that primarily benefits specific minority groups or does not give equal preference to every minority group. The court also rejects each of plaintiffs' arguments that defendants' policies were not narrowly tailored to achieve the educational benefits of a diverse student body.

Complete text of notice posted to the National Association of College and University Business Officers (NACUBO) website describing new rules affecting international automated clearinghouse transactions (IATs) taking effect on September 18. The requirements are designed to facilitate screening of international payments required by the Office of Foreign Assets Control (OFAC).

Complete text (65 pages) of final rule issued by the Board of Governors of the Federal Reserve System and published in the August 14 Federal Register. The final rule implements the requirements in Title X of the Higher Education Opportunity Act (HEOA) concerning disclosures and timing applicable to creditors making private education loans. Under the final rule [Sec. 226.46(b)(5)], a "private education loan" does not include an extension of credit in which the covered educational institution is the creditor if the term of the extension of credit is 90 days or less; or if an interest rate will not be applied to the credit balance and the term of the extension of credit is one year or less. The rule is effective September 14, 2008; however compliance is optional until February 14, 2009.

Complete text (4 pages) of decision of Faifax County, Virginia, Circuit Court upholding the constitutionality of a George Mason University regulation prohibiting the carrying of weapons in designated campus buildings or while attending sporting, entertainment or educational events.

Complete text (15 pages) of Notice issued by the Copyright Office and published in the August 12 Federal Register. The Notice includes the complete text of settlement agreements negotiated under the Webcaster Settlement Act of 2009 by SoundExchange for the reproduction and performance of sound recordings by certain webcasters, including an agreement with College Broadcasters, Inc. (see Appendix B beginning on page 40616). College Broadcasters, Inc. has posted a summary of the agreement to their website.

Complete text (37 pages) of proposed regulations issued by the Department of Education and published in the August 6 Federal Register. The proposed regulations would implement certain provisions of the Higher Education Opportunity Act of 2008 (HEOA) relating to accreditation and recognition of accrediting agencies, including provisions relating to distance education and correspondence education, expanded due process requirements for accrediting agencies, changes to agency disclosure requirements, and the requirement that accrediting agencies confirm that institutions have transfer of credit policies. Comments on the proposed regulations are due by September 8.

Complete text (47 pages) of report and recommendations issued by the State of Illinois Admissions Review Commission. The Commission was established to review allegations of undue influence by public officials, trustees, donors and other prominent individuals on the admissions process at the University of Illinois.

Link to Internal Revenue Service (IRS) website with tips and FAQ pertaining to Form 990 reporting of arrangements between a filing organization and its related organizations on Schedule R of Form 990.

Link to Internal Revenue Service (IRS) website providing information for donors and charitable organizations regarding tax-deductible non-cash donations to qualifying charities. The new Form 990 includes Schedule M for the reporting of non-cash contributions, and additional information and reporting requirements may be required to substantiate charitable contributions of donated property.

Complete text (38 pages) of report detailing results of a survey conducted by the Campus Safety and Security Project , a multi-association collaboration led by the National Association of College and University Business Officers (NACUBO) designed to assist institutions in finding new ways to deal with the need for increased campus safety and security. The survey was sent to all NACUBO member institutions and covered 9 areas relating to campus safety and security, including emergency preparedness, ability to respond to threats, preventative measures, physical infrastructure, communications and systems infrastructure, strategies for behavioral/mental health issues, business continuity issues, budget and funding issues and emergency management. NACUA is a cooperating association with the Campus Safety and Security Project.

Complete text (12 pages) of decision by U.S. District Court (W.D. KY) ordering reinstatement of plaintiff as a student in defendant university’s School of Nursing. Defendant had dismissed plaintiff from the School of Nursing as a result of a posting by plaintiff to a blog on her MySpace page, which defendant alleged violated the School of Nursing Honor Code and a School of Nursing confidentiality agreement signed by plaintiff. Plaintiff sought reinstatement alleging her dismissal violated her First Amendment and Due Process rights under the U.S. Constitution. The court however declines to rule on constitutional grounds, instead finding that plaintiff’s blog posting did not violate either the Honor Code or the confidentiality agreement as contended by the university, and therefore orders her reinstatement.

Complete text (5 pages) of Frequently Asked Questions (FAQ) document issued by the Employment and Standards Administration, Wage Hour Division of the U.S. Department of Labor. The document addresses questions that have arisen when public and private employers require employees to take furloughs or to take reductions in pay and/or hours worked.

Complete text (15 pages) of Notice of Proposed Rulemaking (NPRM) issued by the Office of Labor-Management Standards, U.S. Department of Labor and published in the August 3 Federal Register. The NPRM would implement Executive Order 13496 issued by the President on January 30, 2009. The NPRM sets forth the text (see Appendix A of Part 471 beginning on page 38498 of the NPRM) of the notice of employee rights under the National Labor Relations Act (NLRA) that all federal contractors or subcontractors (including second tier subcontractors) with employees in the private sector would be required to post in their workplaces. The NPRM also includes provisions regarding enforcement, compliance review and complaint procedures. Comments on the proposed rule are due September 2, 2009.

Complete text (17 pages) of decision by Indiana Court of Appeals reversing the decision of the trial court and finding the prior settlement agreement with tenured professor was unambiguous as to the possible bases for future termination as a tenured professor at the university and that the university did not breach the settlement agreement when it terminated plaintiff/appellee for violation of the University’s Code of Ethics.

Complete text of press release issued July 29 by the Federal Trade Commission (FTC) announcing a further delay in FTC enforcement of the Commission's Identity Theft Red Flags Rule. The FTC had earlier delayed enforcement until August 1. In its Notice the FTC said it will delay enforcement until November 1, 2009 to give creditors and financial institutions more time to review FTC guidance and develop and implement written Identity Theft Prevention Programs. The Commission said it will redouble its efforts to educate covered entities about compliance with the Rule and ease compliance by providing additional resources and guidance to clarify whether entities are covered by the Rule and what they must do to comply.

Complete text (64 pages) of proposed regulations issued by the U.S. Department of Education and published in the July 28 Federal Register. The proposed regulations would implement certain provisions of the Higher Education Opportunity Act of 2008 (HEOA), including, inter alia, provisions relating the definition of preferred lender arrangements and private education loans, preferred lender arrangement and private education loan disclosures, annual reporting regarding preferred lender arrangements, development of a code of conduct with respect to preferred lender arrangements and Federal Family Education Loan (FFEL) Program loans and private education loans, and other institutional and lender disclosure obligations. Comments on the proposed regulations are due by August 27.

Complete text (7 pages) of opinion by Texas Attorney General stating that the Attorney General cannot predict with certainty that a Texas federal or state court would find that provisions of the Texas Education Code allowing undocumented resident alien students to qualify for in-state tuition rates at state colleges and universities were pre-empted by federal law as embodied in Sec. 505 ot the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. Sec. 1623) or by the Equal Protection Clause of the U.S. Constitution.

Complete text (8 pages) of decision by U.S. Court of Appeals (DC Circuit) affirming the decision of the District Court and holding that plaintiff Young America's Foundation lacked standing to pursue litigation seeking to compel the Secretary of Defense to enforce the Solomon Amendment and withhold funds from the University of California Santa-Cruz (UCSC) because of its alleged failure to provide military recruiters with access to campus equal to that provided to other employers. According to the court, plaintiff failed to allege facts that would allow the court to infer that UCSC could do more than it had already done to ensure equal access for military recruiters.

Complete text (14 pages) of document issued by Equal Employment Opportunity Commission (EEOC) providing answers to questions employees may have if they are offered a severance agreement in exchange for a waiver of their actual or potential discrimination claims.

Complete text (19 pages) of decision by Tennessee Court of Appeals reversing the decision of the Chancery Court and holding that the Georgia O'Keefe Museum lacked standing to participate in an action concerning the donation by the artist Georgia O'Keefe (in her capacity as executrix of the estate of Alfred Stieglitz) to Fisk University of photographs and art from the Alfred Stieglitz collection and also the additional donation by Ms. O'Keefe of four of her own paintings. The court further holds that these donations were made pursuant to a general, rather than specific, charitable intent, and therefore the univeristy may be entitled to cy pres relief from the conditions imposed on the gifts. The court remands the case to the Chancery Court for a determination of whether the change of circumstances subsequent to the gifts render compliance with the conditions impossible or impracticable, and if so, whether the modification to the conditions proposed by the university most closely approximates the donors charitable intent.

Complete text (10 pages) of decision by U.S. District Court (C.D. California) finding the Sexual Harassment Policy of the Los Angeles Community College District to be unconstitutionally overbroad and thus in violation of the First Amendment. The court grants a preliminary injunction barring enforcement or publicity of the policy and ordering its removal from the District and the Los Angeles Community College websites.

Complete text (27 pages) of decision by U.S. District Court, (MD.) granting defendant university officials' motion for summary judgment and upholding their actions enforcing the university's former facilties use policy by requiring, based on safety and security considerations, alternate campus location for student organization exhibit.

Complete text (10 pages) of decision by Nebraska Court of Appeals affirming conviction of university student for disturbing the peace for sending insulting emails to university professor. The court, citing Chaplinsky v. New Hampshire [315 U.S. 568 (1942)], finds that the content of the emails is not constitutionally protected speech because it consisted of speech described in Chaplinsky as "the lewd and obscene, the profane, the libelous, and the insulting or "fighting words"--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

Complete text (42 pages) of decision by Colorado state District Court vacating the earlier jury verdict in favor of plaintiff Churchill on his claim of First Amendment retaliation in the termination of his employment as a tenured faculty member at the University of Colorado, and granting defendants quasi-judicial immunity as a matter of law with respect to such claim. The court further denies plaintiff's motion for reinstatement to his tenured faculty position and for front pay as an alternative remedy to reinstatement.

Complete text (6 pages) of article co-authored by NACUA member A. L. (Lorry) Spitzer and published in the July 6, 2009 issue of Tax Notes. The article describes a 10 step approach to implementing a post-issuance tax exempt bond compliance program, and points out that beginning with the 2008 tax year, 501(c)(3) organizations issuing tax exempt bonds will have enhanced compliance reporting obligations on Schedule K of the new Form 990, with even more detailed Schedule K reporting obligations commencing with the 2009 tax year.

Complete text (5 pages) of final guidelines issued by the National Institutes of Health (NIH) governing NIH-funded stem cell research and published in the July 7 Federal Register. The guidelines are effective July 7.

Complete text (32 pages) of report prepared by the Association of Governing Boards of Universities and Colleges (AGB) and United Educators entitled "The State of Enterprise Risk Management at Colleges and Universities Today".

Complete text (9 pages) of settlement agreement in Freedom of Information Act suit brought by the Humane Society of the United States (HSUS) seeking disclosure by the U.S. Department of Agriculture (USDA) of annual reports filed by research institutions under the Animal Welfare Act containing information on animal experiments conducted without anesthetics or other pain or distress relief measures. As part of the agreement, USDA will post the required annual reports to its website on or before March 31 of the calendar year following the year in which the annual reports are required to be submitted to USDA. The settlement agreement must be approved by the U.S. District Court for the District of Columbia.

Complete text of report adopted on June 15 by the American Medical Association (AMA) House of Delegates providing guidance to physicians on their ethical responsibilities in the case of a breach of patient electronic health information.

Complete text of article authored William Jarvis (Opening Plenary Sesssion speaker at last week's NACUA Annual Conference) and John Griswold of the CommonFund Institute. The article summarizes the legal standards that govern spending from underwater endowment funds under the Uniform Prudent Management of Institutional Funds Act (UPMIFA), analyzes the corresponding accounting treatment of such spending under Financial Accounting Standards Board (FASB) Staff Position No. 117-1 (Endowments of Not-for-Profit Organizations: Net Classification of Funds Subject to an Enacted Version of UPMIFA and Enhanced Disclosures from All Endowment Funds) and points out considerations for readers of financial statements.

Complete text of technical assistance document issued by the U.S. Equal Employment Opportunity Commission (EEOC). The document focuses on disability-related inquiries and medical examinations and includes a sample ADA-compliant pre-pandemic employee survey.

Complete text (93 pages) of U.S. Supreme Court decision reversing the decision of U.S. 2nd Circuit Court of Appeals and holding that under Title VII, before an employer can engage in intentional discrimination to avoid or remedy an asserted unintentional disparate impact of an employer action, the employer must have a strong basis in evidence, beyond the demonstration of a prima facie case, to believe it will be subject to disparate impact liability if it fails to take race-concious discriminatory action. In the case before it, the Court holds that the defendant/appellees city administrators did not have a strong basis in evidence of potential disparate impact liability and could not justify discarding the results of its examination for promotion of city firefighters based solely on the racial disparity of those results.

Complete text (29 pages) of decision by U.S. Supreme Court holding that a plaintiff bringing an ADEA disparate treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Link to Centers for Disease Control (CDC) website with interim guidance for institutions of higher education in Response to Human Infections with Novel Influenza A (H1N1) Virus. The American College Health Association (ACHA) also has a webpage devoted to the H1N1 Virus. Last week the U.S. Secretaries of Education and Health and Human Services sent a letter to educators asking for review of pandemic readiness policies. The American Council on Education (ACE) has issued a memo on pandemic flu preparedness.

Complete text (32 pages) of monograph issued by the American Council on Education (ACE) and authored by NACUA member Ann Franke.

Complete text (6 pages) of Final Guidance issued by the Office of Management and Budget (OMB) and published in the June 15 Federal Register. According to the Guidance, each federal agency that awards grants or cooperative agreements or makes other financial assistance awards that are subject to the Drug-Free Workplace Act of 1988 must issue a regulation consistent with the Guidance. Agencies must submit proposed regulations to OMB for review within nine months and issue final regulations within eighteen months of the Guidance. The Guidance is issued as administrative simplification and purports to make no substantive change to federal policies and procedures under the Drug-Free Workplace Act.

Complete text (15 pages) of decision by U.S. Eighth Circuit Court of Appeals reversing the District Court and upholding revised Treasury Department regulations stating that the services of full-time employees are not incident to and for the purpose of pursuing a course of study and therefore wages paid to full-time medical residents were subject to FICA taxes.

Complete text (12 pages) of comments filed by the Association of American Universities (AAU) and the Association of American Medical Colleges (AAMC) in response to the Notice of Proposed Rule Making (NPRM) issued on May 8 by the National Institutes of Health (NIH). In the NPRM, NIH sought comments on proposals to expand the scope and regulation of the disclosure of interests held by Investigators; to revise the definition of "significant financial interest"; to more closely regulate the identification and management of conflicts of interest by institutions; to expand enforcement options regarding non-compliance with conflict of interest requirements; require independent confirmation of institutional compliance and/or require training of Investigators on conflicts of interest; to expand institutional reporting requirements concerning conflicts of interest; and to expand the existing regulations to encompass institutional as well as individual conflicts of interest.

Complete text of Internal Revenue Service (IRS) Notice 2009-46 setting forth various proposals to simplify the procedures under which employers substantiate their employees' business-related use of employer provided cell phones. Under current Internal Revenue Code sections and regulations, in order for employers to deduct the costs of employer-provided cell phones used by employees, they must substantiate the amount of each separate expenditure with respect to an employer-provided cell phone, the amount of time entailed in each business use, the amount of total use, the date of each expenditure or use, and the business purpose of each expenditure or use. In its Notice, the IRS proposes several possible simplified substantiation methods. Comments in response to the Notice are due by September 4, 2009.

Complete text of amendment to the final rule requiring certain federal contractors to participate in the Department of Homeland Security E-Verify system, published in the June 5 Federal Register. The amendment delays the effective date of the final rule to September 8, 2009. An earlier action had delayed the effective date to June 30, 2009.

Complete text (8 pages) of Consent Agreement and Order issued by Pennsylvania Department of Banking, Bureau of Compliance, Investigation and Licensing setting forth settlement with PaymentsFirst, Inc. et al., with respect to which the Department had earlier issued a Cease and Desist Order and wherein the Department had also found that PaymentsFirst, Inc. was engaged in the business of money transmission in Pennsylvania when not licensed to do so, specifically operation of a system in which PaymentsFirst, Inc. collected money from colleges and universities for payment of athletic contest officials. The Consent Agreement and Order directs PaymentsFirst, Inc., among other items, to establish a procedure for addressing complaints by education institutions, and to within 60 days of the effective date of the Order reimburse or settle or make a good faith effort to settle with each educational institution that has outstanding amounts owed to game officials as a result of PaymentFirst, Inc. unlicensed activity.

Complete text (5 pages) of comments by the Assocation of American Universities (AAU) on the draft guidelines for federally funded embryonic stem cell research issued by the National Institutes of Health (NIH) on April 17.

Link to website created by the Department of Education's Advisory Committee on Student Financial Assistance soliciting comments on federal regulations of higher education that are duplicative, no longer necessary, inconsistent with other federal regulations, and/or overly burdensome. The website is part of the Committee's study on federal regulation of higher education. The committee has issued a background paper describing the study. The Committee is intially limiting its study to regulations related to programs under Title IV of the Higher Education Act. The Committee is not discussing possible regulations to be issued under the 2008 HEOA amendments to the Higher Education Act but instead is focusing on regulations currently in place. However, the Committee has been charged with monitoring the negotiated rulemaking process for HEOA and providing a description of the resulting regulations and how these may impact higher education. According to the Committee website, comments will ultimately be used to identify regulations that can be streamlined and/or eliminated. Priority will be given to those comments received on or before July 15.

Complete text (22 pages) of decision by Washington Court of Appeals rejecting claims brought by tenured faculty member disciplined for verbally abusive behavior toward students, staff and other faculty members. The court holds that discipline of appellant faculty member did not violate his employment contract or his constitutional free speech rights and that the Faculty Code of Ethics, upon which his discipline was predicated, was not unconstitutionally vague. The court however remands for a new hearing because it finds that the university's action in closing appellant's first disciplinary hearing to the press and the public violated the Washington Administrative Procedures Act.

Complete text (7 pages) of decision by Pennsylvania State Labor Relations Board holding that the Pennsylvania State System of Higher Education (PASSHE) committed an unfair labor practice when it banned smoking on the entire campuses of its fourteen universities, including outdoor areas. PASSHE contended that the ban was required by the Pennsylvania Clean Indoor Air Act. The Labor Relations Board holds that the Act does not apply to outdoor areas and therefore PASSHE was obligated to bargain with petitioner union prior to implementing a smoking ban in outdoor campus areas, since absent a statutory requirement smoking restrictions are a mandatory subject of bargaining.

Link to Internal Revenue Service (IRS) website with tips and FAQs relating to Form 990 Part VI relating to governance reporting on the 2008 Form 990.

Complete text of Internal Revenue Service publication providing information for tax-exempt organizations that end their operations, either through shutting down, transferring their assets or merging with another tax-exempt organization, on how to inform the IRS of such actions.

Complete text of proposed rule issued by the Federal Communications Commission (FCC) seeking comments on whether to modify the ownership report filed by noncommercial educational (NCE) licensees of AM, FM and TV broadcast stations to obtain gender, race and ethnicity data. Comments are due by June 26, 2009 and reply comments by July 13, 2009.

Complete text (10 pages) of opinion of U.S. District Court (Mont.) adopting the findings and recommendations of the Magistrate Judge and granting the motion for summary judgment by defendant law school administrators and student bar association executive board members in action seeking declarative and injunctive relief to grant recognized student organization status and funding for the law school chapter of the Christian Legal Society (CLS). The court concludes that the University of Montana's Law School's non-discrimination and open membership requirements are viewpoint neutral and were not intended to single out or limit plaintiff's rights to free expression, and finds that plaintiff CLS's membership requirements violate the law school's non-discrimination and open membership policies.

Complete text (15 pages) of Congressional Research Service (CRS) report on the fair use issues in the Google Library Project and the proposed settlement of the litigation initiated against Google by the Authors Guild and the American Association of Publishers. The deadline for opting out of the settlement has been extended to September 4.

Complete text (15 pages) of Fraud Enforcement and Recovery Act of 2009, signed into law by the President on May 20. Section 4 of the Act expands the scope of liability under the Civil False Claims Act to include payments of government funds through intermediaries and provides the government with enhanced investigative powers.

Complete text (84 pages) of H.R. 627, the "Credit Card Accountability, Responsibility and Disclosure Act of 2009" as passed by the U.S. Senate on May 19 and the U.S. House of Representatives on May 20 and sent to the President for signature. Section 304 of the Act amends the Truth in Lending Act to require institutions of higher education to publicly disclose any contract or other agreement made with a card issuer or creditor for purposes of marketing a credit card, prohibits card issuers or creditors from offering certain inducements to college students to apply for credit cards, and includes a statement of the sense of the Congress regarding college and university policies relating to credit cards. Section 305 of the Act amends the Truth in Lending Act to require disclosure by creditors of all business, marketing and promotional agreements and college affinity card agreements with institutions of higher education, or with alumni organizations or foundations affiliated with or related to such institutions. The Act is effective nine months from the date of enactment.

Complete text (26 pages) of paper entitled "Tax Preferences and College Sports" prepared by the Congressional Budget Office. The report concludes that athletic departments at Division 1 schools derive a larger share of their revenue from commercial activities than do other parts of their universities, but does not recommend ending tax preferences currently available to university athletic departments.

Link to to website created by the Consortium for North American Higher Education Collaboration (CONAHEC) with information and resources on H1N1 Flu and international education, including updated infection data, examples of institutional responses, travel advisories and links to additional websites with H1N1 flu information related to international higher education.

Complete text (60 pages) of updated monograph published by the American Council on Education (ACE) in cooperation with NACUA and the National Association of College and University Business Officers (NACUBO).

Complete text (42 pages) of decision by U.S. Supreme Court holding that the court's earlier decision in Bell Atlantic Corp. v. Twombly [550 U.S. 544 (2007)] construing the pleading requirements under Federal Rule of Civil Procedure 8(a)(2) is not limited to antitrust suits but applies to all civil actions in federal courts, including discrimination suits. The court holds that appellee Iqbal's pleadings do not comply with Rule 8 under Twombly, citing allegations in the complaint the court deems conclusory and therefore not entitled to an assumption of truth under Rule 8; and citing additional factual allegations in the complaint that the court rules could not plausibly support an inference of purposeful discrimination, as required under Rule 8.

Complete text of Cease and Desist Order issued by Pennsylvania Department of Banking, Bureau of Compliance, Investigation and Licensing finding that PaymentsFirst, Inc. was engaged in the business of money transmission in Pennsylvania when not licensed to do so and ordering PaymentsFirst, Inc. to reimburse named colleges and universities for monies received by PaymentsFirst, Inc. but not distributed to athletic game officials.

Complete text of decision by U.S. Fourth Circuit Court of Appeals affirming the judgment of the District Court and rejecting claims by fraternity chapter and individual fraternity members that sanctions imposed by university violated their Due Process and First Amendment rights.

Complete text (17 pages) of decision by Minnesota Court of Appeals holding that a faculty dissertation advisor does not have a per se fiduciary relationship with a Ph.D. candidate, nor can such a relationship arise as a de facto matter out of a long and trusting relationship between the parties when the candidate should have known the faculty member had an independent obligation to the academic institution that paralleled or superceded any obligation to the student.

Complete text (4 pages) of Notice of Proposed Rulemaking issued by the National Institutes of Health (NIH) and published in the May 8 Federal Register. The Notice seeks comments on whether NIH should amend its current regulations addressing conflicts of interest in research funded by the Public Health Service (PHS). Specifically NIH seeks comment on proposals to expand the scope and regulation of the disclosure of interests held by Investigators; to revise the definition of "significant financial interest"; to more closely regulate the identification and management of conflicts of interest by institutions; to expand enforcement options regarding non-compliance with conflict of interest requirements, require independent confirmation of institutional compliance and/or require training of Investigators on conflicts of interest; to expand institutional reporting requirements concerning conflicts of interest; and to expand the existing regulations to encompass institutional as well as individual conflicts of interest. Comments are due by July 7.

Complete text (5 pages) of decision by state of Colorado District Court dismissing plaintiffs' complaint and holding that the Colorado Concealed Carry Act does not pre-empt or prohibit the Board of Regents from adopting a policy prohibiting the carrying of firearms on campus, and also holding that the Colorado state constitution does not grant a right to carry a concealed weapon on the university's campus.

Complete text of order of U.S. District Court extending the deadline for opting out of the proposed Google Book Settlement from May 4 to September 4.

Complete texts of H.R. 1788, the False Claims Act Correction Act of 2009, (23 pages), as passed by the House Judiciary Committee on April 28 (for Association of American Universities [AAU] comments on H.R. 1788, click here); and of S. 386, the Fraud Enforcement and Recovery Act of 2009, (42 pages) as passed by the Senate on April 28 (See Sec. 4 of S. 386, entitled "Clarifications to False Claims Act to Reflect Original Intent of the Law"). (For Association of American Universities [AAU] comment on S. 386, click here).

Link to complete text of Federal Trade Commission (FTC) Notice of 3-month delay in the enforcement of its Identity Theft Red Flags Rule. The rule had been scheduled to take effect on May 1. In its Notice the FTC said it will delay enforcement of the Red Flags Rule until August 1, 2009, to give covered entities more time to develop and implement written identity theft prevention programs.

Link to Internal Revenue Service (IRS) website with tips and FAQs relating to form 990 Part VII and Schedule J executive compensation reporting on the 2008 Form 990.

Complete text (13 pages) of April 13 report issued by the Congressional Research Service (CRS) providing a legal analysis of religious exemptions for photo identification requirements.

Complete text (10 pages) of decision by U.S. District Court (S.D. Mississippi) holding, inter alia, that the denial of tenure is a "compensation decision" or "other practice" affecting compensation within the terms of the Lilly Ledbetter Fair Pay Act of 2009.

Link to Centers for Disease Control (CDC) website with information on Swine Influenza, including Key Facts, FAQ, Health Advisory, and Travel Precaution (concerning Mexico).

Complete text of decision by Kansas Supreme Court holding that an allegation that a decedent breached a contract to place his entire estate in a testamentary trust for the benefit of his adult children requires that a claim against the estate be timely filed. No such claim having been made, the assets of a trust created by the decedent and distributed to or scheduled to be distributed to the designated trust beneficiaries could not be made subject to a constructive trust for the benefit of his children.

Complete text of Guidance issued by U.S. Department of Health and Human Services (HHS) specifying technologies and methodologies that render HIPAA protected health information (PHI) unusable, unreadable or indecipherable to unauthorized individuals. The Guidance is issued pursuant to Sec. 13402 of the Health Information Technology for Economic and Clinical Heath (HITECH) Act which requires HIPAA covered entities and their business associates to provide notification in the case of breaches of unsecured protected health information. "Unsecured protected health information" is PHI that is not secured through a technology or methodology specified in the Guidance. The Guidance is effective immediately but will apply to breaches occurring 30 days after HHS publishes interim final regulations on the notification required by Sec. 13402. HHS solicits comments on the Guidance and also on any issues pertinent to the development of its interim final regulations for breach notification, including four specific issues identified by HHS. Comments are due by May 21.

Complete text of document prepared by U.S. Census Bureau describing procedures for counting students living in college and university residence halls and fraternity and sorority houses. The document states that residents of these facilities will be enumerated between April 1 and May 15, 2010. The enumeration will be preceded by Advance Canvassing (occurring now) and then by Group Quarters Validation (scheduled for the fall of 2009).

Complete text (15 pages) of decision of the Supreme Court of Virginia, reversing the decision of the Court of Appeals and reinstating the decision of the hearing officer. The hearing officer had concluded that plaintiff/appellee had violated the institution's Anti-Discrimination and Harassment Prevention Policy and upheld his termination. Plaintiff appealed to the local Circuit Court pursuant to the state grievance procedure for state agency employees on the ground that the hearing officer's decision was contrary to law. The Circuit Court reversed the decision of the hearing officer and the Court of Appeals affirmed. In reversing the Court of Appeals, the Supreme Court held that plaintiff had failed to identify any applicable state constitutional provision, statute, regulation or court precedent that contradicted by the hearing officer's decision. The court notes that while the Circuit Court and Court of Appeals relied on federal caselaw under Title VII, federal decisions addressing sexual harassment were not germane to the issue presented.

Complete text (11 pages) of decision by U.S. Seventh Circuit Court of Appeals holding that refusal by a university to provide a certified transcript to a student following the discharge of her student indebtedness by a bankruptcy court violated the discharge injunction under Sec. 524(a) of the Bankruptcy Code, because such refusal constituted an act to collect her unpaid debt.

Complete text (26 pages) of decision by U.S. Fourth Circuit Court of Appeals in copyright infringement suit brought by high school students against the operator of Turnitin.com, a plagiarism detection service used by high schools and institutions of higher education. Plaintiff-Appellants were required by their school districts to submit their written works to Turnitin.com or they would receive no credit for the assigned works. Plaintiff-Appellants alleged that defendant's action in archiving their submitted works for use in subsequent plagiarism detection searches infringed their copyrights in those works. The court, affirming the District Court, holds that defendant-appellee' use of plaintiffs' copyrighted works constitutes fair use.

Complete text of amendment to the final rule requiring certain federal contractors to participate in the Department of Homeland Security E-Verify system, published in the April 17 Federal Register. The amendment delays the effective date of the final rule to June 30, 2009. An earlier action had delayed the effective date to May 21, 2009.

Complete text (68 pages) of preliminary ruling by U.S. Patent and Trademark Office rejecting patent claims by BlackBoard, Inc.concerning its course management and transactions software. The patents remain in effect until the re-examination process is completed. Blackboard, Inc. and Desire2Learn, Inc. have been engaged in litigation over alleged infringement of the patents by Desire2Learn, and BlackBoard recently filed new patent claims with respect to the software.

Complete text of draft guidelines issued by the National Institutes of Health (NIH) on April 17. The draft Guidelines would allow NIH funding for research using human embryonic stem cells that were derived from embryos created by in vitro fertilization (IVF) for reproductive purposes and were no longer needed for that purpose. The guidelines would continue to allow funding for human stem cell research using adult stem cells and induced pluripotent stem cells. Comments are due May 26.

Complete text of joint statement issued by the American Association of University Professors (AAUP) and the Canadian Association of University Teachers (CAUT). The statement notes that basic principles of academic freedom, collegial governance and non-discrimination may be threatened in overseas programs located in countries marked by authoritarian rule. It calls on all international initiatives undertaken by North American colleges and universities to respect the UNESCO Recommendation Concerning the Status of Higher Education Teaching Personnel.

Complete text (20 pages) of statement issued by the Association of Governing Boards (AGB). The statement follows earlier AGB documents issued in 2004 and 2007 and addresses eight areas of board engagement on intercollegiate athletics, including general oversight responsibilities, presidential leadership, athletics department mission, fiscal responsibility, academics and student-athlete welfare, compliance, personnel, and communications. The statement also includes an illustrative policy on intercollegiate athletics for boards and presidents.

Complete text (7 pages) of Guidance for Investigators and Institutional Review Boards (IRBs) issued by the Office for Human Research Protections (OHRP), U.S. Department of Health and Human Services. The Guidance discusses some of the implications of the Genetic Information Non-Discrimination Act of 2008 (GINA) for investigators who conduct, and IRBs that review, non-exempt human subjects research involving genetic testing or the collection of genetic information. According to the Guidance, IRBs should consider the provisons of GINA when assessing whether genetic research satisfies the criteria required for IRB approval of research. The Guidance also states that investigators and IRBs should consider whether and how the protections provided by GINA should be reflected in informed consent documents, and includes sample language that investigators and IRBs could consider including in such documents.

Complete text (10 pages) of Internal Revenue Service Notice 2009-26 providing guidance on the new Build America Bonds created by Sec. 1531 of Title I, Division B of the American Recovery and Reinvestment Act of 2009 (ARRA). Sec. 1531 added Sec. 54AA to the Internal Revenue Code authorizing state and local governments to issue two new types of taxable bonds with federal subsidies for a portion of their borrowing costs. "Tax Credit" bonds are subsidized by tax credits to the bond holders against the interest income. "Direct Payment" bonds are subsidized by direct government payments in the form of refundable tax credits to the issuer covering a portion of the interest paid on the bonds. "Tax Credit" bonds may be issued for any governmental purpose for which tax-exempt government bonds (excluding Sec. 141 private activity bonds) could be issued. "Direct Payment" bonds have the same restriction but in addition may only be used for "capital expenditures" and may not be used to re-finance capital expenditures. Both types of bonds must be issued before January 1, 2011 in order to qualify under new IRC Sec. 54AA. The Guidance provides information on the scope and application of refundable credit procedures for "Direct Payment" bonds, and on information reporting for both "Tax Credit" and "Direct Payment" Build America Bonds. The IRS has requested comments on all aspects of the direct payment procedures for Build America bonds. The Guidance is effective April 3, 2009.

Complete text of Interim Final Rules implementing provisions of the American Recovery and Reinvestment Act (ARRA) applicable to receipt and use of recovery act funds by federal contractors. The interim final rules, published in the March 31 Federal Register, address Whistleblower Protections; Buy American Requirements for Construction Material; Quarterly Reporting Requirements; and Agency Inspector General and Comptroller General Access to Contractor Records and Personnel. The rules are effective March 31. Comments on the rules are due by June 1.

Complete text (53 pages) of Guidance issued by the U.S. Department of Education providing information on and the Department's interpretation of statutory provisions governing the State Fiscal Stablization Fund Program authorized in Title XIV, Division A of the American Recovery and Reinvestment Act of 2009 (ARRA) (407 pages). The guidance includes application requirements for public institutions of higher education (p.17); and guidance on uses of funds by public institutions of higher education (page 26).

Complete text (42 pages) of decision by U.S. Supreme Court holding that a provision in a collective bargaining agreement that clearly and unmistakeably requires union members to arbitrate Age Discrimination in Employment Act (ADEA) claims is enforceable as a matter of federal law. The court distinguishes its earlier decision in Alexander v. Gardner-Denver Co. (415 U.S.36, 1974) and subsequent cases on the basis that those cases did not involve the enforceability of an agreement to arbitrate statutory claims but rather addressed the issue of whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims involving the same alleged acts of discrimination.

Complete text (27 pages) of Internal Revenue Service (IRS) Notice providing guidance on the COBRA premium subsidy provided under Title III, Sec. 3001, Division B of the American Recovery and Reinvestment Act of 2009 (ARRA). The U.S. Department of Labor recently issued Model Notices for use by employers in connection with the ARRA COBRA Continuation Coverage requirements.

Complete text (17 pages) of guide to the Identity Theft Red Flags Rule issued by the Federal Trade Commission (FTC). The Guide is available on the FTC Red Flags Rule website.

Complete text of March 20 White House Memorandum to the heads of executive departments and agencies requiring compliance with the terms of the memorandum in the commitment, obligation or expenditure of Recovery Act funds. The memorandum requires the development of merit-based selection criteria to guide department and agency discretion with respect to Recovery Act funds; prohibits the use of Recovery Act funds for imprudent projects as illustrated by Sec. 1604, Division A of the ARRA, and includes detailed guidelines and prohibitions concerning department and agency communication with registered lobbyists concerning particular projects, applications or applicants for funding under the Recovery Act.

Complete text of final rule issued by the Office of Labor-Management Standards, U.S. Department of Labor and published in the March 30 Federal Register. The final rule rescinds the implementing regulations issued under Executive Order 13201 (revoked by Executive Order dated January 30, 2009) requiring federal contractors to post notices of employee "Beck" rights concerning the payment of union dues or agency shop fees throughout their facilities and to include provisions regarding compliance with E.O. 13201 in all non-exempt subcontracts.

Complete text (20 pages) of decision by U.S. Third Circuit Court of Appeals affirming the decision of the district court and holding that professor's actions in advising a student in a disciplinary proceeding, and advising a student organization were part of his official duties and therefore did not constitute speech made as a citizen and subject to First Amendment protection. His speech in connection with those actions therefore could not support a First Amendment retaliation claim in his suit contesting his termination for altering student grades.

Complete text of statement (2 pages) on S. 515 (70 pages), the Proposed Patent Reform Act of 2009, issued by the Association of American Universities (AAU), the American Council on Education (ACE), the National Association of State Universities and Land Grant Colleges (NASULGC), the Association of American Medical Colleges (AAMC), the Association of University Technology Managers (AUTM), and the Council on Governmental Relations (COGR). The statement notes there are many aspects of the proposed legislation meriting support but that the provisions in the bill on determination of damages and post-grant procedures would impair the beneficial use of the patent system by universities.

Complete text of Notice published in the March 20 Federal Register by the Employee Benefits Security Administration, U.S. Department of Labor. The Notice announces the availability of Model Health Care Continuation Notices for use by plans or issuers in providing notices required under Division B, Title III, Section 3000 et seq. (Premium Assistance for COBRA Benefits) of the American Recovery and Reinvestment Act of 2009 (407 pages). The Notice describes the three types of Notices required under the Act (General Notice, Alternative Notice and Notice in Connection with Extended Election Periods) and how each should be used. As stated in the Notice, "[t]he Department of Labor (the Department) created these model notices to cover an array of situations in order to deal with the complexity of the various scenarios facing dislocated workers and their families. In an effort to ensure that the notices included all of the information required under ARRA while minimizing the burden imposed on group health plans and issuers, the Department created several packages. Each package is designed for a particular group of qualified beneficiaries and contains all of the information needed to satisfy the content requirements for ARRA’s notice provisions." The Model Notices are posted to the Department's website on COBRA Continuation Coverage Assistance under ARRA.

Complete text (2 pages) of decision by U.S. 9th Circuit Court of Appeals affirming the decision of the District Court holding that the Hastings College of Law, a public institution, can legally withhold recognition from a student organization that refuses to abide by the College's non-discrimination policy. The court, citing its earlier decision in Truth et al. v. Kent School District et al., notes that all student organizations at the College are subject to the College's open membership requirement as a condition of recognition and therefore the condition is both viewpoint neutral and reasonable. The decision in Truth is currently the subject of a petition for writ of certiorari to the U.S. Supreme Court.

Complete text (10 pages) of proposed H.R. 1409, the "Employee Free Choice Act of 2009" introduced in the the U.S. House of Representatives. The bill would require the National Labor Relations Board (NLRB) to certify a union without an election if it finds that a majority of the employees in a proposed collective bargaining unit have executed valid authorizations designating the union as their bargaining representative. The bill would also also require binding arbitration of a first labor contract if the parties are unable to reach an agreement within 90 days of commencing bargaining followed by a 30 day mediation period. The bill would also increase penalties on employers found to commit unfair labor practices. Parallel legislation (S. 560) was also introduced in the Senate.

Complete text (11 pages) of U.S. Court of Appeals for the D.C. Circuit decision reversing the National Labor Relations Board (NLRB) ruling that faculty members at Carroll College had the right to unionize. The appeals court applied a three-pronged test to determine whether Carroll College was entitled to a religious exemption from collective bargaining. The test is whether an institution describes itself as providing a religious education, is nonprofit, and is affiliated with a religious group. The court determined that Carroll College’s religious educational environment and affiliation with the Presbyterian church make it exempt from the NLRB’s jurisdiction.

Complete text of proposed rule issued by the Office of the Secretary, U.S. Department of Health and Human Services (HHS) and published in the March 10 Federal Register. The proposed rule would rescind the Department's Provider Conscience Regulation issued on December 19, 2008 and made effective January 20, 2009. The Provider Conscience regulation was designed to implement the provisions of several "provider conscience" statutes enacted by Congress over the past three decades. The final regulation clarified that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS; required recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights; and designated the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the regulation. Comments on the proposed rescission of the Provider Conscience regulation are due by April 9.

Complete text (6 pages) of advance notice of proposed rulemaking issued by the Office for Human Research Protections (OHRP) and published in the March 5 Federal Register. In its notice, OHRP seeks information and comments as to whether it should pursue a Notice of Proposed Rulemaking (NPRM) to enable OHRP to hold institutional review boards (IRBs) and IRB organizations (IORGs) directly accountable for meeting regulatory requirements for the protection of human subjects (45 CFR part 46). According to OHRP, direct enforcement applicable to IRBs and IORGs could address the reluctance of institutions to designate external IRBs in their Federalwide Assurance (FWA) or otherwise rely on cooperative IRB review arrangements. The advance notice of proposed rulemaking requests responses to seven issues relating to the possible issuance of a NPRM enabling OHRP to hold IRBs and IORGs accountable for regulatory compliance. Comments are due by June 3.

Link to Division B, Title III, Section 3000, et seq. (12 pages) of the American Recovery and Reinvestment Act of 2009 (407 pages) on premium assistance for COBRA benefits. The Employee Benefits Security Administration, U.S. Department of Labor has established a website on COBRA Continuation Coverage Assistance under ARRA, including the Conference Committee explanation of the ARRA COBRA continuation provisions; a COBRA Premium Reduction Fact Sheet and a FAQ for Employers. The Internal Revenue Service (IRS) has also established a website devoted to the COBRA Health Insurance Continuation Premium Subsidy.

Complete text (5 pages) of analysis by Congressional Research Service (CRS) of Section 803 of the Senate Economic Stimulus Bill (Section 14004 of the American Recovery and Reinvestment Act--pp.167-168) restricting the use of State Fiscal Stabilization Funds by institutions of higher education.

Complete text (16 pages) of proposed rule issued by the Equal Employment Opportunity Commission (EEOC) and published in the March 2 Federal Register. The proposed rule would implement Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) restricting the use, acquisition and disclosure of genetic information in the employment context. Comments on the proposed rule are due by May 1, 2009. The EEOC also posted background information to accompany the proposed rule.

Complete text (10 pages) of decision by U.S. Sixth Circuit Court of Appeals vacating the judgment of the District court and remanding the case for further proceedings to develop a factual record to determine whether or not medical residents at the Detroit Medical Center qualified for the student FICA exemption under IRC Sec. 3121(b)(10).

Complete text (31 pages) of decision by Iowa Supreme Court affirming lower court holding that fraternity had standing to sue the University of Iowa for use an illegally intercepted electronic communication in connection with a proceeding to impose discipline on the fraternity for hazing activities. The court also affirms the lower court holding that the recording at issue was used in violation of the statute, and that a university administrator could also be found personally liable for violation of the statute. The court reduces the award of damages and attorney fees to the fraternity and reverses the award of punitive damages against the administrator.

Complete text (407 pages) of act signed into law by the President on February 17. Additional resources: Conference Committee Report (210 pages); House Appropriations Committee summary of spending provisions; House Ways and Means Committee and Senate Finance Committee summary of tax provisions; chart depicting spending and tax provisions (from the Wall Street Journal); detailed list of spending provisions (from ProPublica; White House Office of Management and Budget (OMB) guidance to federal departments and agencies on implementing the Act (62 pages; see page 14 for reporting obligations of fund recipients); U.S. Department of Education documents: Overview; Department of Education program funding; Department of Education estimated state allocations by program; Association of American Universities (AAU) summary of higher education and research provisions. The following departments and agencies have also created web pages devoted to their planned expenditures of ARRA funds: Department of Defense, Department of Energy, NASA, National Institutes of Health, National Science Foundation, and the National Institute of Standards and Technology.

Complete text (6 pages) of memorandum issued by the U.S. Office of Government Ethics providing guidance on implementation and interpretation of the requirement of Executive Order 13490 that all full-time, non-career executive branch appointees agree not not to accept gifts from registered lobbyists or lobbying organizations for the duration of their service.

Complete text (8 pages) of unpublished decision by U.S. Sixth Circuit Court of Appeals holding that in case seeking injunctive relief under the ADA, the provisions of the ADA Amendments Act of 2008 should apply even though the case was filed before the Act's January 1, 2009 effective date. The court vacates the judgment of the District Court denying injunctive relief and remands for reconsideration under the provisions of the ADA Amendments Act.

Complete text (191 pages) of report by the Internal Revenue Service (IRS) summarizing its study of non-profit hospitals. The study was conducted to analyze the community benefit and executive compensation and reporting practices of tax-exempt hospitals. The IRS has also provided an Executive Summary (6 pages) of the report.

Complete text (31 pages) of decision by U.S. District Court (S.D. Cal.) granting motion for summary judgment by defendant California State University System in case challenging application of the system's rules for recognition of student organizations. Plaintiffs, four Christian student groups, alleged that defendant's policy requiring compliance with defendant's non-discrimination policy as a condition of gaining recognized student organization status violated their First Amendment rights. Among other items, the non-discrimination policy prohibits discrimination on the basis of religion and sexual orientation. The court holds that CSU's student organization program is a limited public forum and not subject to strict scrutiny, meaning that restrictions on speech of forum participants need only be viewpoint neutral and reasonable in light of the purposes of the forum. The court dismisses plaintiff's challenges based on alleged burdens on plaintiff's rights of expressive association, free speech and the free exercise of religion.

Complete text of Executive Order issued by the President on January 30 requiring that all federal contracts include a provision requiring that contractors post a notice in plants and offices where employees covered by the National Labor Relations Act are employed describing the rights of employees under federal labor laws. The Executive Order takes immediate effect and applies to federal contract solicitations issued on or after the effective date of implementing regulations to be issued by the Secretary of Labor. The Executive Order expressly revokes Executive Order 13201, which had required federal contractors to post notices of employee "Beck" rights concerning the payment of union dues or agency shop fees throughout their facilities and to include provisions regarding compliance with E.O. 13201 in all non-exempt subcontracts, and also directs the heads of executive departments and agencies to revoke any implementing rules and regulations of Executive Order 13201.

Complete text (10 pages) of decision by the U.S. District Court for the Northern District of California. Plaintiffs filed a motion for a preliminary injunction against the defendant alleging the college violated Wertheim’s free speech rights by requiring advance permission to distribute literature on campus and by designating only a part of the campus as a free speech zone. Prior to the hearing, the defendant removed the permit requirement from its revised regulations. The court determined that the removal of the permit requirement by defendants, along with their enactment of compliant policies and failure to assert the constitutionality of the former policy rendered this part of the plaintiffs’ motion moot. The court continued the remainder of the motion to allow the parties to make evidentiary submissions to the court.

Complete text of Act passed by Congress and signed by the President reversing the 2007 U.S. Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. The statute, retroactive to May 28, 2007 states that an unlawful employment practice exists when a) a discriminatory compensation decision or other practice is adopted; b) an individual becomes subject the decision or practice; or c) an individual is affected by application of the decision or practice, including each time there is a payment of compensation.

Complete text of amendment to the final rule requiring certain federal contractors to participate in the Department of Homeland Security E-Verify system, published in the January 30 Federal Register. The amendment delays the effective date of the final rule to May 21,2009.

Complete text of updated checklist issued by the American Council on Education (ACE) setting forth institutional policies and procedures subject to inquiry under the the new Internal Revenue Service Code Form 990, which tax-exempt organizations will be required to complete and file in 2009 for the 2008 tax year. The checklist includes suggested or required institutional policies, procedures and committees; as well as additional best practices for specific organizations or activities (schools, hospitals, and issuers of tax-exempt bonds).

Complete text of notice from U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security, announcing the extension of the effective date of its previously released Interim Final Rule amending the types of acceptable identity documents and receipts that employees may present to their employers for the completion of Form I-9, Employment Eligibility Verification. The rule and the required use of the amended Form I-9 included in the rule had been scheduled to take effect on February 2. The announcement extends the effective date to April 3, 2009, and re-opens the comment period on the rule for 30 days. The announcement will be published in the Federal Register next week.

Complete text (647 pages) of H.R. 1, the economic stimulus bill, as introduced in the House on January 23.

Complete text of Executive Order issued by the President on January 21 requiring all appointees in every executive agency appointed on or after January 20 to sign a pledge to not accept gifts from registered lobbyists or lobbying organizations for the duration of their appointment.

Complete text of memorandum to all executive departments and agencies issued January 20 by the White House Chief of Staff. The memorandum directs that, with certain limited exceptions, all proposed or final regulations not yet published in the Federal Register be withdrawn for purposes of further review. The memorandum also suggests that the effective date of final regulations already published but not yet in effect be extended for 60 days for the purpose of reviewing questions of law and policy raised by such regulations.

Complete text (7 pages) of final rule issued by the Office for Human Research Protections (OHRP), Office of Public Health and Science, U.S. Department of Health and Human Services (HHS) and published in the January 15 Federal Register. The rule requires institutional review boards (IRBs) that review human subjects research conducted or supported by HHS and designated under an assurance of compliance to register with HHS. The rule is effective July 14, 2009. The Food and Drug Administration (FDA) issued a parallel rule requiring registration with HHS of IRBs that review clinical investigations regulated by the FDA.

Complete text of opinion letter issued by the Acting Administrator of the Wage-Hour Division, U.S. Department of Labor, advising that "Assistant Athletic Instructors" (AAIs) at an institution of higher education with the duties described in the letter were exempt employees under the Fair Labor Standards Act (FLSA). According to information provided to the Acting Administrator, the AAIs in question teach proper skills and skill development to student-athletes and are required to have a Bachelor's degree. Their teaching duties comprise at least 50% or more of their time and include instruction of physical health, team concepts, and safety. The AAIs work under the supervision of a head coach and are responsible for designing instructions for individual student-athletes and for team needs and have a great deal of independent discretion and judgment as to the manner and method of teaching. The AAIs also have duties not related to teaching, including developing effective recruitment strategies, recruiting students, and visiting high schools and athletic camps, but these and any other non-teaching duties constitute less than 50% of their time.

Complete text (4 pages) of letter sent by the Foundation for Individual Rights (FIRE) to the presidents of numerous public institutions across the country. In its letter, FIRE asserts its opinion that one or more of the policies of the recipient institutions unconstitutionally restrict freedom of speech. The letter cites the recent federal court decisions in DeJohn v. Temple University and College Republicans v. San Francisco State University and earlier U.S. Supreme Court decisions as support for its assertion. The letter requests recipient universities to review their policies and make necessary changes and suggests that institutional administrators may be subject to suit in their individual capacities for continuing to maintain policies that violate First Amendment rights.

Complete text (13 pages) of decision by U.S. Sixth Circuit Court of Appeals reversing the district court and holding that plaintiff faculty member, alleged to be responsible for failing to detect plagiarism by graduate students, was deprived of property and liberty interests in violation of the due process clause of the 14th amendment when defendants suspended him for three years from his status as a Graduate Faculty member without notice or opportunity to be heard and also failed to offer him a public name-clearing hearing when they publicized accusations of his alleged role in the plagiarism.

Complete text (12 pages) of Memorandum of Understanding (MOU) released by the Department of Homeland Security (DHS) for use by federal contractors participating in the E-Verify program pursuant to Executive Order 12989 and the implementing regulations issued by DHS. In a related development, on January 12 DHS published an announcement on its website indicating that federal contractors covered by the regulations will be required to begin using the E-Verify program on February 20, rather than January 15 as originally stated in the implementing regulations.

Complete text (22 pages) paper issued by the American Council on Education (ACE), the National Association of College and University Business Officers (NACUBO) and United Educators Insurance, and authored by NACUA members Martin Michaelson and Lawrence White.

Complete text (219 pages) of "Dear Colleague" letter issued by the U.S. Department of Education on December 31 summarizing amendments made to the Higher Education Act by the Higher Education Opportunity Act (HEOA) of 2008. In its letter, the Department notes that "[a]ffected parties are responsible for taking the steps necessary to comply by the effective dates established by the HEOA, unless the HEOA specifies that regulations are necessary to implement certain provisions or, if so indicated by the Department, operational steps must be taken by the Department before parties may comply. Because this will require program participants to implement a large number of new provisions before receiving guidance from the Department, during subsequent reviews of compliance with the HEOA, we will take into account any written guidance that had been provided by the Department during the period under review or, as applicable, the absence of such guidance." The letter also includes a chart grouping the provisions of the Act by effective date (beginning on page 207). Also on December 31, the Department announced the establishment of five negotiated rule-making committees to prepare proposed regulations under Title IV of the Act. (NACUA has created a Resource Page on the changes to the Higher Education Act).

Complete text (19 pages) of the U.S. District Court for the Eastern District of North Carolina’s decision granting defendant’s motion for summary judgment. Plaintiff alleged that his suspension and resignation violated his procedural due process rights under 42 U.S.C. § 1983. The court held that neither plaintiff’s suspension with pay nor his resignation constituted a deprivation of property under federal due process protections. Concerning plaintiff's assertion that his resignation was involuntary because induced by misrepresentations by defendants, the court notes that plaintiff could not have reasonably relied upon the alleged misrepresentations because plaintiff was an experienced and well-educated professional with twenty-five years of experience in higher education and had consulted an attorney prior to his resignation. Regarding plaintiff's allegation that his resignation was the result of duress, the court likewise notes that plaintiff was “an educated and experienced professional” whose resignation was not involuntary, but rather a “carefully considered choice between two difficult alternatives.”

Complete text (14 pages) of decision by Colorado Court of Appeals holding that consideration in the tenure review process of a faculty member's censure for plagiarism by a professional association was not improper.

Complete text (30 pages) of final rule issued by the Department of Health and Human Services (HHS) and published in the December 19 Federal Register. The final regulation is designed to implement the provisions of several "provider conscience" statutes enacted by Congress over the past three decades. The final regulation clarifies that non-discrimination protections apply to institutional health care providers as well as to individual employees working for recipients of certain funds from HHS; requires recipients of certain HHS funds to certify their compliance with laws protecting provider conscience rights; and designates the HHS Office for Civil Rights as the entity to receive complaints of discrimination addressed by the existing statutes and the regulation. The regulations go into effect on January 20, 2009.

Complete text (13 pages) of interim rule issued by the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), and published in the December 17 Federal Register. The interim rule amends the types of acceptable identity documents and receipts that employees may present to their employers for the completion of Form I-9, Employment Eligibility Verification. Under the interim rule, employers will no longer be able to accept expired documents to verify employment. In addition, the interim rule adds a new document to the list of acceptable documents and makes a number of technical corrections and updates. The interim rule includes an amended Form I-9 reflecting the changes made by the interim rule. The interim rule is effective February 2, 2009 and comments are also due on February 2, 2009.

Complete text (16 pages) of third annual report issued by the Foundation for Individual Rights in Education (FIRE). The report summarizes the results of FIRE's survey of 364 colleges and universities across the country. According to FIRE, the majority of the institutions whose policies it surveyed prohibit speech that would be protected by the First Amendment if occurring off-campus.

Complete text of notice issued by the Internal Revenue Service (IRS) extending until December 31, 2009 the deadline for plan sponsors to have adopted a written 403(b) plan. The extension does not relieve plan sponsors from the obligation to operate the plan in accordance with IRC Section 403(b) and the 403(b) regulations.

Complete text (49 pages) of final rule implementing the Family Educational Rights and Privacy Act (FERPA) issued by the U.S. Department of Education and published in the December 9 Federal Register. Among other items, the final rule clarifies permissible disclosures to parents of eligible students and conditions that apply to disclosures in health and safety emergencies; clarifies permissible disclosures of student identifiers as directory information; allows disclosures to contractors and other outside parties in connection with the outsourcing of institutional services and functions; revises the definitions of attendance, disclosure, education records, personally identifiable information, and other key terms; clarifies permissible redisclosures by State and Federal officials; and updates investigation and enforcement provisions. The regulations are effective January 8, 2009.

Complete text (28 pages) of decision by U.S. District Court (E.D. Pa.) holding that plaintiff student teacher's status was that of an employee rather than a student, and therefore university officials did not violate her First Amendment rights when considering a posting to her web page on a social networking site in the evaluation of her student teaching. Plaintiff conceded that her posting concerned only personal matters, not matters of public concern.

Complete text (14 pages) of proposed rule issued by the Internal Revenue Service (IRS) and published in the December 5 Federal Register. The proposed rule would implement withholding from governmental payments for services and property under Section 3402(t) of the Internal Revenue Code, added by Sec. 511 of the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA) (Pub. L. No. 109-222). Under Section 3402(t) all Government entities and their paying agents, with certain limited exceptions, will be required to deduct and withhold from payments made for services or property after December 31, 2010 a tax in an amount equal to 3 percent of such payment. The proposed regulations provide guidance on what government entities are subject to section 3402(t), which payments are subject to 3402(t) withholding, when withholding is required, and how government entities pay and report the tax to the IRS. The proposed regulations also include transition rules providing relief from liability for the tax imposed by section 3402(t) with respect to payments under existing contracts and temporary relief from penalties and interest if a government entity makes a good faith effort to comply. Comments are due by March 5, 2009.

Complete text (50 pages) of final rule issued by the Environmental Protection Agency (EPA) and published in the December 1 Federal Register. Under the final rule, colleges and universities (and certain related entities) would have the option of electing an alternative set of requirements concerning the determination of hazardous waste and the accumulation of unwanted material at college and university laboratories. Institutions have the option of managing their laboratory hazardous waste under the requirements of the rule, or continuing to manage their laboratory hazardous waste under the current hazardous waste regulations [40 CFR 262.11 and 262.34(c)]. Among other items, the rule provides flexibility with regard to where on campus the determination of whether laboratory generated solid waste constitutes hazardous waste under RCRA could occur. Institutions electing to proceed under the rule have to develop, implement and maintain a Laboratory Management Plan (LMP) containing certain required elements. The rule applies only to hazardous waste generated in laboratories, as defined in the rule; waste generated in other parts of an institution would remain subject to existing hazardous waste regulations. Institutions choosing to manage their laboratory generated hazardous waste and unwanted material under the rule must notify EPA using the Site Identification Form for each EPA Identification Number or site. The rule is effective December 31, 2008.

Complete text (39 pages) of decision by U.S. Fifth Circuit Court of Appeals affirming judgment of trademark infringement in favor of plaintiff universities against vendor who marketed apparel featuring the school colors and identifying indicia referencing football games in which the schools competed, though not the names of the schools themselves. The court finds that the colors, content and context of the apparel were likely to cause confusion as to their source, sponsorship and affiliation.

Complete text (7 pages) of proposed rule issued by the U.S. Department of Agriculture (USDA) and published in the November 24 Federal Register. The proposed rule defines research misconduct and establishes USDA requirements for the conduct of investigations of alleged incidents of research misconduct related to USDA funded extramural research. Comments on the proposed rule are due by December 24.

Complete text (14 pages) of notice of proposed rulemaking issued by the U.S. Department of Education and published in the November 26 Federal Register. The proposed rule revises and updates the Department's rules for processing requests under the federal Freedom of Information Act (FOIA). The proposed rule includes procedures for submitting FOIA requests, processing of requests by the Department, and applicable fees. Comments on the proposed rule are due by December 26.

Complete text (11 pages) of joint guidance on the application of FERPA and HIPAA to Student Health Records issued by the U.S. Department of Health and Human Services (HHS) and U.S. Department of Education.

Complete text 45 pages of opinion U.S. Magistrate Judge recommending the granting of motion for summary judgment by defendant law school administrators and student bar association executive board members in action seeking declarative and injunctive relief to grant recognized student organization status and funding for the law school chapter of the Christian Legal Society (CLS).

Complete text (57) pages of handbook issued by the National Collegiate Athletic Association (NCAA) providing resources and model policies relating to pregnant and parenting student-athletes.  The NCAA also has a website with links to resources, policy models and best practices, medical resources and articles.

Complete text (201 pages) of final regulations under the Family Medical Leave Act (FMLA) issued by the Department of Labor (DOL) Wage-Hour Division and published in the November 17 Federal Register.  The final regulations implement the expansion of FMLA rights to service member families as enacted in the 2008 National Defense Authorization Act.  The final regulations also clarify employer and employee notice obligations, medical certification requirements, the impact of "light duty" assignments on FMLA leave; and waiver of FMLA rights.  The regulations are effective January 16, 2009.

Complete text (30 pages) of final rule published in the November 12 Federal Register and effective December 12, 2008.  The final rule requires federal government contractors to establish and maintain internal controls and compliance programs to detect and prevent improper conduct in connection with the award or performance of government contracts; and to timely disclose to the applicable agency Office of Inspector General whenever in connection with the award, performance or close-out of a government contract or subcontract the contractor has credible evidence of a violation of federal criminal law involving fraud, conflict of interest, bribery or gratuity found in Title 18 of the U.S. Code, or a violation of the civil False Claims Act.  The final rule also provides that knowing failure to disclose such violations until 3 years after final payment on any government contract, or of significant overpayments on the contract, constitutes cause for suspension or debarment.

Link to Internal Revenue Service (IRS) Colleges and Universities Compliance Project web page announcement of extension of deadline for completion of the compliance questionnaire sent by the IRS in October to 400 colleges and universities.  The deadline is extended to February 6, 2009.  The page also includes a FAQ re common questions the IRS has received concerning completion of the questionnaire.

Complete text of final rule (55 pages) amending the Federal Acquisition Regulation (FAR) to implement amended Executive Order 12989. The final rule requires specified federal contractors to participate in the Department of Homeland Security (DHS) internet-based E-Verify system to verify the employment eligibility of their newly hired employees. The final rule will apply to fewer contracts than had been included in the proposed rule. It will apply only to federal contracts with a value of $100,000 or more and a performance period longer than 120 days. The final rule also applies to subcontracts from covered contracts that have a value over $3,000. Most federal contractors will be required to verify the employment eligibility of all new hires, regardless of whether they will be working on a covered federal contract; however institutions of higher education have the option of using E-Verify only for employees assigned to a covered contract. The final rule is effective January 15, 2009 and applies only to solicitations issued and contracts awarded after January 15, 2009. DHS has issued a FAQ to accompany the final rule.

Complete text (6 pages) of report issued by the Congressional Research Service (CRS) discussing the Americans with Disabilities Act (ADA) statutory provisions relating to contagious diseases and relevant judicial interpretations.

Complete text of letter from the American Council on Education (ACE) to the Federal Communications Commission (FCC) concerning the financial impact on colleges and universities of proposed changes in the method of calculating contributions to the Universal Service Fund (USF). AT&T/Verizon has proposed that the FCC adopt a contribution methodology that bases the amounts of contributions on telephone number assignments. In its letter, ACE recommends retaining the current revenue-based contributions rather than a number-based methodology.

Complete text (6 pages) of Oregon Circuit Court decision granting defendant’s motion for summary judgment. The court rules that the University of Oregon’s decision to eliminate its wrestling team was not gender-based, but was instead based on financial and administrative considerations.

Complete text (19 pages) of report issued by the Electronic Frontier Foundation (EFF) describing incidents in with threats or fear of litigation under the anti-circumvention provisions of the Digital Millenium Copyright Act (DMCA) have, according to EFF, chilled free expression and scientific research, blocked the exercise of fair use rights, impeded competition and innovation and interfered with computer intrusion laws. The anti-circumvention provisions of the DMCA prohibit acts of circumvention of anti-piracy technology included in copyrighted works and the distribution of tools and technologies used for circumvention.

Link to Google website containing documents relating to the proposed settlement between Google, the Authors Guild and publishers in litigation alleging copyright infringement by Google through its Book Search program. The Book Search program digitized millions of books held at participating university libraries and made available on-line, without author permission, small excerpts of copyrighted works. The Authors Guild and other publishers sued alleging display of such excerpts by Google constituted copyright infringement. On the website, Google provides a brief summary of the settlement and a description of who is included in it, along with a link to the text of the proposed settlement agreement (141 pages) and the proposed notice of settlement (39 pages). The University of Michigan, the University of California and Stanford University, whose libraries had been participating in the Book Search program, issued a joint statement in support of the settlement.

Complete text (25 pages) of Supplemental Final Rule issued by the Department of Homeland Security (DHS) and published in the October 28 Federal Register. The Supplemental Final Rule is effective October 28 and reaffirms without substantive change the text of the August 2007 Final Rule. DHS undertook the supplemental rule-making procedure to address the U.S. District Court decision in American Federation of Labor et al. v. Michael Cherthoff, et al. which enjoined implementation of the August 2007 rule. The supplemental final rule, like the August 2007 rule, establishes a safe harbor for employers who follow the safe harbor procedures set forth in the rule after receipt of a "no match letters" from the Social Security Administration (SSA) or "Notice of Suspect Documents" letters from DHS. (SSA sends "no match" letters to some (though not all) employers when the combination of an employee's name and social security number on an employer's W-2 earnings reports do not match SSA records. DHS sends similar letters if after review of an employer's I-9 forms it cannot confirm that an immigration status document or employment authorization document referenced on the I-9 has been issued to the applicable employee.) Employers who follow the safe harbor procedures would be shielded from the possibility of a finding of "constructive knowledge" of employment of a person ineligible to work in the U.S. and the resulting liability. The safe harbor provides no protection from liability based on actual knowledge of an employee's ineligibility to work or on constructive knowledge of such ineligibility arising out of circumstances other than receipt of "No-Match" or "Suspect Documents" letters.

Complete text (132 pages) of en banc decision by U.S. Court of Appeals for the Federal Circuit holding that method or process patents may only be issued if they are tied to a machine or involve a physical transformation.

Complete text (6 pages) of report issued by the Congressional Research Service (CRS) providing a legal overview of cases involving access by undocumented resident alien students to higher education, as well as an analysis of the legality of state laws that make in-state tuition rates available to illegal immigrants.

Complete text (8 pages) of final guidance issued by the Office for Human Research Protections (OHRP), Department of Health and Human Services (HHS), dated October 16, 2008. When an institution is “engaged” in non-exempt human subjects research supported by HHS, it must satisfy certain regulatory requirements. The guidance elaborates on the definition of “engagement” by describing situations where an institution is generally considered “engaged” or “not engaged” in human subjects research. The guidance outlines six scenarios that would result in an institution being considered “engaged” in human subjects research and 11 scenarios that would result in an institution being considered “not engaged” in human subjects research. The guidance also addresses IRB review considerations for cooperative research in which multiple institutions are engaged in the same non-exempt human research project.

Complete text of announcement by the Federal Trade Commission (FTC) that it will suspend enforcement of the Commission's Identity Theft Red Flags rule until May 1, 2009, to give creditors and institutions, including colleges and universities, additional time in which to develop and implement written identity theft prevention programs. The original compliance deadline had been November 1, 2008. The delay in enforcement is limited to the Identity Theft Red Flags Rule (16 CFR 681.2), and does not extend to the rule regarding address discrepancies applicable to users of consumer reports (16 CFR 681.1), or to the rule regarding changes of address applicable to card issuers (16 CFR 681.3). The FTC issued a press release accompanying the announcement. Earlier, the Department of Education issued a bulletin noting that the FTC "Red Flags" rule applies to institutions participating in the Federal Perkins Loan Program.

Complete text (6 pages) of proposed rule by the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, published in the October 23 Federal Register. APHIS proposes to amend the Animal Welfare Act (AWA) regulations to require all licensees and registrants to develop a contingency plan for all animals regulated under the AWA in an effort to better prepare for potential disasters. The proposed rule sets forth the general criteria to which these contingency plans would have to adhere. Comments on the proposed rule are due to APHIS by December 22, 2008.

Complete text (17 pages) of directive issued by the Office of Federal Contract Compliance Programs (OFCCP) revising procedures for inspection of Form I-9s held by federal contractors in the course of an OFCCP on-site compliance evaluation.

Complete text (7 pages) of Notice of Inquiry issued by the U.S. Copyright Office and published in the October 6 Federal Register. The Copyright Office is preparing to conduct section 1201 rulemaking in accordance with the Digital Millennium Copyright Act (DMCA). Section 1201 of the DMCA prohibits the circumvention of technological measures employed by copyright holders to protect their works. The Copyright Office is authorized to exempt certain classes of works from the prohibition. The Notice requests written comments from all interested parties in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by the prohibition on the circumvention of measures that control access to copyrighted works. Written comments must be received no later than December 2, 2008.

Complete text of three recent cases on whether or not medical residents qualify for the student FICA exemption under IRC § 3121(b)(10). University of Chicago Hospitals v. U.S. The U.S. Seventh Circuit Court of Appeals held that the student exception is not per se inapplicable to medical residents as a matter of law. Instead, a “case-by-case analysis is required to determine whether medical students qualify for the statutory exemption from FICA taxation.” U.S. v. Partners Healthcare System, Inc. The U.S. District Court (D. Mass.) also adopted the “case-by-case” analysis standard for medical residents. Center for Family Medicine v. U.S. The U.S. District Court (D. S.D.) granted summary judgment for the plaintiff and upheld the FICA exemption for medical residents. By contrast, those who stay on after their residencies to help run the program are employees, and taxes must be withheld from their wages.

Complete text (8 pages) of U.S. District Court decision (D. Or.) quashing the plaintiffs’ subpoena asking the University of Oregon to produce information “sufficient to identify alleged infringers of copyrighted sound recordings.” The court determined that the subpoena imposed an undue burden of production on the University, but allowed the plaintiff to serve a second subpoena on the University seeking information on persons associated by dorm room occupancy or username.

Complete text (24 pages) of report issued July 31 by the Congressional Research Service (CRS) on the standards under which hospitals qualify for tax-exempt charitable status, including the community benefit standard.

Complete text (41 pages) of report issued September 9 by the Congressional Research Service (CRS) on the ways that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide no protection or only limited protection for some types of speech.

Complete text (33 pages) of questionnaire to be sent to 400 colleges and universities across the country by the Internal Revenue Service (IRS) as part of its Colleges and Universities Compliance Project. The questionnaire includes detailed sections on the classification of a wide range of institutional activities as taxable or non-taxable for purposes of unrelated business income taxation (UBIT), the investment and use of endowment funds, and executive compensation. The questionnaire will be accompanied by a cover letter and instructions (9 pages). The IRS has issued a press release concerning the compliance project.

Complete text (25 pages) of report issued by the Congressional Research Service (CRS) on the infringement of intellectual property rights and state sovereign immunity under the Eleventh Amendment.

Complete text of summary of the FTC Identity Theft "Red Flags" Rule written by Elizabeth Meers and Daniel Meade of the law firm Hogan & Hartson, LLP and issued by the National Association of College and University Business Officers (NACUBO). The summary discusses the application of the rule to colleges and universities as creditors and financial institutions and describes steps to be taken to achieve compliance with the rule. The deadline for compliance is November 1, 2008.

Complete text (22 pages) of Final Rule issued by U.S. Immigration and Customs Enforcement (ICE) and pubished in the September 26 Federal Register. The rule establishes procedures for the oversight and recertification of colleges or universities participating in the Student and Exchange Visitor Program (SEVP) attended by students on F and/or M visas. The rule also includes fee increases for certain categories of visas. The National Association of International Educators (NAFSA) has posted a summary of the rule. SEVP has issued additional guidance to accompany the final rule.

Complete text of letter issued September 17 by the Office of Civil Rights (OCR), U.S. Department of Education identifying factors related to an activity's structure, administration, team preparation and competition that will be considered by OCR in determining whether an activity is a sport that can be counted as part of an institution's intercollegiate or interscholastic athletics program for purposes of assessing compliance with Title IX. The letter notes that institutions that are members of the NCAA or NAIA may be subject to sports organizational requirements established by those associations, and that when such organizational requirements are non-discretionary and satisfy the factors identified in the letter OCR will presume that such institutions' established sports can be counted for purposes of Title IX compliance.

Complete text (49 pages) of interim report issued by the Internal Revenue Service (IRS) in connection with its tax exempt bonds compliance check questionnaire initiative. The purpose of the initiative was to survey a cross-section of 501(c)(3) organizations, including colleges and universities, with tax-exempt bond liabilities to identify overall knowledge of the post-issuance compliance and record retention requirements applicable to qualified 501(c)(3) bond issues. According to the IRS, while the report identifies a high level of recognition by exempt organizations of the importance of post-issuance compliance and record-retention procedures, it determines that there appear to be significant gaps in the effective implementation of such procedures.

Complete text (84 pages) of decision by California Court of Appeals (Third Appellate District) holding that a California law making undocumented resident alien students eligible under certain conditions for in-state resident tuition rates at California public colleges and universities conflicts with federal law. The court holds that in-state tuition rates are a "postsecondary education benefit" within the meaning of 8 U.S.C. 1625 and therefore if in-state rates are extended to undocumented resident alien students, to be permissible under the federal statute they must also be extended to any citizen of the United States without regard to their status as a resident of the state of California.

Complete text of letter issued by the Office of Civil Rights (OCR), U.S. Department of Education providing guidance on how OCR evaluates whether the use of race as a factor in admissions by colleges and universities is consistent with Title VI of the Civil Rights Act of 1964. Citing the 2003 U.S. Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger, OCR lists six parameters that have been and will continue to be used by OCR in assessing whether an institution's particular use of race as a factor in admissions is permissible.

Complete text of a summary prepared by NACUA member Nina Lavoie of the regulations issued by the Federal Trade Commission implementing the identify theft provisions of the Fair and Accurate Credit Transactions Act of 2003 (FACTA). For entities engaged in activities covered by the regulation, compliance is required by November 1, 2008.

Complete text of new Federal Rule of Evidence 502 passed by Congress on September 8 and awaiting signature of the President. The new rule limits the potential waiver of the attorney-client privilege or the protection of work product in the event of inadvertent disclosures. The new rule also permits a party to obtain a court order confirming that a disclosure did not waive the privilege or protection, in which event the disclosure will not operate as a waiver in any other Federal or State proceeding.

Complete text (16 pages) of S. 3406, the ADA Amendments Act as passed by the U.S. Senate on September 11. The bill would legislatively reverse the holdings of several U.S. Supreme Court decisions interpreting the Americans with Disabilities Act (ADA), expand the list of major life activities a disability may substantially limit in order to be covered by the Act, and specify that the determination of whether an impairment substantially limits a major life activity should generally be made without regard to the effects of mitigating measures. The U.S. House of Representatives earlier passed similar legislation, H.R. 3195, and may act on the Senate bill later this week.

Complete text (32 pages) of detailed guide issued by the U.S. Equal Employment Opportunity Commission (EEOC) addressing application of the Americans with Disabilities Act (ADA) to employee performance and conduct issues. The guide covers application of the ADA to performance standards, conduct standards, seeking medical information in connection with performance or conduct problems, attendance issues, dress codes, alcoholism and illegal use of drugs, confidentiality issues regarding accommodations, and enforcement.

Complete text (14 pages) of decision by U.S. Ninth Circuit Court of Appeals holding that suits filed by individuals against a state alleging violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) are barred by the Eleventh Amendment. The court also holds that USERRA does not not create a cause of action against state employees.

Complete text (32 pages) of comparison prepared by the Association of American Universities (AAU) of selected provisions of the higher education act reauthorization bills passed by the Senate (S.1642), the House (H.R. 4137), and the final bill, the Higher Education Opportunity Act of 2008 (431 pages).

Complete text (3 pages) of Restatement issued by the Department of Labor on August 29 clarifying the scope of attorney involvement in the labor certfication process. According to the Restatement, "attorneys may . . . provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies." In its earlier Guidance issued in June, DOL had asserted that there was no role for attorneys in assessing the ability of applicants to fill an employer's needs. The earlier Guidance stated that attorneys may not conduct any preliminary screening of applications by U.S. workers before the employer has done so; may not participate in the interviewing of U.S. worker applicants; and should under no circumstances seek to dissuade an employer from an initial determination that a particular applicant is qualified for a position.

Complete text (13 pages) of decision by U.S. Seventh Circuit Court of Appeals holding that faculty member complaints about use of federal grant funds were made pursuant to his official duties as a university professor and therefore, pursuant to the U.S. Supreme Court decision in Garcetti v. Ceballos, were not protected by the First Amendment. The professor had alleged that university officials had reduced his pay and terminated a federal grant in retaliation against his complaints about the institution's proposed use of the grant funds.

Complete text (22 pages) of revised corporate charging guidelines issued by the Department of Justice (DOJ) on August 28 and incorporated into the U.S. Attorney's Manual. The revised guidelines state that credit for cooperation with a DOJ investigation will not depend on a corporate entity's waiver of the attorney-client privilege or work product protection; that DOJ prosecutors are not to consider the advancement of attorney fees to employees when evaluating the cooperation of a corporate entity; and that mere participation in a joint defense agreement will not render a corporate entity ineligible for credit for cooperation. The revised guidelines supercede the so-called "McNulty Memorandum" issued by DOJ in December, 2006.

Complete text (12 pages) of proposed regulation issued by the Department of Health and Human Services (HHS) and published in the August 26 Federal Register. The proposed regulation is designed to implement the provisions of several "provider conscience" statutes enacted by Congress over the past three decades. Among other items, the proposed regulations would require recipients of certain HHS funds to certify their compliance with the laws protecting provider conscience rights and designate the HHS Officer for Civil Rights to receive complaints of discrimination on the basis of provider conscience. HHS issued a press release accompanying the proposed regulation. Comments are due by September 25.

Complete text (5 pages) of comments submitted by the Association of of American Universities (AAU) and the Council on Governmental Relations (COGR) in response to a request published by the Bureau of Industry and Security (BIS), U.S. Department of Commerce in the May 19 Federal Register. The comments address two issues raised in the report of the Deemed Export Advisory Committee (153 pages): whether technologies on the Commerce Control List (CCL) should be narrowed, and 2) whether a more comprehensive assessment of foreign national affiliation should be used for purposes of making home country determinations in the deemed export licensing process. BIS has also extended the deadline for filing comments until September 22.

Complete text (7 pages) of comments submitted by the American Council on Education (ACE) to the Department of Justice (DOJ) in response to proposed revisions to DOJ regulations issued under the ADA and published in the June 17 Federal Register. The comments submitted by ACE address the accommodation of service animals, ticketing for seating in accessible areas, use of temporary platforms or movable structures to provide accessible seating in assembly areas, restrictions on power-driven mobility devices in assembly areas, and stage accessibility.

Link to Internal Revenue Service (IRS) website with final forms and instructions for completion of the new Form 990 which must be filed starting with tax year 2008 (filed in 2009) by most organizations exempt from taxation under Internal Revenue Code 501(a), includingSec. 501(c)(3) organizations. An accompanying IRS website includes links to several background documents, including one that highlights changes to the draft instructions issued by the IRS in April reflected in the final instructions.

Complete text (10 pages) of summary of key provisions of the recently enacted Higher Education Opportunity Act prepared by the American Council on Education (ACE).

Complete text of position statement issued by the International Association of Campus Law Enforcement Administrators (IACLEA) in response to legislative proposals in several states to permit the carrying of concealed weapons on college and university campuses.

Complete text (6 pages) of comments filed by the American Council on Education (ACE) and 11 additional higher education associations in response to proposed regulations issued by the Department of Homeland Security (DHS) requiring federal contractors to participate in USCIS E-Verify system to verify the employment eligibility of (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract. The proposed regulations seek to implement Executive Order 12989 which requires Executive departments and agencies to require contractors to agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security.

Complete text of memorandum sent to institutional Chief Information Officers and other interested parties by officials at the American Council on Education (ACE), EDUCAUSE, the National Association of State Universities and Land-Grant Colleges (NASULGC) and the Association of American Universities (AAU). The memorandum describes the new disclosure, reporting and other obligations placed on institutions by the recently enacted Higher Education Opportunity Act with respect to the unauthorized distribution of copyrighted material via institutional computer networks.

Complete text (51 pages) of decision by U.S. District Court (C.D. Cal.) granting defendants' motion for partial summary judgment and holding that the University of California's admissions guidelines and policies for the evaluation of high school courses do not on their face violate the First Amendment or Equal Protection rights of religious schools.

Complete text (11 pages) of proposed Model Rule for the Registration of In-House Counsel prepared by the ABA Section of Legal Education and Admissions to the Bar and slated for consideration by the ABA House of Delegates during the ABA annual meeting beginning this week in New York City. The proposed rule is for use by jurisdictions adopting or intending to adopt Model Rule 5.5(d) which excludes from the definition of the unauthorized practice of law the provision of legal services by in-house counsel admitted in one jurisdiction and practicing in another jurisdiction when the lawyer is providing legal services solely to the lawyer's employer. The purpose of the proposed rule would be to permit the adopting jurisdictions to identify and monitor in-house counsel practicing in the jurisdictions and to bring them within the client security fund, continuing legal education, and disciplinary authorities of the jurisdictions. The Association of Professional Responsibility Lawyers has issued a statement concerning the proposed rule. The proposed rule would not affect in-house counsel licensed in the state in which they are employed and practicing.

Complete text (38 pages) of decision by U.S. Third Circuit Court of Appeals finding that Temple University's former policy on sexual harassment was facially overbroad and therefore in violation of the First Amendment. The court notes that the policy would prohibit speech based strictly on the intent of a speaker, regardless of its actual effect. The court also states that, in the absence of a requirement that the conduct at issue objectively and subjectively creates a hostile environment or substantially interferes with an individual's work, the policy's use of terms such as "hostile", "offensive" and "gender-motivated" is sufficiently broad and subjective that it could be applied to any speech of a gender-motivated nature the content of which offends someone, including core political or religious speech.

Complete text (431 pages) of H.R 4137, the "Higher Education Opportunity Act" as passed by the U.S. Senate and House last week and currently awaiting signature by the President. The bill contains numerous new reporting and compliance requirements. In a letter to Senators, the American Council on Education (ACE) and other higher education associations noted that the bill contains a large number of new federal reporting and regulatory requirements (according to one senator, there are over 100 new reporting requirements in the Act). The Government Printing Office (GPO) has provided links to the Conference Committee Report on the bill. The House Education and Labor Committee has issued a summary of key provisions of the Act.

Complete text of EDUCAUSE memorandum analyzing the sections (Sec. 488 and 493) of the Higher Education Act reauthorization addressing the unauthorized distribution of copyrighted material via P2P file-sharing at institutions of higher education. The memorandum includes the text of both sections and the text of the relevant section of the Conference Committee report.

Complete text of new proposed statement of financial accounting standards dealing with the disclosure of certain loss contingencies and issued by the Financial Accounting Standards Board (FASB). The proposed statement, if adopted, would apply to annual financial statements issued for fiscal years ending after December 15, 2008. The proposed statement would require enhanced disclosures for the following losses: a) losses that are probable of occurrence but the amount of the loss cannot be reasonably estimated; b) losses that are reasonably possible of occurrence, regardless of whether the amount can be reasonably estimated; and c) losses, or a combination of losses, regardless of the likelihood of loss, if the contingency or contingencies are expected to be resolved in the near term and they could have a severe impact on the entity's financial position, cash flows, or results of operations. Required disclosures would include a) quantitative information about the exposure arising from the contingency; b) a description of the contingency, including how it arose; c) the legal or contractual basis of the contingency; d) anticipated timing of resolution; e) a description of factors likely to affect the outcome; f) an assessment of the most likely outcome; g) a description of relative insurance or indemnification arrangements. Comments on the proposed statement are due by August 8.

Complete text (70 pages) of decision by U.S. District Court (S.D. FL) rejecting attempt of the Internal Revenue Service to claim reclaim refunded FICA taxes paid by defendant for medical residents. The court finds that defendant's medial residents meet the definition of "students" and defendant itself was a "school, college or university" under the terms set forth in IRC Sec. 3121(b)(10), and therefore amounts paid by defendant to its medical residents during the years in question were exempt from FICA taxation.

Complete text (20 pages) of proposed revision of regulations issued by Wage and Hour Division, U.S. Department of Labor, and published in the July 28 Federal Register. The proposed revisions are designed to bring existing regulations into conformity with a series of congressional actions and court decisions over the past several years. In particular, the proposed revisions address the use of compensatory time-off by employees of public agencies (see discussion at pp. 43660 - 43662. Comments on the proposed rules are due by September 11, 2008.

Complete text of Notice by the Office of Federal Contract Compliance (OFCCP) advising that all compliance evaluations shall include a review of the federal contractor's on-line application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans. The term "on-line system" is defined in the notice as encompassing but not limited to all electronic or web-based systems that the contractor uses in all of its personnel activities.

Complete text of updated section 12 of EEOC Compliance Manual devoted to religious discrimination. The section provides guidance and instructions for investigating and analyzing charges alleging discrimination based on religion, and was updated effective July 22.

Complete text of letter from Department of Homeland Security, U.S. Immigration and Customs Enforcement to North Carolina Attorney General's Office advising that federal law does not prohibit the admission of illegal aliens to post-secondary institutions and that individual states or institutions are free to develop policies concerning such admissions so long as federal immigration status standards are used to classify illegal alien applicants.

Complete text (47 pages) of decision by U.S. 10th Circuit Court of Appeals holding that under the Establishment Clause of the First Amendment the state of Colorado may not draw a distinction between sectarian and "pervasively" sectarian institutions for purposes of determining eligibility for participation in a state student scholarship program. The court holds that to do so would constitute state discrimination among religions, and also necessarily involves the state in making intrusive judgments regarding contested questions of religious belief or practice.

Complete text (5 pages) of June 26 memorandum by Undersecretary of Defense to selected Department of Defense (DOD) officials re-affirming DOD policy that the products of DOD-funded fundamental research are to remain unrestricted to the maximum extent possible and that classification is the only appropriate mechanism when control of disclosure is necessary. The Association of American Universities (AAU) and the Council on Governmental Relations (COGR) recently issued a report (33 pages) indicating that DOD agencies and contracting officers have been adding clauses to fundamental research contracts and grants that inappropriately restrict the publication of research results and the participation of foreign nationals.

Complete text (39 pages) of decision of Michigan Supreme Court holding that the home addresses and telephone numbers of employees of the University of MIchigan are exempt from disclosure under the privacy exemption of the Michigan Freedom of Information Act.

Complete text of July 16 letter to House Speaker Nancy Pelosi and Minority Leader John Boehner from several higher education and private sector associations urging that the federal government's E-Verify program be extended only on a temporary 3-year basis. The letter also urges that any extension of E-Verify address the issue of Social Security Administration database funding, include a pilot program to address identity theft problems, and assert federal pre-emption in the area of employment verification of immigration status.

Complete text (23 pages) of decision of the Louisiana Supreme Court holding that Louisiana law grants a would-be heir or legatee of a donor standing to enforce a condition of the donation. Via inter vivos gift in 1886 and testamentary gift in 1901, the donor (Mrs. Newcomb) provided funds to the Board of Tulane University for the establishment of Newcomb College for women at Tulane University. In 2006, following damage to the campus caused by Hurricanes Katrina and Rita, the university board voted to close Newcomb college, establish a single undergraduate college for the entire university, and apply the Newcomb College endowment funds to the H. Sophie Newcomb Memorial College Institute, an academic center designed to enhance higher education for women at Tulane University. Plaintiffs alleged that they were heirs of Mrs. Newcomb and sued to block the closure of the college established by her gifts. The court holds that under Louisiana law, donors have a right of revocation if conditions they attached to their gifts are not performed by the donee, and that the right of revocation for non-performance of a condition also includes a corollary right to sue for enforcement of the condition. The court further holds that these rights of the donor devolve to the successors of the donor, including the donor's would-be heirs and legatees. Finally, the court remands the matter to the lower court for a determination of plaintiffs' status as successors and would-be heirs of Mrs. Newcomb.

Complete text of Interim Guidance issued by the Internal Revenue Service (IRS) describing anticipated regulations to be issued under Internal Revenue Code Sections 457(f) and 409A and affecting compensation arrangements wherein teachers and faculty members are paid over a 12 month period for work performed during a school year of less than 12 months. The guidance includes two examples illustrating under what circumstances income not paid until a following tax year because of such an arrangement will or will not nonetheless be taxable in the first tax year. According to the Guidance, taxpayers may immediately rely on the rule it sets forth.

Complete text (4 pages) of Notice issued by the Office for Human Research Protections (OHRP), U.S. Department of Health and Human Services (HHS) and published in the July 1 Federal Register. In the Notice, OHRP seeks comments on whether it should issue additional guidance recommending or requiring that institutions engaged in human subjects research conducted or supported by HHS implement training and education programs for certain individuals involved in the conduct, review or oversight of such research. In the Notice, OHRP asserts that over the past several years it has identified serious, systemic noncompliance with the requirements of HHS regulations for the protection of human subjects at a significant number of institutions. The Notice includes nine specific questions with respect to which OHRP is seeking comments. Comments are due by September 29, 2008.

Complete text of Guidance issued by the Department of Labor (DOL) on June 13 setting forth limitations on the role of attorneys in the labor certification process. Specifically, with respect to the good faith recruitment requirement, DOL asserts that 20 C.F.R. 656.10 does not contemplate any role for attorneys in assessing the ability of applicants to fill an employer's needs The Guidance states that attorneys may not conduct any preliminary screening of applications by U.S. workers before the employer has done so; may not particpate in the interviewing of U.S. worker applicants; and should under no circumstances seek to dissuade an employer from an initial determination that a particular applicant is qualified for a position.

Complete text (16 pages) of H.R. 3195 (commonly referred to as the ADA Restoration Act of 2008) as passed by the U.S. House of Representatives on June 25 and currently pending in the U.S. Senate. The bill would change the definition of "disability" and provide definitions of "mental impairment" and "physical impairment". It would prohibit consideration of mitigating measures used by or available to an individual in determining whether he or she has an impairment. The bill would prohibit employment discrimination on the basis of disability, while allowing as an affirmative defense the assertion that the person alleging discrimination is not a qualified individual with a disability. The bill would also require that the ADA's provisions be broadly construed and that federal regulations and guidance be given deference by courts and administrative bodies. In a letter to the chairman and ranking member of the House Committee on Education and Labor, the American Council on Education (ACE), on behalf of itself, AAU, NASULGC and AACC, expressed concern that two provisions of the bill will have unintended and negative consequences for institutions of higher education.

Complete text (4 pages) of checklist issued by the American Council on Education (ACE) setting forth institutional policies and procedures subject to inquiry under the the new Internal Revenue Service Code Form 990, which tax-exempt organizations will be required to complete and file in 2009 for the 2008 tax year. The checklist includes suggested or required institutional policies, procedures and committees; as well as additional best practices for specific organizations or activities (schools, hospitals, and issuers of tax-exempt bonds).

Complete text (23 pages) of answer filed on behalf of defendant officers of Georgia State University in copyright infringement action filed by Cambridge University press and other academic publishers. In their complaint plaintiff publishers alleged copyright infringement in the maintenance and distribution of on-line course reserves and reading material at Georgia State University. In their answer defendants deny any copyright infringement with respect to the on-line course reserves cited by plaintiffs and rely on the doctrine of fair use as set forth in 17 U.S.C. Sec. 101 et seq.

Complete text of campus guidelines developed Rhode Island School Design General Counsel and NACUA member Steven J. McDonald. The guidelines include a decision tree for determining when a license is required for showing movies or other audiovisual works on campus.

Complete text (14 pages) of decision of U.S. Court of Appeals for the First Circuit, affirming the decision of the District Court granting defendants' motion for summary judgment on plaintiff's allegation of intentional infliction of emotional distress. Plaintiff was Director of Judicial Affairs at institution where local chapter of defendant fraternity was being prosecuted for violations of the student code of conduct. Various defendants caused to be distributed to campus officials and others newspaper articles and court documents describing alleged criminal and civil misconduct by plaintiff while employed at another institution. The court holds that plaintiff is a public figure and therefore required to show that defendants made statements about plaintiff knowing they were false or with reckless disregard as to whether or not they were true to support an allegation of intentional infliction of emotional distress. The court finds that plaintiff is unable to prove that defendants made false statements of fact and therefore affirms the judgment of the district court.

Complete text of informational alert issued by the American Association of University Professors (AAUP) describing the potential adverse impact of Internal Revenue Code Sec. 409(A) on faculty members on 10-month contracts who elect to have their salary paid over 12 months. Such an arrangment may cause some income earned in one tax year to be paid in the following tax year, resulting in deferred compensation that would ordinarily be taxable in the year earned. The alert describes steps faculty members and institutitons may take to avoid this potential tax liability on the part of the faculty member.

Complete text (8 pages) of proposed rule amending the Federal Acquisition Regulation (FAR) to implement amended Executive Order 12989. Amended E.O. 12982 requires Executive departments and agencies to require contractors to agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract. The proposed rule requires all government prime contracts exceeding $3,000 (with certain exceptions) to include a clause committing the contractor to use the USCIS E-Verify system to verify the employment eligibility of the persons described in items i and ii above. The clause must also be inserted by prime contractors into subcontracts over $3,000 for services or construction. Contractors and subcontractors would be required to enroll in E-Verify within 30 days of the contract award, to use E-Verify to verify the employment eligibility of all new employees that are hired after enrollment, and to continue to use E-Verify for the life of the contract. The proposed rule also would require contractors and subcontractors to use E-Verify to confirm the employment eligibility of all existing employees who are directly engaged in the performance of work under a covered contract (except that the proposed rule would not apply to any employee hired prior to November 6, 1986). The proposed rule would apply only to employment in the United States. It would apply to bid and contract solicitations issued and to contracts awarded after the effective date of the final rule. Comments on the proposed rule are due by August 11.

Complete text (11 pages) of decision by Virginia Supreme Court holding that Section 2.2-507.1 of the Virginia code, stating that "the assets of a charitable corporation incorporated in or doing business in Virginia shall be deemed to be held in trust for the public for such purposes as are established by governing documents of such charitable corporation" does not impose any duties upon a charitable corporation, nor does it subject defendant college to the state's Uniform Trust Code. Plaintiffs included donors to the college who alleged that all gifts and donations to the college since its inception were given to support its primary purpose of educating women.

Complete text (11 pages) of decision by Virginia Supreme Court in anticipatory breach of contract suit. The court holds that plaintiffs, currently enrolled students at a predominantly female institution, failed to plead facts which, if established at trial, would demonstrate the existence of a contract that required the college to continue to operate as an institution predominantly for women during the four years the plaintiffs expected to be in attendance.

Complete text of amendment to Executive Order 12989 signed by the President on Friday, June 6. Section 5 of the amended order requires Executive departments and agencies to require contractors to agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.

Complete text (10 pages) of order issued by U.S. District Court (S.D. Ca.) granting defendant Cornell University's motion to strike plaintiff's complaint alleging claims of libel (by re-publication) and public disclosure of private facts. Plaintiff's claims arise out of a 1983 article in the Cornell Chronicle (recently digitized as part of a long-term project by the Cornell University Library and available via internet search) which reported plaintiff's having been charged with third degree burglary in connection with a number of thefts on campus. The court finds that plaintiff's complaint is subject to a motion to strike under California's anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute because the Cornell Chronicle article in both its original and digitized versions involves the constitutional right of free speech in furtherance of an issue of public interest--the reporting of a criminal charge that was and is part of the public record. The court further finds that the article was substantially true, and therefore plaintiff failed to demonstrate a probability that he would prevail on the merits of his libel claim. Because the article reported on a matter of public interest, the court finds that plaintiff's claim for public disclosure of private facts also fails on the merits. The court awarded Cornell University reasonable attorney fees and costs as prevailing party.

Complete text of proposed amendments to the Department of Justice (DOJ) regulations implementing Titles II and III of the Americans with Disabilities Act (ADA). The proposed amendments implement revised guidelines issued in 2004 by the Architectural and Transportation Barriers Compliance Board, and also address other issues that have arisen under the existing regulations. Comments on the proposed amendments will be due 60 days after their publication in the Federal Register. DOJ issued a press release accompanying the proposed amendments.

Complete text (14 pages) of comments submitted by the National Association of College and University Business Officers (NACUBO) and other higher education associations in response to the draft instructions for Form 990, the annual return used by tax-exempt colleges and universities to report information about their operations to the Internal Revenue Service.

Complete text (6 pages) of announcement, report and guidelines issued by the Association of Art Museum Directors (AAMD). Among other items, the guidelines the report recommend that museums normally should not acquire a work unless provenance research substantiates that the work was outside its country of probable modern discovery before 1970 or was legally exported from said country after 1970.

Complete text (12 pages) of decision of Vermont Supreme Court affirming the dismissal of plaintiff's disability discrimination claim. Plaintiff was dismissed from medical school for dishonest and fraudulent behavior, and sought re-instatement or an award of his medical degree due to the university's alleged failure to accommodate his claimed disability. The court holds that requiring the university to overlook deception, dishonesty and fraud would fundamentally alter the nature of the medical college, and therefore plaintiff cannot show that he meets the essential qualifications for graduating from medical school even with reasonable accommodations. The court further holds that plaintiff's request for accommodation, made at his second dismissal hearing, was not timely and the college was not obligated to consider it. Lastly the court holds that providing a second chance to one who commits serious misconduct is not a reasonable accommodation.

Complete text of May 9, 2008 "Dear Colleague" issued by U.S. Department of Education providing guidance on compliance with Department regulations governing institutional preferred lender lists. The regulations require that a preferred lender list include a minimum of three unaffiliated lenders. In its letter, the Department clarifies that if an institution is unable to identify at least three unaffiliated lenders it may provide the names of lenders that have indicated they would provide Federal Family Education Loans (FFEL) to the school's students and their parents. In addition, a school may also provide a comprehensive list of all lenders that have made loans to the school's student or parents in the last three to five years (or some other period). Such a list should not provide additional information about lenders and must include a clear statement that a borrow can choose any FFEL lender. Finally, the letter clarifies that the Department regulations only require that at least three lenders on a school's preferred lender list must be unaffiliated, regardless of the number of lenders on the list.

Complete text (24 pages) of decision by U.S. District Court (DE) disqualifying plaintiffs' counsel in employment discrimination litigation because counsel had previously served as counsel to defendant university in a number of employment and discrimination-related matters, and defendant had not waived the conflict but rather had affirmatively objected to it.

Complete text of request for comments published by the Bureau of Industry and Security (BIS), U.S. Department of Commerce, in the May 19, Federal Register. In response to recommendations in the report of the Deemed Export Advisory Committee (153 pages), BIS is seeking comment on two specific issues raised in the report: 1) whether technologies on the Commerce Control List (CCL) should be narrowed, and 2) whether a more comprehensive assessment of foreign national affiliation should be used for purposes of making home country determinations in the deemed export licensing process. Comments are due to BIS no later than August 18, 2008.

Complete text of draft Titles of compromise version (as of May 15) of Higher Education Act being reviewed by members of Congress and congressional staff in advance of the appointment of a conference committee to reconcile the differences between the House (H.R. 4137) (916 pages) and Senate (S. 1642) (608 pages) passed bills. (Note: sections marked with brackets and those described as "on hold" have yet to be resolved). Title I (96 pages); Title II (Teacher Quality Enhancement) (90 pages); Title III (Institutional Aid) (46 pages); Title IV (Student Assistance) (342 pages); Title V (Developing Institutions) (6 pages); Title VI (International Education Programs) (32 pages); Title VII (Graduate and Postsecondary Improvement Programs) (80 pages); Title VIII (Miscellaneous Additional Programs) (200 pages); Title IX (Amendments to Other Laws) (60 pages); Title X (Private Student Loan Improvement) (30 pages); Title XI (Studies and Reports) (24 pages).

Website of voter registration project endorsed by the Washington Higher Education Secretariat, a group of 50 higher education associations. The Higher Education Act [Sec. 489(b)(1)(23)(A)] requires colleges and universities receiving federal funds to make a good faith effort to distribute voter registration forms to their students. The Project has produced a mailer that has been sent to the presidents of 3,700 nonprofit degree granting colleges and universities.

Complete text (10 pages) of comments submitted by the American Council on Education and six other higher education associations in response to proposed changes to FERPA regulations issued by the U.S. Department of Education.

Complete text of letter issued May 9 by U.S. Customs and Immigration Enforcement (ICE). The letter affirms that the Department of Homeland Security (DHS) does not require any school to determine a student's status, does not require any school to request immigration status prior to enrolling students or to report to the government if they know a student is out of status.

Complete text (56) pages of decision by Michigan Supreme Court affirming the decision of the Court of Appeals and holding that Article 1, Section 25 of the Michigan Constitution (adopted by Michigan voters in November 2004 and stating that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose”) precludes Michigan public employers, including Michigan’s public universities, from extending same-sex domestic partnership benefits to their employees.

Complete text (84 pages) of decision by U.S. District Court (N.D. Ga.) holding that use of certain material by university affiliated program designed to provide a supportive environment for gay, lesbian and transgendered members of the university community violated the Establishment clause of the First Amendment because the material appeared to prefer certain religious denominations over others.

Complete text (10 pages) of unpublished decision by California Court of Appeals, 4th Division, affirming breach of contract award in favor of institution against faculty member for failure to conduct the research identified in his sabbatical leave request.

Complete text (34 pages) of document prepared by the Association of American Medical College (AAMC) addressing the legal considerations in developing diversity policies and programs for medical school admissions and enrollment.

Complete text (42 pages) of legislation enacted by U.S. House and Senate and awaiting signature of the President. Title I of the act addresses genetic non-discrimination in health insurance. Title II of the act prohibits certain employer practices with respect to genetic information. The report of the House Education and Labor Committee (73 pages) is here. The report of the Senate Committee on Health, Education, Labor and Pensions (58 pages) is here.

Complete text (17 pages) of Final Rule issued by the Food and Drug Administration and published in the April 28 Federal Register. In the final rule, the FDA amends is regulations on the acceptance of foreign clinical studies not conducted under an investigational new drugs application (IND) as support for an IND or application for marketing approval for a drug or biological product. The final rule requires that such studies be conducted in accordance with good clinical practice (GCP), including review and approval by an independent ethics committee (IEC). GCP is defined as a standard for the design, conduct, performance, monitoring, auditing, recording, analysis and reporting of clinical trials in a way that provides assurance that the data and reported results are credible and accurate and that the rights, safety, and well-being of trial subjects are protected. GCP includes review and approval of studies by an IEC, including continuing review of on-going studies, and obtaining and documenting the freely given informed consent of study subjects. The final rule is effective October 27, 2008.

Complete text (57 pages) of Report to the Governor of the State of Illinois Campus Security Task Force.

Complete text (60 pages) of opinion by U.S. District Court (M.D. Ga.) upholding the defendant Board of Regents' claim of Eleventh Amendment immunity in case of alleged copyright infringement arising out of the use of copyrighted exam questions in a pharmacy board review course offered at the University of Georgia College of Pharmacy. The court holds that the Copyright Clause in Article I of the U.S. Constitution is not a valid basis for the abrogation of the sovereign immunity of the states under the Eleventh Amendment contained in the Copyright Remedies Clarification Act (CRCA) of 1990, refusing to extend the holding of Central Virginia Community College et al. v. Katz, dealing with the Bankruptcy Clause, to cases arising under the Copyright Clause. The court also holds that the CRCA is not a valid exercise of congressional power under Sec. 5 of the 14th Amendment, and further holds that defendant did not waive its Eleventh Amendment immunity when it entered into a 1995 agreement not to infringe plaintiff's copyrighted examination questions, rejecting plaintiff's argument that state-law contract claims based on promises not to infringe are pre-empted by the Copyright Clause. The court further denies injunctive relief against those defendants sued in their official capacities, holding that plaintiff has failed to demonstrate any on-going copyright infringement. Finally the court denies the immunity claims of two defendants named in their individual capacities, showing they could not show that any judgment against them would be paid by the state.

Complete text (27 pages) of proposed rule by U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security (DHS) and published in the April 21 Federal Register. In the proposed rule (pp. 21275 - 21277) DHS sets forth procedures for the required recertification of institutions participating in the Student and Exchange Visitor Program (SEVP). Under the proposed rule each participating institution will be advised of its certification expiration date. Designated School Officials (DSOs) of participating institutions will be notified 180 days prior to the school's certification expiration date that the school may submit a petition for recertification. If an institution fails to file for recertification or fails to submit a complete recertification petition package by its certification expiration date, SEVP will immediately withdraw the institution's certification for participation in the program. In the proposed rule, DHS also proposes raising the application fee for non-immigrants seeking to become academic (F visa) or vocational (M visa) student to $200, and raising the application fee for most non-immigrants seeking to become exchange visitors (J visa) to $180. The proposed rule would take effect on October 1, 2008. Comments on the proposed rule are due by June 20, 2008.

This Internal Revenue Service (IRS) web page includes information on the Service's Political Activities Compliance Initiative (PACI), including educational and enforcement efforts directed at unlawful political campaign activity by 501(c)(3) and other tax exempt organizations.

Complete text (57 pages) of complaint filed by academic publishers against officials of Georgia State University alleging copyright infringement in the maintenance and distribution of on-line course reserves and reading material. The complaint seeks declaratory and injunctive relief.

Complete text (7 pages) of Guide issued by the Equal Employment Opportunity Commission describing protections for veterans with service-related disabilities under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act (ADA), with particular focus on application of the ADA to the recruiting, hiring and accommodation of such veterans.

Complete text (10 pages) of updated memorandum on compliance with the Honest Leadership and Open Government Act of 2007 (HLOGA) issued by the American Council on Education (ACE) and prepared by the law firm of Hogan & Hartson. The memorandum addresses gift, entertainment and travel restrictions when dealing with members of Congress and their staffs and includes an appendix setting forth hypothetical applications of the new lobbying rules. ACE has also created an HLOGA Resource Page.

Internal Revenue Service (IRS) website with link to draft instructions for the 2008 Form 990, the re-designed Form 990 that most colleges and universities will file for the 2008 tax year. The IRS is soliciting comments on the instructions. The IRS has highlighted specific items with respect to which it would especially like to receive comments. Comments are due by June 1.

Complete text (13 pages) of interim final rule released by the Department of Homeland Security (DHS). The interim final rules extends the period of Optional Practical Training (OPT) from 12 - 29 months for qualified F-1 non-immigrant students with a degree in science, technology, engineering or mathematics (STEM). To qualify for the extension, the students must be employed by businesses enrolled in DHS's E-Verify program. The rule was published in the Federal Register on April 8, 2008. DHS has issued a press release about the rule.

Complete text (38 pages) of final rule issued by the Departments of State and Homeland Security (DHS) and published in the April 3 Federal Register. The rule sets forth the documents U.S. citizens and non-immigrant citizens of Canada, Bermuda and Mexico will be required to present when entering the U.S. from within the Western Hemispher at via sea and land entry points. A chart on page 18407 of the final rule summarizes the document requirement. The final rule is effective June 1, 2009. Pursuant to an earlier DHS notice, certain document requirements took effect on January 31, 2008.

Complete text (26 pages) of decision by U.S. Second Circuit Court of Appeals reversing the District Court's grant of summary judgment for defendant college and holding that an employer may violate Title VII if it takes action against an employee based on the employee's association with another race. The court rules that viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could conclude that plaintiff was dismissed from his position as Assistant Basketball coach because of his marriage to a black woman.

Complete text (15 pages) of S.2041, captioned "The False Claims Correction Act of 2007". The Association of American Universities (AAU) has issued a summary of the impact of the proposed bill on colleges and universities.

Complete text (36 pages) of opinion by the U.S. District Court (E.D. Va.) holding that rules promulgated by the Virginia Alcoholic Beverage Control Board (ABC Board) imposing certain general restrictions on the advertising of alcoholic beverages in print or electronic media, and specifically prohibiting certain advertisements for alcoholic beverages in college publications, violated the First Amendment.

Complete text (3 pages) of proposed rule issued by the Equal Employment Opportunity Commission (EEOC) and published in the March 31 Federal Register. The EEOC proposes to revise rules under the Age Discrimination in Employment Act to reflect the holding of the U.S. Supreme Court in Smith v. City of Jackson, 544 U.S. 228 (2005). Specifically, the proposed rule states that an employment practice that has an adverse impact on individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a "reasonable factor other than age". (RFOA). The previous rule reflected the EEOC's position that an employment practice that had a disparate impact on individuals within the protected age group had to be justified as a business necessity. The proposed rule also states that an individual challenging an allegedly unlawful employment practice bears the burden of isolating and identifying the specific employment practice responsible for the adverse impact. Comments on the proposed rule are due by May 30, 2008.

Complete text (15 pages) of Request for Information issued by the National Institutes of Health (NIH) and published in the March 31 Federal Register. In the Notice, the NIH request input on the NIH Policy on Enhancing Public Access to Archived Publications Resulting from NIH-Funded Research. Under the revised policy, electronic submission of final manuscripts accepted for publication to the National Library of Medicine's PubMed Central (PMC) archive is mandatory. The policy applies to any article accepted for publication on or after April 7 arising out of an NIH grant of cooperative agreement active in fiscal year 2008, from direct funding from an NIH contract signed after April 7, 2008, or direct funding from an NIH intramural program. Additional information on the Public Access Policy is available here. Comments may be submitted until May 31 via a comment page on the NIH Public Access Policy website.

Complete text (53 pages) of U.S. Patent and Trademark Office (USPTO) Non-Final Action rejecting all 44 claims of Blackboard, Inc. concerning its course management and transactions software. Blackboard, Inc. and Desire2Learn, Inc. have been engaged in litigation over alleged infringement of the patents by Desire2Learn, and a U.S. District Court jury recently returned a verdict in favor of Blackboard.

Complete text (23 pages) of document prepared by the Association of American Universities (AAU) comparing selected provisions of House (H.R. 4137) (916 pages) and Senate (S. 1642) (608 pages) Higher Education Reauthorization bills. Pages 10 - 16 include summaries of selected new institutional reporting or disclosure requirements included in either the House or Senate legislation.

Complete text (7 pages) of final rule issued by the Department of Defense and published in the March 28 Federal Register. The rule implements the requirements of 10 U.S.C. 983. The statute prohibits providing of certain federal funds to any institution that has a policy or practice that prohibit or effectively prevent the establishment or operation of a Senior Reserve Officer Training Corps (ROTC) program at the institution, or that prohibits or prevents a student at the institution from enrolling in a ROTC unit at another institution. The statute also prohibits the providing of certain federal funds to any institution that prohibits or prevents the military from access to campus for military recruiting purposes or access to student directory information equal in quality and scope to that provided to any other employer. The rule provides that for purposes of military recruiting, the term "equal in quality and scope" means the same access to campus and students provided by an institution to any other nonmilitary recruiters or employers receiving the most favorable access. The rule sets forth criteria by which compliance with the statute will judged and procedures for Department of Defense evaluation of compliance. The rule is effective April 28, 2008.

Complete text (12 pages) of supplemental proposed rule issued by the Department of Homeland Security (DHS) and published in the March 26 Federal Register. The supplemental proposed rule seeks to address the U.S. District Court decision in American Federation of Labor et al. v. Michael Cherthoff, et al. which enjoined implementation of the DHS's August 2007 rule establishing safe harbors for employers in receipt of "no match" letters from the Social Security Administration (SSA). The August 2007 rule would have established a safe harbor for employers who follow the safe harbor procedures after receipt of a "no match letters" from the Social Security Administration (SSA) or "Notice of Suspect Documents" letters from DHS. Employers who followed the safe harbor procedures set forth in the August 2007 rule would be shielded from the possibility of a finding of "constructive knowledge" of employment of a person ineligible to work in the U.S. and the resulting liability. The safe harbor provides no protection from liability based on actual knowledge of an employee's ineligibility to work or on constructive knowledge of such ineligibility arising out of circumstances other than receipt of "No-Match" or "Suspect Documents" letters. In the supplemental proposed rule, DHS addresses the court's finding that it exceeded its authority in promulgating the August 2007 rule by rescinding statements in the preamble to the rule describing employer obligations under anti-discrimination law or discussing the potential for anti-discrimination liability faced by employers who follow the safe harbor procedures, including conclusive statements to the effect that employers who follow the safe harbor procedures will not be found to have engaged in unlawful discrimination. The supplemental proposed rule also clarifies that the requirement in the August 2007 rule that an employer "promptly" notify an affected employee when the employer has been unable to resolve a mismatch disclosed by a no-match letter, and also clarifies that the August 2007 rule and the supplemental proposed rule do not apply to employees hired before November 6, 1986.

Complete text (7 pages) of final regulations issued by the Internal Revenue Service (IRS) and published in the March 28 Federal Register. The regulations add examples to existing regulations illustrating the principle that in order to qualify for tax-exempt status under Sec. 501(c)(3) of the Internal Revenue Code, an organization must serve a public rather than an private interest. The regulations also amend existing regulations to provide guidance on the factors the IRS will consider in determining whether a 501(c)(3) organization that engages in excess benefit transactions continues to qualify as a tax-exempt organization under 501(c)(3). The regulations also clarify that the IRS has discretion to refuse to recognize a 501(c)(3) exemption for any applicant whose purpose or activities violate any provision of section 501(c)(3), including inurement prohibition and the limitation on private benefit, even though such violations could serve as grounds for imposing excess benefit transaction penalties if the applicant's tax exempt status were recognized. The regulations are effective on March 28, 2008.

Complete text (5 pages) of Notice 2008-38 issued by the Internal Revenue Service and published on March 31 in issue 2008-13 of the Internal Revenue Bulletin. The notice seeks public comment on guidance the IRS will issue concerning implementation of Section 3402(t) of the Internal Revenue Code, added by Sec. 511 of the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA) (Pub. L. No. 109-222). Under Section 3402(t) all Government entities and their paying agents, with certain limited exceptions, will be required to deduct and withhold from payments made for services or property after December 31, 2010 a tax in an amount equal to 3 percent of such payment. In the Notice, the IRS requests comments on issues as to which government entities and their paying agents will require guidance in order to implement the 3402(t) requirements. Comments are due April 28, 2008.

Complete text (30 pages) of proposed rule issued by the U.S. Department of Education and published in the March 24 Federal Register. The proposed rule would implement a number of changes and clarifications to the existing rule, including to the definitions of "attendance", "directory information", "disclosure", "education records" and "personally identifiable information". In addition, among other items, the proposed rule would clarify the circumstances under which institutions can release information about a student without consent, including to parents of students, pursuant to the "health and safety" exception set forth in the statute and regulations. Other changes address rules governing the release of information to parents, to school officials and officials of other schools, to contractors and consultants, to researchers, to state auditors, to representatives of the U.S. Department of Justice pursuant to ex parte court orders obtained under the PATRIOT Act, the redisclosure of information, the release of de-identified information, the release of information concerning registered sex offenders, the release of information about former students, identification and authentication of the identity of those to whom personally identifiable information from education records is released, and enforcement procedures and actions by the Department. Comments on the proposed regulations are due by May 8.

Complete text (55 pages) of opinion by U.S. District Court (E.D. Mich.) dismissing consolidated cases challenging the constitutionality of an amendment to Michigan state constitution prohibiting the state and its political subdivisions (including state colleges and universities) from discriminating against, or granting preferential treatment to; any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting.

Complete text of letters sent to chairman and ranking minority members of the House and Senate Committees on Education and Labor by the American Council on Education (ACE) on behalf of 13 higher education associations. The letters express support for provisions in the pending bills re-authorizing the Higher Education Act (HEA) that would require colleges and universities to inform their students about campus policies on copyright infringement, but strongly oppose language contained in H.R. 4137 that would require institutions to develop plans to provide alternative music and movie services and implement technological measures to deter illegal file sharing.

Complete text (24 pages) of decision by U.S. District Court (E.D. VA) in copyright infringement suit brought by high school students against the operator of Turnitin.com, a plagiarism detection service used by high schools and institutions of higher education. Plaintiffs were required by their school districts to submit their written works to Turnitin.com or they would receive no credit for the assigned works. Plaintiffs alleged that defendant's action in archiving their submitted works for use in subsequent plagiarism detection searches infringed their copyrights in those works. The court holds that defendant cannot be held liable for any damages for copyright infringement because of the terms of the clickwrap agreement to which each plaintiff agreed in order to use the service and submit their works. The court also holds that even if the clickwrap agreement did not preclude liability, defendant's use of plaintiffs' copyrighted works constitutes fair use.

Complete text (30 pages) of consent decree entered by the U.S. District Court (E.D. Mich) between plaintiff Michigan Paralyzed Veterans of America, plaintiff-intervenor U.S. Department of Justice, and defendant University of Michigan. Plaintiffs had alleged that the university was in violation of the ADA and Sec. 504 because it failed to provide accessibility to the University's football stadium for individuals with disabilities, including individuals using wheelchairs, and failed to make required alterations and additions to the stadium to ensure accessibility. The university denies any violation of the ADA or Sec. 504. Under the terms of the consent decree, by 2010 at least 329 wheel-chair accessible seats, plus companion seats, will be available in several areas of the stadium. The consent decree addresses required alterations and additions, site arrival points, concourse approach routes, wheelchair seating locations, ticketing policies for individuals using wheelchairs and their companions, restroom facilities, parking, staff training, publicity, other stadium facilities and services, and monitoring and enforcement of the consent decree.

Complete text of survey sent by the National College Players Association (NCPA) to 119 NCAA Division I institutions seeking information on institutional medical insurance policies for student athletes. The NCPA intends to grade each institution on the basis of its response to the survey (page 2 of survey). Institutions that do not respond by March 31 will be designated as having refused to disclose the requested information. The NCAA has written a letter to the NCPA explaining that it cannot endorse the survey.

Complete text (7 pages) of decision by Connecticut Freedom of Information Commission holding that the Yale University police department is the functional equivalent of a public agency under the terms of the Connecticut Freedom of Information Act, and was therefore obligated, in response to a request made under the Act, to provide copies of the personnel files of two police department officers.

Complete text (17 pages) of document entitled "Code of Ethics for Education Abroad" released by the Forum on Education Abroad. The document includes sections devoted to truthfulness and transparency, responsibility to students, relationships with host societies, observance of law and good practice, conflicts of interest, and gifts, gratuities, discounts, rebates and compensation.

Complete text of document posted by the Internal Revenue Service (IRS) to its Charities and Non-Profit Organizations website. The document addresses organizational mission and documents, the governing body, governance and management policies, financial statements and Form 990 reporting, and transparency and accountability.

Complete text (15 pages) of letters and accompanying memorandum from the American Council on Education (ACE) on behalf of 14 higher education associations to chairman and ranking minority member of the House Committee on Education and Labor and the Senate Committee on Health, Education, Labor and Pensions. The memorandum sets forth recommendations for members of the conference committee that will meet to reconcile difference between the reauthorization bills passed by the House (H.R. 4137) (916 pages) and Senate (S. 1642) (608 pages).

Complete text (23 pages) of white paper authored by Villanova University School of Law Professor Michael Carroll and cosponsored by SPARC, Science Commons and the Association of Research Libraries (ARL). The white paper addresses National Institutes of Health grantees' copyright-related obligations under the NIH revised Public Access Policy for peer-reviewed journal articles reporting research supported in whole or in part by NIH funds, and suggests six options for achieving compliance with the copyright-related obligations. Under the revised policy, electronic submission of final manuscripts accepted for publication to the National Library of Medicine's PubMed Central (PMC) archive is mandatory. The policy applies to any article accepted for publication on or after April 7 arising out of an NIH grant of cooperative agreement activie in fiscal year 2008, from direct funding from an NIH contract signed after April 7, 2008, or direct funding from an NIH intramural program.

Complete text (87 pages) of report and recommendations issued by a joint Association of American Medical Colleges (AAMC) and Association of American Universities (AAU) Advisory Committee on Financial Conflicts of Interest in Human Subjects Research. The report includes chapters on individual conflict of interest policies, institutional conflict of interest policies and implementation of conflict of interest policies, as well as a model institutional conflicts of interest.

Complete text (16 pages) of complaint filed in Massachusetts District Court alleging that defendant institution's practice of charging full tuition and fees for participation by students in a study abroad program administered by a third party provider constitutes a violation of the Massachusetts Consumer Protection Act, as well a breach of contact and additional causes of action set forth in the complaint.

Complete text (24 pages) of decision of Chancery Court, Davidson County, Tennessee holding that the artist Georgia O'Keefe, in donating the Alfred Stieglitz collection of paintings to Fisk University in 1949, did not intend for the university to be able to dispose of the collection in whole or in part and that rather than having the collection sold she intended instead that it be returned to her or her successor in interest. The court concludes that such specific intent on the part of the donor precludes the application of the doctrine of cy pres to permit the sale by the university of an undivided 50% interest in the collection to a third party in order alleviate extremely serious financial difficulties faced by the institution.

Complete text of proposed Tennessee Senate Bill 3974, introduced in the Tennessee legislature and pending before the state Senate Education Committee. The bill would require that each institution of higher education receiving funding from the State of Tennessee develop a policy on computer and network usage and ethics applicable to faculty, staff and students; analyze its computer network to determine whether it is being used to transmit copyrighted works and either certify to the state higher education commission that the network is not being so used and that the institution has not received 10 or more notices of infringement in the preceding year, or implement effective technology-based deterrents to prevent the infringement of copyrighted works over the institution's computer network.

Complete text (19 pages) of February 2008 report issued by the Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice. The report summarizes the results of a comprehensive survey for the year 2004-2005 of law enforcement agencies serving 4-year colleges and universities with enrollments of 2,500 or more and two-year colleges with enrollments of 10,000 or more. In addition to reporting trends in campus crime reporting under the Clery Act from 1994 - 2004 (page 10), the report summarizes numerous other aspects of campus law enforcement, including functions performed, education, required training, pre-employment screening, and differentiation in training, duties and equipment between sworn and non-sworn officers.

Complete text (4 pages) of letter from the Association of American Universities (AAU) and the Council on Governmental Relations (COGR) to U.S. Secretary of Commerce responding to the report and recommendations of the Deemed Export Advisory Committee (DEAC). The DEAC was appointed to review current deemed export policy and ensure it continues to protect the national security of the United States while promoting continued leadership in technological innovation by U.S. academic institutions and industry. While embracing certain aspects of the report, the letter expresses concern about the DEAC's proposed change in the definition of fundamental research in export control analysis and administration.

Complete text (30 pages) of complaint filed by the University of California-Los Angeles (UCLA) against various animal rights activist groups and individuals alleging unlawful harassment, intentional infliction of emotional distress, violation of the state constitutional right to privacy, intrusion into private affairs, trespass, and intentional interference with business relations. The suit is based on the alleged actions of the named group and individual defendants in harassing UCLA faculty members who conduct or oversee research involving animals, and seeks preliminary and permanent injunctions barring the defendants from committing or threatening acts of violence against UCLA personnel engaged in animal research; vandalizing or threatening to vandalize property; violating local noise ordinances; and disseminating personal information about UCLA personnel. On February 21, a Los Angeles County Superior Court judge issued a temporary restraining order prohibiting defendants from harassing UCLA personnel or coming within 50 feet of them during demonstrations and requiring the removal of personal information about UCLA personnel from websites maintained by the defendants.

Complete text (9 pages) of opinion by U.S. District Court (E.D. VA) granting defendant university's motion for summary judgment as to Count VII of plaintiff's complaint and holding that plaintiff faculty member has no constitutional right to academic freedom preventing defendant university from changing a student grade given by the faculty member.

Complete text (43 pages) of decision by Washington Court of Appeals reversing the lower court's grant of summary judgment in favor of the university and reinstating plaintiff student's Title IX claim arising out of plaintiff's alleged rape by a member of defendant university's football team. The court holds that a single sexual assault can be sufficient to support a Title IX claim based on the effects of the inadequate response of the university following plaintiff's report of the assault.

Complete text (127 pages) of Notice of Proposed Rulemaking under the Family Medical Leave Act (FMLA) issued by the U.S. Department of Labor (DOL) and published in the February 11 Federal Register. The proposed rules address matters relating to waiver of rights, the definition of a serious health condition, employer and employee notice obligations, the medical certification process, fitness for duty certifications and the substitution of paid leave to run concurrently with FMLA leave. In addition, the Notice includes proposed rules designed to implement the provisions of Sec. 585 of the National Defense Authorization Act of 2008 expanding FMLA coverage for employees with family members serving in the military. The Department of Labor has established a website with information on the proposed rules, including a fact sheet summarizing the main regulatory changes embodies in the proposed rules. Comment on the proposed rules are due by April 11.

Complete text of Sec. 585 of the National Defense Authorization Act for FY2008 as signed into law by the President on January 28. Sec. 585 amends the Family Medical Leave Act (FMLA) expands from 12 to 26 weeks the amount of time a family member is entitled to take off from work to care for another family member with a serious health condition when the health condition being cared for was incurred by a "covered service member" in the line of duty while on active duty in the military. In addition, Sec. 585 amends the FMLA to provide that eligible employees are entitled to up to 12 weeks of leave because of any "qualifying exigency" arising out of the fact that the employee's spouse, son, daughter or parent is on active duty in the military in support of a "contingency operation" as defined in 10 U.S.C. 101(a)(13). The amendment took immediate effect on January 28. The Department of Labor will be issuing implementing regulations.

Complete text (10 pages) of working paper released by the American Council on Education (ACE). The working paper proposes basic principles for management of conflict of interest, and identifies several sets of questions and considerations to help guide institutional review and implementation of conflict of interest policies. ACE also issued an executive summary.

Complete text (4 pages) of January 24 statement by the Chairman and ranking minority member of the Senate Finance committee and letter sent to 136 colleges and universities with endowments of $500 million dollars or more. Among other items the letter seeks information on institutional tuition, financial aid and endowment management policies, including information concerning restrictions on and pay-outs from endowment funds. The letter requests a response within 30 days.

Complete text (8 pages) of subpoena sent by the New York Attorney General to 15 institutions seeking documents and information related to the operation of the study abroad programs at those institutions.

Complete text (122 pages) of Congressional Research Service (CRS) report comparing current provisions of the Higher Education Act with provisions in the reauthorization bills passed by the Senate [S. 1642 (608 pages)] and the House Education and Labor Committee [H.R. 4137 (792 pages)].

Complete text (30 pages) of report issued by the Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) on National Institutes of Health (NIH) oversight of financial conflicts of interest at grantee institutions. The report recommends that NIH increase oversight of grantee institutions to ensure compliance with federal financial conflict of interest regulations, require grantee institutions to provide details of the nature of the financial conflicts of interest they report and how they are managed, reduced or eliminated, and that NIH require all Institutes to forward all financial conflict of interest reports they receive of the Office of Extramural Research. The Association of American Medical Colleges issued a statement on the OIG report.

Complete text (30 pages) of decision by National Labor Relations Board (NLRB) holding that an employer did not violate Sec. 8(a)(1) of the National Labor Relations Act by maintaining a policy that prohibited employees from using the employer's email system for any "non-job-related solicitations". The Board also rejected the charging party's claim that the employer violated Sec. 8(a)(1) by discriminatorily enforcing its policy on the basis of protected union activity, since it permitted under its policy a variety of non-work related employee emails. The Board holds that an allegation of discrimination on the basis of Sec. 7 protected activity must involve disparate treatment of communications of a similar character because of their union or other Section 7-protected status.

Complete text (8 pages) of final rule issued by the Equal Employment Opportunity Commission (EEOC) and issued on December 26. The rule exempts from coverage by the ADEA the practice of coordinating retiree health benefits with retiree eligibility for Medicare or a comparable State health benefits program.

Complete text (32 pages) of U.S. Government Accountability Office (GAO) to Chairman of U.S. House of Representatives Committee on Education and Labor on trends and pattern in higher education enrollments, tuition and fees, and institutional expenditures on education services. The report is composed primarily of slides presented by GAO in testimony before an October 31, 2007 hearing of the Committee.

Complete text (153 pages) of the report to the Secretary of Commerce of the Deemed Export Advisory Committee (DEAC). The DEAC was appointed to review current deemed export policy and ensure it continues to protect the national security of the United States while promoting continued leadership in technological innovation by U.S. academic institutions and industry. The report concludes that the current deemed export policy and regulations no longer effectively serve their intended purposes and proposes a new deemed export licensing process that the committee believes will enhance both national security and economic competitiveness.

Complete text (28 pages) of decision by U.S. Seventh Circuit Court of Appeals vacating the District Court's grant of summary judgment in favor of defendant university on former women's tennis coach's gender discrimation claim and holding that, viewing the evidence in the light most favorable to the plaintiff, a jury could determine that that similarly situated coaches were treated more favorably than plaintiff and could also find that defendant's explanations for plaintiff's termination were pre-textual.

Link to Internal Revenue Service (IRS) web page with information on the release of the re-designed Form 990 Return for use by tax-exempt organizations for the 2008 tax year (returns filed in 2009). The web page includes links to an overview of the new Form 990 and a more detailed background paper.

Complete text (13 pages) of decision by U.S. District Court (S.D.N.Y) denying request by plaintiff union officials for a preliminary injunction requiring City University of New York (CUNY) to permit the union to continue using the university's email system to carry on union business in violation of the university's policy on the acceptable use of computer resources.

Complete text (36 pages) of decision by U.S. Tenth Circuit Court of Appeals denying plaintiffs' petition for re-hearing of the Court's earlier decision affirming dismissal of plaintiffs suit by the U.S. District Court. In 2004 Kansas enacted a statute permitting certain resident undocumented alien students to attend state institutions while paying the resident tuition rate. Plaintiffs, legal out-of-state residents attending Kansas public universities, had challenged the Kansas statute on grounds of Equal Protection and federal pre-emption. The court holds that plaintiffs lack standing for both their federal pre-emption claims and Equal Protection claims. The court also holds that to the extent plaintiffs sought to enforce substantive rights conferred by federal law, specifically 8 U.S.C. Section 1623 ("Limitation on eligibility for preferential treatment of alients not lawfully present on the basis of residence for higher education benefits"), the statute includes no provision of a private right of action to enforce its terms.

Complete text of new technical assistance document issued by the Equal Employment Opportunity Commission (EEOC). The Fact Sheet describes the impact of Title VII, the ADA and the ADEA on various types of commonly administered employer tests, including cognitive tests, personality tests, medical examinations, credit checks and criminal background checks., and concludes with a list of "best practices" for employers to follow when when using employment tests and other screening devices.

Complete text (49 pages) of settlement agreement between Student Financial Services, Inc. (SFS) and Attorneys General of New York and Florida. Under the agreement, SFS, while denying any wrongdoing, agrees to terminate student loan consolidation arrangements involving 63 college and university athletic departments or their marketing agents. The agreement describes various marketing practices employed by SFS and alleged to be deceptive under New York and Florida law.

Complete text (29 pages) of Final Program Review Determination (FPRD) issued by the Office of Civil Rights (OCR), U.S. Department of Education following OCR's review of Eastern Michigan University's compliance with Clery Act.

Complete text (6 pages) of decision by U.S. District Court (E.D. Louisiana) rejecting claim by law student against university for breach of contract and unjust enrichment. Plaintiff had paid tuition to attend law school in New Orleans in fall of 2005; however the law school was forced to close for a semester due to damage caused by Hurricane Katrina. Pursuant to an arrangement negotiated by the law school, plaintiff was able to obtain visiting student status and attend another law school at no additional charge. The court finds that defendant university's failure to refund tuition paid by plaintiff was constitued neither a breach of contract nor unjust enrichment.

Complete text of letter from Florida Attorney General to President of University of Florida asserting that a letter from the University's Vice President for Student Affairs sent to all university students may have violated the free speech rights of students and student organizations sponsoring a movie on campus. The original letter, entitled an "official response", stated that advertisements for the movie offended many muslim students and called on the sponsoring student organizations to apologize for and clarify their advertising. The faculty advisor for one of the sponsoring student organizations also responded to the letter.

Complete text (24 pages) of decision by U.S. First Circuit Court of Appeals affirming the decision of the District Court and holding that so long as defendant university officials had a reasonable belief that the Clery Act required them to issue a warning concerning suspected criminal activity, they are protected by a qualified privilege from liability in defamation action based on the content of the warning. The court adds that the privilege applies even if the belief concerning the legal duty to act is later shown to be incorrect in some particulars.

Complete text (12 pages) of second annual report issued by the Foundation for Individual Rights in Education (FIRE). The report summarizes the results of FIRE's survey of 346 colleges and universities across the country. According to FIRE, the majority of the institutions whose policies it surveyed prohibit speech that would be protected by the First Amendment if occurring off-campus.

Results of surveys of 80 college and university DMCA and Copyright Policy and Practices and Network Bandwidth Policies and Practices conducted by Brandeis University network administrator.

Complete text of letter sent by the Motioni Picture Association of America (MPAA) to selected university presidents with information about University Toolkit, a computer application developed by MPAA with the ability to produce reports illustrating the level of file sharing on an institution's network. A Washington Post article discusses potential privacy and security concerns related to the application.

Complete text (6 pages) of opinion by U.S. District Court (C.D. California) holding Oregon State University immune from suit under the Eleventh amendment in copyright infringement case. In keeping with earlier precedent, the court holds that the purported abrogation by Congress of state Eleventh Amendment immunity by the Copyright Remedy Clarification Act (CRCA) [17 U.S.C. Sec. 511(a)] was not a valid exercise of congressional power under either Article I of the Constitution or Sec. 5 of the Fourteenth Amendment to the Constitution. The United States declined to intervene in the case to defend the constitutionality of the CRCA.

Complete text of updated (November 2007) memorandum issued by the American Council on Education describing permitted and prohibited activities by colleges and universities, and their personnel, in campaigns for public office. The memorandum includes a list of illustrative permitted activities and a list of illustrative prohibited or questionable activities. The U.S. Internal Revenue Service (IRS) has also established a web page with resources on political campaign intervention by charities, churches and educational organizations.

Complete text (10 pages) of final rule published in the November 23 Federal Register and effective December 24, 2007. The final rule states that all federal contractors should have written codes of business conduct and ethics, employee business ethics and compliance training programs, and internal controls that facilitate timely discovery and disclosure of improper conduct in connection with government contracts. These programs, and display of a fraud hotline poster, are required for federal contractors where the value of the contract exceeds $5,000,000 and the performance period is 120 days or more. Contracts for acquisition of commercial items or that will be performed entirely outside the United States are not covered by the final rule. A separate proposed rule on contractor compliance programs and integrity reporting published in the November 14 Federal Register would add a contractor's record of integrity and business ethics as relevant information in evaluating a contractor's past performance; includes proposed ethics and business conduct provisions tailored to resemble Section 8b2 of the U.S Sentencing Commission Guidelines Manual; provide for contractor reporting of suspected violations of federal criminal law in connection with the award or performance of any government contract performed by the contractor; and mandate that contractor internal control systems require full cooperation with any government agencies responsible for audits, investigations or corrective actions. (The commentary accompanying the proposed rule solicits public comment on the relationship of this last requirement to waiver of the attorney-client privilege). Comments on the proposed rule are due January 14, 2008.

Complete text (7 pages) of Notice of Amended Form I-9 issued by U.S. Citizenship and Immigration Services (USCIS) and published in the November 26 Federal Register. The amended form contains an updated list of acceptable identity and employment authorization documents. The amended form is valid and supercedes the previous versions of the form as of November 7, 2007; however the Department will not seek sanctions against employers for using a previous version of the form on or before December 26, 2007. USCIS has also issued an Update and Fact Sheet accompanying the revised form, and a revised Handbook for Employers: Instructions for Completing the Form I-9 (47 pages).

Complete text (41 pages) of revised Appendix A to the Chemical Facility Anti-Terrorism Standards (CFATS), issued by the Department of Homeland Security and published in the November 20 Federal Register. The final rule sets forth a revised list chemicals that covered facilities, including colleges and universities, are required to inventory and report on to DHS, pursuant to the Department's Chemical Facility Anti-Terrorism Standards. Facilities that possess any of the listed chemicals at or above the listed threshold quantities will be required to complete an on-line report (a "Top Screen") to the Department with respect to those chemicals within 60 calendar days of the publication of the list. In the final rule, DHS has adjusted the screening threshold quantities (STQs) for certain chemicals of interest (COI); defined the specific security issue(s) implicated by each COI and included provisions to instruct facilities on how to calculate the quantities of COI they have in their possession. DHS has posted a FAQ list on its website concerning the list and the Chemical Facility Anti-Terrorism Standards. The Association of American Universities (AAU) has posted a template letter for universities to use in requesting a top-screen extension.

Complete text (28 pages) of decision by U.S. 2nd Circuit Court of Appeals holding use by campus student government of a student advisory vote to determine the allocation of mandatory student activity fees among student organizations violated the First Amendment because it was not a viewpoint neutral means of allocating such fees as required by the U.S. Supreme Court decision in Board of Regents of the University of Wisconsin v. Southworth, 529 U.S. 217 (2000).

Complete text (17 pages) of decision by Pennsylvania Supreme Court holding that records held by state retirement system indicating the names, service history and salaries of employees of state university were subject to disclosure under the Pennsylvania Right to Know Act (RTKA).

Complete text (33 pages) of decision by U.S. District Court (N.D. California) granting plaintiffs' motion for a preliminary injunction barring defendant university officers from basing any student disciplinary actions on certain provisions of the university's student conduct code and student organization handbook. The court finds plaintiffs are likely to succeed in their assertions that a provision of the university's student conduct code requiring students to be "civil to one another and to others in the campus", and a provision of the student organization handbook requiring that student organization members' behavior be consistent with the goals, principles and policies of the university, are overbroad and unconstitutionally burden and restrict the First Amendment freedom of expression. The court declines to enjoin enforcement of a provision of the student code of conduct prohibiting intimidation and harassment, finding it to be limited by its terms to intimidation or harassment that "threatens or endangers the health or safety of any person."

Complete text (14 pages) of letter from University of Michigan to Office of Civil Rights (OCR), U.S. Department of Education, responding to OCR letter alleging that the University of Michigan Stadium does not comply with the accessibility requirements of the ADA and Sec. 504. The University asserts it is in full compliance with all applicable requirements. The university further proposes a plan for accessible seating for wheelchair users contemplating both construction or installation of portable platforms to provide places/seats for wheelchair users and their companions and the infilling of unused seats by ambulatory patrons.

Complete text (7 pages) of November 10 speech by IRS Commissioner for Tax Exempt and Governmental Entities. The speech touches on current IRS efforts supporting increased transparency and good governance practices by tax-exempt organizations, and on the efficient and effective use of resources by tax-exempt organizations.

Complete text of final rule issued by the Centers for Medicare and Medicaid Services (CMS) and published in the November 15 Federal Register. The final rule delays until December 4, 2008, with respect to certain Academic Medical Center (AMC) and integrated 501(c)(3) health care system compensation arrangements, the application of the CMS Phase III final rule concerning referral by physicians of Medicare patients to health care entities with which the physicians have a financial relationship.

Complete text of article entitled "Get Your E-Information House in Order" by NACUA members Christine Helwick and Susan Westover, reprinted with permission from the November 2007 issue of Business Officer, published by the National Association of College and University Business Officers (NACUBO), Washington, DC.

Complete text (4 pages) of final rule issued by the Internal Revenue Service (IRS) and published in the November 19 Federal Register. The final rule sets forth a definition of the term "salary reduction agreement" and provides guidance to public educational institutions and 501(c)(3) organizations participating in Sec. 403(b) plans on behalf of their employees. Commentary accompanying the final rule notes that payments made under a salary reduction agreement to purchase a Sec. 403(b) annuity are included in wages for FICA purposes.

Complete text (5 pages) of proposed rule issued by the Department of Defense (DOD), NASA and the General Services Administration (GSA) and published in the November 14 Federal Register. The proposed rule follows and supplements an earlier proposed rule on contractor codes of ethics and business conduct issued on February 16 and adds new features requested by the Department of Justice. Specifically, the proposed rule would add a contractor's record of integrity and business ethics as relevant information in evaluating a contractor's past performance; would revise the Code of Ethics and Business Conduct proposed in the earlier rule to more closely resemble Section 8b2 of the U.S Sentencing Commission Guidelines Manual; provide for contractor reporting of suspected violations of federal criminal law in connection with the award or performance of any government contract performed by the contractor; and mandate that contractor internal control systems require full cooperation with any government agencies responsible for audits, investigations or corrective actions. (The commentary accompanying the proposed rule solicits public comment on the relationship of this last requirement to waiver of the attorney-client privilege). Comments on the proposed rule are due January 14, 2008.

Complete text of notice issued by the National Science Foundation (NSF) and published in the November 7 Federal Register. The notice solicits comments on a proposed standardized Research Performance Progress Report format (RPPR). The proposed format is for interim progress reports only, and when implemented would replace other formats used by federal research grant-making agencies. Comments on the proposed RPPR format are due by January 8, 2008.

Complete text (24 pages) of decision the U.S. Third Circuit Court of Appeals holding that early retirement payments made by the University of Pittsburgh to tenured faculty members were wages subject to FICA taxation. The court rejects the argument (accepted by the Eighth Circuit) that such payments are primarily consideration for the relinquishment of tenure rights, and therefore not subject to FICA.

Complete text of revised Form I-9 issued on November 7 by office of U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security. Although the revised form will not become effective until published in the Federal Register, USCIS encourages employers to begin using the revised Form I-9 immediately. USCIS has also issued an Update and Fact Sheet accompanying the revised form, and a revised Handbook for Employers: Instructions for Completing the Form I-9 (47 pages).

Complete text (20 pages) of H.R. 3685, entitled the Employment Non-Discrimination Act of 2007, as passed by the U.S. House of Representatives on November 7. The bill would prohibit employment discrimination on the basis of an individual's actual or perceived sexual orientation. The bill currently awaits Senate action.

Complete text (17 pages) of decision by New York trial court holding that due to the provisions of defendant hospital's email policy, communications between plaintiff and his lawyers transmitted over defendant's email system were not protected by the attorney-client privilege because plaintiff could not have made the communications in confidence when using defendant's email system. Defendant's email policy stated that its computer systems should be used for business purposes only, that employees had no privacy right in material created, received, saved or sent using defendant's computer system, and that defendant had the right to access and disclose such material at any time without prior notice. The terms of defendant's policy were distributed to every employee and the court holds that as an administrator, plaintiff is charged with notice of the policy. The court also holds that in light of defendant's email policy, plaintiff's use of defendant's computer system to send and receive correspondence from his attorneys also resulted in a waiver of the work product doctrine, not withstanding disclaimers included on every message originating from his attorneys indicting that the contents may be confidential.

Complete text of pamphlet issued by the U.S. Department of Education entitled "Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Colleges and Universities".

Complete text (99 pages) of final rule issued by the Department of Homeland Security (DHS) and scheduled for publication in the November 16 Federal Register. The final rule sets forth a revised list chemicals that covered facilities, including colleges and universities, will be required to inventory and report on to DHS, pursuant to the Department's Chemical Facility Anti-Terrorism Standards. Facilities that possess any of the listed chemicals at or above the listed threshold quantities will be required to complete an on-line report to the Department with respect to those chemicals within 60 calendar days of the publication of the list. DHS has posted a FAQ list on its website concerning the list and the Chemical Facility Anti-Terrorism Standards (CFATS).

Complete text (10 pages) of memorandum in support of University of Oregon motion to quash subpoena issued by the U.S. District Court (Oregon) in ex parte proceeding initiated by recording companies. The subpoena requires the university to produce information, including names, addresses and phone numbers, sufficient to identify 17 alleged infringers of copyrighted sound recordings known to the record companies only by their internet protocol (IP) addresses. In its motion, the university argues that it will preserve the information sought by the record companies; that the subpoena imposes an undue burden on the university because the identities of the alleged infringers are not easily determined; that the subpoena is overbroad and seeks information protected by the Family Educational Rights and Privacy Act (FERPA); and that Section 513(h) of the Digital Millenium Copyright Act (DMCA) is the sole mechanism by which the record companies may subpoena the identity of the alleged infringers (citing Interscope et al. v. Does 1 - 7, 494 F. Supp. 2d 388).

Complete text (47 pages) of decision by California Court of Appeals holding that the university breached implied contracts with certain of its students when it raised their fees. The university web page and professional school catalogs during the period 1994 - 2003 had included a statement that increases in professional student fees would only apply to new students. The court finds this to be an implied contractual obligation reasonably relied upon by the professional school students enrolled during the time the policy was in effect, and rejects the university's argument that other more general statements on the university's web page and in catalogs indicating that fees were subject to increase without notice superceded the statements indicating that professional fee increases would only apply to new students. The court also finds that the university breached its contracts with students attending the university during the Spring and Summer terms of 2003 when it increased the fees for those terms after sending students bills for those terms.

Complete text (3 pages) of October 24 letter sent by U.S. Department of Education to 55 selected institutions the department has determined have a high proportion of student borrowing from a single lender. The letter follows an earlier letter sent by the Department on June 29 to 921 institutions where the department had determined at least 80% of each institution's student loan volume is held by a single lender. In its October 24 letter the department requires the recipient institutions to provide a list and copies of any agreements the institution has or had with lenders or guaranty agencies participating in the Federal Family Education Loan (FFEL) Program, in addition to lender or guaranty agency proposals, institutional proposals, institutional policies and procedures ensuring compliance with FFEL Program regulations, financial transactions with lenders and guaranty agencies, any service of school officials on lender or guaranty agency advisory boards, and any remuneration received by school officials from lenders or guaranty agencies.

Complete text (21 pages) of final rule issued by the U.S. Department of Education and published in the November 1 Federal Register. Among other items the final rule regulates the use of bank debit cards and similar devices for the electronic disbursal of federal financial aid funds to students (pp. 62028 - 62029). The rule is effective July 1, 2008.

Complete text (41 pages) of letter from Office of Civil Rights (OCR), U.S. Department of Education to University of Michigan concerning the accessibility of the university's stadium by individuals with mobility impairments. The letter addresses seven specific complaints concerning stadium accessibility, including the number and location of seats designated for persons using wheelchairs; wheelchair accessible routes to and within the stadium, and the accessibility of stadium restroom facilities, concession stands, souvenir shops and parking. OCR concludes that the university is not in compliance with applicable ADA and Sec. 504 requirements and proposes specific remedies. OCR further requires the university to submit an acceptable remediation plan within ten calendar days of the letter date or risk OCR enforcement action.

Complete text (42 pages) of final rule issued by the U.S. Department of Education and published in the November 1 Federal Register. Among other items the regulations set forth rules for institutions offering preferred lender lists (Sec. 682.212; p. 62002) and sets forth prohibited activities and inducements, as well as permissible activities, for lenders and guaranty agencies (Sec. 682.401; pp. 62003 - 62004). The regulations are effective July 1, 2008.

Complete text (24 pages) of statement on academic freedom in higher education issued by the American Federation of Teachers (AFT).

Complete text (12 pages) of settlement agreement between the NCAA and the University of North Dakota concerning use by the University of its Native American nickname and related imagery. The agreement establishes an approval period, ending on November 30, 2010, during which the university to obtain namesake approval for its nickname from two Native American tribes. During the approval period, the University will not be restricted from hosting NCAA championship events which it otherwise would may have been ineligible to host under the NCAA's policy regarding the display of Native American nicknames, mascots and imagery at NCAA championship events.

Link to complete text of decisions by the Superior Court of New Jersey, Chancery Division, Mercer County in seven pending motions in Robertson v. Princeton University. Princeton University has posted the rulings along with a summary of the holding in each.

Complete text (15 pages) of decision by U.S. District Court (C.D. California) granting defendant university's motion for summary judgment in state and federal False Claims Act case and holding that plaintiff relators failed to prove a false statement or fraudulent course of conduct by defendant university causing the receipt of government funds. Plaintiffs contended that defendant university falsely certified that it met the requirements of its accrediting entity, which is a condition of participation in federal financial aid and other programs, when, allegedly, it did not meet certain accrediting agency standards. The court finds however that under applicable statutes and regulations defendant was required only to meet the requirements established by its accrediting agency, and its accrediting agency had certified that it had done so . Therefore relators failed to establish any false statement by defendant that was a condition of government funding.

Complete text (36 pages) of guide issued by the Internal Revenue Service (IRS). The guide covers activities that may jeopardize an organization's tax exempt status; filing, recordkeeping, reporting and public disclosure requirements, and resources.

Complete text (32 pages) of publication issued by the Panel on the Non-Profit Sector. Subtitled "A Guide for Charities and Foundations", the publication describes 33 principles of sound practice for consideration by non-profit and charitable organizations, organized into four categories: Legal Compliance and Public Disclosure; Effective Governance; Financial Oversight; and Responsible Fundraising.

Complete text (8 pages) of decision by U.S. Federal Circuit Court of Appeals holding that a public university waived its Eleventh Amendment immunity by entering into a patent licensing agreement wherein it agreed to submit to federal court jurisdiction. The court also rejected defendant university's argument that neither the university nor the official executing the licensing agreement had the authority to waive the state's Eleventh Amendment immunity.

Complete text (4 pages) of AAU (Association of American Universities) memorandum summarizing the status of congressional efforts to reform U.S. patent laws. The memorandum addresses the provisions of H.R. 1908 , passed by the U.S. House of Representatives, and S. 1145, reported out of the Senate Judiciary Committee with amendments.

Complete text of letter from U.S. Department of Education to institutions advising that the Family Educational Rights and Privacy Act (FERPA) restricts institutions' ability to respond to public records act requests seeking the contact information of students receiving financial aid. The letter notes that while an institution may have designated student contact information as "directory information" subject to disclosure under FERPA, the institution is nonetheless precluded from disclosing directory information that is linked to non-directory information, such a student's financial aid status. The department advises that institutions may not respond to requests for directory information restricted to students receiving financial aid without first obtaining the student's (or former student's) written consent. The letter is in response to public records act requests filed by some student lending organizations seeking the contact information of financial aid recipients.

Complete text (22 pages) of decision by U.S. District Court (N.D. California) granting plaintiff's motion for a preliminary injunction blocking implemention of the Department of Homeland Security (DHS) rule establishing safe harbors for employers in receipt of "no match" letters from the Social Security Administration (SSA). The rule would have established a safe harbor for employers who followed the procedures set forth in the rule after receipt of "no match letters" from the Social Security Administration (SSA) or "Notice of Suspect Documents" letters from DHS. The court finds that plaintiffs have demonstrated that the safe harbor rule would impose significant hardships on both employers and employees, and likelihood of success on the merits with respect to their assertion that the rule was not promulgated in accordance with the Adminstrative Procedures Act (APA) and exceeds in some respects the authority of the department under the Immigration Reform and Control Act of 1986.

Complete text (10 pages) of guideliness issued by the U.S. Patent and Trademark Office (USPTO) and published in the October 10 Federal Register. The guidelines are designed to assist USPTO patent examiners in making proper determinations with respect to obviousness when reviewing patent applications, and are issued in response to the Supreme Court's recent decision in KSR International Co. v. Teleflex Inc.

Complete text (16 pages) of memorandum prepared by Congressional Research Service (CRS) in connection with testimony at September 26 senate Finance Committee hearing. The memorandum analyzes the growth and use of college and university endowments and the potential impact on tuition and student aid if they received a larger percentage of endowment support. The American Council on Education (ACE) has supplied background information on the Senate hearing and on college and university endowments, and has submitted post-hearing testimony to the Senate Finance Committee.

Complete text (57 pages) of Interim Report to Governorof Wisconsin from Task Force on Campus Safety. The task force was charged with reviewing safety practices on Wisconsin campuses and providing a report with recommendations and best practices. The report includes sections on prevention and preparedness; intervention; response; and post-event activities.

Complete text (14 pages) of decision by Connecticut Supreme Court holding the employees of university police department were entitled to qualified privilege with respect to the content of references they provided to a prospective employer concerning a university employee. The court also holds that the state personnel files act and the state anti-blacklisting act do not preclude application of a qualified privilege to statements made in the context of an employment reference.

Complete text (16 pages) of decision by U.S. 2nd Circuit Court of Appeals rejecting claim by appellee law professors and holding that in Rumsfeld v. FAIR the U.S. Supreme Court implicitly rejected an argument that the Solomon Amendment, which requires that colleges and universities provide equal campus access to military recruiters, violates the First Amendment right to academic freedom.

Complete text of memorandum prepared on behalf of the American Council on Education (ACE) by the law firm of Drinker, Biddle & Reath. The memorandum analyzing the recent U.S. Supreme Court decision in Parents Involved in Community Schools v. Seattle School District No. 1, et al.

Complete text (8 pages) of statement issued by the Association of University Professors (AAUP). The statement seeks to address recent criticism that, in the words of the Statement, (1) instructors "indoctrinate" rather than educate; (2) instructors fail fairly to present conflicting views on contentious subjects, thereby depriving students of educationally essential "diversity" or "balance"; (3) instructors are intolerant of students' religious, political, or socioeconomic views, thereby creating a hostile atmosphere inimical to learning; and (4) instructors persistently interject material, especially of a political or ideological character, irrelevant to the subject of instruction.

Complete text (20 pages) of comments filed by the National Association of College and University Business Officers (NACUBO) and 18 other higher education associations in response to proposed revisions to Form 990. According to the comments, most colleges and universities will be required to complete 13 of the 15 new schedules included in the revised form. The comments recommend several changes and clarifications to the proposed new Form and its schedules, and describe the proposed revisions as approaching a second set of accounting and reporting requirements that are duplicative and in many cases inconsistent with information colleges and universities are required to disclose on their audited financial statements.

Complete text of memorandum prepared on behalf of the American Council on Education (ACE) by the law firm of Hogan & Hartson. The memorandum summarizes the impact of recent legislation, including the Honest Leadership and Open Government Act of 2007 and changes to House and Senate rules, on lobbying and other political activities by institutions of higher education and their representatives.

Complete text ( 26 pages) of decision by U.S. Tenth Circuit Court of Appeals reversing the decision of the District Court and reinstating plaintiff-appellants' Title IX sexual harassment claim against the university. The court concludes that a sexual harassment claim alleging intentional violation of Title IX can be established wherethe defendant has an official policy of deliberate indifference to providing adequate training or guidance that is obviously necessary for implementation of a specific program or policy of the defendant institution.

Complete text (72 pages) of H.R. 1908 as passed by the U.S. House of Representatives of September 7. Among other items, the bill would change existing law so that a patent is awarded to the first person to file a patent application for an invention, not to the first inventor. It would allow third parties to file information in patent application proceedings, and create a new post-grant opposition proceeding enabling challenges to newly awarded patents. The bill would also restrict the range of venues for filing patent infringement suits and adjust the calculation of damages in infringement cases. The Senate is considering parallel legislation, S. 1145. In May, five higher education associations provided comments on the provisions of H.R. 1908 and S. 1145 of greatest interest to colleges and universities.

Complete text (16 pages) of report by National Association of Attorneys General Task Force. The Task Force was created after the April 16 shootings at Virginia Tech University to make updated recommendations regarding the prevention of, and response to, violence in schools and on college campuses. The report includes recommendations in the areas of threat assessment; referral and information sharing; the purchase of firearms by persons adjudicated as mentally ill; anonymous means for threat reporting; preparing, updating and practicing emergency plans; and upgrading college campus crisis communication systems.

Complete text (88 pages) of Revised Animal Welfare Policy Manual issues by the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture. This document is guidance for the USDA Animal Care field inspectors and owners and handlers of animal subject to the Animal Welfare Act telling how certain provisions of the Animal Welfare regulations will be interpreted. Comments on the revised manual are due to APHIS by September 24.

Complete text (24 ) of decision by Ohio Court of Appeals, affirming the decision of the trial court holding that plaintiff-appellant Brinkman lacked standing to seek declaratory and injuntive relief against defendant Miami University for its policy permitting same-sex domestic partners to receive university-funded medical insurance benefits. Plaintiff-appelant based his suit on a recent amendment to the Ohio state constitution forbidding the state or its political subdivisions from creating or recognizing "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

Complete text (25 pages) of August 2007 report issued by the Electronic Frontier Foundation (EFF) reviewing the methods and assessing the success of efforts by the Recording Industry Association of America (RIAA) to combat instances of alleged copyright infringement via P2P filesharing.

Complete text of report of Review Panel on the Mass Shootings at Virginia Tech to Governor of State of Virginia. The Report includes an executive summary of Key Findings.

Complete text (34 pages) of complaint filed with U.S. Department of Education by Security on Campus, Inc. The complaint alleges that on April 16 Virginia Tech officials failed to issue a timely warning as required by the Clery Act after discovering the first shooting victims on campus that day. The complaint requests a Department of Education investigation into any delay in issuing required warnings and any policies or practices that may have contributed to such delay.

Complete text of University press release summarizing the findings and recommendations of three university internal review committees appointed in the aftermath of the April 16 shootings. Included are the findings and recommendations of the university's Security Infrastructure Group (35 pages), Information and Communications Infrastructure Group (147 pages) and the Interface Group (interdepartmental relationships and communications) (26 pages).

Complete text (12 pages) of document prepared by the Association of American Universities (AAU) comparing selected provisions of House and Senate Higher Education Act Reauthorization billsl. Pages 5 - 12 include summaries of selected new institutional reporting and disclosure requirements included in either the House or Senate legislation.

Complete text (12 pages) of opinion by U.S. Third Circuit Court of Appeals dismissing plaintiff's complaint for lack of personal jurisdiction. Plaintiff, a Pennsylvania resident, had enrolled in distance education courses offered by the University of Kansas School of Pharmacy. Following his explusion, plaintiff sued Kansas program administrators for defamation and retaliation. Affirming the grant of summary judgment by the District Court, the court holds that plaintiff's suit was properly dismissed for lack of personal jurisdiction because plaintiff failed to show that defendants deliberately aimed their alleged defamatory or retaliatory conduct at Pennsylvania.

Complete text (14 pages) of Final Rule issued August 10 by the Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement. The rule establishs a safe harbor for employers who follow the safe harbor procedures after receipt of a "no match letters" from the Social Security Administration (SSA) or "Notice of Suspect Documents" letters from DHS. SSA sends "no match" letters to some (though not all) employers when the combination of an employee's name and social security number on an employer's W-2 earnings reports do not match SSA records. DHS sends similar letters if after review of an employer's I-9 forms it cannot confirm that an immigration status document or employment authorization document referenced on the I-9 has been issued to the applicable employee. Employers who follow the safe harbor procedures set forth in the rule will be shielded from the possibility of a finding of "constructive knowledge" of employment of a person ineligible to work in the U.S. and the resulting liability. The safe harbor provides no protection from liability based on actual knowledge of an employee's ineligibility to work or on constructive knowledge of such ineligibility arising out of circumstances other than receipt of "No-Match" or "Suspect Documents" letters. The rule is effective on September 14, 2007.

In an announcement accompanying issuance of the Final Rule, DHS also advised it planned to implement several new worksite enforcement efforts to address the unauthorized employment of illegal aliens, including a) a reduction in the number of documents that employers may accept to confirm employee identity and work eligibility; b) issuance of a new proposed rule requiring all federal contractors and vendors to use E-Verify, the Federal Electronic Employment Verification System, to ensure their employees are authorized to work in the U.S.

Complete text (3 pages) of August 9 letter from the Secretary of Education to colleges, lenders and loan guarantee agencies. The letter summarizes key principles embodied in the department's proposed regulations on student choice of lender and preferred lender practices and asks the recipients to immediately begin incorporating those principles and standards into their institutional practices. The regulations themselves will not become effective until July 2008.

Complete text (35 pages) of proposed rules issued by the U.S. Department of Education and published in the August 8 Federal Register. Among other items the proposed rules for the first time would regulate the use of bank debit cards and similar devices for the electronic disbursal of federal financial aid funds to students (pp. 44629 - 44630; pp. 44647 - 44649).

Complete text (25 pages) of report prepared by the Congressional Research Service (CRS) analyzing and summarizing the information security and data breach notification requirements of various federal statutes and regulations, including the Health Insurance Portability and Accountability Act (HIPAA) and the Gramm-Leach-Bliley Act (GLB).

Complete text (65 pages) of en banc decision of U.S. Court of Appeals for the District of Columbia, reversing the earlier decision of a three-judge panel and holding that the Due Process clause of the Fifth Amendment does not provide terminally ill and mentally competent adult patients a right to informed access to potentially life-saving new drugs determined by the FDA after Phase 1 trials to be sufficiently safe for expanded human trials.

Complete text (16 pages) of decision by Arizona Supreme Court rejecting student challenge to an increase in tuition at Arizona public universities for the 2003-2004 academic year. The court holds that although the state constitution provides that instruction at state universities "shall be as nearly free as possible", the setting of tuition has been entrusted by the legislature to the Board of Regents and presents a non-justiciable political question.

Complete text (24 pages) of decision by U.S. District Court (Minnesota) holding invalid December 2005 regulations issued by the Internal Revenue Service (IRS) seeking to limit the eligibility of medical residents and fellows for the "student" exclusion from FICA taxation.

Complete text of NACUANOTE on FERPA and Campus Safety authored by NACUA members Nancy E. Tribbensee and Steven J. McDonald containing questions and answers regarding FERPA regulations. NACUA member version is accessible here.

Complete text (32 pages) of proposed regulations issued by the Internal Revenue Service (IRS) and published in the August 6 Federal Register. The new proposed regulations supercede earlier proposed rules to take account of changes in tax law and include general rules on qualified and non-qualified benefits in cafeteria plans, including elections; general rules on flexible spending arrangements, general rules for the substantiation of expenses for qualified benefits, and non-discrimination rules. Comments on the proposed rules are due on November 5.

Complete text (26 pages) of decision of U.S. District Court rejecting First Amendment challenge to U.S. Treasury Department regulations restricting educational programs in Cuba offered by U.S. colleges and universities. Among other items, the regulations require that educational programs conducted by U.S. institutions in Cuba be at least ten weeks in length, that student participating in the program be enrolled in the sponsoring institution and program instructors be full-time, permanent faculty of the sponsoring institution. Plaintiffs alleged that these restrictions violated their First Amendment academic freedom rights. The court rejects this challenge, noting that the regulations are content-neutral and place no restrictions on what can be taught in or about Cuba, but restrict only the circumstances in which students can be taught in Cuba. The court further notes that the regulations further an important and substantial governmental interest, that of denying hard currency to embargoed countries.

Complete text (33 pages) of Final Rule issued by the Internal Revenue Service (IRS) and published in the July 26 Federal Register. Among other items, the regulations require that all 403(b) plans be in corporated into a written plan document, provides for the termination of plans, and clarifies which employees must be eligible to contribute to a 403(b) plan. The regulations generally take effect for tax years beginning after December 31, 2008.

Complete text (11 pages) of decision by U.S. Tenth Circuit Court of Appeals. Plaintiffs, former editors of university student newspaper, sued institutional officials for violation of their First Amendment rights after the officials terminated the newspaper's Advisor. The Court of Appeals dismisses plaintiffs' suit on grounds of mootness, finding that while the circumstances giving rise to the case are perhaps capable of repetition but evading review, there is no reasonable expectation that the same complaining parties will be subject to the same action again. The court further declines to grant third party standing to plaintiffs.

Complete text (13 pages) of July 26 letter from Wisconsin Attorney General to state legislators concerning application of state statute prohibiting the use of "tests based upon race" to the University of Wisconsin System's freshman admissions policy. The System's revised policy, adopted in February 2007 permits consideration of other factors in addition to academic and test scores, including "whether the applicant is a member of an historically underrepresented racial or ethnic group". The Attorney General interprets the word "test" as used in the statute to mean a standard that automatically disqualifies those who do not satisfy the standard. He therefore concludes that the System's admissions policy does not violate the statute since consideration of membership in an underrepresented racial or ethnic group as an additional admissions factor does not automatically disqualify those not included in such groups from admission. In addition, the Attorney General concludes that on its face the admissions policy conforms to the requirements set forth in Grutter v. Bollinger and Gratz v. Bollinger, but notes that the System must take care in implementing the policy to ensure compliance with those rulings and the equal protection clauses of the federal and state constitutions.

Complete text (33 pages) of decision of U.S. District Court (N.D. FL.) granting defendant university's motion for partial summary judgment. Plaintiff alleged defendant discriminated against her on the basis of sex in violation of Title VII in denying her promotion to full professor and in violation of the Equal Pay Act by paying her less than her male counterparts. With respect to the Title VII claim, the court finds that plaintiff she did not allege and did not support that she was qualified for the promotion. The court also found that she did not produce a similarly situated comparator treated more favorably. With respect to plaintiff's Equal Pay Act claim, the court finds that plaintiff failed to identify to identify a male in a position which required the same skill, effort and responsibility, and further finds that even if she had identified a suitable comparator, factors other than sex influenced her pay including field of expertise and degree, market rate and inversion/compression.

Link to web page on Campus Anti-Semitism created by the U.S. Commission on Civil Rights. The web page follows issuance of the Commission's Findings and Recommendations on Campus Anti-Semitism and includes information on how to report instances of campus anti-semitism, including filing complaints with federal agencies.

Complete text (10 pages) of policy paper entitled “Echoes of Bakke: A Fractured Supreme Court Invalidates Two Race-Conscious K-12 Student Assignment Plans but Affirms the Compelling Interest in the Educational Benefits of Diversity" published by The College Board. The paper is co-authored by NACUA member Arthur Coleman and discusses the implications of the Supreme Court's recent decision for institutions of higher education. The College Board has also published “ Admissions and Diversity After Michigan: The Next Generation of Legal and Policy Issues”, “Federal Law and Financial Aid: A Framework for Evaluating Diversity-Related Programs”, (104 pages), "Federal Law and Recruitment, Outreach and Retention" (94 pages); and "State Voter Initiatives". Each manual is a product of the College Board's Access and Diversity Collaborative. Print copies of each manual can be purchased from the College Board.

Complete text (69 pages) of report by the U.S. Government Accountability Office (GAO) of study of NCAA data on the extent to which the numbers of men's and women's intercollegiate sports teams and participants at 4-year colleges have changed from 1991-1992 through 2004-2005.

Complete text (48 pages) of decision by U.S. Second Circuit Court of Appeals holding that college's nullification of student body elections due to content published in the school newspaper contrary to college rules violated the First Amendment rights of the students producing the newspaper. The court reasons that the college's action in nullifying the election had a chilling effect on plaintiffs' actions with respect to the content of future editions of the college paper.

Complete text of June 29 letter sent by the U.S. Department of Education to 921 institutions where at least 80% of each institution's student loan volume is held by a single lender. The letter reminds the institutions of federal statutory and regulatory provisions regarding student choice of lender.

Complete text (4 pages) of decision by the New York Court of Appeals affirming decision of the Appellate Division, Third Department. The court holds that regulations adopted by respondent Board of Trustees eliminating a "line item veto" power held by local sponsors of community colleges and removing a requirement that such local sponsors approve transfers of appropriations within community college operating budgets are consistent with the language and purpose of the State Education Law.

Complete text (19 pages) of decision of U.S. Tenth Circuit Court of Appeals holding that plaintiff, who held successive one year appointments as "Research Associate Professor" at defendant institution, was not an employee of the institution as required to pursue an employment discrimination claim under Title VII. The court notes that the university never paid plaintiff a salary, provided her with employee benefits, or paid social security or other employment-related taxes on her behalf, and directs entry of judgment on behalf of the university.

Complete text (4 pages) of June 29 decision of the National Labor Relations Board (NLRB) holding that graduate students employed at private, non-profit research foundations affiliated with public universities are "employees" under the terms of the National Labor Relations Act (NLRA) and therefore have the right to unionize. The NLRB panel distinguishes the case before it from the Board's 2004 Brown University decision, observing that while the graduate research assistants have an educational relationship with SUNY, their relationship with the research foundation is economic in nature. The same NLRB panel reaches a similar result in a parallel case involving the Research Foundation of the City University of New York.

Complete text of letter sent to institutions from the Office of Civil Rights (OCR), U.S. Department of Education. The letter reminds institutions that Title IX prohibits terminating or reducing financial assistance on the basis of pregnancy, or requiring female athletes to sign athletic contracts in which pregnancy is listed as an infraction. The letter notes that institutions may require pregnant students and athletes to obtain a physician's certification of fitness to continue in an educational program or activity, but only if such certification is required of all students for other physical or emotional conditions requiring physician treatment.

Complete text of comments filed by the Association of American Law Schools (AALS) in response to proposed rules issued by the Deparment of Defense governing Military Recruiting and ROTC Access to Institutions of Higher Education. The proposed rule defines "equal in quality and scope" as "the same access to campus and students on campus provided to the nonmilitary recruiter receiving the most favorable access", and lists seven practices that may result in institutional loss of federal funding. The AALS comments assert that this standard exceeds the requirements of the statute and further does not provide law schools sufficient guidance in order to comply with the proposed rule. The National Association for Legal Career Professionals (NALP) also filed comments on the proposed rule.

Complete text (7 pages) of interim regulations issued by the U.S. Copyright Office and published in the July 6 Federal Register. The interim regulations implement changes in Copyright Office forms and procedures to accomodate the Copyright Office's transition to a system of on-line copyright registration. The interim regulations are effective July 6. Comments are due by September 4.

Complete text (50 pages) of report issued by U.S. General Accounting Office (GAO). The report concludes there is limited evidence of widespread identity theft resulting from information security breaches.

Complete text (3 pages) of final rule issued by U.S. Equal Employment Opportunity Commission (EEOC) and published in the July 6 Federal Register. In response to the Supreme Court's decision in General Dynamics Land Systems, Inc. v. Cline (540 U.S. 581 [2004]), the EEOC revises its Age Discrimination in Employment Act (ADEA) regulations to reflect the court's holding that the ADEA permits employers to make age-based employment decisions that favor relatively older employees. The final rule clarifies that favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old. The final rule also permits employment advertisements that encourage relatively older persons to apply or express a preference for older individuals. The rule is effective July 6, 2007.

Complete text (185 pages) of decision by U.S. Supreme Court striking down race-based school assignment policies in the Seattle, Washington and Louisville, Kentucky school districts. The court, citing both Grutter v. Bollinger et al. and Gratz et al. v. Bollinder et al., holds that the school assignment policies in both cases cannot survive the strict scrutiny applied to race-based classifications because they were not narrowly tailored to achieve a compelling state interest. The court finds none of the compelling interests previously recognized by the court as required to support the use of racial classifications were the basis of the contested school district policies. Further. the court finds that the school districts failed to show that their race-based policies were necessary to achieve the goals of their student assignment policies, and also failed to fully consider race-neutral alternatives to those policies.

Complete text of document issued by the Family Policy Compliance Office (FPCO) of the U.S. Department of Education. The document seeks to clarify the Family Educational Rights and Privacy Act (FERPA) requirements concerning what student information postsecondary institutions may share with parents and certain other parties.

Complete text (17 pages) of document prepared by the Association of American Universities (AAU) comparing selected provisions of House and Senate Budget Reconciliation Bills and the Senate Higher Education Reauthorization Bill. Pages 10 - 17 include summaries of selected new institutional reporting requirements included in either the House or Senate legislation.

Complete text (181 pages) of report issued by Employment Standards Administration, Wage-Hour Division, U.S. Department of Labor. The report summarizes comments received in response to the Department's December 2006 Request for Information in connection with its review of the Department's administration of the Family Medical Leave Act (FMLA) and implementing regulations. The Department notes that a "central defining theme" of the comments was the prevalence of the use of unscheduled intermittent leave taken by individuals with chronic health conditions. The report is available on the Department's webpage and includes a 12 page executive summary.

Complete text (9 pages) of Revenue Procedure (2007-47) issued by the Internal Revenue Service. The Revenue Procedure expands the safe harbor set forth in earlier IRS guidance regarding acceptable and unacceptable private business use of tax-exempt bond financed facilities in order to permit federally sponsored research to occur in such facilities. The Revenue Procedure attempts to reconcile restrictions in the Internal Revenue Code and regulations, which classify the federal government as private entity, with the requirements of the Bayh-Dole Act, which requires that the federal government receive a non-exclusive, royalty-free license to inventions resulting from federally funded research.

Complete text (112 pages) of report issued by the Independent Review Committee (IRC) to the Board of Regents of the Smithsonian Institution. The IRC was charged with conducting an independent examination of the compensation and expenses of the Smithsonian's Secretary as well as certain governance practices. The report summarizes the committee's findings and recommendations, encompassing executive compensation and expenses, board oversight, and the role of counsel and auditors.

Draft Form 990 and Draft Schedules A - R, released for comment by the Internal Revenue Service (IRS) on June 14. At the same time the IRS released documents describing highlights of the new form and the background of the re-designed form. Comments on the new form are due by September 14.

Complete text (26 pages) of report submitted to President Bush by the Secretaries of Health and Human Services (HHS), Education and the Attorney General. The report does not seek to investigate the specifics of the shootings at Virginia Tech but focuses on broader issues raised by that event. Among other items, the report concludes that often key officials are not fully informed of the rules concerning the sharing of information about potentially dangerous individuals and recommends that the Departments of Education and HHS develop additional guidance that clarifies how information can be legally shared under FERPA and HIPAA.

Complete text (35 pages) of report issued by the Virginia Office of Inspector General for Mental Health, Mental Retardation and Substance Abuse Services. The report documents various contacts with and reports concerning the assailant in the April 16, 2007 shootings on the campus of Virginia Tech University and includes findings and recommendations for consideration by various state agencies and the university.

Complete text (17 pages) of decision by U.S. Supreme Court rejecting First Amendment challenge and upholding the constitutionality of a state statute requiring public sector unions to receive affirmative authorization from a non-member before using agency fees paid to the union by the non-member for political or election-related purposes.

Complete text (18 pages) of decision by U.S. Third Circuit Court of Appeals affirming the District Court ruling and upholding the authority of the Equal Employment Opportunity Commission to issue a proposed regulation exempting from the prohibitions of the Age Discrimination in Employment Act (ADEA) employer coordination of retiree health benefits with Medicare or state-sponsored retiree health programs.

Complete text (5 pages) or proposed rule issued by the U.S. Department of State and published in the June 5 Federal Register. The proposed rule would create a new exchange visitor sub-category for student interns. Under the proposed rule, foreign students enrolled in accredited post-secondary institutions outside the United States could participate in a student internship program in the U.S. for up to 12 months at each degree level. The proposed rule sets forth the obligations of internship sponsors, and prohibits sponsors from placing interns in certain fields. Comments on the proposed rule are due by August 6.

Complete text of guidance developed by the EDUCAUSE/Internet2 Computer and Network Security Task Force and co-authored by NACUA member Steven J. McDonald.

Complete text (225 pages) of proposed revisions to federal regulations governing student loan programs, released by the Department of Education on Friday, June 1 and awaiting publication in the Federal Register. Among other items, the proposed rules would strengthen restrictions on lender inducements to institutions participating in federal student financial aid programs. The proposed rules would, inter alia, limit gifts of more than nominal value from lenders to institutional financial aid officers, require that institutions include at least three unaffiliated lenders on any preferred lender list they maintain, require disclosure of the criteria used to select preferred lenders, and require institutions to clearly state that students have the right to select any lender they choose. Comments on the proposed rules will be due 60 days after their publication in the Federal Register.

Complete text (6 pages) of Statement of Ethical Principles and Code of Conduct issued by the National Association of Student Financial Aid Administrators (NASFAA) on May 24. NASFAA also released a policy covering its Annual Conference Contributors, Exhibitors and Sponsors.

Complete text (33 pages) of decision by U.S. Ninth Circuit Court of Appeals holding that the University of Montana's limitation on the amount candidates may spend in student government elections does not violate the First Amendment. The court finds that the university's student government elections are a limited public forum and as such may be regulated by the university so long as such regulations are viewpoint neutral and reasonable. The court further accepts the university's position that the spending limitation is a reasonable and necessary means of ensuring and preserving the character of the elections as an educational function rather than simply a political exercise.

Complete text (17 pages) of opinion by Kentucky Attorney General finding that, under the terms of a recent "marriage amendment" to the state constitution, state universities in Kentucky may extend employee health insurance coverage to domestic partners or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage.

Complete text of Revenue Ruling 2007-41, released by the Internal Revenue Service and providing guidance on the scope of the prohibition of campaign activities by Sec. 501(c)(3) tax-exempt organizations. The guidance applies current tax law and regulations to 21 factual scenarios and determines if the described activity did or did not constitute prohibited political activity. Areas covered include Voter Education, Voter Registration and Get Out the Vote Drives; Individual Activity by Organization Leaders; Candidate Appearances; Issue Advocacy v. Political Campaign Intervention; Business Activity and Web Sites.

Complete text (5 pages) of May 29 letter from Senate Finance Committee Chairman Max Baucus and ranking minority member Charles Grassley to Secretary of the Treasury Henry Paulson. The letter urges the Treasury Department to update IRS Form 990 to elicit supplemental information for major subsectors of the charitable field such as universities and hospitals. In particular, the letter urges that Form 990 be revised to provide greater reporting and transparency on such matters as executive compensation, endowments, non-profit and for-profit related organizations, joint ventures and governance. The letter also urges that the IRS take measures to ensure completed Form 990s are available to the public as possible after receipt.

Complete text (7 pages) of proposed rule issued by Centers for Medicare & Medicaid Services (CMS), U.S. Department of Health and Human Services (HHS) and published in the May 23 Federal Register. The proposed rule would clarify that costs and payments associated with Graduate Medical Education programs are not eligible for Medicaid reimbursement.

Complete text (6 pages) of decision by U.S. Eleventh Circuit Court of Appeals vacating the holding of the District Court that medical residents are precluded as a matter of law from eligibility for the "student exemption" from FICA taxation [26 U.S.C. Sec. 3121(b)(100]. The Court remands to the District Court for factual determination as to whether defendant qualifies as a "school, college or university" and whether defendants' medical residents are "students" within the meaning of the statutory exemption.

Complete text (19 pages) of decision by U.S. District Court (R.I) holding that defendant university was legally obligated under the Clery Act to publish a crime alert concerning an incident in which plaintiff was an alleged assailant, and therefore can claim a qualified privilege in plaintiff's subsequent defamation suit based on the content of the crime alert.

Complete text (4 pages) of summary prepared by the American Council on Education (ACE) describing proposed changes to the federal regulation of accrediting agencies and the impact of institutions of higher education.

Complete text (8 pages) of comments on H.R. 1908 and S. 1145 issued by the Association of American Universities (AAU); the American Council on Education (ACE); the National Association of State Universities and Land Grant Colleges (NASULGC); the Association of American Medical Colleges (AAMC) and the Council on Govermenmental Relations (COGR). The comments address proposed changes in U.S. patent Law embodied in the Patent Reform Act of 2007, currently pending in Congress, including a transition to a "first inventor to file" system, creation of an administrative post-grant opposition procedure; an expansion of prior user rights; a requirement that all patent applications be published with 18 months of their filing date, and the allowance of pre-issuance submissions by third parties.

Complete text (45 pages) of final rule issued by the Employment and Training Administration, U.S. Department of Labor, and published in the May 17 Federal Register. The rule prohibits the substitution of alien beneficiaries on labor certification applications; provides for a 180 day validity period for approved labor certifications, within which the employer must file an approved certification in support of a Form I-140 with the Department of Homeland Security (DHS); and requires employers to pay the costs of preparing, filing and obtaining labor certification and from transferring that cost to alien beneficiaries. The rule is effective July 16, 2007.

Complete text (32 pages) of bill passed by U. S House of Representatives on May 9. The bill would establish new institutional and lender disclosure requirements, regulate "preferred lender" arrangements (including detailed reporting requirements), require institutions to adopt a "code of conduct" with respect to educational loans and establish the minimum requirements of such codes, amend the program participation agreement for institutions participating in federal student financial aid programs, and amend the Truth in Lending Act to require certain disclosures with respect to private educational loans. Parallel legislation has been introduced in the Senate.

Complete text (8 pages) of comments filed by the American Council on Education and the National Association of College and University Business Officers (NACUBO) in response to the Interim Final Rule on Chemical Facility Anti-Terrorism Standards issued by the U.S. Department of Homeland Security.

Complete text (9 pages) of Notice 2007-45, interim guidance issued by the Internal Revenue Service (IRS) Regarding Public Inspection of Unrelated Business Income Tax Returns. Section 1225 of the Pension Protection Act of 2006 amended the Internal Revenue Code to require that organizations exempt from taxation under Code Section 501(c)(3) make available for public inspection their Form 990-T (Exempt Organization Business Income Tax Return). The requirement applies to any Form 990-T filed after August 17, 2006. Among other items, the guidance clarifies that state colleges and universities must comply with the public disclosure requirement if they have sought and received recognition as a 501(c)(3) organization.

Complete text (8 pages) of proposed rule issued by the Department of Defense and published in the May 7 Federal Register. The proposed rule defines the criteria for determining whether an institution of higher education has a policy or practice prohibiting or preventing the Defense Department from maintaining, establishing or operating a Reserved Officer Training Corps (ROTC) unit; or has a policy denying military recruiting personnel access that is at least equal in quality and scope to the access provided to any other employer, or access to student directory information. The proposed rule defines "equal in quality and scope" as "the same access to campus and students on campus provided to the nonmilitary recruiter receiving the most favorable access", and lists seven practices that may result in institutional loss of federal funding. Commentary accompanying the proposed rule addresses FERPA requirements as applied to military requests for student recruiting information. Comments on the proposed rule are due by July 6, 2007

Complete text (6 pages) sent by representatives of House Judiciary and Education and Labor Committees to 19 colleges and universities posing detailed questions concerning institutional network and data integrity practices. The survey seeks extensive information on acceptable use policies, enforcement of anti-piracy policies, use of technology to prevent misuse of computing and network resources, and promotion of alternate services as sources of copyright materials. Institutions receiving the survey are asked to respond by May 31.

Link to Committee website on hearing, including witness statements and archived webcast of hearing proceedings.

Complete text (13 pages) of opinion by U.S. Court of Appeals for the Eleventh Circuit affirming dismissal of plaintiff's complaint alleging she was terminated in violation of her First Amendment rights for criticizing the allegedly unethical or illegal behavior of defendant Padron. Plaintiff Vila was a licensed attorney and Vice President of External Affairs of institution where defendant Padron was President. Plaintiff had responsibility for several units, including Legal Affairs. The court notes that all of plaintiff's complaints except one were directed internally to defendant Padron or other college officials. The court finds that all of plaintiff's statements were made in her capacity as an employee and not as a citizen speaking on matters of public concern and therefore her speech was not protected by the First Amendment.

Complete text (6 pages) of document distributed by the American Council on Education (ACE) to institutional presidents and chancellors outlining the issues underlying the current controversy concerning the use by institutions of preferred lender lists. ACE has also made available a chart comparing the requirements of the "code of conduct" proposed by New York Attorney General Andrew Cuomo, the requirements contained in proposed federal legislation and regulations, and practices implicated by those proposed requirements.

Link to NACUA Resource Page collecting information and resources on the issues surrounding preferred lenders, including statutory and regulatory requirements, agency guidance, information on activities by the New York Attorney General's office, and other resources.

Complete text (7 pages) of notice of proposed rulemaking issued by the Copyright Royalty Board and published in the April 17 Federal Register. The notice publishes for comment proposed royalty rates for noncommercial educational broadcasting, including the performance of musical compositions by public broadcasting entities licensed to colleges and universities. Comments are due by May 17, 2007.

Complete text (93 pages) of final regulations issued by the Internal Revenue Service and published in the April 17 Federal Register. The regulations govern the application of Internal Revenue Code Sec. 409A to nonqualified deferred compensation plans.

Complete text (27 pages) of decision of U.S. District Court (Maine) granting defendants' motion for summary judgment on plaintiff's allegation of negligent infliction of emotional distress. Plaintiff was Director of Judicial Affairs at institution where local chapter of defendant fraternity was being prosecuted for violations of the student code of conduct. Various defendants caused to be distributed to campus officials and others newspaper articles and court documents describing alleged criminal and civil misconduct by plaintiff while employed at another institution. The court holds that plaintiff is a public figure and therefore required to show that defendants made false statements of fact in distributing the documents in order to support an allegation of intentional infliction of emotional distress. The court finds that the statements made by defendants were substantially true and therefore grants defendants' motion for summary judgment.

Complete text of bill passed by the Missouri House of Represenatives and awaiting state senate consideration. The bill would require each Missouri public institution of higher education to report annually to the general assembly on the steps the institution is taking to ensure intellectual diversity and the free exchange of ideas. The bill includes examples of items that might be included in such reports, including incorporating intellectual diversity into institutional grievance procedures; encouraging a balanced variety of campus-wide panels; establishing campus policies to keep hecklers or threats of violence from deterring campus speakers; protecting employees against viewpoint discrimination in hiring, tenure and promotion; elimination of speech codes; and including intellectual diversity concerns, including "protection of religious freedom and the viewpoint that the Bible is inerrant" in institutional guidelines on teaching and program development.

Complete text (18 pages)of proposed settlement agreement sent by New York Attorney General's Office to certain institutions alleged to have engaged in acts or omissions with respect to "preferred lender" programs in violation of New York law. The proposed agreements include both "industry wide findings" and findings specific to individual institutions, and a "code of conduct" concerning relationships with lending institutions and other practices.

Complete text (13 pages) of decision by U. S. Ninth Circuit Court of Appeals holding that public university student had a reasonable expectation of privacy in his personal computer, and that expectation was not eliminated when he attached his computer to the institution’s computer network. The court goes on to hold that the warrantless search of the student’s computer by the institution’s computer network investigator was justified under the special needs exception to the warrant requirement of the Fourth Amendment.

Complete text of letter sent by U.S. Department of Education to participants in the Federal Family Education Loan (FFEL) program. The letter reminds program participants that federal law and regulations prohibit any participating school from refusing to certify a FFEL loan based on a borrower’s choice of lender.

Complete text (23 pages) of proposed “Student Loan Sunshine Act” (S. 486) introduced in the U.S. Senate. The Act would apply to colleges and universities receiving federal funding or assistance and to lenders providing educational loans. If passed, the Act prohibit student loan lenders from offering gifts or benefits worth more than $10 to employees of covered institution. If an institution has a “preferred lender” list, it would require the institution to disclose why the institution has included each lender on the list. It would also require that any preferred lender list include at least three lenders, and would create annual reporting requirements for lenders and institutions participating in preferred lender programs.

Complete text (6 pages) of final rule issued by the Department of the Interior and published in the March 21 Federal Register. The final rule sets forth the reporting and other obligations of museums under the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) in certain circumstances following the expiration of the original statutory deadlines for the completion of summaries and inventories. Reporting and other obligations may arise in the following circumstances: a) a museum acquires new holdings or collections with property subject to the Act; b) federal government recognition of new Indian tribes, which may bring pre-existing holdings within the scope of the Act; receipt of federal funds by a museum, subjecting it to the requirements of the Act; and d) revision by a museum of a previously published decision to repatriate property or revision of a previously published notice of completion of inventory.

Complete text (11 pages) of policy paper entitled “From Federal Law to State Voter Initiatives: Preserving Higher Education’s Authority to Achieve the Educational, Economic, Civic, and Security Benefits Associated with a Diverse Student Body” published by The College Board. The paper is co-authored by NACUA member Arthur Coleman and provides background information on the history and impact of state voter initiatives restricting affirmative action. The College Board has also published “Admissions and Diversity After Michigan: The Next Generation of Legal and Policy Issues”, “Federal Law and Financial Aid: A Framework for Evaluating Diversity-Related Programs”, (104 pages) and "Federal Law and Recruitment, Outreach and Retention" (94 pages). Each manual is a product of the College Board's Access and Diversity Collaborative. Print copies of each manual can be purchased from the College Board.

Complete text (10 pages) of bill passed by U.S. House of Representatives and awaiting consideration in the U.S. Senate. The bill would require the National Labor Relations Board (NLRB), in lieu of a secret ballot election, to direct recognition of a union once a majority of the members of the potential bargaining unit have signed authorizations for the union to be their bargaining representative. In addition, the bill would require mediation and arbitration if a union and employer are unable to reach agreement on a first collective bargaining contract. Finally, the bill would strengthen remedies and enforcement with respect to unfair labor practices committed during union organizing campaigns.

Complete text (15 pages) of Joint Opposition to Petition for Reconsideration filed with the FCC Wireless Telecommunications Bureau by the Catholic Television Network (CTN) and the National ITFS Association (NIA). The filing opposes a petition by by Sprint-Nextel Corporation for reconsideration of the Bureau’s January 25, 2007 Memorandum of Opinion and Order granting waivers for late-filed applications for the renewal of forty-one EBS stations.

Complete text (3 pages) of letter sent by New York Attorney General Andrew Cuomo to the presidents of every New York college or university and to the presidents of selected other colleges and universities around the country. The letter describes alleged problematic practices uncovered by the New York Attorney General’s Office with respect to institutional preferred lender programs.

Complete text (24 pages) of report issued by University of Michigan Diversity Blueprints Task Force. The Task Force report includes recommendations on methods of maintaining diversity at the University following passage of Proposal 2 (adopted by Michigan voters in November 2006 and amending the state constitution to ban affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.)

Complete text (115 pages) of decision by the United States Copyright Royalty Board (CRB) establishing new royalty rates for webcasting of sound recordings, including non-commercial, non-interactive webcasting of sound recordings by college and university radio stations. The new rate for non-commercial, non-interactive webcasting is a flat fee of $500 per station or per channel for the first 159,140 aggregate tuning hours (ATH) per month. (ATH equals one hour of programming transmitted to one listener). For webcasting of performances beyond the 159,140 ATH per month, commercial usage rates will apply (0.11 cent per listener per song in 2007, gradually increasing to 0.19 cent per listener per song in 2010). The rates are retroactive to January 1, 2006. Payments are due monthly to SoundExchange, Inc. (Note that sound recording royalties are separate from musical composition royalties payable to ASCAP, BMI and SESAC). The CRB decision is subject to appeal by the parties by March 19.

Complete text of prepared testimony of John Vaughn, Executive Vice President, Association of American Universities (AAU) before March 8 House Committee on the Judiciary, Subcommittee on Courts, the Internet and Intellectual Property hearing entitled “An Update—Piracy on University Networks”. The hearing also included testimony by Cary Sherman, President, Recording Industry Association of America (RIAA); Jim Davis, Associate Vice Chancellor, Information Technology and Chief Information Officer, UCLA; and Gregory J. Marchwinski, CEO, Red Lambda, Inc. Video of the subcommittee hearing is available on the subcommittee website. AAU has also made available on its website a summary of higher education actions to address illegal Campus Peer-to-Peer File-Sharing.

Complete text (74 pages) of report by Michigan Civil Rights Commission assessing the impact of Proposal 2 (adopted by Michigan voters in November 2006 and amending the state constitution to ban affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.) The impact on public higher education is addressed on pp. 22 – 27. The report also includes (pp. 54-60) recommendations for maintaining diversity in state government activities and functions in the aftermath of Proposal 2.

Complete text (17 pages) of paper issued by eleven universities, the Association of American Medical Colleges (AAMC) and the Wisconsin Alumni Research Foundation. The paper seeks to articulate certain core values that should be maintained to the fullest extent possible in academic technology transfer agreements, includes nine specific points for consideration and examples of possible license provisions supporting certain of the points set forth in the paper.

Complete text (20 pages) of federal district court complaint filed by the University of Nebraska-Lincoln seeking to compel the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (CIS)to adjudicate the university's petition for an H1-B visa, filed on behalf of a Bolivian national whom the university seeks to hire as an assistant professor of history. The complaint alleges that the Department has refused to act on the university's petition since it was filed in June 2005 and is acting beyond its authority in delaying adjudication of the petition in order to conduct or await background checks.

Complete text of message from David Ward, President of the American Council on Education (ACE) transmitting a letter from the Recording Industry Association of America (RIAA) to institutional presidents. In its letter, RIAA announces a new series of lawsuits against computer users allegedly engaged in copyright infringement via peer-to-peer (P2P) file-sharing. The RIAA is also requesting that institutions forward pre-lawsuit letters from RIAA to alleged infringers using institutional networks, and that institutions maintain the computer log files of the alleged infringers while RIAA pursues settlements with them.

Complete text (17 pages) of decision by U.S. District Court, E.D. Virginia. Plaintiff alleged his dismissal as university department head was a breach of contract and based on unlawful race discrimination. The court concludes that the breach of contract claim is barred by the state's Eleventh Amendment immunity, and dismisses plaintiff's race discrimination claim because plaintiff was not performing his duties as department head at a level sufficient to meet the legitimate expectations of the university.

Complete text (44 pages) of decision of U.S. Eleventh Circuit Court of Appeals, vacating its prior opinion (Williams v. Board of Regents of University System of Georgia, (C.A.11 (Ga.)) March 10, 2006) and substituting a new opinion reaching the same result but with certain claims more fully addressed. Plaintiff, a University of Georgia student, was sexually assaulted in a residence hall by university athletes and others. She alleged the university, its athletic association and certain university and association officers were liable for student-on-student sexual harassment under Title IX by demonstrating deliberate indifference to known harassment. Reversing the District Court’s grant of summary judgment to defendants, the court holds inter alia, that, for purposes of plaintiff’s Title IX claims, defendant University of Georgia Athletic Association (UGAA) may be treated as a recipient of Title IX funds if plaintiff’s allegation that the university had ceded control of its athletic program to UGAA is sustained at trial. The court also holds that university knowledge of past sexual misconduct by a student perpetrator before their enrollment at the university may support a finding of deliberate indifference; as may a lengthy delay in conducting university disciplinary hearings, despite the existence of pending criminal charges against the alleged perpetrators. Finally the court holds that a single incident, involving activities of a ringleader and co-conspirators, can constitute a continuous series of events and thereby satisfy the requirement that discrimination be “severe, pervasive and objectively offensive” in order for liability under Title IX to attach.

Complete text of bill passed by Virginia legislature and awaiting signature of governor. The bill would require Virginia public colleges and universities to develop and implement policies advising members of the university community of proper procedures for identifying and addressing the needs of students exhibiting suicidal tendencies, and further states that no student may be penalized or expelled solely for attempting to commit suicide or for seeking mental health treatment for suicidal tendencies.

Complete text (31 pages) of decision by U.S. Seventh Circuit Court of Appeals affirming the decision of the District Court vacating its earlier entry of a default judgment against defendants and rejecting plaintiff’s claims of race/national origin discrimination in his denial of tenure.

Complete text of Advance Notice of Proposed Rulemaking issued by the Bureau of Industry and Security (BIS), U.S. Department of Commerce and published in the February 26 Federal Register. The Department proposes to designate a “Country Group C” of countries that represent a concern for the diversion of items subject to Export Administration Regulations (EAR). Countries would be included in Country Group C based on transit and transshipment volume, inadequate export/re-export controls, demonstrated inability to control diversion activities, governments unwilling or unable to cooperate with U.S. interdiction efforts, and other factors. Licensing policy would be likely to change for countries placed into Country Group C, including requiring additional license applications, more stringent license review, additional license conditions, and delayed or decreased authorizations. Comments on the Notice of Proposed Rulemaking are due by March 12, 2007.

Complete text (14 pages) of decision by U.S. Seventh Circuit Court of Appeals holding that public university may restrict access to library lawn and other public grounds of the institution to speakers invited by a member of the university community. The Court holds that the institution may completely bar access to such grounds to uninvited third parties without violating the First Amendment rights of such parties.

Complete text (3 pages) of proposed rule issued by the Department of Defense (DOD), NASA and the General Services Administration (GSA) and published in the February 16 Federal Register. The proposed rule would require that federal contractors receiving awards in excess of $5,000,000 have a written code of ethics and business conduct, an employee ethics and compliance training program, and an internal control system (described in the proposed rule) proportionate to the extent of business with the federal government. Such contractors would also be required to display the contracting federal agency's OIG fraud hotline poster at work locations and on the contractors' websites. The proposed rule also describes its application to certain subcontractors and possible remedies for violation of the rule. Comments on the proposed rule are due by April 17, 2007.

Complete text (4 pages) of document entitled “Good Governance Practices for 501(c)(3) Organizations issued by the Internal Revenue Service (IRS) on February 2. In order to ensure that directors understand their roles and responsibilities and promote good governance practices, the IRS suggests that tax-exempt organizations review and consider: adoption of a mission statement; adoption of codes of ethics and whistleblower policies; director duties of loyalty and due diligence and oversight of conflicts of interest; public transparency of activities and finances; adoption of fundraising policies; board oversight of finances; compensation of directors, officers and staff; and adoption of a document retention policy.

Complete text (4 pages) of memorandum from Director of U.S. Office of Management and Budget (OMB) to Department Heads and Agencies directing departments and agencies to begin to identify and catalogue congressional earmarking of funds in all appropriation bills and certain authorization bill and reports. The memorandum includes a definition of “earmark” and contemplates establishment of a baseline against which the growth or reduction in the number of congressional earmarks can be measured. Earmark data collected by departments and agencies will be posted and available to the public on the internet.

Complete text (3 pages) of February 1 letter sent by office of the Attorney General of New York to 60 colleges and universities across the country seeking information on institutions’ preferred lender programs. The letter requests information on 25 items, including lists of preferred lenders, criteria for selection of preferred lenders, incentives offered by lenders for placement on preferred lender lists, and copies of agreements with preferred lenders. The letter claims authority to seek the information under Article 5, Section 63(12) of New York state law, and requests responses by March 1.

Complete text (18 pages) of decision by Massachusetts Superior Court holding that under facts pleaded by plaintiff, defendant university and administrators had no special relationship imposing a duty to protect plaintiff’s daughter from the voluntary use of drugs or alcohol. The court further holds that general statements in the student handbook concerning the health and safety of students at the university were too vague and indefinite to support a claim of negligent misrepresentation.

Complete text (15 pages) of opinion of Michigan Court of Appeals, reversing the decision of the trial court and holding that Article 1, Section 25 of the Michigan Constitution (adopted by Michigan voters in November 2004 and stating that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose”) precludes Michigan public employers, including Michigan’s public universities, from extending same-sex domestic partnership benefits to their employees.

Complete text of statement issued by the Boards of Directors of EDUCAUSE and the Sakai Foundation in response to the pledge issued by Blackboard, Inc. In its pledge, Blackboard promises not to assert any of the issued or pending patents related to Blackboard’s course management systems or transaction systems against the use, development or support of any open source or home-grown course management systems.

Complete text (23 pages) of document issued by the Office of Management and Budget (OMB) entitled “Final Bulletin for Agency Good Guidance Practices”. The Bulletin sets forth policies and procedures for the development, issuance and use of significant guidance documents by executive branch agencies, including what constitutes a guidance document, agency procedures for approval, and procedures for public access and comment.

Complete text (4 pages) of Bulletin issued by the Employment Standards Administration (ESA) of the U.S. Department of Labor providing guidance regarding the exempt status of certain computer employees under the Fair Labor Standards Act (FLSA). The bulletin explains the relationship of the exemptions provided for computer professional employees under sections 13(a)(1) and 13(a)(17) of the FLSA.

Link to information on the Draft Principles issued by the Advisory Committee on Self-Regulation of the Charitable Sector. The Advisory Committee was created by the Panel on the Non-Profit Sector of Independent Sector. The Draft Principles include: Principles for Facilitating Legal Compliance; Principles for Effective Governance; Principles for Strong Financial Oversight; and Principles for Responsible Fundraising Practices. The Panel on the Non-Profit Sector earlier issued a June 2005 Report (116 pages) entitled “Strengthening Transparency, Governance, and Accountability of Charitable Organizations”, and an April 2006 Supplemental Report

Complete text (16 pages) of decision by U.S. Court of Appeals for the Federal Circuit holding that the University’s initiation of a patent interference proceedings at the U.S. Patent and Trademark Office (USPTO) between the University’s pending patent application and Vas-Cath’s issued patent operated as a waiver of the University’s Eleventh Amendement immunity when Vas-Cath appealed the outcome of the interference proceeding to federal district court.

Complete text ((14 pages) of Statement adopted by the Association of Governing Boards (AGB). The statement sets forth considerations and recommendations to enhance the accountability of higher education governing boards in the areas of fiscal integrity; board performance; educational quality; and presidential search, assessment and compensation.

Complete text (15 pages) of decision by U.S. District Court (N.D.N.Y.) granting student plaintiffs' request for a preliminary injunction prohibiting defendants from enforcing their disciplinary suspensions. The court rules that because of pending criminal charges against defendants related to the same subject matter at the time of their disciplinary hearings, they were entitled to a limited due process right to counsel, specifically the right to have counsel present at the hearing to consult with when concerned about possible self-incrimination.

Complete text (30 pages) of decision by U.S. Supreme Court holding that a patent licensee is not required, due to the limitation by Article III of the U.S. Constitution of federal court jurisdiction to “cases” and “controversies”, to first terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed.

Complete text (13 pages) of opinion by U.S. Sixth Circuit Court of Appeals staying the District Court's preliminary injunction barring until July 1, 2007 enforcement of the Michigan Civil Rights Initiative (MCRI) (adopted by Michigan voters on November 7 and scheduled to take effect on December 23, 2006). Among other items, the MCRI bars any Michigan public college or university from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in public employment, education or contracting. The court finds that there is little or no likelihood of invalidating the MCRI on federal constitutional or statutory grounds and therefore permits its immediate enforcement, pending a full hearing on Petitioner Russell's appeal challenging the injunction.

Complete text (3 pages) of Notice issued by the U.S. Department of Transportation (DOT) and published in the December 19 Federal Register. In the Notice, DOT seeks to provide guidance to colleges and other organizations wishing to arrange charter flights to football bowl games, NCAA basketball play off games, or other special events. The notice describes rules and considerations when contracting directly with an air carrier for charter flights, including DOT and FAA safety and economic regulations. The Notice also describes rules and considerations when using a Public Charter Operator or an Air Charter Broker to contract for charter flights.

Complete text (11 pages) of request for information published by the Department of Labor in the December 1 Federal Register. DOL seeks information in connection with its review of the Department's administration of the Family Medical Leave Act (FMLA) and implementing regulations. Specifically, DOL seeks information and comment on a number of issues covered in the regulations, including issues surrounding the definition of "eligible employee"; the definition of "serious health condition"; substitution of paid leave; waiver of FMLA rights; leave determinations and medical certifications; and the use and impact of unforeseen intermittent FMLA leave. Comments are due by February 2, 2007.

Complete text (35 pages) of report issued by the General Accounting Office (GAO). In response to a request from the House Judiciary Committee to examine how academic institutions and government agencies protect against the illegal disclosure of export-controlled information, GAO met with officials from selected institutions and from the Departments of State and Commerce. GAO concludes that the government agencies responsible for administering and enforcing export control regulations have not fully assessed the potential for the transfer of export-controlled information to foreign nationals in the course of U.S. university research. GAO recommends that the Departments of State and Commerce strategically assess potential vulnerabilities in the conduct and publication of academic research through analyzing available information on technology development and foreign student populations at U.S. universities.

Complete text (9 pages) of opinion by Missouri Court of Appeals upholding award of punitive damages in age discrimination suit brought by the University's baseball coach. The court also upholds the award of punitive damages against plaintiff's supervisors.

Complete text (17 pages) of report issued by the Foundation for Individual Rights in Education (FIRE). The report summarizes the results of FIRE's survey of 330 colleges and universities across the country. According to FIRE, the majority of the institutions whose policies it surveyed prohibit speech that would be protected by the First Amendment if occurring off-campus.

Complete text (23 pages) of Interim Guidance issued by the Internal Revenue Service (IRS) on certain provisions of the Pension Protection Act of 2006 (see IRS summary of key provisions affecting exempt organization here). In particular, the Interim Guidance provides guidance to private foundations making distributions to supporting organizations and to donor advised funds making grants to supporting organizations. According to the Notice, the IRS intends to issue further guidance and regulations under the Pension Protection Act.

Complete text (6 pages) of notice issued by the Internal Revenue Service (IRS) providing guidance on how charitable contributions made by payroll deduction can meet the new record-keeping requirements of IRC Sec. 170(f)(17) as added by Pension Protection Act of 2006.

Complete text (9 pages) of final rule issued by the U.S. Copyright Office and published in the November 27 Federal Register announcing six classes of works that are exempted for the next 3 years from the anti-circumvention provisions of the Digital Millenium Copyright Act (DMCA). Section 1201 of the DMCA prohibits the circumvention of technological measures employed by copyright holders to protect their works. The Copyright Offices is authorized to exempt certain classes of works from the prohibition if, following a trienniel review, it concludes that the prohibition is likely to adversely affect the ability of users to make non-infringing uses of such works. Among the works exempted by the Copyright Office are "audiovisual works included in the educational library of a college or university's film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors". Current and potential exemptions from the prohibition will be reviewed again by the Copyright Office in 2009.

Complete text (20 pages) of final rule issued by the Departments of State and Homeland Security and published in the November 24 Federal Register. The rule requires that on or after January 23, 2007, all U.S. citizens and nonimmigrant aliens from Canada, Mexico and Bermuda departing from or entering the U.S. from the western hemisphere by air will be required to present a valid passport. According to the rule, arrivals by sea and land from Canada, Mexico and Bermuda will be addressed in a separate rule-making.

Complete text (19 pages) of decision by Court of Common Pleas, Butler County, Ohio, holding that plaintiff Brinkman lacks standing to seek declaratory and injuntive relief against defendant Miami University for its policy permitting same-sex domestic partners to receive university-funded medical insurance benefits. Plaintiff based his suit on a recent amendment to the Ohio state constitution forbidding the state or its political subdivisions from creating or recognizing "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

Complete text (14 pages) of recommendations to the Department of Treasury by the National Association of Bond Lawyers (NABL). The recommendations propose changes to IRS Rev Proc 97-14 to clarify that research agreements containing Bayh-Dole rights do not result in private business use under the Internal Revenue Code, and to expand the safe harbor for university-industry consortia to apply to single sponsor research contracts.

Complete text (25 pages) of letter by NCAA President Myles Brand to Congressman William Thomas, Chairman of the House Ways and Means Committee. The letter is in response to an October 2 letter to the NCAA from Chairman Thomas requesting information on whether major intercollegiate athletics further the tax exempt purpose of the NCAA and of educational institutions.

Complete text (9 pages) of bill (S. 3880) passed by U.S. House and Senate and awaiting signature by the President. The bill provides criminal penalties for specified offenses involving the use of force, violence and threats for the purposes of damaging or interfering with the operations of an animal enterprise. "Animal enterprise" is define inter alia as "a commercial or academic enterprise that uses....animals....for....education, research, or testing". [Secs. 43(a) and 43(d)(1)(a) of the bill].

Complete text (3 pages) of amendment to state constitution adopted by Michigan voters on Tuesday, November 7. Among other items the amendment forbids any public college or university in the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in education, employment or contracting. The University of Michigan had earlier prepared a summary of the potential impact of the amendment on its programs.

Complete text (20 pages) of updated White Paper issued by the Joint Committee of the Higher Education and Entertainment Communities and distributed by ACE (American Council on Education). The paper updates an earlier version issued by the Joint Committee in 2003.

Complete text (3 pages) of letter from the board of directors of EDUCAUSE to CEO of Blackboard, Inc. recommending that Blackboard disclaim its rights under its Internet-based Education Support System and Methods patent and place it in the public domain. For information about the Blackboard patent and Blackboard's patent infringement suit seeking to enforce the patent, click here.

Complete text (86 pages) of report issued by the Association of American University Professors (AAUP) Committee on Women in the Academic Profession. The report offers survey data on gender equity for faculty at institutions across the country, presented in the aggregate and comparatively by institution. Gathered from the AAUP Faculty Compensation Survey and the U.S. Department of Education, the data was analyzed using four measurements as gender equity indicators including employment status for full-time and part-time faculty; tenure status for full-time faculty; promotion to full professor rank and average salary for full-time faculty at 1,445 institutions nationwide.

Complete text (8 pages) of Notice 2006-96 issued by the Internal Revenue Service (IRS) providing transitional guidance on the definition of "qualifed appraisal" and "qualified appraiser" under Section 170(a) of the Internal Revenue Code, as amended by Section 1219 of the Penstion Protection Act of 2006. Taxpayers claiming a deduction of $5,000 or more for non-cash charitable contributions on returns filed after August 17, 2006 must obtain an appraisal by a "qualified appraiser" as defined in the statute and regulations. According to the guidance, a qualified appraiser must have a) an appraisal designation from a recognized appraisal organization based on demonstrated competency in valuing the type of property for which the deduction is claimed; b) education and experience in valuing the type of property subject to appraisal; and c) minimum education and experience requirements. With respect to appraisals of real property, for returns filed after October 19, 2006, the minimum education and experience consists of licensure or certification for the type of property being appraised in the state within which the appraised property is located. With respect to appraisals of other property, for returns filed after February 16, 2007, minimum education and experience must be described in the appraisal and consist of a combination of education and experience relevant to the property being valued.

Complete text (10 pages) of report issued by Association of American University Professors (AAUP) Committee on Academic Freedom and Tenure. The report notes that that Institutional Review Board (IRB) procedures requiring prior IRB approval of human subjects research protocols are an obvious potential threat to academic freedom. The report recommends that research on autonomous adults whose methodology consists entirely in collecting data by surveys, conducting interviews, or observing behavior in public places, be exempt from any requirement of IRB review, without qualification and with no requirement of IRB approval of such an exemption. The report notes that with respect to federally funded research, this would require a change in existing federal regulations governing human subjects research. The report also recommends, with respect to non-federally funded research, that institutions utilize the permission granted by current federal regulations to formulate a separate set of procedures, other than IRB approval, for review of human subjects research, including an exemption similar to the one the Committee recommends for federally funded research.

Complete text (31 pages) of brief of amici curiae filed on behalf of the American Council on Education (ACE) and other higher education associations in support of respondent school districts and arguing that the promotion of diversity at the K-12 level advances excellence in higher education. The two cases, pending before the U.S. Supreme Court, present the questions (among others) of whether the Supreme Court's decisions in Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger (539 U.S. 244 (2003) support or prohibit the assignment of students by school districts to schools in accordance with a system that establishes floors and ceilings for the enrollment of African American students (Jefferson County Board of Education); and whether the decisions support or prohibit denying a student admission to his or her chosen school because of his or her race in order to achieve a desired racial balance in particular schools (Seattle School District).

Complete text (29 pages) of decision by National Labor Relations Board (NLRB). The National Labor Relations Act (NLRA) sets forth 12 attributes which will qualify an individual as a "supervisor" and therefore exclude them from the Act's definition of an "employee" and from the rights provided by the Act to employees to organize and bargain collectively. In its decision, the Board examines and interprets the supervisory attributes of the authority to "assign" and "responsibility to direct" other employees and the use of "independent judgment" in connection with that authority. The Board interprets "assign" to mean "the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period) or giving significant overall duties, i.e. tasks, to an employee)." The Board interprets "responsibility to direct" to require that the individual be accountable for the work product of the employees they direct, ie that they have the authority to direct the work of another employee, the authority to take corrective action if necessary, and "that there be the possibility of adverse consequences for the putative supervisor if he or she did not take these steps." Finally, with respect to the attribute of the exercise of "independent judgment", the Board finds that "a judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies, or rules, the verbal instructions of a higher authority, or in the provisions of a collective bargaining agreement." Conversely "the mere existence of company policies does not eliminate independent judgment from decision-making if the policies allow for discretionary choices." Applying these interpretations to the case before it, the Board concludes that several of the charge nurses at petitioner hospital exercise independent judgment in the assignment of nursing personnel to patients and are thefore supervisors under the terms of the act and excluded from the nurses' bargaining unit at the hospital.

Complete text (8 pages) of letter from Chair of House Ways and Means Committee to President of NCAA requesting information on whether major intercollegiate athletics further the exempt purpose of the NCAA and of educational institutions. The letter poses 25 questions relating to the NCAA's educational mission and its finances and requests reponses by October 30. The letter is part of the Committee's ongoing review of the tax-exempt sector.

Complete text (4 pages) of opinion by U.S. Court of Appeals for the District of Columbia reversing in part the decision of the District Court and remanding case for consideration by the District Court of petitioner College Sports Council's challenge of the Department's refusal to initiate a rulemaking to repeal the "Three-Part Test", set forth at 44 Fed. Reg, 71,413 (1979), for Title IX compliance in intercollegiate athletics. The Court emphasizes that the scope of judicial review of a refusal by a federal department or agency to initiate rulemaking proceedings is extremely limited and highly deferential.

Complete text (22 pages) of proposed rules issued by the Internal Revenue Service (IRS) and published in the September 26 Federal Register. The proposed rules provide guidance regarding general allocation and accounting rules for purposes of the private activity bond restrictions set forth in Section 141 of the Internal Revenue Code, including guidance regarding allocations of the proceeds of an issue of tax-exempt bonds and other funds to expenditures, to property and to uses (i.e. governmental use or private business use). The proposed rules also include special accounting rules for projects which have both governmental use and private business use (mixed use projects). The proposed rules would apply to covered bonds sold on or after the date that is 60 days after the date of publication of final regulations in the Federal Register. Comments on the proposed rules are due by December 26.

Complete text (11 pages) of opinion by Illinois Court of Appeals holding that performances by "Chief Illiniwek" during halftimes of University of Illinois football games do not violate the Illinois Civil Rights Act. The court rules that the Illinois Civil Rights Act, passed in 2003, does not supercede or conflict with an earlier act of the state legislature, passed in 1996, declaring that "Chief Illiniwek is, and may remain, the honored symbol" of the University of Illinois at Urbana-Champaign.

Complete text (64 pages) of report of Assocation of Governing Boards (AGB) Task Force. The report includes recommendations to institutional governing boards on support of presidential leadership, presidential searches, evaluation and compensation of presidents, board accountability, and presidential renewal and succession. It also includes recommendations to presidents and state policy makers.

Complete text (21 pages) of decision by U.S. 2nd Circuit Court of Appeals affirming the decision of the district court and holding that appellee Fashion Institute of Technology (FIT) did not violate Zelnik's First Amendment rights when it refused to consider him for professor emeritus status. The court concludes that in cases alleging retaliation based on the exercise of First Amendment rights the appropriate standard for determining whether an adverse employment action has occurred is whether the retaliatory conduct in question would deter a similarly situated person of ordinary firmness from exercising their constitutional rights. It further concludes that based on the record before it, the benefits of professor emeritus status at FIT carried little or no value and their deprivation could be classified as de minimis and not of such value that a jury could find that their denial would deter a person of ordinary firmness from exercising their free speech rights.

Complete text of memorandum issued by the American Council on Education describing permitted and prohibited activities by colleges and universities, and their personnel, in campaigns for public office. The memorandum includes a list of illustrative permitted activities and a list of illustrative prohibited or questionable activities. The U.S. Internal Revenue Service (IRS) has also established a web page with resources on political campaign intervention by charities, churches and educational organizations.

Complete text (34 pages) of decision by reconstituted panel of U.S. Third Circuit Court of Appeals, following a grant of re-hearing of the court's earlier decision in the same matter. The court holds that the "ministerial exception", which protects a religious institution's right to choose who will perform spiritual functions, bars appellant Petruska, appellee's former chaplain, from pursuing her Title VII discrimination and retalation claims and her state civil conspiracy and negligent retention and supervision claims. The court also holds that appellant's fraudulent misrepresentation and breach of contract claims are not barred by the "ministerial" exception.

Complete text (32 pages) of decision by Utah Supreme Court holding that under the Utah state constitution, the state legislature has the ability to generally manage all aspects of the university and the university does not possess autonomous powers permitting it to act in contravention of legislative enactments. Because state law expressly forbids state and local entities from enacting or enforcing any ordinance, regulation, rule or policy that in any way inhibits or restricts the possession or use of firearms on either public or private property, the court holds that the university cannot enforce its policy prohibiting students, faculty and staff from possessing firearms on campus. The university's claim that the statute abridges its First Amendment academic freedom right to control the educational environment of its campus is reserved for consideration by the federal district court.

Complete text (9 pages) of decision by Indiana Circuit Court holding that trustees of the university investigating allegations against university coach were acting as attorneys for the university, and therefore documents compiled in the investigation were attorney work product and exempt from production under the state Access to Public Records Act.

Complete text (62 pages) of report issued by the General Accounting Office (GAO) on federal laws and regulations governing donor-advised funds and supporting organizations in comparison with private foundations. The report also describes financial and organizational characteristics of donor-advised funds, supporting organizations and private foundations, and types of potential or actual non-compliance by donor-advised funds and supporting organizations with federal laws governing tax-exempt organizations. The report recommends revisions to IRS Form 990 to provide more comprehensive data on these entities.

Complete text (63 pages) of complaint filed July 26 in the U.S. District Court (E.D. Texas) by Blackboard, Inc. against Desire2Learn, Inc. alleging infringement by Desire2Learn of its' U.S. patent entitled "Internet-Based Education Support System and Methods, granted January 17, 2006 by the U.S. Patent and Trademark Office. Blackboard has issued a press release and FAQ concerning its eLearning technology patent. Blackboard has also issued a statement to its customers concerning its patent infringement lawsuit. Desire2Learn has created a weblog concerning the patent which includes it's initial statement on Blackboard's infringement complaint. The Sakai Foundation has announced that is has retained the Software Freedom Law Center (SFLC), to evaluate the Blackboard patent, its impact on the educational community, and to advise on legal matters regarding the patent.

Complete text (10 pages) of decision by U.S. Sixth Circuit Court of Appeals affirming the judgment of the District Court and holding that defendant American Bar Association (ABA) did not violate the due process rights of plaintiff law school by failing to accredit two satellite campuses and by sanctioning plaintiff for operation of those campuses without defendant's prior approval. The Court determines that the appropriate judicial standard of review of decisions by an accrediting agency is whether the decisions are arbitrary and unreasonable or an abuse of discretion and whether the decisions are based upon substantial evidence. Applying this standard, The Court determines that the ABA's interpretation and application of its rules to plaintiff's applications for approval of its satellite campuses and with respect to the imposition of sanctions on plaintiff were not clearly erroneous or an abuse of discretion.

Complete text (7 pages) of proposed rule issued by the Department of Defense-Defense Acquisition Regulation System (DFARS) and published in the August 14 Federal Register. In July, 2005 DFARS published a proposed rule to address requirements for preventing unauthorized disclosure of export-controlled information and technology under Department of Defense contracts. Following significant negative reaction to the proposed rule, DFARS has issued the current proposed rule which primarily reinforces the obligation of DOD contractors to comply with existing Department of Commerce and Department of State export control regulations. Comments on the proposed rule are due by October 13, 2006.

Complete text (4 pages) of notice of proposed rulemaking issued by U.S. Equal Employment Opportunity Commission (EEOC) and published in the August 11 Federal Register. In response to the Supreme Court's decision in General Dynamics Land Systems, Inc. v. Cline (540 U.S. 581 [2004]), the EEOC proposes to revise its ADEA regulations to reflect the court's holding that the ADEA permits employers to make age-based employment decisions that favor relatively older employees. The existing regulations would be revised to clarify that favoring an older individual over a younger individual because of age is not unlawful discrimination under the ADEA, even if the younger individual is at least 40 years old. The regulations would also be revised to permit employment advertisements that encourage relatively older persons to apply or express a preference for older individuals. Comments on the proposed rules are due on or before October 10.

Complete text (40 pages) of interim final regulations issued by the U.S. Department of Education and published in the August 9 Federal Register. The interim final regulations implement changes to the Higher Education Act made by the Higher Education Reconciliation Act (HERA) of 2005 and other recent legislation. Included in the changes is a revised definition of "telecommunications course" to implement the HERA provisions removing telecommunications courses from consideration as "correspondence courses" for purposes of compliance with the so-called 50% rule (requiring that in order to qualify for participation in federal financial aid programs, no more than 50% of an institution's courses be correspondence courses and no more than 50% of its students be enrolled in correspondence courses). Under the interim final regulations, "telecommunications course" is defined as a course offered principally through the use of one or a combination of technologies, including television, audio, or computer transmission through open broadcast, closed circuit, cable, microwave or satellite; audioconferencing, computer conferencing, or video cassettes or discs to deliver instruction to students who are separated from the instructor and to support regular and substantive interaction between these students and the instructor, either synchronously or asynchronously. The interim final regulations are effective on September 8, 2006. Comments are also due on September 8, 2006.

Complete text (7 pages) of proposed guidance issued by U.S. Department of Education and published in the August 7 Federal Register. The proposed guidance addresses a) how educational institutions will collect and maintain data on race and ethnicity from students and staff and b) how such data will be aggregated for purposes of reporting to the Department. The proposed changes implement the Office of Management and Budget's (OMB) 1997 Standards for Maintaining, Collecting and Presenting Federal Data on Race and Ethnicity.

Complete text (393 pages) of bill passed by U.S. House of Representatives and U.S. Senate and sent to the President for his signature. Title XII of the bill (beginning on page 284) includes provisions relating to charitable giving incentives and reforming exempt organizations, including provisions on tax-free distributions from individual retirement plans for charitable purposes (Sec. 1201), modification of record-keeping and substantiation requirements for certain charitable contributions (Sec. 1217), contributions of fractional interests in tangible personal property (Sec. 1218), substantial and gross overstatements of valuations (Sec. 1219), public disclosure of unrelated business income tax returns (Sec. 1225) and additional provisions on accountability of Donor Advised Funds and on accountability of Supporting Organizations. An explanation of the charitable giving and exempt organization reform provisions of the Act is found on pp. 263 - 364 of a report (386 pages) prepared by the Joint Committe on Taxation.

Complete text (19 pages) of decision by Ohio Court of Claims rejecting defendant university's assertion that doctrine of after-acquired evidence provided independent grounds for defendant's termination of plaintiff (defendant's former head basketball coach) and enforcing liquidated damage provisions in coach's contract applicable to instances of termination without cause. The court had earlier ruled that defendant's termination of defendant was without cause under the terms of his employment contract with the university (see O'Brien v. The Ohio State University, February 15, 2006).

Complete text (25 pages) of decision by U.S. District Court (N.J.) finding that editors of student newspaper demonstrated likelihood of success on their claim that the removal of the newspaper's faculty advisor was motivated by a desire on the part of the college administration to retaliate against the paper for its articles critical of the administration. The court grants a preliminary injunction barring the defendants from removing the advisor.

Complete text (20 pages) of questionnaire sent by the U.S. Government Accounting Office (GAO) to over 100 randomly selected colleges and universities. The questionnaire is part of a study requested by the House Judiciary Committee Subcommittee on the Courts, the Internet and Intellectual Property, and seeks information on a variety of topics related to file sharing over institutional networks, including educational campaigns on illegal sharing of copyrighted material, computer systems and network managment/monitoring, enforcement actions, and receipt of cease and desist orders. According to the GAO cover letter accompanying the survey, the GAO will provide the Subcommittee with the names of institutions responding to the survey along with individually identified responses.

Complete text (18 pages) of report by the Office of Inspector General (OIG), U.S. Department of Health and Human Services summarizing OIG's review of the compliance by 15 institutions with the Department's select agent regulations. The report points out several compliance deficiencies identified by OIG as a result of its review, including deficiencies related to inventory and access records, access controls, security plans, training, and response plans.

Complete text (31 pages) of document entitled "Framework for Developing Institutional Protocols for the Acutely Distressed or Suicidal College Student", prepared by the JED Foundation. The document provides a comprehensive list of issues to consider when drafting or revising protocols related to the management of students in acute distress or at risk for suicide, including "Developing a Safety Protocol", "Developing an Emergency Contact Notification Protocol", and "Developing a Leave of Absence and Re-Entry Protocol".

Complete text of memorandum (2 pages) issued by the American Council on Education (ACE) analyzing the application of the Communications Assistance for Law Enforcement Act (CALEA) to colleges and universities in light of the recent decision by the U.S. Court of Appeals for the DC Circuit upholding the September 2005 Order of the Federal Communications Commission (FCC) extending CALEA to providers of broadband internet access and VOIP services. Based on the FCC order, the briefs filed by the government and the court's opinion, colleges and universities should be exempt from CALEA if two conditions can be satisfied: 1) the institution's network qualifies as a "private network"; and 2) the institution does not "support" the connection of the private network to the internet. The ACE memorandum discusses the application of both of these criteria to college and university networks.

Complete text (38 pages) of opinion by U.S. Seventh Circuit Court of Appeals reversing the order of the District Court and granting a preliminary injunction in favor of plaintiff Christian Legal Society (CLS) restoring its status as a recognized student organization pending trial on the merits. CLS had sued plaintiffs, officials of Southern Illiniois University (SIU), alleging violations of CLS's First Amendment Rights when defendants revoked its status as a recognized student organization due to CLS's" refusal to abide by SIU's non-discrimination policies, which include a prohibition of discrimination on the basis of sexual orientation. (The court in an earlier proceeding had issued an order preserving CLS's status as a recognized student organization pending resolution of this appeal--see Christian Legal Society et al. v. Walker, et al.).

Complete text (6 pages) of final rule issued by the Internal Revenue Service (IRS) and published in the July 13 Federal Register. The regulation implements Sec. 6045(f) which was added to the Internal Revenue Code by the Taxpayer Relief Act of 1997. It requires persons engaged in a trade or business who make payments aggregating $600 or more during a calendar year to an attorney in connection with legal services (regardless of whether or not the services are performed for the payor) to file an information return with the IRS. The information return must be filed whether or not a portion of the payment is kept by the attorney as compensation for legal services rendered or whether other information returns are required with respect to some or all of a payment under other provisions of the Internal Revenue Code. Payors must also furnish attorneys with a copy of the return or a written statement of the information required to be shown on the return. The rule includes examples of its application to common situations involving payments to attorneys. The final rule is effective July 13, 2006 and applies to payments made on or after January 1, 2007.

Complete text (16 pages) of Notice of Proposed Rulemaking issued by the U.S. Patent and Trademark Office (USPTO) and published in the July 10 Federal Register. The proposed rule would revise the rules relating to required information disclosure statements (IDS) by patent applicants and owners. For IDS occurring before the first Office action by the USPTO, the proposed rule would require additional disclosures for English language documents over 20 pages in length, for non-English documents of any length, and for each document in cases where more than 20 total documents have been cited in one or more IDS. The required additional disclosures include identification of additional feature(s), showing(s), or teaching(s) that caused a document to be cited in the IDS and where in the document they are found;and a correlation of the specific feature(s), showing(s), or teaching(s) to corresponding patent claim language. More detailed disclosures would be required for IDS file subsequent to a first Office action on the merits. Comments on the proposed rule are due by September 8.

Complete text (66 pages) of manual entitled "Admissions and Diversity After Michigan: The Next Generation of Legal and Policy Issues" published by The College Board. The manual is co-authored by NACUA member Arthur Coleman and includes sections on admissions models, critical mass, the educational benefits of diversity and race-neutral alternatives. The College Board has also published "Federal Law and Financial Aid: A Framework for Evaluating Dviersity-Related Programs" (104 pages) and Federal Law and Recruitment, Outreach and Retention (94 pages). Each manual is a product of the College Board's Access and Diversity Collaborative. Print copies of each manual can be purchased from the College Board.

Complete text (9 pages) of proposed rule issued by the Bureau of Industry and Security (BIS), U.S. Department of Commerce and published in the June 30 Federal Register. The proposed rule sets forth BIS policy concerning voluntary self-disclosures under the Restrictive Trade Practices or Boycotts section of the Export Administration Regulations. Part 760 of EAR prohibits U.S. persons from taking actions or agreeing to take actions to comply with, further or support an unsanctioned foreign boycott. (The BIS notes that conduct that would be a violation of the antiboycott provisions of the EAR almost always occur among companies that export to or provide services in the Middle East). The proposed rule also sets forth the factors BIS, through the Office of Antiboycott Compliance (OAC) considers when deciding whether to pursue administrative charges or settle allegations of violations of the EAR antiboycott provisions, and the factors BIS considers when deciding what level of penalty to seek in administrative enforcement cases.

Complete text (2 pages) of Final Rule issued by the U.S. Department of State and published in the June 30 Federal Register. The Final Rule eliminates a requirement that all non-immigrant visa refusals be the subject of Section chief or designee review. The Final Rule instead implements a procedure increasing the review of the issuance of non-immigrant visas by direct supervisors of adjudicating consular officers, or designated alternates, whle reducing the degree of visa refusal reviews.

Complete text (12 pages) of May 2006 Report of AAMC (American Association of Medical Colleges) Criminal Background Check Advisory Committee, approved by the AAMC Executive Council in June. The Report recommends that the AAMC pursue the development of an AAMC-administered national, centralized system for completing and reporting on criminal background checks for accepted applicants annually and for potentially all AAMC-member medical schools. The report includes 17 specific recommendations, including that the criminal background check be a mandatory component of the pre-matriculation process for each accepted applicant, but not a component of the application, interview or selection process. The report also calls for each school to develop policies and procedures, in collaboration with its institutional general counsel, regarding the handling of information generated by criminal background checks on applicants, both prior to the final matriculation decision and after the information has been used for its intended purpose(s). According to a notice issued by AAMC, AAMC staff members are beginning the process of implementing the Executive Council's decision. The notice indicates that full implementation will occur following two years of preparation and beta testing of the criminal background check system.

Complete text (29 pages) of U.S. Supreme Court decision holding that the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 encompass not only employment actions such as termination or demotion which would support a violation of the substantive anti-discrimination provisions of the Act, but also additional actions which would be materially adverse to a reasonable employee or applicant such that they could dissuade a reasonable worker from making or supporting a charge of discrimination. The Court noted that the law does not protect against petty slights or minor annoyances but that the weight of an alleged retaliatory act must be evaluated in light of the circumstances of a reasonable employee or applicant situated as the plaintiff in an action for retaliation.

Complete text (8 pages) of Interim Final Rule issued by the Department of Homeland Security (DHS), Bureau of Immigration and Customs Enforcement, and published in the June 15 Federal Register. The Interim final rule provides that employers who are required to complete and retain Forms I-9 on Employment Eligibility Verification may sign and retain the forms electronically, and establishes standards for electronic signature and retention.

Complete text (5 pages) of proposed rule issued by the Department of Homeland Security (DHS), Bureau of Immigration and Customs Enforcement and published in the June 14 Federal Register. The proposed rule would establish a safe harbor for employers who follow the safe harbor procedures following a receipt of a "no match letters" from either the Social Security Administration (SSA) or DHS. SSA sends "no match" letters to some (though not all) employers when the combination of an employee's name and social security number on an employer's W-2 earnings reports do not match SSA records. DHS send similar letters if after review of an employer's I-9 forms it cannot confirm that an immigration status document or employment authorization document referenced on the I-9 has been issued to the applicable employee. Employers who follow the safe harbor procedures set forth in the proposed rule would be shielded from the possibility of a finding of "constructive knowledge" of employment of a person ineligible to work in the U.S. and the resulting liability. The proposed safe harbor provides no protection from liability based on actual knowledge of an employee's ineligibility to work. Comments on the proposed rule are due by August 14.

Complete text (19 pages) of Notice issued by the Office of Federal Contract Compliance Programs (OFCCP) and published in the June 16 Federal Register. In the Notice, the OFCCP establishes final interpretive standards for systemic compensation discrimination under the non-discrimination requirements of Executive Order 11246. The OFCCP has also issued Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Discrimination. Contractors who in good faith implement a self-evaluation program that comports with the voluntary guideline would not be subject to independent OFCCP evaluation of their compensation practices. OFCCP will instead conform its compliance monitoring activities to the contractor's self evaluation program.

Complete text (83) pages of Order issued by Federal Communications Commission on May 12. The Order follows the Commission's First Order and Report issued last September finding that the Communications Assistance for Law Enforcement Act (CALEA) applies to facilities based broadband internet access service provicer and providers of voice over internet protocol (VOIP) service. In its second order and report, the FCC affirms a CALEA compliance deadline for these providers of May 14, 2007, and limits the possibility of extensions to equipment, facilities and services deployed prior to October 25, 1998. The report further indicates that the Commission will not establish standards for CALEA compliance. The Report also states that covered service providers may rely on so-called "Trusted Third Parties" (TTPs) to assist in meeting their obligations under CALEA. Finally, in the Report the Commission affirmed its power to enforce CALEA requirements and required interim compliance reports from affected providers. The Commission published a summary of the Second Report and Order in the July 5, Federal Register.

Complete text (9 pages) of questionnaire being used by the Internal Revenue Service (IRS) in compliance checks of tax exempt hospitals.

Complete text (22 pages) of report of University of Colorado Standing Committee on Research Misconduct in the matter of Professor Ward Churchill. The Committee accepts the conclusions of the university's Investigative Committee the Professor Churchill committed acts of serious, repeated, and deliberate research misconduct.

Complete text (35 pages) of Resource Guide published jointly by the American Council on Education (ACE), the National Collegiate Athletic Association, and United Educators Insurance (UE).

Complete text (29 pages) of decision by U.S. Court of Appeals for the District of Columbia upholding the Order of the Federal Communication Commission (FCC) extending the coverage of the Communications Assistance for Law Enforcement Act (CALEA) to broadband internet services. The Court finds that the FCC order was a reasonable interpretation of CALEA. The decision notes that the Order expressly excludes private networks from its reach, and that should the FCC expand its interpretation (as petitioners suggested by pointing to language in the FCC's proposed rule implemeting its order stating that "to the extent [that] private networks are interconnected with a public network, either the [public voice network] or the Internet, providers of the facilities that support the connection of the private network to a public network are subject to CALEA" [emphasis added]), the petitioners can seek review of that issue at the appropriate time.

Complete text (4 pages) of final rule issued by the Department of Defense and published in the June 1 Federal Register. The final rule re-establishes Department of Defense rules implementing various authorization and appropriations acts related to funding, and the Department’s ability (for military recruitment purposes) to enter campuses, access students on campuses, and access directory information on students. The rule also updates the policies and responsibilities related to the management of covered schools with policies denying or preventing Department of Defense access and entry and/or those schools with anti-ROTC policies. The final rule is effective June 1, 2006.

Complete text of notice issued by the Bureau of Industry and Security (BIS), U.S. Department of Commerce, and published in the May 31 Federal Register. In the notice, the Bureau formally withdraws its March 28, 2005 Advance Notice of Proposed Rulemaking: Revision and Clarification of Deemed Export Related Regulatory Requirements. The Notice analyzes the public comments received in response to the March 28 Advance Notice of Proposed Rulemaking and advises that BIS is not adopting recommendations in the March 2004 Report of the Department of Commerce Office of Inspector General (OIG) which would have reguired regulatory changes to the Export Administration Regulations (EAR). Specifically, BIS advises that the requirement for a deemed export license will continue to be based on a foreign national's country of citizenship or permanent residence, and not on country of birth as recommended in the OIG report. In addition, BIS advises that the definition of "use" in Section 772.1 of the EAR will remain the same and that all six activities (operation, installation, maintenance, repair, overhaul and refurbishing) in the definition of "use" by a foreign national must be present to trigger the requirement for a deemed export license. Finally, BIS provides guidance on what it describes as a misapprehension concerning the scope of the so-called Fundamental Research exemption. According to BIS, information resulting from fundamental research is generally not subject to the EAR if the intent is to make the information resulting from the research publicly available. Therefore while scientific papers or publications or products that describe or detail the results of fundamental research are not subject to EAR, authorization may nonetheless be required if during the conduct of the research controlled technology is released to a foreign national.

Complete text (19 pages) of decision by U.S. District Court (C.D. Cal.)holding that allegations by three former adjunct professors of fraudulent statements made by a college to an accrediting agency will support an action under the False Claims Act. The court, citing the decision by the 7th Circuit Court of Appeals in United States of America ex rel. Jeffrey E. Main v. Oakland City University, reasons that the college's allegedy false certification to its accrediting agency of compliance with certain program accreditation requirements resulted in its being granted accreditation, which in turn made the college eligible to participate in federal financial aid programs.

Complete text (77 pages) of decision of U.S. Third Circuit Court of Appeals reversing the District Court and holding that the "ministerial exception" to Title VII applies only where otherwise illegal employment discrimination against ministers is based on religious belief, religious doctrine or the internal regulations of a church and is therefore protected by the Free Exercise clause of the First Amendment. However, the court holds, where a church discriminates for reasons unrelated to religion, the Constitution does not forclose suits under Title VII. Plaintiff Petruska was Chaplain at defendant university until her resignation following an administrative re-organization placing the Chaplain's position under the control of a male administrator, an action Petruska alleged was taken solely because she was a woman. The District Court had dismissed her Title VII discrimination and retaliation claims based on a broad construction of the ministerial exception. On June 20 the U.S. Third Circuit Court of Appeals vacated the panel's judgment and granted petitioner Gannon University's petition for rehearing in this matter

Complete text (43 pages) of opinion by U.S. Supreme Court reversing the Court of Appeals and holding that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Plaintiff Cebellos, a Los Angeles District Attorney, alleged retaliation by his employer because he wrote an internal memorandum asserting that a police affidavit used to obtain a search warrant included serious misrepresentations, and later testified to that effect in a hearing on a defense motion challenging the search warrant. The Court observes that the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities, and notes that while numerous federal and state whistleblower protection laws and other measures protect public employees who expose governmental inefficiency and misconduct, the Court's precedents do not support the existence of a constitutional cause of action behind every statements a public employee makes in the course of doing his or her job.

Complete text (42 pages) of proposed rule issued by the Environmental Protection Agency (EPA) and published in the May 23 Federal Register. Recognizing that college and university laboratory operations differ from both industrial laboratories and industrial production facilities that generate hazardous waste, the proposed rule would establish an alternative set of hazardous waste generator requirements for college and university laboratories. Institutions would have the option of managing their laboratory hazardous waste under the requirements of the proposed rule, or continuing to manage their laboratory hazardous waste under the current hazardous waste regulations [40 CFR 262.11 and 262.34(c)]. Among other items, the proposed rule would provide flexibility with regard to where on campus the determination of whether laboratory generated solid waste constitutes hazardous waste under RCRA could occur. In addition, institutions electing to proceed under the proposed rule would have to develop, implement and maintain a Laboratory Management Plan (LMP) containing certain required elements. The proposed rule applies only to hazardous waste generated in laboratories; waste generated in other parts of an institution would remain subject to existing hazardous waste regulations. Comments on the proposed rule are due by August 21.

Complete text (17 pages) of May 17 Report prepared by the Congressional Research Service (CRS) summarizing statutory authorities regarding access by the government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices.

Complete text of Notice published in May 22 Federal Register by Bureau of Industry and Security, U.S. Department of Commerce. The Notice announces the establishment of a Deemed Export Advisory Committee (DEAC) to undertake a comprehensive review of the national security, technology and competitiveness dimensions of deemed export control policy and provide recommendations for potential changes to the current deemed export control policy, with such review to specifically include the recommendations made in the March 2004 Report of the Department of Commerce Office of Inspector General (OIG). The DEAC will consist of not more than 12 members drawn from industry, academia and others fields with expertise in national security, scientfic research and development, and the forms of technology subject to the Export Administration Regulations (EAR). DEAC members will be appointed by the Secretary of Commerce for terms of not more than one year and must obtain security clearances prior to appointment. The Notice includes instructions for individuals interested in appointment to the DEAC. Finally, the Notice reiterates current BIS deemed export policy concerning country of birth, the definition of "use" in the EAR and the relationship of fundamental research to deemed exports. BIS is not making any changes to its policy on these matters at this time. A separate notice will specifically address the comments received in response to the March 28, 2005 Advance Notice of Proposed Rulemaking: Revision and Clarification of Deemed Export Related Regulatory Requirements.

Complete text (125 pages) of Report of Investigative Committee of Standing Committee on Research Misconduct at the University of Colorado at Boulder concerning Allegations of Academic Misconduct against Professor Ward Churchill. The report includes the Committee's findings that Professor Churchill committed several formsof academic misconduct, including falsifcation, fabrication, plagiarism, failure to comply with established standards and serious deviation from accepted practices.

Complete text (12 pages) of opinion of U.S. Supreme Court reversing the decision of the Federal Circuit Court of Appeals and holding that the traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief to a prevailing plaintiff applies to disputes arising under the Patent Act. The Court rejects the Court of Appeals' holding that once infringement and validity have been established in patent disputes, patent holders are entitled to permanent injunctive relief as a general rule. The Court also rejects that portion of the District Court opinion implying that a plaintiff's willingness to license its patents and its lack of commercial activity in practicing the patents would be sufficient under the traditional four-factor test to establish lack of irreperable harm, noting specifically that university researchers among others might reasonably prefer to license their patents and should not be automatically barred from obtaining injunctive relief by virtue of that preference.

Internal Revenue Service (IRS) resource page on political campaign intervention by Charities, Churches and Tax-Exempt Organizations. Includes links to IRS reports, articles, fact sheets and news releases.

Complete text (37 pages) of opinion by U.S. District Court (M.D.N.C.) granting defendants' motion to dismiss plaintiffs' complaint on grounds of mootness and denying plaintiffs' motions to amend complaint and for costs and attorneys' fees. Plaintiff Alpha Iota Omega Christian Fraternity is a student organization at the University of North Carolina-Chapel Hill. In 2004 plaintiffs sued defendant Chancellor and other officials of the university alleging that the university's policy requiring that membership in recognized student organizations be open without regard to religion and sexual orientation(among other characteristics) violated their First Amendment rights. In March 2005, the court entered a preliminary injunction forbidding defendants from applying the non-discrimination policy in a manner that would prohibit plaintiffs from limiting membership in their organization to students who, upon individual inquiry, affirm they support plaintiffs' goals, agree with plaintiffs' beliefs, and agree to conform their behavior to plaintiffs' tenents and standards of conduct. In May 2005, the university published a clarification of the non-discrimination policy, including a provision reflecting the terms of the preliminary injunction. The court holds that defendants' voluntary action in issuing and implementing the clarified policy, including granting recognized student organization status to plaintiff AIO, renders the case moot.

Link to comprehensive web page maintained by U.S. Department of Health and Human Services, including implementation plan for national strategy for pandemic influenza (233 pages) issued by the White House. The Centers for Disease Control (CDC) also maintains a website on avian influenza.

Complete text (7 pages) of Memorandum of Understanding between the Food and Drug Administration (FDA), the Animal and Plant Health Inspection Service (APHIS), and the National Institutes of Health (NIH) and published in the May 3 Federal Register. Under the terms of the Memorandum, the agencies agree, among other items, to share information on significant adverse findings regarding animal care at inspected organizations and other evidence of serious non-compliance with required standards or policies for care at organizations that fall under their respective authority; to coordinate successive evaluations and avoid redundant evaluations of the same entities.

Complete text (56 pages) of opinion by U.S. Court of Appeals for the District of Columbia reversing the decision of the District Court and holding that the Due Process clause of the Fifth Amendment protects the right of a terminally ill, mentally competent adult patient's informed access to potentially life-saving investigational new drugs determined by the FDA after Phase 1 trials to be sufficiently safe for expanded human trials. Applying the test set forth by the Supreme Court in Washington v. Glucksberg [527 U.S. 702 (1997)] for identifying rights protected by substantive due process, the court finds first that the right at issue in the case before it is precisely described. The court further finds that there is long-standing tradition in history and law supporting an individual's right to measures of self-preservation, and that barring terminally ill patients from potentially life-saving treatments impinges on this right of self-preservation. Conversely, the court finds that federal regulation of access to drugs is of relatively recent origin. Finally, citing Cruzan v. Director, Missouri Department of Mental Health [497 U.S. 261 (1990)] (establishing an individual's due process right to refuse life sustaining treatment) the court finds that the claimed right is within the realm of rights the Supreme Court has previously held are implicit in the concept of ordered liberty. The court remands the case to the District Court for consideration of whether the FDA's policy barring access to post-Phase I investigational new drugs by terminally ill patients is narrowly tailored to serve a compelling governmental interest.

Complete text (46 pages) of new Section 15 of EEOC Compliance Manual, issued by the Commission on April 19 and updating guidance on how Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the bases of race and color. The EEOC also issued a Question and Answer fact sheet to accompany the updated guidance.

Complete text (41 pages) of decision by U.S. District Court, (N.D. Ca.), rejecting First Amendment challenges of plaintiff Christian Legal Society and holding that the Hastings College of Law, a public institution, can legally withold recognition from a student organization that refuses to abide by the College's non-discrimination policy.

Complete text (28 pages) of decision by U.S. District Court, (E.D. Mo.) holding that plaintiff university was the rightful owner of large store of biological research samples donated by thousands of donors. Ownership of the samples was contested by defendant Dr. Catalonia, a former employee of plaintiff university, and several sample donors. Based on the evidence before it, the court finds that donations of tissue to the university's biorepository were inter vivos gifts by the donors, and therefore authorizations to release the samples to Defendant Dr.Catalonia, signed by several thousand donors, were ineffective. The court rejects defendants' argument that the original donations did not constitute gifts because they did not conform to U.S. Department of Health and Human Services Office of Human of Research Protection (OHRP) Guidance on prohibited exculpatory language in informed consent forms. The court holds instead that the governing federal regulation is 42 C.F.R. 46.116 and it applies only to releases from malpractice or other negligence. The court also rejects defendants' argument that their right to discontinue participation in a research project includes the right to assert control over the use and location of their donated tissue, holding instead that the right to discontinue participation means only electing not to provide further biological materials to a research protocol.

Complete text (73 pages) of amendments to Federal Rules of Civil Procedure approved by the U.S. Supreme Court and forwarded to Congress. The amendments include changes to Rules 16, 26, 33, 34, and 37 affecting electronic discovery. Specifically, the amended rules a) require that electronic discovery issues be addressed by the parties in scheduling conferences [Rules 16(b) and 26(f); b) establish a distinction between electronic information that is reasonably accessible and not reasonably accessible, and provide that a party may obtain discovery of electronic information not reasonably accessible by court order following a showing of good cause [Rule 26(b)(2)]; c) establish a procedure for the post-production assertion of privilege with respect to electronic information [Rule 26(b)(2)] ; d) require interrogatory responses based on a review of business records to either include a review of electronically stored information or allow review of that information [Rule 33]; e) require discovery requests to specify discovery of documents, electronically stored information, or both is being sought [Rule 34]; and f) provide a safe harbor against sanctions when electronically stored information is lost due to the routine, good faith operation of a party's computer system [Rule 37]. The amended rules will take effect December 1, 2006 unless rejected or modified by Congress.

Complete text of official Health Advisory issued by the CDC on the multi-state Mumps outbreak. Includes information on clinical manifestation and transmission, prevention, vaccination, and control of outbreaks. See also the April 19 Joint Statement from the American College Health Association and Centers for Disease Control and Prevention (CDC).

Complete text (10 pages) of document prepared by the Association of American Universities (AAU) comparing selected provisions of the Higher Education Act Reauthorization bills passed by the House and Senate. Both bills contain several new reporting and other regulatory requirements. Congress is currently in recess until April 24.

Complete text (6 pages) of amendment to Federal Rules of Appellate Procedure adding new rule 32.1 on Citing Judicial Disposition. The new rule prohibits any federal court from barring or restricting the citation of unpublished or similarly designated federal judicial opinions or other written dispositions issued after January 1, 2007. Parties citing such cases must also file and serve a copies if not available via a publicly accessible electronic database. The rule does not address the weight to be accorded such cases, and will take effect unless Congress rescinds it by December 1.

Complete text (7 pages) of public comment filed by the American Law Deans Association (ALDA) with U.S. Department of Education regarding the application of the American Bar Association(ABA)for reaffirmation by the Department of its recognition as an accrediting agency for legal education. In its comment, ALDA asserts that certain ABA accreditation policies and standards are extrinsic and antithetical to the fundamental premises of quality assurance. Specifically, ALDA objects to ABA standards which require tenure or employment terms similar to tenure for law school deans, faculty (in particular clinical faculty), legal writing instructors and library directors. The comment requests that the Department require the ABA to revise or rescind these standards before granting continued recognition to the ABA as an accreditor of legal education programs.

Complete text of checklist developed by the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services to assist colleges and universities to develop and/or improve plans to prepare for and respond to an influenza pandemic.

Complete text (10 pages) of Guidance issued by the Food and Drug Administration (FDA) to assist sponsors, institutions, institutional review boards (IRBs) and clinical investigators in multicenter clinical research in facilitating the use of a centralized IRB review process.

Complete text of cable from State Department to U.S. Consulates extending from 90 to 120 days before the program start date the time within which F-1 and F-2 visas may be issued to persons applying for initial entry to the U.S. Initial entry to the United States by F visa holders remains restricted to not more than 30 days in advance of the beginning of studies.

Complete text of letter from American Council on Education (ACE) to Federal Communications Commission (FCC) concerning the financial impact on colleges and universities of proposed changes in the method of calculating contributions to the Universal Service Fund (USF). The USF promotes the availability of telephone services at affordable rates and supports the expansion of those services to rural and other hard-to-reach areas. Contributions are currently based on percentage of user long-distance call volume. The proposed change in the method of calculation would base contributions on the number of unique telephone numbers owned by users.

Complete text (31 pages) of reply brief filed by the American Council on Education and other petitioners in litigation seeking review of Federal Communications Commission (FCC) Order extending the coverage of the Communications Assistance for Law Enforcement Act (CALEA) to broadband internet services. The FCC and Department of Justice briefs filed earlier in the case indicated that the Commission's Order does not require universities to bring their private networks into compliance with CALEA, but only requires that facilities used to connect a private network to public networks like the Internet must be CALEA-compliant. In their reply brief, petitioners, while welcoming this clarification, continue to assert that "information services" are not subject to regulation under either the Communications Act or CALEA.

Complete text (10 pages) of report prepared by Office for Civil Rights (OCR), U.S. Department of Education, for Senate Appropriations Committee. The Committee had requested the report following the Department's March 17, 2005 Additional Clarification of Intercollegiate Athletics Policy. In the Additional Clarification, the Department advised that institutions seeking to achieve Title IX compliance in their athletic programs through use of Part 3 of the the Department's three-part compliance test could rely on student survey results to measure student interest in participating in intercollegiate sports. The report, using prior OCR cases, reviews the past use of additional factors as well as surveys by institutions to assess student interest in sports participation, and concludes that use of additional factors to assess student interest was not more likely than the use of surveys to result in institutions deciding to add new sports teams.

Complete text (25 pages) of decision of U. S. Supreme Court upholding against First Amendment challenges the constitutionality of the Solomon Amendment, which requires educational institutions to provide access to military recruiters equal to that provided to other recruiters or lose access to certain federal funds. The Court holds that because Congress could, pursuant to its Article I power to raise and support armies, directly impose upon educational institutions a requirement of equal access for military recruiters, the Amendment does not place an unconstitutional condition on the receipt of federal funds. Examining the First Amendment challenges to the Solomon Amendment, the Court holds that the Amendment regulates conduct, not speech, and that any compelled speech by the institutions is incidental to the regulated conduct. It also finds, distinguishing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc [515 U.S. 557 (1995)] that any speech by military recruiters at the institutions does not constitute compelled speech by the institutions themselves because the anti-discrimination message of the institutions is unaffected by the speech of the recruiters. Finally, the Court holds that the Solomon Amendment does not violate the institutions' freedom of expressive association. Distinguishing Boy Scouts of America v. Dale [530 U.S. 640 (20000], the Court states that although the institutions must interact with military recruiters, the recruiters are not part of the schools and do not adversely affect their expressive association.

Complete text (8 pages) of Fact Sheet released by the Internal Revenue Service (IRS) entitled "Election Year Activities and the Prohibition on Political Campaign Intervention for Section 501(c)(3) Organizations". According to the IRS, the Fact Sheet is designed to help Section 501(c)(3) organizations comply with federal tax law and it addresses many of the types of political intervention activities that came under IRS scrutiny during the 2004 election. The Fact Sheet discusses the prohibition in the Internal Revenue Code on political campaign intervention by 501(c)(3) organizations and analyzes specific types of activitiy, including Voter Education, Voter Registration and Get Out the Vote Drives; Activity by Organization Leaders; Candidate Appearances; Issue Advocacy; Voter Guides; and Web Sites. The IRS has also released its procedures for reviewing allegations of improper political activity by 501(c)(3) organizations during the 2006 election cycle.

Complete text (52 pages) of brief filed by the Federal Communications Commission (FCC) in litigation brought by the American Council on Education (ACE) and other higher education associations challenging the recent FCC Order extending the coverage of the Communications Assistance for Law Enforcement Act (CALEA) to broadband internet services. In its brief, the FCC indicates that its Order does not require universities to bring their private networks into compliance with CALEA. Instead, according to the Commission's brief, the Order only requires that facilities used to connect a private network to public networks like the Internet must be CALEA-compliant. The Department of Justice, in its brief (52 pages), states that it also understands the Commission's order to require CALEA compliance by facilities that support the connection of the private network to a public network, and not to mean that every router or other network element in a university's private network must be upgraded with an installed CALEA solution.

Complete text (15 pages) of unpublished decision by Michigan Court of Appeals reversing trial court grant of summary judgment in favor of defendant university pubic radio station general manager. Plaintiff, a radio show host for the National Public Radio (NPR) station affiliate at Eastern Michigan University, made several on-air statements expressing support for the U.S. invasion of Iraq. Plaintiff was terminated for violating the radio station's policy prohibiting employees from expressing their opinions oncontroversial subjects on the air and also for denigrating NPR news coverage and failing air hourly NPR newscasts during his show. Plaintiff filed suit alleging his termination violated his First Amendment right to free speech in violation of 42 USC Sec. 1983. Applying the test of Pickering v. Board of Education 391 U.S. 563 (1968) and Connick v. Myers 461 U.S. 138 (1983), the trial court granted summary judgment to defendant, finding that the station's interest in promoting the efficiency of the public service it performed outweighed plaintiff's interest in speaking on matters of public concern while broadcasting. The Court of Appeals reverses, holding that defendant's interest in its policy of remaining neutral on controversial issues was not sufficiently strong to override plaintiff's interest in speaking his opinion about the war in Iraq and U.S. involvement in it. The court of appeals further finds that there are genuine issues of material fact concerning whether plaintiff refused to air NPR newscasts and as to whether plaintiff's speech was a substantial or motiviating factor in defendant's decision to terminate his employment. Finally the court holds that if it should be established that plaintiff's speech was the motivating factor for his dismissal, defendant station manager lacks qualified immunity from damages because the law is clearly established that such termination would be in violation of plaintiff''s First Amendment rights.

Complete text (30 pages) of amicus brief filed in the Commonwealth of Massachusetts Appeals Court by the American Council on Education (ACE) and 8 other higher education associations, arguing for reversal of the trial court decision in case arising out of a student suicide. Based on their awareness of her self-destructive behavior, the trial court found a "special relationship" between the decedent Shin and defendant administrators giving rise to a duty to exercise reasonable care to protect decedent from harm, and therefore denied summary judgment on plaintiff's counts alleging gross negligence and wrongful death. Amici in their brief argue that to impose liability for student suicides on non-medical college and university personnel will deter institutional involvement with and isolate at-risk students and therefore increase the likelihood of student suicides.

Complete text (43 pages) of decision by Ohio Court of Claims. Plaintiff, defendant's former head men's basketball coach, loaned $6,000 to a prospective student athlete. The court finds that at the time of making the loan, plaintiff had reasonable cause to believe the loan constituted a violation of NCAA rules. However, the court holds plaintiff's action in making the loan did not constitute a material breach of plaintiff's employment contract, and therefore defendant did not have cause to terminate plaintiff's employment with the university.

Complete text (22 pages) of antitrust class action complaint filed by former Division I football and basketball players in U.S. District Court (C.D. CA) against the National Collegiate Athletics Association (NCAA). In their complaint, plaintiffs allege the NCAA's limitation (Division I By-Law 15.02.2) of the coverage of athletics scholarships to tuition and mandatory fees, room and board, and required books constitutes a combination to fix the amount of financial assistance available to student athletes and otherwise unreasonably restrain competition in violation of Sec. 1 of the Sherman Antitrust Act (15. U.S.C. Sec. 1). The complaint alleges that NCAA data indicates that each student athlete on a full athletic scholarship must nonetheless cover approximately $2,500 in out-of-pocket expenses each year. The complaint seeks actual and treble damages on behalf of the proposed class, defined as all student athletes who have been, are or will be damaged by NCAA cap on financial aid to student athletes participating in major Division I football and men's basketball programs during the past four years and continuing through the present.

Complete text (14 pages) of revised standards 210 (Non-Discrimination and Equality of Opportunity), 211 (Equal Opportunity and Diversity), and 212 (Reasonable Accommodation for Qualified Individuals with Disabilities) with ABA staff explanatory text. The revised standards have been approved by the ABA Section on Legal Education and Admissions. They are subject to approval by the ABA House of Delegates at the