Legal Reference Service Documents
Complete text (5 pages) of letter to Schools of Medicine, Dentistry, Nursing and other Health-Related Schools advising of the latest recommendations from the Centers for Disease Control and Prevention (CDC) regarding participation of students with hepatitis B in their academic and clinical programs and of the importance of those recommendations with respect to institutional non-discrimination obligations under the Americans with Disabilities Act (ADA), Sec. 504 of the Rehabilitation Act of 1973, and Title VI of the Civil Rights Act of 1964.
Complete text (22 pages) of decision by U.S. Supreme Court affirming in part and reversing in part the decision of the U.S. Court of Appeals for the Federal Circuit. The court holds that a naturally occurring DNA segment is a product of nature and is not patent eligible merely because it has been isolated. However, the court also holds that synthetically created composite DNA (cDNA), composed of strands of specific DNA nucleotides but omitting others, is subject to patent.
Complete text (3 pages) of letter from the Department of Education Family Policy Compliance Office (FPCO) to the Rhode Island Board of Governors for Higher Education. In its letter, FPCO declares that FERPA would not prohibit the Board from adopting a policy conditioning its employees’ receipt of an employment benefit in the form of a tuition waiver on the provision by employees of written consent to the disclosure of personally identifiable information associated with his or her receipt of a tuition waiver in order to permit the Board to comply with the Rhode Island Access to Public Records Act.
Complete text (26 pages) of a decision by the Commonwealth Court of Pennsylvania vacating an arbitration award in favor of former tenured faculty member who made sexually explicit and inappropriate comments to students during a study abroad trip while intoxicated. The court ruled that the arbitrator’s conclusions that the faculty member was not provided with sufficient due process and that the university did not have just cause to terminate him could not rationally be derived from the collective bargaining agreement. The court also ruled that the arbitrator’s award violated clearly established public policy and, therefore, reversed the arbitrator’s decision.
Complete text of Fact Sheet issued by White House Task Force on High Tech Patent Issues setting forth seven legislative recommendations and five executive actions to reduce challenges posed to inventors by Patent Assertion Entities (PAEs) (also known as “patent trolls”). Among the recommended legislative measures are a requirement that patentees and applicants disclose the “Real Party-in-Interest” in demand letters, infringement suits and requests for patent review by the U.S. Patent and Trademark Office (PTO); permitting court’s more discretion in awarding fees to prevailing parties in patent cases, and providing better legal protection against liability to consumers and businesses using “off-the-shelf” products solely for their intended use. Among the Executive actions will be a PTO rulemaking process to require patent applicants and owners to regularly update patent ownership information when involved in PTO proceedings, specifically designating the ultimate parent entity/real party in interest that is in control of the patent or application, and greater training to patent examiners on scrutiny of functional claims in order to improve claim clarity.
Complete text (6 pages) of response by the Association of American Universities (AAU), the Association of Public and Land-grant Universities (APLU) and the Council on Governmental Relations (COGR) to Request for Information (RIF) issued by the National Science Board seeking information about the regulatory burden on faculty who receive federally funded research grants. In its RIF, the National Science Board stated that recent surveys have indicated that administrative burdens associated with Federal research funding consume 42% of awardees’ available research time and that NSF has created a Task Force on Administrative Burdens seeking recommendations from principal investigators for reducing the administrative workload associated with their federal research awards. In their response, the associations ask that federal agencies harmonize their regulations, policies and procedures to streamline the requirements on investigators and institutions, and provide a stable platform for the efficient submission of required data. (The association comments appear in dialogue boxes inserted into the text of survey instrument).
Complete text (9 pages) of May 21 Letter from the National School Boards Association (NSBA) to the U.S. Department of Education Officer for Civil Rights (OCR) expressing concern and requesting clarification with respect to certain aspects of OCR’s January 25 “Dear Colleague” Letter on Participation in Extracurricular Activities by Students with Disabilities (DCL). While addressing its concerns about the DCL from a K-12 context, the letter will also be of interest in certain respects to counsel for institutions of higher education. The letter expresses concern about the apparent expansion of OCR’s view of its enforcement authority under Section 504; the need for clarity in participation opportunities for students with disabilities, including OCR’s indication in the DCL that in assessing Sec. 504 compliance, it considers whether a public school district’s extracurricular athletics program “fully and effectively” meets the “interests and abilities” of its students with disabilities. In its letter, NASB requests that OCR disavow any intent to conflate the compliance assessment standards under Title IX with those of Sec. 504. The NASB letter emphasizes the need for clarity by OCR regarding the ultimate conclusions and requirements set forth in the DCL, declaring that OCR should state in clear and unambiguous terms that it is neither adding requirements to the applicable law, nor establishing new enforcement standards, and not creating a mandate to create new teams.
Complete text (11 pages) of decision by the U.S. Court of Appeals for the Sixth Circuit affirming the district court’s grant of summary judgment for the defendant university. The court held that plaintiff (former student at the School of Nursing) did not clearly establish a First Amendment right to free speech covering her discussion of a patient’s pregnancy and other healthcare matters in her personal blog post. The court ruled that the honor code and consent form prohibiting students from disclosing patient information that plaintiff signed are not unconstitutionally vague or overbroad and, therefore, are valid in limiting student speech on specific patient matters. The court also ruled that plaintiff’s dismissal from the School of Nursing was an academic dismissal and, therefore, the minimal due process accorded plaintiff was sufficient.
Complete text (29 pages) of decision by U.S. First Circuit Court of Appeals in appeal by Boston College rejecting position of the United States that federal courts do not have discretion to review for relevance subpoenas issued pursuant to a treaty between the United States and the United Kingdom. The subpoena issued pursuant to the treaty had sought a large number of oral history interviews in the possession of Boston College. The court declares that enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. The court further applies a “direct relevance” standard to its review of the material sought by the subpoena, citing a balancing of First Amendment concerns with respect to compelled disclosure of academic and journalistic information. As a result, the court rules that the number of oral history interviews ordered to be produced by the District Court should be reduced from 85 to 11.
Complete text of May 29 letter sent by the U.S. Department of Education, Officer for Civil Rights (OCR) to individuals who have written to the agency expressing concern about the impact of the University of Montana Title IX Letter of Findings and Resolution Agreement on First Amendment rights. In the letter, OCR states: “Our letter and agreement require that the University of Montana’s policies and procedures consistently articulate the University’s prohibition of sexual harassment that creates a hostile environment. At the same time, it is important that students are not discouraged from reporting harassment because they believe it is not significant enough to constitute a hostile environment. Students will be allowed to bring complaints when they have been subjected to unwelcome sexual conduct, and the University will evaluate whether that harassment has created a hostile environment. Making this determination requires, as it has in the past, the University to examine both whether the conduct is objectively offensive and its subjective impact on an individual.” The letter is not a statement issued by OCR to the university community, but only to specific individuals who have contacted the agency.
Complete text (36 pages) of final rule issued by the U.S. Departments of Treasury, Labor and Health and Human Services and published in the June 3 Federal Register. The final regulations replace the wellness program provisions of paragraph f (p. 75043) of the 2006 final HIPAA regulations on Nondiscrimination and Wellness Programs in Health Coverage in the Group Market and are applicable to both grandfathered and non-grandfathered plan and group health insurance coverage for plan years beginning on or after January 1, 2014. The final regulations set forth criteria for programs of health promotion or disease prevention offered or provided by a group health plan or group health insurance issuer that must be satisfied in order for the plan to qualify for an exception to the prohibition on discrimination based on health status under paragraphs (b)(2)(ii) and (c)(3) of the 2006 regulations. In other words, the rules set forth criteria for an affirmative defense that can be used by plans and issuers in response to a claim that the plan or issuer discriminated under the HIPAA nondiscrimination provisions. The final regulations also increase the maximum permissible reward under a heath-contingent wellness program offered in connection with a group health plan from 20 percent to 30 percent of the cost of coverage; and further increase the maximum permissible reward to 50 percent for wellness programs designed to prevent or reduce tobacco use. The final rule is effective August 2, 2013.
Complete text of May 29 preliminary guidance issued by the Department of Education, Office of Federal Student Aid. In its preliminary guidance, the Department advises that until final regulations implementing the amendments to the Clery Act included in the March 2013 reauthorization of the Violence Against Women Act (VAWA) are issued pursuant to the negotiated rulemaking process it announced on April 16, it expects institutions to make a good faith effort to comply with the statutory requirements in accordance with the statutory effective date of March 7, 2014. Specifically, the Department states that it expects that institutions will exercise their best efforts to include statistics for the new crime categories included in the amendments (domestic violence, dating violence, stalking) for calendar year 2013 in institutional Annual Security Reports due in October, 2014. The Department also asks that written inquiries about the VAWA amendments to the Clery Act be submitted to the Clery Act Help Desk (HandbookQuestions@ed.gov) and that the Department will use such questions to develop future guidance as necessary.
Complete text of an order by the U.S. District Court for the Southern District of Mississippi, Western Division granting in part Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment against former student-athlete’s claims of sexual harassment by a professor and adviser at the Defendant university. However, the court ruled that because there is a question of fact as to exactly when the quid pro quo harassment claim accrued, summary judgment on that claim will be denied. The court also dismissed Plaintiff's hostile-environment harassment, retaliation, and deliberate-indifference claims as time-barred. The Court ordered that Plaintiff show cause regarding why his claim under 42 U.S.C. § 1983 should not be dismissed, as the Defendants appear to be arms of the State.
Complete text (9 pages) of Draft Guidance by U.S. Immigration and Customs Enforcement, Student Exchange Visitor Program (SEVP)regarding foreign students and bridge programs and conditional admissions. The draft guidance indicates that institutions may no longer issue Form I-20s certifying the student’s admission to a regular degree program if a student is first required to participate in an ESL or combination of ESL and preparatory academic coursework prior to being fully admitted to a regular degree program. The draft guidance would also require that all bridge programs be SEVP certified.
Complete text (9 pages) of Policy Statement and Order issued by the Federal Communications Commission (FCC) announcing new policy applying to first-time violations of certain FCC documentation requirements by college and university radio stations entirely operated by students. Such stations committing violations of the documentation requirements described in the Policy Statement and Order will have the option to negotiate a consent decree agreeing to institute a compliance plan and making a voluntary contribution to the U.S. Treasury. It will not face the financial penalties typically required by the FCC’s forfeiture schedule. The Policy Statement and Order emphasizes that it applies only to documentation and not substantive violations of FCC rules, and only to first-time violations.
Complete text (8 pages) of resolution agreement entered into by Idaho State University (ISU) and the U.S. Department of Health and Human Services, Office of Civil Rights (HHS) regarding an investigation into ISU’s reported breach of its unsecured electronic protected health information. ISU has agreed to pay $400,000 to HHS and comply with a two-year Corrective Action Plan (Appendix A) that includes submitting a risk management plan to HHS for approval, conducting a compliance gap analysis, and submitting an annual status report, among other requirements.
Complete text of guidance from the EEOC on questions related to how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. Guidance includes examples of employment decisions that may violate Title VII or the ADA, with links to additional resources.
Complete text of the U.S. Equal Employment Opportunity Commission’s (EEOC) four revised publications on protection against disability discrimination in the workplace. The publications describe how the Americans with Disabilities Act (ADA) specifically applies to job applicants and employees with cancer, diabetes, epilepsy and intellectual disabilities regarding inquiries to job applicants, confidentiality, and accommodations, among other items.
Complete text (20 pages) of decision of U.S. Sixth Circuit Court of Appeals reversing the District Court’s grant of a preliminary injunction barring enforcement of Michigan statute prohibiting Michigan public schools from using public school resources to assist a labor organization in collecting dues or service fees from the wages of public school employees. The statute effectively requires public school unions in Michigan to collect their membership dues directly from their members and not via payroll deduction. Plaintiff unions and union members challenged the statute on First Amendment and Equal Protection grounds. The Circuit Court of Appeals concludes that the plaintiffs’ claims under the First Amendment and Equal Protection Clause are both without merit. Since the court concludes the plaintiffs have no chance of success on their claims, it reverses the lower court’s grant of the preliminary injunction.
Complete text of Notice from the U.S. Department of Education, Office of Postsecondary Education, announcing a further extension of the deadline for compliance by institutions with the requirements of 34 CFR 600.9(a) and (b) sections of the State Authorization Rule. In a January 2013 “Dear Colleague” Letter, the Department had reminded institutions that the stay of enforcement of the State Authorization requirements set forth at 34 CFR 600.9(a) and (b) would expire on July 1, 2013. In its latest Notice, the Department extends that deadline to July 1, 2014. 34 CFR 600.9(a) and (b) require that in order to participate in Title IV financial aid programs institutions must be legally authorized by a state to provide postsecondary education and the state must have in place a process to review and act upon complaints about the institutions. In its latest Notice, the Department states that to receive a further extension, an institution must obtain from the State an explanation of how an additional one-year extension will permit the State to modify its procedures to comply with 34 CFR 600.9.
Complete text (7 pages) of letter from the U.S. Department of Education (ED) to Yale University informing the university that ED was imposing a fine of $165,000 for failing to comply with the reporting requirements of the Clery Act. ED’s investigation found that Yale failed to report four forcible sex offenses in 2001 and 2002. ED also found that Yale did not properly define its campus and, therefore, failed to report crime statistics for seven additional spaces within the Yale New Haven Hospital. Finally, ED found that Yale’s campus security reports did not include policy statements as required.
The U.S. Department of Justice (DOJ) announced these Letters of Findings and Resolution Agreements of joint investigations conducted by DOJ and the U.S. Department of Education Office for Civil Rights (OCR) related to campus sexual assault policies and investigations at the University of Montana in a May 9 press release which stated “[t]hese agreements provide a blueprint for colleges and universities across the country to take effective steps to prevent and address sexual assault and harassment on their campuses.” The Letter of Findings on the alleged violations of Title IX and Title IV is here (31 pages). The Letter of Fndings on the alleged violations by the campus police department of the Omnibus Crime Control and Safe Streets Act of 1968 is here (17 pages).
In the Resolution Agreement concerning the alleged violations of Title IX and Title IV (16 pages), the university agrees to hire an Equity Consultant to evaluate and recommend revisions to the University’s policies, procedures and practices for preventing, investigating and remediating sex-based harassment. Section II of the Resolution Agreement provides a detailed list of what such policies and procedure must contain. Section V (page 6) of the Resolution Agreement provides a detailed list of training of employees and professional development the university must provide. Section VI (page 8) of the Resolution Agreement requires the University to develop and institute a system for tracking and reviewing reports, investigations, interim measures, and resolutions of student and employee conduct that may constitute sex-based harassment, and the minimum requirements for such a system. Section VII of the Resolution Agreement (page 9) requires the University to Develop a Resource Guide for students on sex-based harassment, and lists the information that must be included in the Resource Guide. Section VIII of the agreement (page 10) requires the university to develop and implement one or more annual climate surveys for students on specific items related to sex-based harassment, and based on the results, determine appropriate responsive actions. The University is also required to develop a monitoring program to assess the effectiveness of its efforts to prevent and address sex-based harassment and retaliation, and to conduct an annual assessment of such efforts, to included specific items listed in the agreement. The university is also required to update its program to provide regular mandatory training to all students, and details the items to be included in such training. The Resolution Agreement concludes with sections on University reporting obligations to DOJ and OCR; and DOJ and OCR enforcement options. Finally, the Agreement includes numerous requirements for the reporting of information related to compliance with the Agreement to DOJ and OCR, including applicable deadlines.
The Resolution Agreement between DOJ and the University regarding the Campus Office of Public Safety’s Response to Sexual Assault Allegations requires the Office of Public Safety (OPS), in consultation with an expert in police response to sexual assault, to develop a detailed and victim-centered sexual assault response policy incorporating the requirements of the International Association of Chiefs of Police Model Policy on Investigating Sexual Assaults on specified topics. The Resolution Agreement also requires the OPS to provide initial and on-going training to all OPS officers, detectives and recruits about law enforcement response to sexual assault, and specifies topics that must be included in such trainings. It also requires additional training for detectives conducting sexual assault investigations, and OPS personnel who provide direct supervision of officers and detectives responding to and investigating allegations of sexual assault, and the nature of that training. The Resolution Agreement also requires that all OPS officers be trained on how to meet the requirements of the Resolution agreement itself. The Resolution Agreement requires the University to improve policy, training and oversight of OPS investigation of Alcohol or Drug-Facilitated Non-Stranger Sexual Assault; enhance and improve policy, training and oversight on Victim-Centered Response to Sexual Assault, and the specific practices to be included in such policy, training and oversight. The Resolution Agreement requires OPS to establish and implement measures to ensure close supervision and internal oversight of all sexual assault investigations, including what those measures must include. The Agreement requires OPS to increase and improve is communication, coordination and collaboration with community law enforcement partners, including specific steps OPS must take. The Agreement requires OPS to enhance its data collection, analysis and reporting practices, and what such data collection, analysis and reporting practices must include. The Agreement provides that OPS, DOJ and OCR shall jointly agree on a group of qualified representatives to serve as an external review group for sexual assault cases on a semi-annual basis, and OPS is required to develop a protocol so that recommendations from the external review group are shared with OPS supervisors and command staff and incorporated in to polices and general and targeted training. The Agreement provides for appointment of an Independent Reviewer to oversee the terms of the Agreement, with the University bearing all costs related to the Independent Reviewer, and describes the role of the Independent Reviewer, including conducting compliance reviews and outcomes assessments, reviewing specified data, and making recommendations, delivering quarterly report with specified content, and conducting a comprehensive assessment. The parties agree that the university will have complied with all provisions of the Resolution Agreement by June 30, 2015.
Complete text (37 pages) of decision by U.S. District Court (District of Columbia) granting motion for summary judgment by defendant university in age discrimination suit brought by unsuccessful law school faculty applicant. The court finds that the university had legitimate non-discriminatory reasons for not hiring defendant, including that his application materials failed to show any interest or experience in producing original legal research or scholarship, and failed to indicate any interest in teaching tax law, an area for which the law school had a primary interest in hiring faculty.
Complete text (53 pages) of January 2013 report issued by U.S. Department of Justice Office of Victims of Crime (OVC) Promoting Effective Criminal Investigations of Campus Sex Crimes. The report summarizes key outcomes of a January 25, 2012 forum convened by OVC, the DOJ Office on Violence Against Women, and the DOJ Office of Community Oriented Policing Services in cooperation with the U.S. Department of Education Office for Civil Rights (OCR) and the International Association of Campus Law Enforcement Administrators (IACLEA).
Complete text (17 pages) of decision by the United States District Court for the Western District of Pennsylvania granting plaintiff’s motion for reconsideration and holding that the university’s claims against the Patient Protection and Affordable Care Act’s requirement that it include coverage for medical services that it objects to as a religious institution in its insurance plan are now ripe for adjudication. The court ruled that because Geneva College must decide whether to provide a student health insurance plan that may include objectionable coverage or not offer insurance coverage at all prior to defendants’ deadline to publish final rules, the college is facing “real and immediate harm that is ripe for adjudication.”
Complete text (1 page) of letter from the Family Policy Compliance Office to the Chancellor of the University of Massachusetts, Dartmouth in response to the university's inquiry about whether personally identifiable information from the records of a student charged in the Boston Marathon bombing must or can be released to the news media under a public records request. FPCO advises that the information requested appears to be protected by FERPA and may not be disclosed, with the possible exception of the directory information exception. If applicable, the university must follow its policy on directory information in accordance with FERPA.
Complete text (32 pages) of April 2013 report issued by the U.S. Government Accountability Office (GAO) entitled “Higher Education: Experts Cited a Range of Requirements as Burdensome”. Through interviews conducted with a range of experts, interviews with representatives of higher education associations, and discussion groups of school officials conducted at two national conferences of higher education association, the report summarizes the higher education regulatory requirements most often cited as burdensome. Those cited most often included consumer disclosure requirements, including the Clery Act. Other examples of burdensome regulations included the gainful employment rule, the state authorization rule, and the rules governing return of Title IV funds. The accumulative burden imposed by multiple requirements was also cited, along with the fact that when new requirements are added, none are generally taken away. See in particular pp. 7 – 10 and Appendices III and IV, pp. 21 – 26. GAO also provided an executive summary of the report.
Complete text of settlement agreement (26 pages) between University of California Berkeley and Disability Rights Advocates regarding the accessibility of instructional materials for students with print disabilities, such as blindness, paralysis, and dyslexia, among others. The University has committed to provide alternate media options for reading materials in a reasonable timeframe and assistive technology in computer labs on campus, and maintain an online alternative media request tracking system. The Agreement includes detailed guidelines for implementing all aspects of the alternate media options and other accommodations.
Complete text (38 pages) of decision by the U.S. Court of Appeals for the D.C. Circuit striking down the National Labor Relations Board’s (NLRB) Final Rule “Notification of Employee Rights under the National Labor Relations Act,” which required employers to inform employees of their rights under the National Labor Relations Act (NLRA) by posting an 11" x 17" government-created notice. The Court held that the enforcement mechanisms in Subpart B of the Final Rule violated § 8(c) of the NLRA because it made an employer’s failure to post the notice an unfair labor practice and required speech that may contradict an employer’s views on labor unions. Further, the Court ruled that Subpart B of the Final Rule cannot be severed from Subpart A. Therefore, the Court held that because the Final Rule’s enforcement mechanisms in Subpart B violated the NLRA, the entire Final Rule is invalid.
Complete text (10 pages) of report issued by the Congressional Research Service (CRS) entitled “The Family Educational Rights and Privacy Act (FERPA): A Legal Overview”.
Complete text (79 pages) of report issued by the American Educational Research Association. The report includes eleven sections, including sections devoted to gender-related harassment and bullying, bullying and harassment on college campuses, and using evidence-based programs to address bullying.
Complete text (5 pages) of letter from the U.S. Department of Education, Office of Federal Student Aid, assessing a fine of $82,000 on the University of Texas at Arlington for alleged misclassification of certain crimes in the university’s Annual Security Report (ASR) filed with the Department for calendar year 2008. The University has requested a hearing concerning the proposed fine.
Complete text (3 pages) of final rule issued by the Internal Revenue Service (IRS) and published in the May 6 Federal Register. The final rule requires any person assigned an employer identification number (EIN) to provide updated information to the IRS in a manner and frequency to be required by forms, instructions or other guidance to be issued by the IRS. The information required to be updated will include EIN application information regarding the name and taxpayer identifying number of the responsible party for the EIN holder. The rule is effective May 6.
Complete text (7 pages) of April 25 Notice issued by U.S. Department of Housing and Urban Development (HUD) on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs. The purpose of the notice is to explain the obligations of housing providers under the Fair Housing Act (FHA); Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA). Section III (page 5) of the Notice addresses the application these statutes with respects to service and assistance animals to several entities, including “…housing at places of education”.
Complete text (19 pages) of decision by the U.S. District Court for the Northern District of California ruling that a suit brought by the California Department of Fair Employment and Housing (DFEH) against the Law School Admissions Council (LSAC) may proceed without filing a motion for class certification under Federal Rule of Civil Procedure 23 (Rule 23). DFEH brought this action against LSAC on behalf of seventeen named individuals and all disabled individuals in California who requested a reasonable accommodation for the LSAT. DFEH claims that LSAC failed to provide disability-related accommodations to test takers and, therefore, denied them “full and equal access to the LSAT” in violation of state and federal laws. The court ruled that DFEH’s suit is not a class action within the meaning of Rule 23; rather, it is “properly characterized as a government enforcement action seeking relief for a class of aggrieved individuals.” Under California’s Fair Employment and Housing Act, DEFH has been vested with the authority to “obtain broad relief for alleged discriminatory conduct under California law” without mention of class certification in the statutory language and, therefore, Rule 23 does not apply.
Complete text of letter issued April 25 by the Republican and Democratic leaders of the House Committee on Education and the Workforce and the Subcommittee on Higher Education and Workforce Training seeking input from the higher education community and other stakeholders on suggested policy changes and amendments to the Higher Education Act (HEA). The letter identifies six particular issues of interest, including the need to balance accountability with the burden of federal requirements. The letter asks for responses to be sent by August 2, 2013 via HEA.Reauth@mail.house.gov and encourages citation to specific statutory sections and language, and the details and rationale for suggested changes.
Complete text (37 pages) of Final Report issued by the Internal Revenue Service (IRS) on the Colleges and Universities Compliance Project conducted by the IRS Exempt Organizations Division. The contents of the report are based on 34 compliance reviews of randomly selected institutions conducted by the IRS from among the 400 institutions who responded to a compliance questionnaire issued by the IRS in 2008. Among the report’s key finding are significant under-reporting of Unrelated Business Income (UBI) by the institutions examined in the compliance reviews. The report details the primary reasons for the under-reporting of UBI and indicates that the compliance reviews resulted in more than 180 changes in reported UBI. The majority of the adjustments related to UBI resulted from the following institutional activities: Fitness, recreation centers, and sports camps; Advertising; Facility rentals; Arenas; and golf courses. The other key finding of the report is failure to adequately comply with the intermediate sanction rules concerning compensation of officers, directors, trustees and key employees (ODTKEs). The report states institutions largely attempted to comply with the intermediate sanction rule safe harbors, but about 20% failed to do so because either they did not select truly similarly situated institutions for purposes of compensation comparison, did not identify the selection criteria for the comparable institutions, or the surveys conducted did not specify whether amounts reported included just salary or included other types of compensation. The report includes data on average and median compensation amounts of ODTKE’s and selected non-ODTKEs. According the report, as a result of the compliance reviews of institutional compensation, there were resulting wage adjustments of $36 million and penalties assessed of over $7 million. The report notes that the IRS plans now to look at UBI reporting more broadly, and also to ensure through education and examinations that institutions are aware of the importance of using appropriate comparability data when setting compensation.
Complete text (145 pages) of April 2013 edition of publication issued by the Office on Violence Against Women, U.S. Department of Justice. According to the Foreword, the publication provides detailed guidelines for criminal justice and health care practitioners in responding to the immediate needs of sexual assault victims, and is designed as a guide for practitioners who respond to victims of sexual assault, including health care professionals, law enforcement officers, prosecutors, interpreters, advocates, and others. Among the many chapters are those dealing with Confidentiality, Reporting to Law Enforcement, Sexual Assault Evidence Collection Kits, and Alcohol and Drug-Facilitated Sexual Assault.
Complete text (25 pages) of proposed consent decree in Biediger et al. v. Quinnipiac University. Earlier court decisions in this litigation are available here and here.
Complete text (2 pages) of “Dear Colleague” letter issued on April 24 by the Office for Civil Rights (OCR), U.S. Department of Education. In the letter, OCR reminds institutions that once a student, parent, teacher, coach, or other individual complains formally or informally to a school about a potential civil rights violation or participates in an OCR investigation or proceeding, the recipient is prohibited from retaliating (including intimidating, threatening, coercing, or in any way discriminating against the individual) because of the individual’s complaint or participation. The letter describes potential remedies and enforcement options available to OCR, including potential assessment of monetary penalties.
Complete text (12 pages) of decision by U.S. District Court (Nebraska) denying cross-motion for summary judgment by defendants and granting cross-motion for summary judgment by the United States and holding that student housing at the defendant institution is a “dwelling” within the meaning of the Fair Housing Act (FHA).
Complete text (42 pages) of publication issued by the Internal Revenue Service (IRS) Office of Tax Exempt Bonds. The report describes problems and practices regarding tax exempt bond transactions, examine potentially problematic situations, and provide considerations issuers may use to avoid substantial problems. The report examines problems and practices in the transaction development phase, the transaction execution phase, and the post-issuance compliance phase, and includes five related appendices.
Complete text (47 pages) of ruling by U.S. District Court for the Western District of Pennsylvania granting defendant’s motion for summary judgment. Plaintiff and student-athlete filed a personal injury claim against the university after he was shot and injured while leaving a party sponsored by an official university student organization and held on university property, but that was open to non-university guests and advertised widely off campus. The court granted the university’s motion for summary judgment and held that “any relationship between defendant and plaintiff as university/student did not give rise to a pre-existing duty to protect plaintiff from the spontaneous criminal acts of third persons.”
Complete text (23 pages) of decision by the U.S. Court of Appeals for the Seventh Circuit vacating the district court’s decision granting summary judgment for defendants and excluding the testimony of one of plaintiff’s expert witnesses. The court ruled that significant parts of the expert’s testimony are admissible based on his expertise and informed analysis and, further, his testimony provides the required factual support for an element of plaintiff’s claim. Specifically, the court ruled that the expert testimony comparing the university’s security practices to those recommended, but not required, by the International Association of Campus Law Enforcement Administrators (IACLEA) is admissible because “consulting them is a methodologically sound practice on which to base an expert opinion.” The court upheld, however, the lower court’s exclusion of the expert’s proposed testimony that used statistics of sexual assault on campus, all of which were instances of acquaintance rape, to inform his opinion on security measures would have been reasonable in the instant case, which was rape committed by a stranger. Given that the expert witness’ testimony is admissible in part, plaintiff raises a genuine factual dispute for trial and, therefore, summary judgment was improper. The court vacated the ruling and remanded for further proceedings.
Complete text (14 pages) of Michigan State Court of Appeals finding that Michigan law adequately protects the unnamed defendant’s free speech interest in anonymity, and that the trial court abused its discretion by finding that it did not. The defendant in the case had set up a website on which he anonymously criticized Cooley Law School under an assumed name. The law school, in turn, sued for defamation and petitioned a California court to subpoena the website provider in order to determine the defendant’s identity. The defendant moved to quash the subpoena, and sought a protective order to protect his identity. Finding no Michigan law on point, the court looked to other jurisdictions and found that the defendant’s statements were not entitled to First Amendment protection, and thus denied the motion to quash and the motion for protective order. The appellate court disagreed with the trial court’s conclusion that Michigan law does not adequately address the situation in this case, and found that Michigan’s procedures for a protective order, combined with procedures for summary disposition, adequately protect a defendant’s First Amendment interests in anonymity. The case is remanded so that the trial court can determine whether it has the power to quash a California subpoena and consider whether good cause exists to support the defendant’s request for a protective order. There was also a concurring and dissenting opinion.
Complete text of press release issued April 15 by U.S. Department of Education announcing hearings to be scheduled in May about topics the Department is considering adding to its regulatory agenda. Among the topics are: state authorization for distance education programs; state authorization for foreign locations of domestic institutions; potential approaches to distinguishing between successful and unsuccessful gainful employment programs; and implementation of changes to the Clery Act campus safety and security reporting requirements enacted as part of the recent reauthorization of the Violence Against Women Act. According to the press release, following the hearings negotiated rulemaking on these subjects would likely begin this fall. The Department issued a more detailed announcement in the April 16 Federal Register.
Complete text (6 pages) of decision by U.S. District Court (Nebraska) denying plaintiff student’s request for a temporary restraining order (TRO) barring defendant institution from dismissing plaintiff from the university’s law school following a determination that plaintiff violated the law school’s honor code through commission of plagiarism. The court notes that it is not probable that plaintiff would succeed on the merits, and further notes that the public interest favors swift enforcement of ethical norms for law students, since ethical law students are a pre-condition to an ethical legal profession.
Complete text (40 pages) of report issued by the Commission on the Regulation of Postsecondary Distance Education. The report proposes a plan for interstate reciprocity for state authorization of distance education programs offered in other states by out-of-state institutions. The report proposes a single fee structure, and oversight of the reciprocity agreements by the four currently existing higher education regional compacts. The Commission releases a list of frequently asked questions (FAQ) describing the details of the plan. A meeting of state representatives to discuss the report and recommendations is scheduled for April 16 – 17 in Indianapolis. The reciprocity system could be operating as early as the fall of 2013.
Complete text (5 pages) of Request for Information (RFI) released by the National Science Foundation (NSF). According to NSF, recent surveys have indicated that administrative burdens associated with Federal research funding consume 42% of awardees’ available research time. NSF has created a Task Force on Administrative Burdens which is seeking recommendations from principal investigators for reducing the administrative workload associated with their federal research awards. According to NSF, responses will be considered as the Board develops recommendations to ensure investigators’ administrative workload is at an appropriate level. Responses are due by May 24, 2013.
Complete text (22 pages) of proposed rule issued by the Internal Revenue Service (IRS) and published in the April 5 Federal Register. The proposed rule is designed to provide guidance to 501(c)(3) hospitals concerning the requirement that such hospitals conduct periodic assessments of community health needs requirements. The Patient Protection and Affordable Care Act enacted Sec. 501(r)(3) of the Internal Revenue Code requiring charitable hospitals to conduct a community health needs assessment every three years and adopt an implementation strategy to meet the identified community health needs. The proposed rule provides detailed guidance on conducting the assessments, including parties who must be involved, implementation strategies, and follow-up. In addition, the proposed rule more generally clarifies the possible consequences for charitable hospitals for failing to meet the community needs assessment and other requirements set forth in Sec. 501(r) , including requirements to establish written financial assistance policies (FAPs) and written policies on emergency medical care; to limit the amounts that can be charged for emergency or other medically necessary care to individuals eligible for assistance under hospital Financial Assistance Policies (FAPs), and limits on extraordinary collection activity against individuals eligible for assistance. The IRS issued proposed rules regarding these additional Sec. 501(r) requirements in June of 2012.
Complete text (10 pages) of the National Association of College and University Business Officers’ (NACUBO) response to select questions in the Consumer Financial Protection Bureau's (CFPB) request for information regarding financial products marketed to students enrolled in higher education institutions published in the Federal Register on February 5 (Docket No. CFPB-2013-0003). NACUBO’s letter explains the types of campus financial products being offered to students, common methods of credit balance reimbursements, the types of student information universities are sharing with financial institutions, student choice in financial affinity products, and contract terms between universities and financial institutions, among other related topics.
Complete text of statute passed by Virginia legislature stating that religious and political student organizations at public institutions may determine that only organization members committed to the mission of the organization may engage in certain activities in furtherance of the organization’s religious or political mission. Ohio has passed similar legislation. The statutes are designed to prevent public institutions from implementing so-called “all comers” policies sanctioned by the U.S. Supreme Court in its 2010 decision in Christian Legal Society v. Martinez.
Complete text (23 pages) of opinion by the Court of Appeals of the State of Washington in Buechler v. Wenatchee Valley College. Plaintiff is appealing from summary judgment granted in favor of the college by the trial court. The court affirms the lower court’s decision in favor of defendant. The court held that because the plaintiff failed to exhaust the college’s administrative procedures, the trial court properly dismissed her claims of negligent dismissal from the nursing program under state regulations and violation of her constitutional rights to due process and equal protection, among others. The court also ruled that the trial judge was not required to recuse herself from the case and revealed all relevant information to counsel.
Complete opinion (20 pages) of the U.S. District Court of the Western District of Arkansas in Stebbins v. University of Arkansas. Plaintiff, a former student at defendant institution diagnosed with Asperger’s Syndrome, claimed that the university discriminated against him in violation of Section 504 of the Rehabilitation Act of 1973 by prohibiting him from re-enrolling in the university in 2010 after being suspended and banned from campus in 2007. Among the court’s findings of fact are that plaintiff used excessively profane language with administrators, shared plans to commit violent acts against his father, and made threats against specific university staff and the university community in general, including references to a “Virginia Tech incident”. The court dismissed Stebbins’ claims with prejudice and ruled that his claim that the university discriminated against him is without merit based in large part on the threatening nature and severity of his remarks to university administrators and the probability that he would carry out those threats. The court ruled that in 2007 the university properly evaluated plaintiff as a direct threat to the university, explaining that the university was not required to prove that plaintiff actually intended to make a threat, rather that those who heard his statements reasonably believed that he made a threat; that the duration of the risk posed by plaintiff was indefinite; that the severity of plaintiff’s threats were such that no reasonable administrator could overlook them; and that it was reasonable for campus administrators to believe that there was a significant probability that plaintiff would carry out his threats. Finally the court ruled that it was reasonable for the university to conclude that plaintiff should not be allowed to re-enroll in 2010, since he had not satisfied the re-admission requirements imposed by the institution following his suspension in 2007, and based on plaintiff’s profane and threatening message to the university Chancellor demanding re-admission.
Complete text (2 pages) of March 13, 2013 Resolution Agreement entered into between the U.S. Department of Education Office for Civil Rights (OCR) and the South Carolina Technical College System (SCTCS) following an OCR compliance review initiated to determine whether the System’s communications with persons with disabilities were as effective as communications with persons who are not disabled. The stated purpose of the agreement is to ensure that all content on the System’s websites and those of its member colleges are accessible to students with visual and other print-related disabilities, particularly those students requiring use of assistive technology. The agreement includes a definition of “accessible” and requires the system to draft a directive, subject to OCR approval, to system college presidents about each college’s responsibility to ensure that websites are accessible, including information on accessibility standards and the expectation that each system college will conduct an annual website review to ensure accessibility compliance. The agreement also requires the System to develop a Resource Guide, subject to OCR approval, providing information about web accessibility requirements and standards. In a letter accompanying the resolution agreement, OCR described its review of the System’s websites and multiple concerns it had identified.
Complete text (24 pages) of proposed rule issued by the U.S. Departments of Labor and Health and Human Services and published in the March 21 Federal Register. The Affordable Care Act (ACA) provides that a group health plan or health insurance issuer offering group health insurance shall not apply a waiting period that exceeds 90 days. The limitation applies to both grandfathered and non-grandfathered plans. The proposed rule adopts the definition of “waiting period” contained in the Health Insurance Portability and Accountability Act (HIPAA): the period that must pass before coverage for an employee or dependent who is otherwise eligible to enroll under the terms of a group health plan can become effective. The proposed rule also clarifies the method for counting days when applying a 90 day waiting period—all calendar days are to be counted. Comments on the proposed rule are due by May 20. The proposed rule also re-affirms that through 2014, employers may rely on the guidance concerning the waiting period contained in Notice 2012-59 issued in August of 2012.
Complete text (5 pages) of comments filed with the Internal Revenue Service (IRS) by the American Council on Education (ACE) and nine other higher education associations. In January the IRS issued a proposed rule implementing the employer shared responsibility mandate of the Affordable Care Act. The Act generally requires covered employers to offer minimum essential and adequate health insurance coverage to full time employees or make a “shared responsibility” payment to the federal government. Under the ACA, a full-time employee is generally an individual who works on average 30 hours per week. In their comments, the higher education associations propose safe harbors applicable to student employees and adjunct faculty. Specifically, with respect to student employees, the associations request that the IRS issue guidance clarifying that for purposes of calculating a student’s hours under the ACA, institutions may apply the standards developed by the Department of Labor under the Fair Labor Standards Act (FLSA). With respect to Work-Study students, the associations request guidance clarifying that institutions may exclude the hours worked by a student who is enrolled in classes at least half time and who receives a wage as part of a job under a work-study program. With respect to Adjunct Faculty, the associations ask the IRS to adopt rules clarifying that institutions may classify adjunct faculty as full-time employees if the course load they teach meets or exceeds three-quarters of the course load for a full-time non-tenure track teaching faculty member in a particular department. In addition, the associations request that the IRS issue guidance that for purposes of determining whether an adjunct faculty member is a part-time or full-time employee under the ACA, institutions may credit adjunct faculty members with one hour of non-classroom work for every hour in class teaching.
Animal Enterprise Terrorism Act: Blum et al. v. Holder
(March 25, 2013)
Complete text (18 pages) of decision by U.S. District Court (Massachusetts) holding that plaintiff animal rights activists lacked standing to file First Amendment challenges to the Animal Enterprise Terrorism Act (AETA) because they failed to establish an injury-in-fact. According to the court, the AETA criminalizes 1) intentionally damaging or causing the loss of real or personal property; 2) intentionally placing a person in reasonable fear of death or serious bodily injury; and 3) conspiring or attempting to commit these acts. Plaintiffs, according to the court, have not alleged any intention to engage in any of these activities. Instead, the court finds conduct plaintiffs seek to engage in—lawful and peaceful advocacy—to be very different—and therefore plaintiffs have failed to establish that the statute constitutes an objective and reasonable chilling of their First Amendment rights.
Complete text (74 pages) of decision by U.S. Supreme Court holding that the “first sale” doctrine embodied in Sec. 109(a) of the Copyright Act, which provides that the owner of a particular copy of a copyrighted work lawfully made under the Act is entitled, without the authority of the copyright holder, to sell or otherwise dispose of the possession of that copy, applies to copies of a copyrighted work lawfully made abroad. Libraries, museums, and other interested parties had argued that a contrary holding would require obtaining permission before circulating or displaying works in their collection printed or created overseas.
Complete text (3 pages) of March 20 testimony by U.S. Register of Copyrights before the U.S. Senate Judiciary Committee subcommittee on Courts, Intellectual Property and the Internet. In her testimony, the Register suggests it is time for Congress to consider comprehensive revision of the Copyright Act to take account of numerous issues, including clarifying the scope of exclusive rights, revising exceptions and limitations for libraries and archives, addressing orphan works, accommodating persons with disabilities, providing guidance to educational institutions, updating enforcement provisions, providing guidance on statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims, reforming the music marketplace and encouraging new licensing regimes. The Register states that “[t]he issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, they are not a counterweight to the public interest, but instead are the very center of the equation.”
Complete text (3 pages) of proposed rule issued by the Department of Defense, NASA and the General Services Administration and published in the March 20 Federal Register. The Defense Base Act extends workers compensation protection to work for private employers on U.S. military bases outside the United States and pursuant to service contracts with U.S. government agencies. The proposed rule would clarify contractor workers compensation payment and reporting obligations and require that those obligations apply to subcontractors. Comments on the proposed rule are due by May 20.
Complete text (8 pages) of March 19 “Dear Colleague” letter issued by the U.S. Department of Education Office of Postsecondary Education. The letter describes the requirements for an academic program based on direct assessment of student learning and competencies (rather than measuring student learning in credit hours or clock hours) to be eligible for participation Title IV federal financial aid programs. The letter summarizes the requirements relating to direct assessment programs included in the Department’s final rule issued in 2006 and currently codified at 34 CFR 668.10. The letter also includes an attachment with detailed instructions regarding application to the Department for Title IV approval of a direct assessment program. The letter concludes by stating that the Department will work closely with interested institutions and that it encourages institutions with competency-based program models to apply for Title IV program eligibility. The Department also states that “[c]ompetency-based approaches to education have the potential for assuring the quality and extent of learning, shortening the time to degree/certificate completion, developing stackable credentials that ease student transitions between school and work, and reducing the overall cost of education for both career-technical and degree programs. The Department plans to collaborate with both accrediting agencies and the higher education community to encourage the use of this innovative approach when appropriate, to identify the most promising practices in this arena, and to gather information to inform future policy regarding competency-based education. Currently, the direct assessment authority in the HEA is the mechanism through which title IV, HEA funds can be provided for competency-based education, and we understand that it may not adequately accommodate this educational model. The Department intends to use what we learn from participating institutions to inform future discussions regarding the reauthorization of the HEA.”
Complete text (7 pages) of decision of U.S. District Court (E.D. North Carolina) denying defendants’ motion for summary judgment. In his complaint, plaintiff alleged his denial of promotion to full professor was the result of viewpoint discrimination and retaliation based on the content of his columns, publications and presentations submitted in support of his application for promotion. In its opinion, the District Court holds that plaintiff has brought forth evidence from which a reasonable jury could find that his speech was a substantial or motivating factor in the decision to deny him promotion. In an earlier decision, the U.S. Court of Appeals for the Fourth Circuit ruled plaintiff’s columns, publications and presentations were speech related to scholarship or teaching at the time of their creation and remained so when submitted with plaintiff’s application for promotion. The Court of Appeals declined 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 of Appeals instead analyzed plaintiff’s speech under the Pickering and Connick balancing test and found that plaintiff’s columns, publications and presentations were speech by a public employee on matters of public concern, and remanded to the District Court for determination of whether plaintiff’s speech was a substantial factor in the denial of his application for promotion.
Complete text (20 pages) of decision by U.S. District Court (District of Columbia) denying motion by the Department of Education to amend the court’s earlier judgment contained in its opinion issued June 30, 2012 vacating the Gainful Employment-Debt Measures Rule issued by the Department of Education. In its earlier decision, the court had also vacated the reporting requirements of the Gainful Employment Reporting and Disclosure Rule (75 Fed. Reg. 66,832, 66,835-66,844), (which among other items required institutions to report information needed to identify individual students enrolled in gainful employment programs and the institutions they attended) because absent the Debt Measures rule the Department could not demonstrate the reporting obligations were necessary for the operation of programs authorized by Title IV, as required by 20 U.S.C. §1015c. In its motion to amend, the Department asked the court to reinstate the reporting requirements and portions of the debt measures rule, because those regulations were in fact necessary for the operation of the Disclosure Rule, which the court had left intact in its earlier decision. In denying the Department’s motion, the court holds that, contrary to its earlier opinion, 20 U.S.C. §1015c is a complete bar to the Reporting rule because collection of the information required by the rule and inclusion of it in the Department’s National Student Loan Data System would create a student unit record system of information on all students in gainful employment programs, not just those receiving Title IV financial aid. The creation of such a system was what Congress sought to prohibit in 20 U.S.C. 1015c(a), and the Reporting Rule does not fall within the limited exception contained in 20 U.S.C. 1015c(b).
Complete text (21 pages) of decision by U.S. District Court (New Jersey) denying defendants’ motion to dismiss plaintiff’s complaint alleging violation of the Delaware and New Jersey Consumer Fraud Acts. Plaintiffs’ allege defendants’ violated the Acts by making false representations and omissions concerning the placement rate of the law school graduates in law-related employment. The court finds that the plaintiffs have plausibly pled deception, misrepresentation or the omission of material facts under both statutes, and therefore denies defendants’ motion to dismiss.
Final Rule (March 25, 2013). Complete text (4 pages) of final rule issued by the United States Patent and Trademark Office (USPTO) and published in the March 25, 2013 Federal Register. The rule revises the rules of practice to implement changes with respect to inter partes review set forth in the Leahy-Smith America Invents Act. Specifically, the rule eliminates the nine-month “dead zone” for filing an inter partes review petition challenging a first-to-invent patent or reissue patent. The effective date of the rule is March 25, 2013.
Complete text (28 pages) of amicus brief submitted by American Council on Education (ACE) and six other higher education associations in support of The University of Texas Southwestern Medical Center (UTSMC) in UTSMC v. Nassar. In this case, the Supreme Court will decide what burden of proof an employee must satisfy in order to prevail on a retaliation claim against his or her employer under Title VII of the Civil Rights Act. Specifically, the Court will decide whether plaintiff, who is a medical professor and member of a protected class, must prove that his protected status was the but-for cause of the alleged retaliation or that it was one of multiple causes. ACE and other amici argue that the mixed-motive burden-shifting method of proof used by plaintiff will “enable plaintiffs to advance meritless retaliation claims in a manner that will endanger academic freedom.” Instead, they support the use of the but-for causation burden of proof in retaliation cases because it is a more straightforward approach and is not difficult to resolve at summary judgment, unlike the mixed-motive approach. Oral arguments are scheduled for April 24, 2013.
Complete text (9 pages) of decision by U.S. District Court (W.D. Kentucky) dismissing plaintiff’s complaint claiming violation of Title IX due to institution’s alleged deliberate indifference following plaintiff’s report of sexual assault. The court holds that even assuming the institution was deliberately indifferent, plaintiff did not allege that the indifference caused her to experience further or additional harassment. As a result, the claimed violation of Title IX failed as a matter of law.
Complete text of settlement agreement entered into on March 5, 2013 by the U.S. Department of Justice (DOJ) and the University of Medicine and Dentistry of New Jersey (UMDNJ). Complainants argued that UMDNJ discriminated against them by rescinding their admissions offers upon learning that the applicants have Hepatitis B. The DOJ determined that by rescinding their admission the university discriminated against the complainants on the basis of disability. DOJ further determined that university could not show that complainants posed a direct threat to the health and safety of others since the university could not show that complainants would be required to perform exposure-prone invasive procedures as a condition of graduation. DOJ did make exceptions that legally limit the participation of certain persons infected with Hepatitis B in particular medical procedures. Specifically, students who have Hepatitis B with viral loads of 5,000 or more may be prohibited from engaging in CDC Category I procedures unless or until their viral loads are shown to be less than 5,000 genome equivalents per milliliter of blood. Among other stipulations, the university was also ordered to pay each applicant $20,000 and provide $17,500 in tuition credits to each of the applicants; however, DOJ did not impose any civil penalties on the university. DOJ issued a press release which can be accessed here. The university also issued a statement concerning the settlement.
Complete text (18 pages) of decision by the Florida First District Court of Appeal on trial court’s dismissal with prejudice of Plaintiff faculty member’s complaint alleging violation of the Florida Public Records Act due to defendant institution’s refusal to release unredacted versions of a student’s email complaining of the faculty member’s alleged classroom conduct. The court held that although the e-mail is a public record because it was received by the college in connection with the transaction of official business, the institution was entitled to refuse to produce unredacted versions of the email which would disclose the complaining student’s name because the Florida Public Records Act includes an exemption for educational records protected by FERPA. The court holds the email in question was directly related to the student and therefore covered by FERPA and expressly rejects plaintiff’s suggestion that a record cannot relate directly to both a student and a faculty member.
First Amendment: Wagner v. Jones
(March 11, 2013)
Complete text (43 pages) of decision by the U.S. District Court for the Southern District of Iowa on an appeal from jury verdict on Plaintiff’s claim of political discrimination and mistrial ruling on Plaintiff’s claim of equal protection violations under 42 U.S.C. § 1983. The court granted the university’s Motion for Judgment as a Matter of Law and denied Plaintiff’s Motion for New Trial and Motion to Alter Judgment. Plaintiff had applied for a law faculty position at defendant institution and alleged she had been denied the position based on her political beliefs. The court finds that the trial court did not err in accepting the jury’s verdict denying the political discrimination claim because the jury did not have the time or opportunity to engage in additional deliberations after being dismissed from the courtroom initially and no impropriety occurred when the judge called the jurors back to the courtroom to poll them without counsel present. Further, the court finds that there was no evidence presented at trial to support Plaintiff’s claim that the university violated her equal protection rights.
Complete text (2 pages) of the U.S. Citizenship and Immigration Services’ revised I-9 form that employers must use as of March 8, 2013. There is a 60-day grace period that permits employers to use the previous version of the form through May 7, 2013 without penalty. Revisions to the form include additional data fields (e.g., employee’s foreign passport information, if applicable, and e-mail addresses), improved instructions, and expanding the form from one to two pages). USCIS announced the availability of the new form in a Notice published in the March 8 Federal Register. Additional information can be found at the USCIS I-9 web page.
Complete text (47 pages) of resource guide commissioned by the LGBTQ Subcommittee of the NCAA association-wide Committee on Women’s Athletics and the Minority Opportunities and Interests Committee. The purpose of the guide is to provide NCAA member institutions, athletics conference leaders, athletics administrators, coaches and student-athletes with information, policy and best practice recommendations and resources to ensure that all members of the athletics department, regardless of sexual orientation or gender identity/expression can participate in a safe, respectful and inclusive environment. The guide includes a section on legal resources and laws addressing discrimination or harassment based on sexual orientation and gender identity/expression.
Congressional Research Service. Overview and analysis (16 pages) of Executive Order 13636, Improving Critical Infrastructure Cybersecurity, which “attempts to enhance security and resiliency of [critical infrastructure (CI)] through voluntary, collaborative efforts involving federal agencies and owners and operators of privately owned CI, as well as use of existing federal regulatory authorities.”
Complete text (16 pages) of opinion from the Oklahoma Supreme Court holding that the provision of Oklahoma’s Administrative Procedures Act (APA) requiring that disciplinary proceedings against a state university student that involve expulsion must comport with due process, does not expressly provide for application of Article II of the APA when a student is subject to discipline less than expulsion for an institutional rule infraction. The Oklahoma Supreme Court granted university's petition for interlocutory certiorari and recast petition as an application to assume original jurisdiction and a discretionary petition for writ of prohibition. The Court declined to address the merits of the student’s due process claims relating to the University’s disciplinary procedures.
Complete text of a summary (4 pages) of the potential impact that reductions in federal spending will have on higher education programs, particularly research, student financial aid.
Complete text (33 pages) of amicus brief to the U.S. Supreme Court filed by the American Council on Education (ACE) and six other higher education associations in support of the University of Oregon, urging the U.S. Supreme Court to hear a case arising out of a dispute with a former doctoral student who filed a discrimination lawsuit after her dissertation committee disbanded. The university argues that the advisor’s decision to step down was based on academic judgment unaffected by discrimination. It is asking the Supreme Court to review the request for summary judgment denied by the U.S. Court of Appeals for the Ninth Circuit in its October 2012 ruling, or at a minimum, reverse it. That ruling found that the advisor’s resignation and Emeldi’s complaint of discrimination were “not completely unrelated” and said the case could proceed to trial.
Complete text of memorandum from David A. Bergeron, Acting Assistant Secretary, explaining how sequestration will impact the Federal Pell Grant Program, Federal Work Study Program, and Federal Direct Loan Program, among others.
Complete text (98 pages) of decision stemming from 2010 case in which Judge S. Underhill of the U.S. District Court for the District of Connecticut found that Quinnipiac University had violated Title IX, and permanently enjoined the institution from eliminating the women’s volleyball team, and from continuing to discriminate against its female students by failing to provide equal athletic opportunities. The University brought the present action to lift the injunction, claiming that changes to its athletic program over the last two years brought the institution into compliance with Title IX. Judge Underhill denied the motion, finding that while the University “is making substantial progress toward Title IX compliance,” Quinnipiac has not demonstrated a significant change in its allocation of athletic opportunities for women such that the continued enforcement of the injunctive order is no longer equitable. Among other things, the Judge noted that the women’s participation opportunities were added to teams in an emerging sport (rugby), and an as-yet-unrecognized sport (acro), both of which still need to grow and mature before those teams can offer female students with athletic opportunities on par with those afforded to male students.
Complete text (10 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 Reauthorization of the Violence Against Women Act (107 pages) as passed by the Senate on February 12 and by the House of Representatives on February 28. Among other items, the amendments 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; and dictate the content of such policies and procedures. The amendments made by the Act take effect with respect to the annual security report prepared by institutions of higher education one calendar year after the date of enactment. A summary of the changes prepared by NACUA members Joe Storch and Andrea Stagg is here.
Complete text of February 27 “Dear Colleague” letter issued by the U.S. Department of Education, Office of Postsecondary Education, providing guidance on implementation by institutions of the net price calculator requirement set forth in Sec. 132 of the Higher Education Act. The letter addresses when and how often institutions must update their net price calculator, where it must be posted, what it can be called, and whether loans may be included.
Complete text (13 pages) of Notice issued by the Office of Federal Contract Compliance Programs (OFCCP) and published in the February 28 Federal Register. In the Notice, OFCCP announces the rescission of its 2006 guidance on Interpreting Nondiscrimination Requirements of Executive Order 11246 with Respect to Systemic Compensation Discrimination and the accompanying Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246 With Respect to Systemic Discrimination. Under the voluntary guidelines (now rescinded) contractors who in good faith implemented a self-evaluation program that comported with the voluntary guidelines were not be subject to independent OFCCP evaluation of their compensation practices. OFCCP would instead conform its compliance monitoring activities to the contractor's self evaluation program. In the Notice of Rescission, OFCCP states it has concluded the 2006 standards and guidelines significantly undermined its ability to vigorously investigate and identify compensation discrimination consistent with Title VII principles. The rescission is immediately effective on February 28. OFCCP simultaneously issued Directive 307 setting forth its procedures for reviewing contractor compensation systems and practices going forward.
Complete text (38 pages) of final rule issued by the Department of Health and Human Services (HHS) and published in the February 27 Federal Register. As discussed beginning on p. 13424, §147.145 of the final rule provides that non-grandfathered student health insurance coverage is not subject to the single risk pool requirement of Sec. 1312(c) of the Affordable Care Act (ACA), or to the guaranteed availability or guaranteed renewability requirements of Secs. 2702 and 2703 of the ACA. As a result, the final rule permits separate risk pooling and experience rating for student coverage based on the eligible campus population of students and their dependents. The final rule is effective April 29, 2013.
Complete text (6 pages) of policy issued by the U.S. Office of Science and Technology Policy (OSTP) on February 22. The policy directs each federal agency with over $100 million in annual research expenditures to develop a plan within six months to support increased public access to the results of research funded by the Federal Government, including any results published in peer-reviewed scholarly publications that are based on research that directly arises from federal funds. The policy states that agencies shall use a twelve-month post-publication embargo period as a guideline for making research papers publicly available, but that each agency may tailor its plan to meet the objectives of the policy and challenges and public interests unique to each field of research. Agencies must also include in their plans a mechanism for stakeholders to petition to change the embargo period.
Complete text (4 pages) of Notice issued by the U.S. Office of Science and Technology Policy (OSTP) and published in the February 22 Federal Register. In the Notice, OSTP seeks comments on the proposed U.S. Government Policy for Institutional Oversight of Life Sciences Dual Use Research of Concern. Dual use research of concern (DURC) is research that can reasonably be anticipated to provide knowledge, information, products or technologies that could be misapplied to pose a significant threat to public health and safety, crops, plants, animals, the environment or national security. (In March 2012 OSTP issued its Policy for U.S. Government Oversight of Life Sciences Dual Use Research of Concern.) The proposed policy would require institutional principal investigators to identify potential DURC and an institutional review process to verify the existence of such research, develop plans to mitigate identified risks, and to notify the federal government of the results of the review process. In the Notice, OSTP poses several specific questions concerning the proposed policy, and requests comments not later than April 23, 2013.
Complete text (37 pages) of final rule issued by the United States Patent and Trademark Office (USPTO) and published in the February 14 Federal Register. The rule revises the rules of practice in title 37 of the Code of Federal Regulations to implement, and to address the examination issues raised by, section 3 of the Leahy-Smith America Invents Act (AIA), which, inter alia, converted the U.S. patent system from a “first to invent” to a “first inventor to file” system. These changes in section 3 of the AIA are effective on March 16, 2013.
Complete text (30 pages) of examining guidelines issued by the United States Patent and Trademark Office (USPTO) and published in the February 14 Federal Register. The USPTO is providing the examination guidelines to assist in the implementation of the “first inventor to file” provisions of the Leahy-Smith America Invents Act (AIA), and to clarify certain aspects of the law in response to public comment. The guidelines will be effective as of March 16, 2013.
Complete text (80 pages) of decision by U.S. District Court (South Carolina) granting motions for dismissal and summary judgment in suit brought by student athlete alleging inter alia violation of Title IX based on alleged sexual harassment by an assistant soccer coach and alleged retaliation by the head soccer coach. The court finds that alleged earlier incidents involving the assistant coach were not sufficient to place the university on notice that he posed a risk of sexual harassment, and since the plaintiff failed to report the alleged harassment of her by the assistant coach the university also had no notice of that incident as well. The court further finds that since plaintiff failed to notify the institution of the actions of the assistant coach involving her, subsequent actions taken by the head coach could not constitute retaliation against plaintiff for asserting her rights under Title IX.
Complete text (15 pages) of Proposed Guidance issued by the Office of Management and Budget and published in the February 1 Federal Register. The proposed guidance would supercede, reform and streamline requirements relating to federal grants and cooperative agreements currently set forth in OMB Circulars A-21, A-87, A-110, A-89, A-102 and A-133 into a consolidated format designed to improve the clarity and accessibility of the guidance contained in those Circulars. Comments on the Proposed Guidance are due by May 2.
Complete text (33 pages) of Petition for Certiorari filed with the U.S. Supreme Court by the Attorney General of the State of Michigan. The petition seeks review by the Court of the en banc decision of the U.S. Sixth Circuit Court of Appeals which held that 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 (72 pages) of Final Rule issued by the Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS) and published in the February 8 Federal Register. The Final Rule implements §6002 of the Affordable Care Act (ACA) (sometimes known as the “Physician Sunshine” provision) requiring certain manufacturers of drugs, devices, biological or medical supplies covered under Medicare, Medicaid or the Children’s Health Insurance Program (CHIP) to report annually to the Secretary of HHS certain payments or transfers of value by such manufacturers to physicians and to teaching hospitals; and also to report certain information regarding ownership or investment interests held by physicians or their immediate family members. Under the final rule, manufacturers must begin collecting payment data on Aug. 1, 2013, and report such data for the period August 1 – December 31 to CMS by March 31, 2014. CMS will create a database of the information collected, to be made available to the public by September 30, 2014. The Final Rule is effective April 9.
Complete text (115 pages) of Final Rule issued by the Wage and Hour Division, U.S. Department of Labor and published in the February 6 Federal Register. The Final Rule implements amendments made in 2010 to the Family Medical Leave Act. amendments expanded the FMLA’s military caregiver leave and qualifying exigency leave provisions. The amendments extended military caregiver leave to eligible employees whose family members are recent veterans with serious injuries or illnesses, and expanded the definition of a serious injury or illness to include serious injuries or illnesses that result from preexisting conditions. The amendments also expanded qualifying exigency leave to eligible employees with family members serving in the Regular Armed Forces, and added a requirement that for all qualifying exigency leave the military member must be deployed to a foreign country. The Department has created a website with detailed information on the final rule, including a summary of major provisions, an FAQ list, a fact sheets. The final rule takes effect on March 8.
Complete text (21 pages) of proposed rules issued by the Departments of Labor, Treasury and Health and Human Services and scheduled for publication in the Federal Register. The proposed rules seek to implement the objectives set forth in the Departments’ March 21, 2012 Advance Notice of Proposed Rulemaking that they would propose changes to ACA regulations requiring certain eligible non-exempt religious organizations to provide contraceptive care coverage to accommodate the religious objections of such organizations to covering contraceptive services while assuring that participants and beneficiaries covered under the health plans of such organizations receive contraceptive coverage without cost sharing. In the proposed rules, with respect to insured plans of such organizations, the Departments would require the health insurance issuer providing group coverage for such plans assume sole responsibility, independent of the organizations and their plans, for providing contraceptive coverage without cost sharing, premium, fee, or other charge to plan participants and beneficiaries. The Departments suggest that offering of such coverage by the plan issuers would be cost neutral because they would experience lower costs from improvements in women’s health and fewer childbirths. With respect to self-insured plans, the Departments suggest three possible approaches for the separate provision of contraceptive coverage by the third party administrators of such self-insured plans, with the costs of offering such coverage to be offset by a reduction of Federally-facilitated exchange user fees for such issuers. Comments on the proposed rules are due by April 8, 2013.
Complete text (24 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 1 Federal Register. The proposed rule at §156.602 declares that self-funded student health coverage offered to students by an institution of higher education as defined in the Higher Education Act, where the institution assumes the risk for payment of claims, qualifies as minimum essential coverage under the Affordable Care Act (ACA). Individuals covered by these plans would not be subject to the shared responsibility payment for not maintaining minimum essential coverage required by Sec. 5000A of the ACA. (Also on February 1 the Internal Revenue Service (IRS) issued a proposed rule (18 pages) on calculation of the shared responsibility payment for individuals who do not maintain minimum essential coverage under the ACA—see §1.5000A-4). The Department in March 2012 issued final rule on traditional student health plans. Comments on the proposed rule regarding self-insured student health plans are due by March 18.
Campus Student Debit Cards and Other Financial Arrangements: CFPB Notice and Request for Information
(February 4, 2013)
Complete text (4 pages) of Notice issued by the federal Consumer Financial Protect Bureau (CFPB) and scheduled for publication in the Federal Register. In the Notice, the CFPB poses 43 questions seeking a wide range of information on financial products issued through campus affinity agreements (ie products that carry an endorsement or mark of a college or university) and also on other financial products marketed to students, such as bank accounts. According to the CFPB, it is seeking the information to develop a clearer picture of the financial products and services being offered to college students, and consumers’ experiences using those products and services; and also to learn how current and future partnerships or other arrangements between institutions of higher education (and their affiliated entities) and financial institutions could be structured to promote positive financial decision-making by young consumers. Comments in response to the inquiry are due by March 18. In December, NACUBO issued guidelines on best practices for campus debit cards. The guidance follows criticism of college and university student debit card programs and congressional expressions of concern.
Complete text (10 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. 47 [220 pages]) introduced in the Senate on January 22. A similar bill (S. 1925) was introduced and passed the Senate last year but no final legislation passed Congress. 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). The only difference in the proposed amendments to Sec. 485(f) in S.47 from the prior bill is the inclusion in a new required policy statement of “a statement of the standard of evidence that will be used in any institutional conduct proceeding arising from [ ] a report [of domestic violence, dating violence, sexual assault or stalking].
Complete text (121 pages) of brief filed in the U.S. Eleventh Circuit Court of Appeals by appellants Cambridge University Press et al. in appeal of decision by the District Court finding that only five of the 99 alleged instances of infringement arising from placement of texts in Georgia State University’s e-reserves violated plaintiffs’ copyrights. (In a later decision, the District Court denied plaintiff’s proposed injunction and awarded Georgia State costs and attorney fees as the prevailing party in the litigation.) The United States has filed a motion seeking an extension of the time in which it may file an amicus brief while it consider whether to file such a brief and if so which party it will support.
Complete text (5 pages) of “Dear Colleague” letter issued January 30 by the U.S. Department of Education, Department of Postsecondary Education, advising that as of December 2012 nearly 600 institutions have committed to adopting the Department’s Financial Aid Shopping Sheet and including a list of Frequently Asked Questions (FAQ) on implementation of the shopping sheet for the 2013 – 2014 school year. Among other items, the FAQ reiterates that institutions that have agreed to comply with the Principles of Excellence set forth in Executive Order 13607 are expected to use the shopping sheet to provide the required personalized and standardized form with financial aid information for undergraduate and graduate service members, veterans, military spouses, and other military family members. Other institutions that have adopted the shopping sheet must provide it to those who have applied for Title IV financial aid using FAFSA, and the Department expects it to be provided prior to enrollment. The Department has created a web page devoted to the Financial Aid Shopping Sheet.
Complete text (8 pages) of decision by U.S. District Court (Oregon) granting defendant university’s motion for summary judgment in case alleging violation of plaintiff’s rights under the First Amendment and the Americans with Disabilities Act (ADA). Plaintiff, a former instructor, was suspended and advised by university that his contract would not be renewed after he made a threatening remark during one of his classes.
Complete text (5 pages) of settlement agreement between U.S. Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and Houston Community College following OSC investigation revealing an alleged pattern or practice by the college of requiring non-U.S. citizens to provide specific documentation establishing their work authorization, while not requiring similar documentation from U.S. citizens. Under the agreement, the college agrees to pay $83,600 in civil penalties and to set aside an additional sum to indemnify applicants who may have been subject to the practice. The college also agrees to review its employment policies and as necessary revise such policies to inter alia prohibit the requesting of employment eligibility verification documents from any individual prior to making an offer of employment; prohibit any difference in treatment of individuals, on the basis of citizenship status or national origin, during the Form I-9 employment eligibility verification and re-verification process; and centralize its employment eligibility verification practices. The college also agrees to post notices, engage in personnel training, and provide reports to OSC. OSC issued a press release accompanying the settlement.
Complete text (27 pages) of decision by U.S. District Court (E.D. Missouri) granting defendant university’s motion for summary judgment in suit by student alleging inter alia allegations of negligence and violations of Title IX arising from an alleged sexual assault of plaintiff. The alleged sexual assault of plaintiff occurred at an off-campus party on premises owned by a third party. With respect to the negligence claim, the court rules that defendant university owed no special duty to supervise and ensure plaintiff’s safety at a private, off-campus party. With respect to the alleged violations of Title IX, the court rules that the university did not act with deliberate indifference when it learned of the alleged sexual assault, but instead responded in a wholly adequate fashion; and further that, even assuming plaintiff could prove deliberate indifference on the part of the university, there would still be no Title IX liability because the alleged assault did not occur in a location under its control.
Complete text (9 pages) of decision by U.S. District Court (District of Columbia) dismissing as not ripe for adjudication a complaint filed by five non-profit Catholic organizations, including the Catholic University of America, challenging ACA regulations requiring that non-exempt religious institutions provide health insurance coverage for employees that includes coverage of contraceptives. The court reasons that because the organizations are currently eligible for a safe harbor from enforcement of the requirement, and the Department of Health and Human Services has committed to issuing new regulations that will separate the cost and administration of such coverage from the religious organizations, dismissal of the complaint is currently appropriate. The court notes that should HHS fail to issue new regulations, or issue new regulations that do not resolve the issue to the satisfaction of plaintiffs, they are free to file a new lawsuit. The court determines it is not obliged to follow the decision of the U.S. Court of Appeals for the District of Columbia in Wheaton College v. Sebelius, where the court declined to dismiss a similar complaint but instead ordered it held in abeyance based on the government’s statements at oral argument that it would never enforce the regulation in its current form and would issue a proposed new rule by March 31, and a final rule by August 1.
Complete text (14 pages) of guidance issued January 14 by the Acting Administrator, Wage and Hour Division, U.S. Department of Labor. The guidance clarifies that the age of a son or daughter at the onset of disability is not relevant to the determination of a parent’s eligibility for FMLA leave. The guidance further clarifies that care of a son or daughter over 18 years of age would be eligible for FMLA leave if the adult son or daughter has a disability under the ADA; is incapable of self-care due to the disability; has a “serious health condition” as defined by the FMLA; and is need of care due to that serious health condition. The Department also issued a Fact Sheet and FAQ to accompany the guidance.
Complete text (61 pages) of settlement agreement between the U.S. Department of Justice (DOJ) and Mills College regarding the physical accessibility of college facilities under Title III of the Americans with Disability Act (ADA). Pursuant to the agreement the college agrees to remedy 260 violations discovered in an earlier campus survey. The agreement includes a 55 page set of grids detailing each violation, the applicable architectural standards, and the required completion date. The DOJ issued a press release announcing the settlement agreement.
Immunity: White v. Trew
(January 28, 2013)
Complete text (13 pages) of decision by North Carolina Supreme Court holding that when a complaint does not specify whether a public official is being sued in their official or individual capacity, the presumption is that the defendant is being sued in his or her official capacity. Accordingly, since the defendant, a university department head, is by definition a public official, and the suit alleges an intentional tort (defamation) rather than negligence, and the pleadings do not specify the capacity in which he is being sued, the claim against him is barred by sovereign immunity. The court further notes that even if defendant had been sued in his individual capacity, disclosure by a university department head to his Dean and to university counsel of an employee evaluation later alleged to contain defamatory statements cannot constitute publication supporting a libel suit.
Complete text (47 pages) of decision by U.S. Court of Appeals for the District of Columbia holding that the term “recess of the Senate” in the Recess Appointments clause of the U.S. Constitution refers only to intersession recesses of the Senate, and therefore President Obama’s appointment of three members of the National Labor Relations Board (NLRB) on January 4, 2012 were invalid from their inception because they were made the day after the Senate began a new session. Unless overruled, the decision means that all decisions made by the NLRB since January 3 were also invalid.
Complete text (13 pages) of “Dear Colleague” letter issued by the U.S. Department of Education Office of Civil Rights (OCR) to provide guiadance on the responsibility of schools under Sec. 504 of the Rehabilitation Act of 1973 regarding the provision of extracurricular athletics. In the letter, OCR notes that although the examples discussed in the guidance are in the K-12 context, students with disabilities at the postsecondary level must also be provided with an equal opportunity to participate in athletics, including intercollegiate, club and intramural athletics. Section IV of the guidance on “Offering Separate or Different Athletic Opportunities” states “[s]tudents with disabilities who cannot participate in the school district’s existing extracurricular athletics program—even with reasonable modifications or aids and services—should still have an equal opportunity to receive the benefits of extracurricular athletics. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.”
Complete text (13 pages) of report issued by the American Association of University Professors (AAUP). The report includes eight recommendations, including that institutional policies should define as “faculty” and include in governance bodies at all levels individuals whose appointment consists primarily of teaching or research activities conducted at a professional level; that all faculty, regardless of status or appointment type should in the conduct of governance activities be explicitly protected by institutional policies from retaliation; and that compensation of contingent faculty should take into consideration the full range of their appointment responsibilities, which should include service.
Complete text of “Dear Colleague” letter issued by the Department of Education, Office of Postsecondary Education on January 23 reminding institutions that the stay of enforcement of the State Authorization requirements set forth at 34 CFR 600.9(a) and (b) will expire on July 1, 2013. (In an August 22, 2011 “Dear Colleague” letter the Department had advised institutions how to take advantage of and document the extension of the compliance deadline to July 1, 2013). In its January 23 letter, the Department encourages states to work with their postsecondary institutions to have acceptable procedures in place by July 1, 2013 to meet the Department’s oversight and approval requirements, and that in order to participate in Title IV financial aid programs institutions must be legally authorized by a state to provide postsecondary education and the state must have in place a process to review and act upon complaints about the institutions.
Complete text (118 pages) of report issued by U.S. Government Accountability Office (GAO) describing agency responses to public comments on Final Rules issued without a preceding Notice of Proposed Rulemaking (NPRM). GAO found that from 2003 – 2010 agencies issued 568 major rules (those with a significant economic effect) and more than 30,000 non-major rules, and 35% of the major final rules were issued with an NPRM. The GAO also found that when agencies requested comments on major final rules issued without an NPRM, they often did not respond to comments received or issue a revised rule. GAO provided an executive summary of the report.
Complete text (41 pages) of decision by North Carolina Court of Appeals holding that plaintiff former student athlete’s claims against the university, university administrators and the NCAA based on his suspension from the UNC football team were non-justiciable due to mootness and lack of standing. The court finds that plaintiff’s claims that one more year on the university’s football team would have increased his standing in the NFL draft and resulted in a better contract to be speculative.
Complete text (13 pages) of decision by Iowa Court of Appeals holding that a settlement agreement between the university and plaintiff employee was subject to disclosure under the Iowa Open Records Law and not exempt from disclosure as “[p]ersonal information in confidential personnel records of public bodies”.
Complete text (138 pages) of Final Rule issued by the Department of Health and Human Services (HHS), and published in the Federal Register on January 25. The Rule includes final modifications to the HIPAA Privacy, Security and Enforcement Rules, following a proposed rule issued in July, 2010. Among other items, the Final Rule makes business associates of covered entities directly liable for compliance with certain HIPAA Privacy and Security Rule requirements; increases limits on the use or disclosure of protected health information (PHI) for marketing or fundraising purposes; expands individuals’ rights to receive electronic copies of their health information; requires modifications to, and redistribution of a covered entity’s notice of privacy practices; and adopts changes to the HIPAA Enforcement Rule to implement increased and tiered civil monetary penalties enacted by the HITECH Act. The rule is effective on March 16, 2013; and covered entities and business associates must comply with applicable requirements by September 23, 2013.
Complete text (39 pages) of draft report issued by the American Association of University Professors (AAUP). The report includes recommendations intended to strengthen shared governance and faculty consultation with regard to academic program closures, and also proposes a more detailed and specific definition of “financial exigency” that extends the standard of exigency to situations not covered by the previous definition of “financial exigency” which required that the very existence of the institution itself be in jeopardy. The AAUP has provided and executive summary of the draft report, and solicits comments on the report by AAUP members and other interested parties by March 1.
Complete text of letter issued by the U.S. Department of Health and Human Services (HHS) on January 15. The letter, citing 45 CFR § 164.512(j), states that the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule does not prevent the disclosure by a health care provider of necessary information about a patient to law enforcement, family members of the patient, or other persons, when the health care provider believes that a patient presents a serious danger to himself or other people.
Complete text of Request for Comments issued by the U.S. Patent and Trademark Office (USPTO) and published in the January 15 Federal Register. The USPTO solicits comments on to possible changes in practice to be used by patent applicants in preparation of applications to place applications in a better condition for examination. The two proposed changes relate to clarifying the scope of the claims in a patent application, and clarifying the meaning to claim terms in the specification. Comments are due by March 15.
Complete text (17 pages) of decision by U.S. District Court (M.D. North Carolina) holding inter alia that a university’s allegedly deficient investigation and response of fraternity hosting party at which plaintiff was raped was not a violation of Title IX. The university cooperated fully with law enforcement in the criminal investigation and arrest of the perpetrator. The court states that the allegedly inadequate investigation of the fraternity hosting the party did not cause plaintiff to undergo further harassment or make her more liable or vulnerable to it and therefore cannot serve as the basis for institutional Title IX liability. The court further holds that a claim that the alleged failure to conduct an adequate investigation itself created a hostile educational environment fails because there is no evidence such failure was based on gender.
Complete text of Revised Statement on the Faculty Status of Librarians released by the American Association of University Professors (AAUP) and the Association of College and Research Libraries (ACRL). The Statement is an updated version of an earlier Statement issued in 1973 and among other items adds language on the role of librarians in teaching, information access and university governance and reaffirms the position of the 1973 statement that librarians engaged in such activities should have the benefits of academic freedom and tenure.
Complete text (85 pages) of article authored by NACUA member Professor Michael Olivas and published in the William and Mary Bill of Rights Journal.
Complete text (14 pages) of decision by New York State trial court granting defendant law school’s motion to dismiss plaintiff’s complaint alleging violation of New York state consumer protection law, common law fraud and negligent misrepresentation. Plaintiffs based their claim upon publication by the law school of graduate employment data that plaintiffs alleged was false and misleading because it included positions for which a J.D. was not required or preferred; temporary and part-time positions; positions funded by the law school; and solo practitioners. Rejecting plaintiffs’ claims, the court observes that reasonable college graduates grappling with major life decisions concerning a career and the pursuit of a professional degree would not read a host of assumptions about legal employment into an unembellished “employment rate” published by the law school without confirming the accuracy of their assumptions.
Complete text (5 pages) of bill passed by the U.S. House and Senate and sent to the President for signature. The bill directs the Department of Veterans Affairs to develop a comprehensive policy to improve outreach and transparency to veterans and members of the armed forces through the provision of information on institutions of higher learning, and prescribes the elements of such policy. If in implementing the policy the Department requires information that has already been reported by institutions to other federal departments and agencies, the bill requires the Department to obtain that information from those departments and agencies. If the department requires information not already reported, the bill requires the Department to obtain such information through the Department of Education to the extent practicable. The bill also requires that the comprehensive policy required by the bill is consistent with Executive Order 13607, that the implementation of the policy is not duplicative of the efforts of other federal agencies, and that the department’s communications with institutions of higher education to carry out the policy shall be to the extent practicable via a communication system of the Department of Education. Finally, the bill prohibits certain commissions, bonuses or incentive payments based on success in securing enrollments or financial aid, and requires the Department to implement the prohibition consistent with similar provisions in the Higher Education Act, to the extent practicable.
Complete text (45 pages) of complaint filed in U.S. District Court (M.D. Pennsylvania) alleging that the imposition by the NCCA of sanctions on Penn State University following the university’s acceptance of the Report of the Special Investigative Counsel constituted a violation of the Sherman Antitrust Act.
Complete text (37 pages) of proposed rule issued on December 28 by the Internal Revenue Service (IRS) and published in the January 2 scheduled for publication in the Federal Register. The proposed rule sets forth guidelines detailing when large employers (generally those with 50 or more full-time employees) will be subject to penalties under the Affordable Care Act (ACA) if they fail to offer their full-time employees minimum essential health insurance coverage, or if they offer such coverage but it is not affordable or does not provide minimum value as required by the ACA and its implementing regulations. Generally, under the proposed rule, beginning in 2014, large employers will be subject to a penalty (referred to as an Employer Shared Responsibility payment) if a) the employer does not offer health coverage or offers coverage to less than 95% of its full-time employees (and, after 2014, to their dependents as well), and at least one of the full-time employees receives a premium tax credit to assist with purchase of coverage on one of the new state insurance exchanges established by the ACA; or b) the employer offers health coverage to at least 95% of its full-time employees (and, after 2014, to their dependents as well) but the coverage is either unaffordable or fails to provide minimum value as required by the ACA and at least one full-time employee receives a premium tax credit to assist with purchase of coverage on a State Exchange. According to the proposed rule, the penalty for not offering coverage to at least 95% of an employer’s full-time employees equals the number of full-time employees (less 30) multiplied by $2,000. The penalty for offering coverage that is either unaffordable and/or fails to provide minimum value equals the number of full-time employees receiving a premium tax credit for purchase of coverage via a State Exchange multiplied by $3,000 (pro-rated and calculated monthly). Under the ACA, a full-time employee is an individual employed on average 30 hours per week. In order to avoid unintentionally falling subject to the penalty, employers must accurately identify who is a full-time employee and ensure they are offered coverage that is affordable and of minimum value. The proposed rule, in keeping with earlier IRS notices, provides for a “look-back” period to determine whether or not an employee is to be treated as a full-time employee. Beginning on page 28 of the commentary accompanying the proposed rule, the IRS addresses the “full-time” status employees of educational organizations working on an academic year; and of adjunct faculty. With respect to adjunct faculty, the commentary indicates that the IRS is continuing to consider, and invites further comments on, how best to determine their full-time status, but that until further guidance is issued institutions must use a reasonable method for crediting hours of service that is consistent with the purposes of the ACA; for example, in the case of an adjunct faculty member, it would not be reasonable to take into account only classroom or other instruction time and not other hours necessary to perform the employee’s duties, such as class preparation time. The IRS has also provided Questions and Answers accompanying the proposed rule. Comments on the proposed rule are due by March 18; however, the IRS advises that employers may rely on the proposed regulations for guidance pending the issuance of final regulations. On January 30, NACUA will present a virtual seminar on the issues surrounding institutional compliance with the ACA employer shared responsibility requirements.
In December the National Labor Relations Board issued several decisions with potential impact on private colleges and universities. In American Baptist Homes of the West d/b/a Piedmont Gardens, decided December 15, the Board ruled that, in considering whether an employer is obligated to provide witness statements to a union representing an employee concerning discipline, the Board must balance the confidentiality interests of the employer against the union’s need for the information. The decision overrules a 1978 Board decision, Anheuser-Busch, Inc., 237 NLRB 982, which established a categorical exemption for witness statements in employee discipline cases.
In WKYC-TV, Gannet Co., decided December 12, the Board held that an employer’s obligation to collect union dues under a check-off agreement continues after the contract expires and before a bargaining impasse occurs or a new contract is reached. The decision overrules long-standing Board precedent known as the Bethlehem Steel rule. In Hispanics United of Buffalo, decided December 14, the Board found that the employer unlawfully fired five employees because of their posts and comments on a social media site responding to a co-worker’s criticism of their job performance. The Board majority found that the social media conversation was concerted activity and was protected by the National Labor Relations Act
Complete text (10 pages) of Final Rule issued by the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture and published in the December 31 Federal Register. The final rule requires research facilities and other entities regulated by APHIS to develop contingency plans for response to and recovery from emergencies most likely to happen to their facilities and to train their employees on those plans. According to the rule, written contingency plans must be in place at all regulated facilities by July 26, 2013, all employees must be trained by September 27, 2013 and plans should be available upon request by APHIS inspectors after September 27, 2013. The plans must identify common emergencies that could occur at each facility; outline specific tasks that facility staff will undertake in emergency situations; establish a clear chain of command; identify materials and resources for use during an emergency that are available at the facility or elsewhere; and provide for training of all employees on the contents of the plan. The rule is effective January 30, 2013. APHIS has issued an FAQ to accompany the rule and established a web page with background resources, including emergency preparedness resources for research facilities.
Complete text (23 pages) of settlement agreement entered into by Lesley University and the U.S. Department of Justice resolving a complaint that the university failed to make necessary accommodations for students with celiac disease and/or food allergies in violation of Title III of the Americans with Disabilities Act (ADA).
Complete text of guidance December 14 guidance issued by the National Association of College and University Business Officers (NACUBO). The guidance follows criticism of college and university student debit card programs and congressional expressions of concern.
Complete text (9 pages) of decision by Georgia Court of Appeals affirming the trial court’s denial of defendant university’s motion to dismiss plaintiff’s action for imposition of a constructive trust on funds donated to the university. Plaintiff alleged that her brother, trustee of a marital trust to which she was a remainder beneficiary, donated $1 million of the trust funds to the university without authority to do so. The court holds that funds donated without authority and in breach of a fiduciary duty are subject to a constructive trust although no wrongdoing on the part of the donee is alleged and therefore plaintiff’s complaint sufficiently stated a claim for relief.
Complete text (37 pages) of decision by U.S. District Court (E.D. Pennsylvania) holding that pursuant to the Higher Education Act [specifically 20 U.S.C. §1087cc(c)(3)] Temple University did not violate the Fair Credit Reporting Act (FCRA) when it reported the presence of plaintiff’s Perkins loan and its payment history to credit reporting agencies after FCRA’s seven year limitations period for reporting of accounts placed for collection or other adverse items of information. The court therefore finds that defendant university neither willfully nor negligently violated FCRA. The court further finds that defendant university conducted a reasonable investigation of the disputed information in its reports filed with the credit reporting agencies, as required by FCRA.
Complete text (4 pages) of letter sent on behalf of the American Council on Education (ACE) and seven additional higher education to the Centers for Medicare and Medicaid Services (CMS), U.S. Department of Health and Human Services and commenting on proposed rules issued by CMS on November 26 that among other items would require student health insurance coverage to be rated and priced as part of each state’s individual market single risk pool. In the letter, the associations state that this method of rating student health insurance coverage will result in increased premiums for such coverage, and ask the Department to revise the proposed regulations to permit separate risk pooling and experience rating for student health insurance coverage based on the eligible campus population of students and their dependents.
Complete text of decision by New York Appellate Division Court, First Department, affirming the decision of the lower court and holding that defendant law school did not violate the New York General Business Law and also rejecting plaintiffs’ fraud and misrepresentation claims, which plaintiffs based on defendant’s allegedly misleading graduate employment and salary data.
Complete text (17 pages) of model policy guidelines for the appropriate use of social media and social networking in medical practice, issued by the Special Committee on Ethics and Professionalism of the Federation of State Medical Boards.
Complete text (14 pages) of Examination Procedures for Private Student Loans issued on December 17 by the U.S. Consumer Financial Protection Bureau (CFPB). The examination procedures will be used as a field guide by CFPB examiners to ensure that private student lenders comply with federal consumer financial protection laws. The CFPB has the authority to regulate both banks and non-banks that engage in private lending to students and the examination procedures will be used by CFPB with respect to both types of lenders.
Complete text (15 pages) of opinion by U.S. Sixth Circuit Court of Appeals affirming the decision of the District Court holding that university interim Associate Vice President for Human Resources did not engage in protected speech when she authored a newspaper op-ed item criticizing comparisons between the gay rights movement and the civil rights movement, and therefore the university’s dismissal of her for authoring the column was not retaliation against her exercise of First Amendment rights. The court further holds that appellant’s Equal Protection violation claim also fails because in addition to her speech being unprotected, she failed to identify other individuals at the university who were similarly situated.
Complete text (6 pages) of Interim Final Rule issued by the Federal Trade Commission (FTC) and published in the December 6 Federal Register. The Interim Final Rule simply implements the terms of the Red Flag Program Clarification Act enacted by Congress in 2010 to narrow the scope of entities covered as “creditors” under the FTC’s Red Flags Rule. Under the Act, the application of the Red Flags Rule is limited to creditors as defined in the Equal Credit Opportunity Act (see p. 72713 of the Interim Final Rule) who either 1) obtain or use consumer reports, directly or indirectly, in connection with a credit transaction; or 2) furnish information to consumer reporting agencies in connection with a credit transaction; or 3) Advance funds to or on behalf of a person, based on an obligation of the person to repay the funds […]. Comments on the Interim Final Rule are due on February 11, 2013.
Complete text (6 pages) of December 4 opinion of Kentucky Attorney General declaring that records involving a student athlete are education records under FERPA and therefore exempt from disclosure under the Kentucky Open Records Act. The opinion cites as support for its position the recent decision of the Ohio Supreme Court in State ex rel ESPN, Inc. v. The Ohio State University. The opinion also accedes to the university’s position that is was barred by FERPA from permitting representatives of the Attorney General’s office to conduct an in camera review of the requested records.
Complete text (27 pages) of new version of the memorandum of understanding (MOU) that colleges and universities must sign to participate in military tuition assistance programs. This new draft, released December 6, comes after a number of higher education associations raised concerns about the previous version of the MOU. A group of 52 U.S. Senators also expressed concern about specifics of the MOU in a December 2011 letter. Institutions must sign the new MOU by March 1, 2013 in order to participate in tuition assistance programs.
Complete text (45 pages) of proposed rule issued by the U.S. Department of Commerce, Bureau of Industry and Security (BIS) and published in the November 29 Federal Register. The objective of the proposed rule is to make clearer the description of items listed on the Commerce Control List (CCL). Comments on the proposed rule are due by January 28, 2013.
Complete text (78 pages) of report issued by the National Association of Independent Colleges and Universities (NAICU). The report examines the Department of Education’s administration of the institutional financial responsibility tests required by Sec. 498(c) of the Higher Education Act and makes five specific recommendations that will alleviate the recent impact of the tests on many institutions.
Complete text (6 pages) of final rule issued by the Copyright Royalty Board and published in the November 29 Federal Register. The final rule sets forth the royalty rates to be to ASCAP, BMI and SESAC for the performance of musical compositions by public broadcasting entities licensed to colleges and universities. The rule is effective January 1, 2013 and covers the period January 1, 2013 – December 31, 2017.
Complete text (18 pages) of decision by U.S. District Court (C.D. California) dismissing plaintiffs’ second amended complaint in litigation involving university’s streaming of copyrighted DVD content to classrooms and other locations over the institutions closed and password protected intranet. The court’s decision dismissing plaintiff’s first amended complaint is here. In its opinion the court re-affirms many of the rulings in its first decision; holds that named individual defendants were entitled to qualified immunity because a reasonable person would not have known that the streaming of media at issue in the case violated any clearly established rights under copyright law, nor would they have known that would violate the terms of plaintiff Ambrose Video Publishing, Inc.’s alleged license agreement with the university because the terms of the agreement are ambiguous. The court then dismisses plaintiff’s remaining copyright infringement claims for failure to allege facts sufficient to support those claims.
Complete text (44 pages) of decision by California Supreme Court, reversing the decision of the Court of Appeals and holding the trial court correctly excluded the proferred testimony of plaintiff’s expert witness concerning lost profits arising from defendant’s alleged failure to properly conduct a clinical trial of plaintiff’s medical device. The court found the proferred testimony, which would have supported lost profits ranging from $220 million dollars to over $1.2 billion dollars to be speculative because based on comparisons with companies far larger than plaintiff and on an arbitrary comparison of degrees of innovation among companies in plaintiff’s industry.
Complete text (69 pages) of report issued by U.S. Consumer Financial Protection Bureau (CFPB) in accordance with Sec. 304 of the Credit CARD Act. The report lists information submitted to the CFPB concerning agreements between credit card issuers and institutions of higher education and affiliated organizations. Under the Act and it’s implementing regulations credit card issuers are required to annually submit to the CFPB the terms on conditions of any college credit card agreement in effect at any time during the preceding calendar year between the issuer and an institution of higher education or an affiliated organization, including any Memorandum of Understanding (MOU) between the issuer and such institutions or affiliated organizations. The report includes an Overview of College Credit Card Agreements, followed by a table setting forth detailed information on over 700 agreements. CFPB maintains a database with links to the full text of college credit card agreements.
Gainful Employment Rules: Adding New Programs
(November 26, 2012)
Complete text of Announcement issued by the Department of Education on November 21 and setting forth requirements for notifying the Department of Education when an institution adds new educational programs. The announcement reinstates and describes new program regulations in effect prior to July 1, 2011. Earlier this year, the U.S. Court of Appeals for the District of Columbia vacated the new program rules (part of the Program Integrity rules issued on October 29, 2010) that had taken effect on July 1, 2011.
Complete text of Announcement issued by the Department of Education on November 23. Earlier the Department had advised institutions that they were not required to update their Gainful Employment program disclosures until further notice. The Announcement states that institutions must now update their Gainful Employment program disclosures for the 2011-2012 award year not later than January 31, 2013 and provides additional information regarding the content, format and method of GE program disclosures. Institutions that have already updated their disclosures are advised to review those disclosures to ensure they are consistent with the guidance and timeframes set forth in the Announcement.
Complete text of decision by U.S. District Court (S.D. Texas) granting defendant university’s motion for summary judgment against former law students alleging substantive and procedural due process violations in their academic dismissals. The court finds that the student’s had notice of the school’s academic dismissal policy, availed themselves of their right to petition for grade changes and were provided an oral hearing on their appeal, and therefore received all the process that was due to them with respect to their grades and academic dismissals. The court further holds that based on the record before it plaintiffs cannot prevail on their claim that the grading of their examinations or the curve applied were so arbitrary as to violate any substantive due process right.
Complete text (39 pages) of decision by Connecticut Supreme Court in suit alleging construction defects in the University of Connecticut School of Law library. The court holds that the state is not barred by the statute of limitations in bringing suit, pursuant to the common law doctrine of nullum tempus occurrit regi which exempts the state from statutes of limitation and statutes of repose. The court further holds that the state Commissioner of Public Works lacked authority to provide vendors by contract with a statute of limitations running against the state.
Complete text of letter issued by the Nebraska Attorney General declaring that bid proposals submitted to a public university for the development of a university health center were public records under the Nebraska Public Records statute but that portions of such documents could be exempt from disclosure as commercial or proprietary information which would give advantage to business competitors.
Complete text (20 pages) of Congressional Research Service (CRS) report issued on November 9 entitled “Medical Marijuana: The Supremacy Clause, Federalism and the Interplay Between State and Federal Laws”.
Complete text of Advisory Statement issued by the American Association of University Professors (AAUP) and the Council on Higher Education Accreditation (CHEA). The statement offers suggestions about the role of accreditation with regard to academic freedom, including five possible steps accrediting organizations can take to sustain and enhance academic freedom.
Foreign Corrupt Practices Act: DOJ-SEC Resource Guide
(November 21, 2012)
Complete text (130 pages) of Resource Guide to the Foreign Corrupt Practices Act (FCPA) issued by the U.S. Department of Justice Criminal Division and the U.S. Securities and Exchange Commission Enforcement Division. The guide covers the anti-bribery provisions of the FCPA; other related U.S. statutes; DOJ enforcement principles; penalties, sanctions and remedies; DOJ resolutions; and whistleblower provisions.
Complete text of Notice issued by the National Institutes of Health (NIH) on November 16. The Notice informs NIH grantees that beginning in the Spring of 2013 (at the earliest) NIH will delay processing of non-competing continuation grant awards if publications arising from such awards are not in compliance with the NIH public access policy. Under the public access policy, all investigators funded by the NIH must submit to the National Library of Medicine’s PubMed Central database an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication so that they may be made publicly available no later than 12 months after the official date of publication.
Complete text (74 pages) of en banc decision by U.S. Sixth Circuit Court of Appeals, reversing the decision of the District Court and finding 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 (40 pages) of decision by Indiana Supreme Court affirming lower court's grant of summary judgment to private university that rescinded professor's tenure. The university followed its extensive internal procedures in reviewing department chair's formal complaint of harassment against a professor. The professor was provided notice, the opportunity to respond, and ability to review the evidence against him. With multiple opportunities to persuade the university to not rescind his tenure, the university's board of trustees ultimately made the final decision to deny the professor's appeal. The Indiana Supreme Court found due process was afforded to the professor.
Emotional Support Animals: Velzen and Fair Housing Center of West Michigan v. Grand Valley State University et al.
Complete text (18 pages) of decision by U.S. District Court (W.D. Michigan) granting in part and denying in part defendant university’s motion to dismiss plaintiffs’ complaint alleging violation by the university of the Fair Housing Act (FHA) and Sec. 504 of the Rehabilitation Act based on the university’s alleged refusal to allow plaintiff Velzen to keep an emotional support animal in her campus apartment. While dismissing most of plaintiffs’ claims, the court refuses to dismiss plaintiffs’ claim for injunctive relief under the FHA against named individual defendants; and plaintiff Velzen’s claim against all defendants for compensatory and injunctive relief under Sec. 504 of the Rehabilitation Act.
Complete text (41 pages) of report issued by the Jed Foundation entitled Balancing Safety and Support on Campus: A Guide for Campus Teams. The report summarizes the existing literature on campus teams and suggests key issues that should be considered when creating or managing campus teams. The report includes five sections: Team Mission and Purpose; Naming the Team; Team Composition, Size and Leadership; Team Functions; and Common Pitfalls and Obstacles.
Complete text (16 pages) of decision by U.S. District Court (D. Minnesota) dismissing court-appointed receiver’s claims against college to recover paid donations. The court cites plaintiff’s failure to establish a proper action to recover donations made to the college under the Minnesota Fraudulent Transfer Act (“MFTA”) and the Federal Debt Collection Procedures Act (“FDCPA”). The Court holds that the FDCPA is reserved for the United States use only, the United States is not in receivership in this case and thus the court-appointed receiver lacks standing, and that state law provided an adequate legal remedy.
Complete text (30 pages) of decision by U.S. District Court (M.D. Alabama) holding that a University employee failed to present direct evidence of discrimination on gender-based disparate pay and the University did not retaliate against the employee. Additionally, the District Court finds the University provided a legitimate, non-retaliatory reason for terminating the employee due to employee’s threatening remarks and behavior. The court grants summary judgment to the University and declined supplemental jurisdiction over state law claims.
Mutual Aid Agreements: State v. Littlejohn
(November 5, 2012)
Complete text (9 pages) of decision by an Ohio Court of Appeals holding that a University police officer’s actions were within the scope of a mutual aid agreement between university police department and municipality. The court holds the general statute regulating university police jurisdiction and a specific statute permitting mutual aid agreements are not irreconcilable and that the specific statute provides an exception that allows agreements to extend university police statutory boundaries.
Complete text of Q & A list issued by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC notes neither Title VII nor the ADA per se prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault or stalking. However, the EEOC then provides examples of employment decisions that may violate Title VII or the ADA and involve such applicants.
Complete text (6 pages) of Georgia Attorney General opinion stating that postsecondary student disciplinary records are protected from disclosure by the Family Educational Rights and Privacy Act (FERPA) and therefore are also exempt from disclosure under Georgia’s revised Open Records Act. The opinion further states that Georgia’s revised Open Meetings law permits the closure of student disciplinary hearings to the extent any portion of a hearing would reveal the personally identifiable information of a student as defined by FERPA.
Complete text (20 pages) of final rule issued by the Copyright Office, Library of Congress and published in the October 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 five classes of work that will be exempt from the prohibition, including four categories of motion picture excerpts where the circumvention is undertaken for the purposes of criticism or comment for educational purposes (with various contexts and limitations) by college and university faculty and college and university students. The precise exemptions (with commentary) are described on pp. 65266 – 65270 of the final rule. The rule is effective October 28, 2012. For the scope of the previous exemption see the final rule issued on July 26, 2010.
Complete text (48 pages) of decision by U.S. Ninth Circuit Court of Appeals holding that plaintiff/appellant independent student newspaper’s complaint adequately stated First Amendment, Equal Protection and Due Process violations arising from the removal without notice by campus personnel of the newpaper’s campus news bins based on a standard-less policy and on viewpoint discrimination. The court further holds that named university administrators could be liable for the constitutional violations based either on their personal application of the standard-less policy against plaintiffs, or because they stood in superior administrative positions to those applying the policy, and knew of and acquiesced in its application.
Complete text (7 pages) of Notice issued by the U.S. Copyright Office and published in the October 22, Federal Register. In the notice, the Copyright Office reviews the problem of orphan works, various proposed past legislative solutions, the rise of mass digitization of copyrighted works, including orphan works, the Google Books Search litigation, the decision in the HathiTrust litigation, and international developments regarding orphan works. The Copyright office seeks comment on two questions: 1) changes in the legal landscape and or legal thinking regarding use of works on an occasional or case-by-case basis; and 2) potential orphan works solutions in the context of mass digitization. Comments are due by January 4, 2013.
Complete text (2 pages) of letter from the Association of American Universities (AAU) and the Council on Governmental Relations (COGR) commenting on a proposed Federal Acquisition Regulation (FAR) on safeguarding of contractor information systems. The proposed rule would require contractors to provide protective measures to information provided by or generated for the Government (other than public information) that will be resident on or transiting through contractor information systems. In their comments, AAU and COGR express concern about the broad scope of information potentially subject to the requirements and the resulting increased costs and burdens on contractors, and urge that contracts for fundamental research be generally exempted from the safeguarding requirements.
Complete text (16 pages) of decision by U.S. District Court (C.D. California) holding that New Jersey courts would likely find that a post mortem right of publicity endures for no more than 50 years after death, and therefore, even assuming plaintiff university received such right of publicity under the will of Albert Einstein, no recovery was possible since defendant’s use of Einstein’s image occurred more than 50 years after his death.
Complete text of Policy Clarification issued on October 18 by the National Institutes of Health (NIH). Under the NIH Final Rule on Promoting Objectivity in Federally Funded Research, investigators who are planning to participate in Public Health Service (PHS) funded research must disclose their significant financial interests (SFIs) over the previous 12 month period no later than the date of the research funding application. With respect to sponsored and reimbursed travel, once an investigator discloses the existence of reimbursed or sponsored travel, the institution must determine if it needs to determine the monetary value of such travel The clarification states that institutions may impose a $5000 de minimis threshold to reimbursed or sponsored travel in their institutional disclosure policies developed pursuant to the final rule.
Complete text (42 pages) of dissent by seven judges of U.S. Ninth Circuit Court of Appeals from the court’s refusal to grant en banc review of the three-judge panel decision denying defendant university’s motion for summary judgment in Title IX case alleging resignation of plaintiff Ph.D. candidate’s dissertation advisor was retaliation for student’s filing of discrimination complaint. According to the dissent, despite completion of discovery, plaintiff has produced no evidence beyond statements in her own pleadings to support a causal connection between her filing of the discrimination claim and the resignation of her dissertation advisor and therefore summary judgment should have been granted. According to the dissent “[t]his opinion undermines the pleading framework for Title IX and VII and erodes the well-established standards for summary judgment. Worse still, it jeopardizes academic freedom by making it far too easy for student’s to bring retaliation claims against their professors.”
Complete text (72 pages) of report issued October 16 by the California State Auditor on the accuracy of Clery Act crime statistics for 2010 compiled by six California public institutions. The audit also addresses the issuance and notice of annual security reports and disclosure of campus security policies. The report notes that most of the inaccuracies in crime statistics found by the audit were the result of institutions reporting more crimes than the Clery Act required them to disclose.
Complete text (43 pages) of report issued by the Association of Governing Boards of Universities and Colleges (AGB). The report summarizes a study conducted by AGB on the engagement of governing boards in the oversight of intercollegiate athletics, and follows the issuance by AGB in 2009 of its updated Statement of Board Responsibilities for Intercollegiate Athletics.
Complete text (27 pages) of decision by U.S. District Court (E.D. Virginia) holding that a regulation of Virginia Alcoholic Beverage Control Board restricting the advertisement of alcoholic beverages was not unconstitutional as applied to the plaintiffs nor did the regulation unconstitutionally discriminate against college student publications. The Fourth Circuit had earlier ruled that the regulation was not unconstitutional on its face.
Complete text (33 pages) of final rule issued by the Centers for Disease Control (CDC), U.S. Department of Health and Human Services and published in the October 5 Federal Register. The final rule tiers the select agent list and includes 11 agents I Tier 1. Tier 1 agents require additional security measures. The rule requires the institutions to document security plans and information security measures, and expands the inventory audit requirements for all agents. Certain sections of the final rule are effective on December 4, 2012; the remaining sections are effective on April 3, 2013. A parallel final rule was issued by the U.S. Department of Agriculture.
Link to Student Press Law Center (SPLC) web site entitled entitled “Break FERPA” encouraging students to file requests to see all of their education records protected by FERPA including all records the institution would claim were protected by FERPA in response to public records act requests. The site includes a link to a FERPA records request generator.
Complete text (21 pages) of decision by U.S. District Court (S.D.N.Y) holding that Hathitrust and its co-defendant universities did not commit copyright infringement by storing scanned book images and text files; permitting word searches of the text files; and configuring the scanned images to facilitate use by vision-impaired individuals. Among other items, the court holds that the rights granted to libraries by Sec. 108 of the Copyright Act does not preclude libraries from also asserting fair use rights under Sec. 107 and that universities are “authorized entities” with a primary mission to serve the needs of visually impaired persons under Sec. 121 of the Act, which permits such “authorized entities” to make works available to visually impaired persons.
Complete text (97 pages) or oral argument held before the U.S. Supreme Court on Wednesday, October 10.
Complete text (19 pages) of decision by U.S. District Court (S.D. Florida) holding a provision of Florida law that required dependent students seeking to qualify for in-state tuition rates at Florida public universities be able to prove their parents had established legal residency in the state was a violation of the Equal Protection Clause of the U.S. Constitution.
Complete text (2 pages) of September 28 memorandum providing guidance on allowable contractor costs associated with the Worker Adjustment and Retraining Notification (WARN) Act. The WARN Act requires employers with at least 100 employees to provide a 60-day advance written notice to “affected employees” in the event of a “mass layoff” (terms defined in the Act). Because of the possibility of January 2 automatic implementation of a ten percent cut in base federal defense discretionary spending, and an eight percent cut in base non-defense discretionary spending as a result of the sequestration requirements of the Budget Control Act (BCA) of 2011, and the resulting potential for layoffs of employees of federal contractors, the Department of Labor in July issued guidance stating that federal contractors whose contracts may be terminated or reduced as a result of a sequestration order are not required to issue WARN Act notices to workers employed by government contracts funded by federal budget accounts subject to sequestration. The OMB guidance follows up on the Department of Labor guidance by stating that if sequestration occurs and a federal agency terminates or modifies a federal contract that necessitates that the contractor order a “mass layoff” of a type subject to WARN Act requirements; and the contractor has followed a course of conduct consistent with the DOL guidance (including not issuing WARN Act notices), then any resulting employee compensation costs for WARN Act liability as determined by a court, as well as attorneys’ fees and other litigation costs would qualify as allowable costs and be covered by the contracting agency.
Complete text (13 pages) of resolutions agreement between the U.S. Department of Education Office for Civil Rights (OCR) and Merrimack College. The resolution agreement follows an OCR Title IX compliance review of the college’s athletic program. Under the resolution agreement, the college will create six new female sports teams and increase financial assistance available to female athletes. The resolution agreement was accompanied by a letter of findings and an OCR press release.
Complete text (4 pages) of final regulations issued by the U.S. Department of Education and published in the October 2 Federal Register. In the final regulations, effective on October 2, the Department announces increases to the Department’s civil monetary penalties pursuant to the Federal Civil Monetary Penalties Inflation Adjustment Act. The Department announces an increase in seven civil monetary penalties, including an increase in the maximum fine for violations of the Higher Education Act or its implementing regulations from $27,500 to $35,000. The increases apply only to violations that occur after the effective date of the adjustments.
Complete text (51 pages) of report by the Lincoln Institute for Land Policy on payments made in lieu of taxation by universities and other tax-exempt organizations to local governments. An executive summary is here including a link to a table of which tax-exempt organization make payments in lieu of taxation and what local governments receive them.
Complete text (16 pages) of Statement issued by the Association of Governing Boards of Universities and Colleges (AGB). The Statement was first issued by AGB in 2001 and has been updated. The Statement sets for four principles to guide governing boards regarding potential external influences on their decision-making.
Link to Department of Education document providing a detailed summary of all institutional disclosure requirements (Non-Loan Related and Loan Related) posted to the Department’s Federal Student Aid Consumer Information web page.
Complete text (19 pages) of Pennsylvania Appeals Court holding that under the Pennsylvania Juvenile Act, the term “school” includes colleges and universities. Therefore the Juvenile Court did not exceed its authority in ordering the Juvenile Probation Department to provide notice to Temple University of appellant’s adjudication as a juvenile delinquent; nor was the order an abuse of the Juvenile Court’s discretion.
Complete text (12 pages) of decision by Virginia Supreme Court reversing the trial court and re-instating default judgment in favor of Virginia Tech University. The court finds that the Virginia statute permitting service of process on another party by serving through the Secretary of the Commonwealth requires the serving party to provide only a single last known address of the defendant, and not additional addresses known to the serving party. The court further holds that the address provided by Virginia Tech as the serving party satisfied the due process principles of substituted service because the defendant had received correspondence from Virginia Tech at that address, including certified mail, with the certification received or signed by officers of the defendant.
Complete text (48 pages) of decision by U.S. Second Circuit Court of Appeals holding inter alia that the proper measure of damages as a matter of law in a False Claim Act (FCA) case in which the benefit of the government grant went to third parties (in this case, training of research fellows) and the government itself received nothing of tangible value, was the full amount the government actually paid to the defendant. The court rejects use of the “benefit of the bargain” standard of damages, where the damages are the amount of the grant less the value of the goods or services received by the government, because in cases where the benefit flows to third parties and is unquantifiable, the government receives nothing of measurable value. Therefore the proper measure of damages in such a case is the full amount of the government grant, then tripled in accordance with the FCA.
Complete text (11 pages) of decision by Cook County Circuit Court (Chicago, IL) in suit by law school graduates alleging that graduate employment and salary information provided by defendant university to them prior to their enrollment was misleading and constituted common law fraud, negligent misrepresentation and violated the Illinois Consumer Fraud and Deceptive Business Practices Act. The court dismisses all of plaintiffs’ claims.
Complete text (55 pages) of decision by Colorado Supreme Court affirming the decision of the court of appeals and of the district court and holding that investigation and proceedings leading to the revocation of petitioner Churchill’s tenure were quasi-judicial in nature, and therefore respondent’s Board of Regents proceeding terminating petitioner’s tenure was also quasi-judicial, providing the Regents with absolute immunity against petitioner’s claim that the proceedings violated his First Amendment rights. The court also affirms the trial court’s denial of petitioner’s claims for reinstatement and front pay.
Complete text (26 pages) of final rule by the U.S. Patent and Trademark Office, published in the September 11, 2012 Federal Register, implementing the provisions of the Leahy-Smith America Invents Act that created a new derivation proceeding to be conducted before the Patent Trial and Appeal Board. Derivation proceedings were created to ensure that the first person to file a patent application is the true inventor. These provisions take effect on March 16, 2013, and apply to any patent applications or patents that are subject to the first-inventor-to-file provisions of the America Invents Act.
Complete text (9 pages) of decision by U.S. Second Circuit Court of Appeals reversing the decision of the District Court and finding that notice sent by collection agency to student loan debtor stating that their account was not eligible for bankruptcy discharge was a false representation under the Fair Debt Collection Practices Act.
Complete text (12 pages) of August 30 decision by U.S. Secretary of Education Arne Duncan reversing the decision of the Administrative Law Judge and finding that Virginia Tech University failed to issue a timely warning to its campus community on the morning of April 16, 2007, when a gunman shot and killed 32 individuals on campus. The Secretary also finds that the university at the time had inconsistent policies regarding the issuance of timely warnings and failed to disclose them. The Secretary reinstates the fine of $27,500 originally requested by the Department for the alleged failure to issue a timely warning, but remands for further consideration what the fine should be for maintaining inconsistent policies.
Complete text (9 pages) of decision by U.S. Tenth Circuit Court of Appeals affirming the decision of the District Court and holding that defendants did not violate plaintiff tenured faculty member’s due process rights when they advised her that she had abandoned her position and discontinued communication with the university and they were therefore processing her resignation. The court notes that letters sent to plaintiff provided adequate notice of the university’s proposed action and opportunity to be heard, which defendant did not take advantage of. The court further holds that even if it deemed defendants’ conduct to be constitutionally deficient, they did not violate clearly established law, and therefore defendants were entitled to dismissal of plaintiff’s complaint on the basis of qualified immunity.
Complete text (18 pages) of opinion by the U.S. District Court for the District of Columbia, dismissing lawsuit filed by Wheaton College, an evangelical institution in Illinois, over the heath care reform mandate requiring employer insurance plans to cover contraception. The judge found that the case was premature because the government would not enforce the mandate until August 2013 pursuant to Department of Health and Human Services guidance creating a safe harbor for certain religious institutions. The government promised to revise the mandate to accommodate some religious institutions’ concerns before the mandate goes into effect. This suit follows a similar challenge to the mandate by Belmont Abbey, a Roman Catholic college – that challenge was also dismissed.
Complete text (56 pages) of the Iran Threat Reduction and Syria Human Rights Act of 2012, signed by President Obama on August 10, 2012. Section 501 of the Act denies visas to Iranian citizens seeking higher education in the United States to prepare for a career in Iran’s energy or nuclear sector, or related fields.
Complete text (10 pages) of decision by U.S. District Court (District of Columbia) holding that the attorney client privilege does not extend to political, strategic or policy issues, which the court construes to include bill drafts, comparisons of different versions of bills, bill summaries or notes on technical, policy or non-legal issues and amendments prepared by counsel to a state legislature committee.
Complete text (106 pages) of decision by U.S. Federal Circuit Court of Appeals. On remand for reconsideration from the U.S. Supreme Court following its ruling last term in Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Federal Circuit stands by its earlier ruling. In Mayo Collaborative Services the Supreme Court held inter alia 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. On remand in Myriad, the Federal Circuit asserts that the claims before it relate to isolated DNA molecules, and that Mayo does not control the patent-eligibility of these claims. According to the court, the isolated DNA molecules at issue are not found in nature but are obtained in the laboratory and are man-made, the product of human ingenuity. While they are prepared from products of nature, the court observes that all new chemical or biological molecules are made from natural materials and that alone cannot therefore be dispositive of their patent eligibility. The court also holds that Myriad’s method claim for screening potential treatments through changes in cell growth rates is also patent eligible, because unlike the claims in Mayo the claim does more than apply a law of nature. However, the court rules that Myriad’s method claims for comparing DNA sequences are patent ineligible because they involve only mental analysis, which is not subject to patent.
Complete text (10 pages) of decision by North Carolina Superior Court following complaint under the North Carolina public records act seeking documents related to an NCAA investigation. The court holds that copies of bills sent by law firms retained by the university to represent it in the investigation are exempt from disclosure to the extent those statements contain legal advice, litigation strategy or other confidential data. The court also concludes that because the NCAA investigation is an “administrative or other type of proceeding” covered by the attorney-client privilege exemption under the North Carolina public records act, communications to and from the university by in-house and external counsel relating to the investigation are exempt from disclosure. The court also concludes that communications prepared by university staff at the direction of in-house or external counsel for submission to counsel in connection with the investigation and the university’s response to it are exempt from disclosure as trial preparation material. In addition the court concludes that recordings of interviews prepared in connection with the investigation and in the possession of counsel are exempt from disclosure under the attorney-client privilege and trial preparation material exemptions. The court goes on to hold that the university must disclose Statements of Fact resulting in an NCAA declaration of an athlete as ineligible and Reinstatement Requests pertaining to such athletes to the extent such Statements of Fact and Reinstatement Requests are based on receipt of impermissible benefits and are not based on purely academic issue violations (which the court holds are protected from disclosure by FERPA). Finally, with respect to the university’s written response to the NCAA allegations, the court directs it be released in unredacted form except for redactions related to student-athlete academic issues or material covered by other public records act exemptions. In particular the court directs the portions of the response relating to student-athlete impermissible benefit violations be released in unredacted format.
Complete text (10 pages) of opinion by U.S. District Court (District of Columbia) denying motion by defendant National Labor Relations Board’s (NLRB) motion based on new evidence to alter or amend the court’s earlier judgment holding that the National Labor Relations Board’s (NLRB’s) recently effective rules on expedited representation case procedures are invalid because a quorem of the Board did not participate in the vote adopting the rules.
Complete text (51 pages) of respondent’s memorandum in opposition to petitioner’s petition for mandamus and injunctive relief. Petitioners in January 2011 filed a request under the Virginia Freedom of Information Act seeking, among other items, emails to, from, or referencing over 40 named individuals received or sent by a University of Virginia faculty member involved in global warming research. The university had earlier released items covered by the request it considered non-exempt from disclosure, while claiming exemption under the Act for the remaining items, including an exemption for “[d]ata, records, or information of a proprietary nature produced or collected by or for faculty of public institutions of higher education…in the conduct or as a result of study or research on medical, scientific, technical or scholarly issues...”. The American Association of University Professors (AAUP) and The Union of Concerned Scientists submitted an amicus brief supporting the university’s position.
Link to United States Citizen and Immigration Services (USCIS) website with information on implementation of the deferred action program for undocumented individuals arriving in the United States before their sixteenth birthday. On August 14 USCIS posted the forms necessary for application for deferred action under the program. To request consideration, eligible individuals must submit Form I-821D, Consideration of Deferred Action for Childhood Arrivals to USCIS. It must be accompanied by a Form I-765, Application for Employment Authorization and a Form I-765WS, Worksheet, establishing the applicant’s economic need for employment. Detailed instructions are contained in the FAQs on the website. On August 15 the governor of Arizona issued an Executive Order declaring that the issuance of Deferred Action or Deferred Action Employment Authorization documents to individuals unlawfully present in the U.S. does not entitle them to any public benefit, including employment or issuance of a driver’s license, beyond those available to any person regardless of lawful status, and directing all Arizona state agencies to commence emergency rulemaking to prevent deferred action recipients from obtaining eligibility for such benefits.
Complete text (54 pages) of final rule issued by the United States Patent and Trademark Office (USPTO) and published in the August 14 Federal Register. The rule revises the rules of practice to implement the provisions of the Leahy-Smith America Invents Act (AIA) creating a new inter partes review proceeding, post-grant review proceeding, and transitional post-grant review proceeding for covered business method patents, to be conducted the Patent Trial and Appeal Board. The USPTO also published in the August 14 Federal Register Rules of Practice for Trials Before the Patent Trial and Appeal Board and Judicial Review of Patent Trial and Appeal Board Decisions, a final rule (52 pages) revising the rules of practice to implement the Inventor’s Oath or Declaration provisions of the AIA, and a final rule (21 pages) revising the rules of practice to set forth the definitions of the terms “covered business method patent” and “technological invention” that the USPTO will use in conducting transitional business method patent review proceedings. All will take effect on September 16.
Complete text (41 pages) of report issued by U.S. Government Accountability Office (GAO). According to the executive summary of the report, microsimulation studies reviewed by GAO predicted little change near-term in the number of individuals covered by employer-sponsored health plans as a result of the Patient Protection and Affordable Care Act (PPACA). Among employer surveys reviewed by GAO, estimates of the number of employers dropping employer-sponsored health coverage were generally 10 percent or less, although estimates ranged from 2 – 20 percent.
Complete text (2 pages) of Act passed by Congress and signed by the President on August 7. The Act requires the Office of Management and Budget (OMB) to provide a detailed report on the impact on federal government programs, projects and activities that would result from the sequestration of discretionary spending required by the Budget Control Act of 2011. OMB has 30 days to issue its report. OMB had earlier sent a memorandum to the heads of executive departments and agencies describing issues raised by sequestration.
Complete text (15 pages) of Order filed by the District Court rejecting plaintiffs’ proposed injunction submitted following the May 11 opinion of the District Court (350 pages) finding against the plaintiffs with respect to almost all of their claims of copyright infringement involving documents maintained in electronic reserves by Georgia State University. Instead the Court directs defendants to maintain copyright policies not inconsistent with the Court’s May 11 opinion and disseminate to faculty and relevant staff the essential points of the Court’s rulings. The Court further determines that defendants are the prevailing party in the litigation and grants defendants motion for an award of costs and attorney fees. Finally, in its grant of declaratory relief, the Court clarifies certain aspects of its rulings concerning fair use contained in its earlier opinion.
Complete text (11 pages) of decision by U.S. Sixth Circuit Court of Appeals affirming the decision of the District Court and upholding dismissal of tenured faculty member. The appellant faculty member had a one-year employment contract, and the court observes that tenure does not mean anything other than what the employment contract provides. The court rejects appellants arguments seeking to interpret the contract as providing permanent or continuous employment with termination only for adequate cause. According to the court, nothing in the employment contract, or the documents incorporated by reference, provides for a term of employment greater than one year. While the contract did provide for a procedure to be followed for dismissal of a faculty member prior to the expiration of the term of appointment, the court affirms the judgment of the District Court that the institution’s breach of the contract by not following the required procedure was adequately remedied when the institution later initiated and completed the dismissal procedure.
Complete text (92 pages) of decision by U.S. District Court (E.D. Pennsylvania) holding that an accumulation of mistakes in the handling of plaintiff’s student disciplinary case, which resulted in his expulsion, and the failure at points to comply with the institution’s student discipline code, constituted a violation of procedural due process. According to the court, the most serious flaws occurred in the handling of plaintiff’s appeal of the outcome of his student discipline hearing, and also with respect to the conduct of the hearing itself, including the absence of key witnesses, the hostile tone of the hearing, and the imbalanced questioning of plaintiff and the primary witness against him, a city police officer.
Complete text (36 pages) of decision by Minnesota Supreme Court reversing the decision of the Court of Appeals and holding that prospective assistant basketball coach could not maintain claim of negligent misrepresentation against university or university basketball coach. Plaintiff/respondent claimed that defendant/appellant Smith misrepresented his authority to hire plaintiff as an assistant basketball coach. The court holds that a claim of negligent misrepresentation requires first that a duty of care be owed to the plaintiff, and that no such duty existed in this case because there was no professional, fiduciary or special legal relationship between the parties and both parties had sophisticated knowledge and experience of the hiring practices in intercollegiate athletics.
Complete text (8 pages) of Frequently Asked Questions (FAQ) on privacy and cloud computing issued by the U.S. Department of Education Privacy Technical Assistance Center (PTAC). The FAQ addresses compliance with the Family Educational Rights and Privacy Act (FERPA) and provides a short list of additional best practice resources to consider when migrating data to the cloud. PTAC also recently released the following resources: data sharing agreement checklist; identity authentication best practices.
Complete text (12 pages) of resolution and underlying report approved by the House of Delegates of the American Bar Association (ABA). The resolution concurs in the action of the ABA Council of the Section of Legal Education and Admissions to the Bar amending accreditation standard 509 on consumer information with respect to disclosure by law schools of attrition rates and graduation rates, conditional scholarships and employment of graduates. Rule 16 of the accrediting standards is also amended to make violation of Standard 509 subject to sanctions by the Council.
Complete text (64 pages) of brief for respondents University of Texas at Austin et al. The question before the court is “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 American Council on Education filed an Amicus Curiae brief in support of respondents by 40 higher education organizations. Documents relating to the case can be found here.
Complete text of Notice of Intent to Appeal the Consent Decree imposed by the NCAA on Pennsylvania State University filed by counsel for a member of the Penn State Board of trustees and other unnamed trustees. The letter claims the university president lacked authority to agree to the consent decree, that the NCAA violated the due process rights of the trustees and the university by failing to follow its rules and procedures governing rules infractions, that the consent decree is fundamentally unfair because of its reliance on the Report of the Special Investigative Counsel, and that the sanctions imposed upon the university are excessive. Last week counsel for the estate of former Penn State football coach Joseph V. Paterno also filed a notice of intent to appeal the consent decree which was rejected by the NCAA.
Complete text of August 3 press release by the Department of Homeland Security (DHS) providing additional information on the Department’s planned implementation of deferred removal proceedings for certain undocumented individuals brought into the country as young children. The Department plans to make all forms, instructions and additional information regarding the deferred action program available on August 15, and will then begin accepting requests for consideration of deferred action. Additional DHS information regarding the deferred action program is available here.
Complete text (6 pages) of administrative panel decision by the World Intellectual Property Organization (WIPO) issued July 23, 2012, ordering that domain names babson.me, brandeis.me, tufts.me, and uvm.me be transferred to the respective colleges from an individual who had purportedly registered and used them in bad faith. The arbitrator held that the four unrelated colleges and universities were permitted to consolidate their complaints in a single action under the Uniform Domain Name Dispute Resolution Policy because they demonstrated that they had a “common grievance” against the respondent and because requiring each institution to file and pay for an individual claim, which would necessitate four panels and four opinions, would be procedurally inefficient and economically wasteful.
Complete text (26 pages) of Application and Proposed Amicus Curiae Brief of the United States submitted to the Supreme Court of California in matter concerning the application of an undocumented law school graduate for admission to the California State Bar. In its brief, the Department of Justice argues that 8 U.S.C. §1621 prohibits the issuance of a law license to an alien unlawfully present in the United States. All briefs submitted in the matter are collected here.
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. Last month a brochure was mailed to the presidents of 3,600 nonprofit degree granting colleges and universities informing them of the Project.
Complete text (5 pages) of Advisory issued by the Employment and Training Administration, U.S. Department of Labor advising federal contractors on the applicability of the Worker Adjustment and Retraining Notification (WARN) Act (29 U.S.C. §§2101-2109) to layoffs that may occur as a result of budget sequestration required by the Budget Control Act (BCA) of 2011. The Congressional Budget Office has estimated that sequestration, if implemented by a sequestration order issued by the President on January 2, 2013 as required by the BCA, would result in a ten percent cut in base defense discretionary spending, and an eight percent cut in base non-defense discretionary spending. The WARN Act requires employers with at least 100 employees to provide a 60-day advance written notice to “affected employees” in the event of a “mass layoff” (terms defined in the Act). The Advisory states that federal contractors whose contracts may be terminated or reduced as a result of a sequestration order are not required to issue WARN Act notices to workers employed by government contracts funded by federal budget accounts subject to sequestration. In a related development, on July 31 the Acting Director of the Office of Management and Budget (OMB) sent a memorandum to the heads of executive departments and agencies describing issues raised by sequestration, and elaborated further on the impact of sequestration during testimony before the House Armed Services Committee on August 1.
Complete text (9 pages) of resolution agreement entered into between the Department of Education Office for Civil Rights (OCR) to resolve complaint alleging violation of Title IX. The agreement requires development of OCR-approved Title IX grievance procedures; training for Title IX coordinators and university staff; expansion of the university’s Title IX Task Force; development of a pamphlet on sexual harassment; conduct of a campus climate check; development of a monitoring program to assess the effectiveness of the university’s anti-harassment efforts; review of campus police records for the past two academic years for complaints of sexual assault or violence that were not called to the attention of the Title IX coordinator; and documentation to OCR of compliance with the terms of the resolution agreement.
Complete text (9 pages) of June 1 decision of the Secretary of Education in appeal by the office of Federal Student Aid (FSA) from decision of a Department administrative law judge reducing a fines for Clery Act reporting violations levied by FSA on an institution. In the course of upholding $27,500 fines for failure to report each of four unreported violent offenses, the decision discusses the appropriate method for calculating fines for Clery Act reporting violations, and remands to FSA for recalculation of 70 additional reporting violations.
Complete text (26 pages) of decision by Ohio Court of Appeals affirming the judgment of the trial court and finding that defendant institution violated plaintiff faculty member’s breached plaintiff faculty member’s employment contract, violated his tenure rights and acted arbitrarily when it suspended him without pay for seven months as a result of plaintiff’s statements to a class that he should shoot the whole class. Plaintiff had later told campus officials inquiring into the incident that he was joking.
Complete text (18 pages) of decision by U.S. District Court (Colorado) granting preliminary injunction to plaintiff private business owners and enjoining from application against plaintiffs the Affordable Care Act (ACA) and associated regulatory mandate that plaintiffs provide contraceptive coverage to their employees as part of the preventive care coverage requirement in the (ACA). Plaintiffs claim they seek to run their private business according to their religious principles, and sought injunctive relief under the First Amendment and the Religious Freedom Restoration Act (RFRA). The court grants the preliminary injunction on the RFRA claim, holding that the government has not shown a likelihood of success on the merits. The court asserts that the government has excluded from the requirement over 190 million health plan participants and beneficiaries, either under the terms of the ACA itself, for grandfathered plans, for religious employers as defined in the Department’s regulations, or the safe harbor exemption for plans sponsored by certain non-profit institutions with religious objections to contraceptive coverage. According to the court the scope of this exemption undermines any claimed compelling interest by the government in applying the preventive coverage mandate to plaintiffs.
Complete text (15 pages) of decision by Kentucky Court of Appeals affirming the judgment of the trial court and granting summary judgment to defendant institution and dismissing breach of contract and racial discrimination claims filed by seminary faculty member following the elimination of his position due to a re-structuring of the seminary’s curriculum. Citing extensively to the U.S. Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the court finds that although plaintiff is neither an ordained minister or a member of seminary’s denomination, he was entrusted to further the spiritual education of future church leaders, lead religious services, teach biblically based classes and was evaluated on religious criteria. The seminary is therefore entitled to assert the “ministerial exception” doctrine and the “ecclesiastical abstention” doctrine as defenses to plaintiff’s claims.
Link to contents of Senate committee report, released on July 29, on for-profit educational institutions. The full report is available here, and the 10 page executive summary of the report is available here. The Executive Summary concludes with recommended legislative or regulatory steps that if enacted might also affect the compliance obligations of public and non-profit institutions.
Complete text (39 pages) of decision by Michigan Supreme Court holding that an ordinance of Michigan State University declaring that “No person shall disrupt the normal activity...of any person, firm or agency while that person, firm or agency is carrying out service, activity or agreement for or with the University” and making such conduct subject to prosecution as a misdemeanor is facially invalid under the First Amendment of the U.S. Constitution. In support of its decision, the Court cites the U.S. Supreme Court decision in City of Houston v. Hill [482 U.S. 451 (1987)] which held facially invalid under the First Amendment laws “that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them.” The Court points out that the challenged ordinance covers police officers employed by the university, and that non-police officers “carrying out a service, activity or agreement for or with the university” could also cause the arrest of individuals for annoying or offending words or conduct by notifying a police officer.
Complete text (23 pages) of decision by Rhode Island Supreme Court in declaratory judgment action affirming the judgment of the trial court and finding that the exchange of various letters, assurances and discussions between plaintiff non-tenured faculty member and several high-ranking institutional officials constituted an implied-in-fact contract of employment. The Court goes on to find that the standard of renewal set forth in the various documents is ambiguous, and because ambiguities are construed against the drafter, that the standard for renewal of plaintiff’s employment contract is “substantially equivalent to adequate cause for dismissal of a tenured faculty member from the University”. The Court rejects defendant institution’s arguments that the case is non-justiciable because plaintiff is still employed as a faculty member at the university, or that the involved institutional officials lacked authority to grant tenure-like status.
Complete text (18 pages) of the Notice of Proposed Rulemaking issued by the USPTO and published in the July 26, 2012 Federal Register. The UPSTO proposes to amend the rules of patent practice to implement the provisions of the Leahy-Smith America Invents Act (AIA) converting the U.S. patent system from a “first to invent” system to a “first to file” system. These rules also implement provisions of the AIA pertaining to the definition and treatment of “prior art”; the treatment of commonly owned or joint research agreement patents; and statutory invention registrations. Written comments must be received on or before October 5, 2012.
Complete text (15 pages) of the USPTO’s request for comments published in the July 26, 2012 Federal Register. The USPTO is publishing proposed examination guidelines concerning the “first inventor to file” provisions of the Leahy-Smith America Invents Act (AIA), which converted the U.S. patent system from a “first to invent” system to a “first to file” system. These Guidelines will assist the Office in, and inform the public of how the Office is, implementing the “first inventor to file” provisions of the AIA. Written comments must be received on or before October 5, 2012.
Complete text (5 pages) of “Dear Colleague” letter issued by the Department of Education and providing further guidance on the State Authorization rule included in the Department’s October 2010 Program Integrity regulations.
Complete text of July 25 “Dear Colleague” letter from Assistant Secretary of Education recommending that institutions adopt the Financial Aid Shopping Sheet developed by the Department and the Consumer Financial Protection Bureau (CFPB) as the format for delivering financial aid offer information to students beginning with the 2013-2014 award year. The letter requests that institutions that adopt the format confirm their intention via email to the Department. The letter also states that use of the format will meet the requirements of Executive Order 13607 requiring institutions receiving federal funds under military and veterans educational benefits programs to provide prospective veteran and service member students with a personalized and standardized form describing the costs of the educational program and the amount of that cost that may be covered by Federal education benefits and financial aid. The Department earlier this month issued a separate “Dear Colleague” letter on compliance with the Principles of Excellence set forth in Executive Order 13607.
Complete text (22 pages) of decision by U.S. District Court (W.D. Michigan) dismissing complaint by law school graduates alleging violation of the Michigan Consumer Protection Act, and fraudulent and negligent misrepresentation arising from plaintiff’s alleged reliance in deciding to enroll at defendant law school on graduate employment and salary data provided by defendant. The court holds that the Michigan Consumer Protection Act does not apply to the purchase of a legal education. The court further holds that the employment and salary data provided by defendant and other law schools in ABA-required format are so vague and incomplete as to be meaningless and could not reasonably be relied on by plaintiffs.
Complete text (18 pages) of Florida state appellate court decision holding that an instructor’s request – per Florida’s public records act – to see an unredacted copy of a student’s email to the college complaining about the instructor’s performance is not barred by FERPA. The college had refused to provide an unredacted copy of the email on the ground that the student’s identity was protected by FERPA. A lower court agreed, dismissing the instructor’s claim. The appellate court reversed, holding that the email revealing the student’s name is not an education record because it is not directly related to a student, but rather it is directly related to an instructor and only tangentially related to a student.
Complete text (19 pages) of decision by U.S. Bankruptcy Court (W.D. Kentucky) finding that defendant accrediting agency had made factually erroneous statements to representatives of the U.S. Department Education concerning its accreditation of certain programs offered by plaintiff college ; specifically statements asserting that defendant had not approved delivery of the programs through distance education.
Complete text of unpublished decision by Minnesota Court of Appeals, holding that plaintiff student failed to show that the university's decision to expel him after an alleged sexual assault was arbitrary or capricious. The student alleged that the university violated a number of its own procedures during his conduct hearing, but the court found no evidence that the university's actions had any effect on the decision on the merits of this case, nor in any way rendered that decision arbitrary or capricious.
Complete text (26 pages) of final rule issued by the U.S. Patent and Trademark Office and published in the July 17, 2012 Federal Register. The rule revises the rules of patent practice to implement section 8 of the America Invents Act, which provides a mechanism for third parties to submit to the USPTO, for consideration and inclusion in the record of a patent application, any patents, published patent applications, or other printed publications of potential relevance to the examination of the application. The changes in this final rule take effect on September 16, 2012.
Link to Practice Advisory issued on June 28 by the American Immigration Council entitled “Deferred Action for Certain Young People Who Came to the United States as Children”.
Complete text (8 pages) of Department of Education “Dear Colleague” letter dated July 13 and providing guidance to institutions on how to comply with Executive Order 13607, which directs the Departments of Defense, Veterans Affairs and Education to develop Principles of Excellence to apply to educational institutions receiving funding from Federal military and veterans’ educational benefits programs, including benefits programs provided by the Post-9/11 GI Bill and the Tuition Assistance Program. The Dear Colleague Letter describes how institutions can comply with the E.O. requirement of a) providing prospective students eligible for military, veterans and family member educational benefits a standardized cost form containing financial aid information; b) providing notice to such prospective students of the availability of federal financial aid prior to their arranging private student loans or alternative finance arrangements; c) compliance with the state authorization, incentive compensation, and misrepresentation requirements of the Department’s Program Integrity rules; d) compliance with any accrediting agency requirement for approval of new courses or program offerings; e) compliance concerning re-admission of service members, veterans and their family members and f) refunds of tuition; g) compliance with the requirement that such prospective students be provided an educational plan; and h) providing a designated point of contact for such students for academic and financial advising. The Department of Veterans Affairs has requested that institutions notify it of their intention to comply with the Principles of Excellence set forth in the E.O. 13607 by August 1. The American Council on Education (ACE) and the National Association of College and University Business Officers (NACUBO) wrote earlier to the Secretary of Education and other government officials seeking clarification of the Principles of Excellence.
Complete text of July 12 letter from seven U.S. senators to six higher education presidential associations calling attention to a recent report issued by the U.S. PIRG Education Fund entitled “The Campus Debit Card Trap”. In their letter, the senators indicate they hope to work with the higher education community to take steps to ensure card programs are fair, transparent and reasonable and ask that the associations urge their members to develop and share best practices to be implemented on campuses. The letter identifies four particular areas of concern: 1) Transparency, including disclosure of debit card agreements between institutions and financial institutions to the campus community; 2) negotiation of reasonable student fees in connection with such agreements; 3) elimination of bank fees that are deducted from disbursed federal financial aid; and 4) protection of student privacy. In June, some senators requested that 15 financial institutions provide a list of all colleges and universities with which they have contracts to provide debit or prepaid card services to students, along with copies of the contracts and a copy of the schedule of debit or prepaid card fees and the terms provided to students at each institution. The National Association of College and University Business Officers (NACUBO) has posted two documents in response to the U.S. PIRG Education Fund report: Financial Aid Refunds at Colleges and Universities and Campus Cards and Personal Banking.
Complete text (26 pages) of decision by Iowa Supreme Court finding that the Iowa Open Records Act incorporates the confidentiality obligations of FERPA and holding that a university may withhold pursuant to FERPA educational records in their entirety where the person requesting the public record would otherwise know the identity of the referenced student or students even with redactions.
Text of proposed legislation in Italy that would restrict the scope of international programs offered in Italy by U.S. institutions and who could participate in such programs. The Association of American College and University Programs in Italy (AACUPI) has prepared comments on the proposed legislation and also sent a letter about the proposed legislation to its member institutions.
Complete text (267 pages) of report of the Special Investigative Counsel retained by Penn State University to perform an independent investigation and provide recommendations concerning the alleged failure by University personnel to respond to and report the sexual abuse of children by a former university football coach and the circumstances under which such abuse could occur in University facilities. The Special Investigative Counsel delivered remarks to accompany the report.
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 2011, and an update request distributed in Spring 2012. All changes from the 2011 version have been highlighted in yellow to easily ascertain what information has changed. The next update to the Compendium will occur in Fall 2012.
Complete text (6 pages) of decision by National Labor Relations Board (NLRB) holding that an employer policy forbidding off-duty employees from accessing the employer’s facilities except to conduct employer-related business violates Sec. 8(a)(1) of the National Labor Relations Act where the policy defines “employer-related business” as “the pursuit of the employee’s normal duties or duties as specifically directed by management”. According to the Board, such a policy is not valid because it does not prohibit off-duty access for all purposes as required by Board precedent, but instead provides management with unfettered discretion to permit off-duty employees to enter the employer’s facilities “as specifically directed by management”.
Link to U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) HIPAA Privacy and Security Audit website setting forth OCR’s Audit Protocol for covered entity audits required by the HITECH Act audit requirement. The audit protocol covers various aspects of the Privacy, Security and Breach Notification Rules.
Link to U.S. Citizenship and Immigration Services web site with list of Frequently Asked Questions (FAQ) concerning implementation of the policy announced June 15 by the Department of Homeland Security on eligibility of certain undocumented individuals for deferred action from removal from the country.
Complete text (24 pages) of amicus brief filed with the National Labor Relations Board (NLRB) by the American Council on Education and four other higher education associations in case in which the NLRB has been instructed by the U.S. Court of Appeals for the District of Columbia to identify which of the relevant factors in NLRB v. Yeshiva University (444 U.S. 672) are more and less significant in a determination that private college or university faculty are not managerial employees. The NLRB had earlier issued a Notice and Invitation to File Briefs addressing eight specific questions posed in the Notice. The American Association of University Professors (AAUP) also filed an amicus brief.
Complete text of July 6 Department of Education announcement on the status of the gainful employment regulations following the decision of the U.S. Court of Appeals for the District of Columbia in Association of Private Colleges and Universities v. Duncan and the U.S. Department of Education. The announcement states that as a result of the court’s decision invalidating several aspects of the gainful employment regulations 1) institutions are not required to submit gainful employment reports for the 2011-2012 award year, but they may voluntarily submit corrections to previous reported gainful employment information; 2) institutions do not have to provide the Department with 90 day notice of intent to offer new gainful employment programs and approvals for new programs are required only as indicated in the regulations in effect prior to July 1, 2011; 3) institutions must disclose certain information about each of their gainful employment programs in accordance with the regulations that took effect July 1, 2011. Institutions must use the Department’s disclosure template and the Department is reviewing the template to ensure it complies with the court’s decision; therefore institutions are not required to update their disclosures until the Department provides further information.
Complete text (46 pages) of decision by U.S. First Circuit Court of Appeals rejecting a First Amendment claim of academic research privilege asserted by individual university researchers seeking to block enforcement of a subpoena filed pursuant to a treaty between the United States and the United Kingdom on mutual assistance in criminal matters. The subpoena seeks oral history recordings and associated documentation from interviews the researchers conducted with former members of the Irish Republican Army (IRA) who were promised by the researchers that the interview results would be confidential.
Complete text (17 pages) of decision by U.S. Court of Appeals (District of Columbia) holding that the position of the Copyright Royalty Judges [composing the Copyright Royalty Board] is in violation of the Appointments Clause of the U.S. Constitution because the Judges’ significant ratemaking authority without any effective means of control by a superior, such as unrestricted removability, renders them principal officers who must be appointed by the President with Senate confirmation. To remedy the violation of the Appointments Clause, the court invalidates and severs the portion of the statute establishing the Copyright Royalty Board that restricts the authority of the Librarian of Congress to sanction or remove Copyright Royalty Judges. However, because at the time it was issued the Board’s structure was unconstitutional, the court vacates and remands the final rule issued by the Copyright Royalty Board on March 9, 2011 establishing 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. (The final rule adopted 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.)
Link to National Labor Relations Board (NLRB) web page devoted to alerting employees to their rights under Section 7 of the National Labor Relations Act (NLRA) even if they are not in or organizing a union. The web page describes a number of activities by such employees that may result in enforcement action by the NLRB against employers who discipline employees who engage in such activities. Such activities may include complaints about working conditions, communicating with fellow workers about wages and benefits, and social media postings by employees.
Link to U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) HIPAA Privacy and Security Audit website setting forth OCR’s Audit Protocol for covered entity audits required by the HITECH Act audit requirement. The audit protocol covers various aspects of the Privacy, Security and Breach Notification Rules. The protocol addresses 165 performance criteria, 77 of which focus exclusively on compliance with the Security Rule, and 88 in combination that deal with Breach Notification and Privacy Rule requirements.
Complete text (32 pages) of decision by New Jersey Supreme Court holding that records related to cases at New Jersey public law school clinics are not subject to the New Jersey Open Public Records Act (OPRA). The court notes that OPRA seeks to promote the public interest by granting citizens access to documents that record the workings of the government in some way, but states that clinical legal programs do not perform any governmental functions. Therefore public access to documents relating to clinic cases would not further the purposes of OPRA
Complete text (65 pages) of decision by U.S. District Court (S.D. Georgia) granting defendant’s motion to dismiss and holding that defendants did not violate plaintiff’s First Amendment rights when they required that she enter into a remediation plan to address concerns about her ability to become an effective counseling practitioner. The remediation plan noted that plaintiff’s opinions on homosexuality and focused on her ability counsel gay and lesbian clients in accordance with the ethical standards of the American Counseling Association and the American School Counselor Association, which were incorporated into the academic counseling program.
Complete text (4 pages) of article in the Journal of Athletic Training setting forth recommended best practices to prevent sudden death in athlete collegiate conditioning sessions. According to the article, the recommendations have been endorsed by several professional medical and athletic associations.
Complete text (193 pages) of decision by U.S. Supreme Court holding that a) the individual mandate included in the Affordable Care Act (ACA) requiring non-exempt individuals to purchase health insurance or pay a penalty to the Internal Revenue Service was not a valid exercise of congressional power under either the Commerce Clause or the Necessary and Proper Clause. According to the Court, construing the Commerce Clause to regulate individuals because they are inactive (in this case, not purchasing health insurance) would open a vast new domain of congressional authority. The Commerce Clause gives Congress the power to regulate commercial activity, but not to compel it. Since the mandate is not a valid exercise of a an enumerated power, it also cannot be “proper” under the Necessary and Proper Clause; b) that the individual mandate is nonetheless constitutional as a valid exercise of congressional power under the Taxing Clause; and c) the provision of the ACA requiring the states to expand their Medicaid coverage to all adults with up to 133% of the federal poverty level or risk loss of all federal Medicaid funding is inconsistent with congressional power under the Spending Clause because the states could not have anticipated and voluntarily and knowingly accepted such an extensive expansion of the program when they originally agreed to participate in Medicaid. However, the Spending Clause violation can be remedied by precluding the government from withdrawing pre-existing Medicaid funding from states who refuse to agree to the expanded coverage.
Complete text (38 pages) of June 30 decision by U.S. District Court (District of Columbia) vacating the Gainful Employment-Debt Measures Rule issued by the Department of Education on June 13, 2011 and scheduled to take effect July 1, 2012. The court finds that the “debt repayment” measure, requiring that at least 35% of a gainful employment program’s former students repay their federal loans was arbitrary and not a result of reasoned decision-making, because the Department’s proffered rationale for the rule could justify any percentage. The therefore vacates that aspect of the debt measures rule. Further, because the debt repayment measure was so intertwined with the measures comparing student debt to their discretionary and total income, the court also vacates those measures as well, although it found them to supported by sound reasoning. As a result the entire Gainful Employment-Debt Measures Rule is vacated by the Court. The court further vacates the Gain Employment Program Approval Rule (75 Fed. Reg. 66,665 (October 29, 2010) because the program approval process is centered on the debt measures; and also vacates the reporting requirements of the Reporting and Disclosure Rule (75 Fed. Reg. 66,832, 66,835-66,844). The court leaves intact the disclosure requirements of the Disclosure rule. Coincidentally, earlier this week the Department of Education released its first report on gainful employment programs that failed in the first year to meet the debt measures standards.
Complete text of June 29 letter from the Department of Veterans Affairs (VA) extending until August 1 the deadline for institutions to notify VA of their intent to comply with the Principles of Excellence set forth in Executive Order 13607. The Department in an earlier letter had asked institutions provide notice of their intent by July 1. According to the letter, VA along with the Departments of Education and Defense will post on all agency websites answers to frequently asked questions (FAQs) concerning the Principles of Excellence and will provide additional clarity on which educational institutions can determine their intent to comply with the Executive Order. Executive Order 13607 directs the Departments of Defense, Veterans Affairs and Education to develop Principles of Excellence to apply to educational institutions receiving funding from Federal military and veterans’ educational benefits programs, including benefits programs provided by the Post-9/11 GI Bill and the Tuition Assistance Program. The order directs that the Principles embody eight specific elements, including: use of a personalized, standardized pre-enrollment form developed by the Department of Education to understand among other items the total cost of their educational program, the amount covered by federal educational benefits, and their estimated student loan debt upon graduation; informing eligible students of their potential eligibility for federal financial aid before arranging private student loans; ending fraudulent and aggressive recruiting techniques on and off military installations and requiring compliance with the misrepresentation, incentive compensation and state authorization rules issued by the Department of Education; re-admitting and otherwise accommodating service members temporarily absent from a program due to service requirements; and the provision of individual education plans for aid recipients showing how they will fulfill graduation requirements and estimated timeline for graduation. The Executive Order also calls for strengthened enforcement and compliance mechanisms including a centralized complaint system for students receiving federal military and veterans educational benefits.
Complete text (94 pages) of Notice of Proposed Rulemaking issued by the Internal Revenue Service (IRS) and scheduled for publication in the June 26 Federal Register. The proposed rules implement Sec. 501(r) of the Internal Revenue Code, enacted as part of the Patient Protection and Affordable Care Act, adding requirements for hospitals that are tax-exempt under Sec. 501(c)(3). Among other items, Sec. 501(r) requires tax-exempt hospitals to conduct a community health needs assessment every three years and adopt an implementation strategy to meet the needs identified by the survey; to establish written financial assistance policies (FAPs) and written policies on emergency medical care, and establishes required components of those policies; limits the amounts that can be charged for emergency or other medically necessary care to individuals eligible for assistance under hospital FAPs; and regulates extraordinary collection activity against individuals eligible for assistance. Comments on the proposed rules will be due by September 24.
Link to Internal Revenue Service (IRS) web site providing information with respect to the sale of property financed by tax-exempt bonds. The IRS notes that to raise needed funds, state and local governments and 501(c)(3) organizations may plan to sell property financed with tax-exempt bonds. The sale of such property could cause the bond issue to become taxable and that timely remedial action, if necessary, will help ensure that the interest on the bond issue remains tax-exempt. The IRS describes three basic remedial action options: redemption or defeasance of nonqualified bonds; alternative use of disposition proceeds; and alternative use of a facility.
Complete text (7 pages) of letter from 13 higher education associations to the Departments of Defense, Education, Veterans Affairs and the Consumer Financial Protection Bureau, regarding the "Principles of Excellence for Educational Institutions Serving Service Members, Veterans, Spouses and Other Family Members" set forth in Executive Order 13607. The letter provides comments on both the Executive Order and a recent request by the Department of Veterans Affairs, which asked institutions to notify the Department by June 30, 2012, of their intent to comply with the Principles by the end of academic year 2012-13. The letter affirms that higher education associations are committed to the fundamental tenets of the Principles, but also expresses concern that the practical meaning of the Principles remains unclear, and requests further written guidance from the government to help institutions as they consider compliance steps.
The NLRB has granted review in two cases (New York University, Case 2-RC-23481; and Polytechnic Institute of New York University, Case 29-RC-12054) that ask whether graduate student assistants seeking to be represented by a union are employees covered by the National Labor Relations Act. The Board also has invited briefs from interested parties in the cases. In its invitation, the Board listed four questions to be addressed, including whether the Board should modify or overrule the 2004 decision in Brown University, which held that graduate student assistants are generally not statutory employees. The Brown decision itself overruled the 2000 decision in New York University, which held that the assistants are employees. Briefs no longer than 50 pages must be filed by July 23, 2012.
Complete text (29 pages) of decision by Minnesota Supreme Court finding that the University did not violate the free speech rights of a student enrolled in a mortuary science program by disciplining her for certain Facebook posts. In so ruling, the Supreme Court affirmed the decision of the appellate court below, but declined to adopt that court’s application of the well known Tinker standard to the student’s off-campus speech. Instead, the Supreme Court focused on the unique concerns associated with professional disciplines like mortuary science, and held that “a university does not violate the free speech rights of a student enrolled in a professional program when the university imposes sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.” A number of higher education associations had filed an amicus curiae brief in this case.
Complete text (20 pages) of new guide entitled “Need Time? The Employee’s Guide to the Family Medical Leave Act” issued by the Wage and Hour Division of the U.S. Department of Labor. Additional information about the guide can be found here.
Complete text (48 pages) of decision by the U.S. Supreme Court, holding that under the First Amendment, when a public sector union imposes a special assessment or dues increase to cover expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent. Here, the public sector union SEIU announced its monthly dues as required by law, and provided 30 days to object. After 30 days, SEIU imposed an additional dues increase to support its political objectives in upcoming elections. Nonunion employees were not given any choice whether to pay into the fund that was being used for political purposes. The Court held that unions may not exact funds from nonmembers in this manner without their affirmative consent. Justice Sotomayor filed a concurring opinion, agreeing with the judgment but disagreeing with what she termed a “novel rule” deciding “for the very first time, that the First Amendment does require an opt-in system” when levying special assessments or dues increases.
Complete text (44 pages) of decision by U.S. Supreme Court holding that pharmaceutical sales representatives fall under the Fair Labor Standards Act’s (FLSA) exemption for workers employed in the capacity of outside salesmen, and therefore are not entitled to overtime pay under the FLSA. In so holding, the Court determined that the Department of Labor’s interpretation of the statute and its own regulations – namely, that an employee does not make a sale “unless he actually transfers title to the property at issue” – were not entitled to deference. Employing its own interpretation, the Court found that the type of work performed by pharmaceutical sales representatives fell within the ambit of the FLSA’s exemption for outside salesmen, and that the pharmaceutical sales representatives in question “are hardly the kind of employees that the FLSA was intended to protect.”
Complete text (14 pages) holding that Ohio State University properly denied a public records act request for certain documents because the records were exempt from disclosure due to their status as education records under FERPA or because covered by the attorney-client privilege. The court holds that the potential loss of Title IV funds by institutions with a policy or practice of releasing education records does constitute a prohibition by federal law for purposes of the Ohio public records act, and that if the court were to order disclosure of education records it would be compelling Ohio public educational institutions to adopt a policy or practice of releasing education records. The court also rejects ESPN’s contentions that the requested documents were not “education records” under FERPA and were not “maintained” by Ohio State. Finally, the court concludes that requests by Ohio state officials for legal advice and interpretation, communications from or between the attorneys providing legal advice or information to Ohio state, and investigatory fact-finding related to the legal advice are exempt from disclosure because they are covered by the attorney-client privilege.
Complete text (6 pages) of Voluntary Resolution Agreement dated June 11, 2012 between the U.S. Department of Education Office for Civil Rights (OCR) and Yale University. The agreement was included with a letter from OCR to the university summarizing its investigation. OCR also issued a press release announcing the resolution agreement.
Complete text (33 pages) of decision by U.S. Court of Appeals for the 11th Circuit upholding the rights of an artist to depict University of Alabama football players in uniform in his paintings, without receiving a license from the University. The Court rejected the University’s argument that there could be confusion over whether the paintings were official products of the University, and instead found that the artist’s First Amendment interests in artistic expression clearly outweighed whatever confusion might exist in this case. A group of 27 universities had filed an amicus brief in favor of the University of Alabama. The court partially affirmed and partially reversed the district court’s 2009 decision, and remanded the case for further consideration on the issue of “mundane products” such as mugs, cups, flags and towels.
Complete text (268 pages) of AAUP’s draft principles and standards to encourage universities and faculties to develop stronger, more comprehensive standards to guide sponsored research and to more effectively manage financial conflicts of interest. The report contains 56 recommended principles, 35 of which the AAUP says are closely drawn from previous statements by AAUP or other academic associations, and 21 of which are new recommendations. The principles address a wide variety of issues, including, among other things, core academic norms and standards, publication rights, academic autonomy, student education and training, financial conflicts of interest, intellectual property management, strategic corporate alliances, and industry-sponsored clinical trials. In one of the more notable recommendations, the report proposes guidelines giving individual faculty members much more ownership of the products of their research, a position that has drawn criticism from a number of higher education associations including the Association of American Universities and the Association of University Technology Managers.
Complete text (19 pages) of decision by the U.S. District Court for the Southern District of Ohio, granting plaintiff student group’s request to enjoin the University from enforcing its prior notice and permit scheme for student demonstrations, pickets and rallies. The court found that the University of Cincinnati’s prior notice and permit scheme, and its restriction of all demonstrations, picketing and rallies to a Free Speech Area which constitutes 0.1% of the grounds of the campus, is in violation of the First Amendment. In so finding, the court held that the University’s Free Speech Area and its main pedestrian corridor that runs through campus are designated public fora with respect to university students, and therefore subject to strict scrutiny. Moreover, it found that the University’s policy requiring prior notice and approval for any demonstration, picket, or rally was not narrowly tailored enough to pass constitutional muster. The University was ordered to revise its student speech policies in accordance with the decision.
Complete text (7 pages) of decision by New York Court of Appeals affirming the judgment of the trial court holding that plaintiff, a pitcher for a college baseball team injured by a line drive during practice, assumed the risk of such an injury. Plaintiff was an experienced and knowledgeable baseball player and had the opportunity to observe the playing conditions in the practice facility, which did not create a dangerous condition over and above the usual dangers inherent in the sport. Further plaintiff did not claim that the institution violated any established safety protocol.
SEC Proposed Rule on Registration of Municipal Advisors: AGB Alert
(June 11, 2012)
Complete text (3 pages) of June 5 Alert issued by the Association of Governing Boards of Universities and Colleges (AGB) concerning the Security and Exchange Commission’s proposed rule on the registration of municipal advisors, issued in January 2011. 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. In its Alert, AGB notes that the proposed requirement could have a chilling impact on the ability of boards to conduct their fiduciary duties and would discourage individuals from serving on college and university boards. The Alert includes a link to suggested language AGB submitted to the Commission in March 2012 providing for an exclusion of board members and senior administrators from the rule, and notes that the SEC is still interested in receiving comments on the proposed rule, although the formal comment period has expired. Comments on the proposed rule were in 2011 by both AGB and the American Council on Education (ACE).
Complete text (55 pages) of decision by U.S. Court of Appeals (DC) affirming and reversing in part the decision of the District Court in challenge to the Department’s 2010 State Authorization, Incentive Compensation and Misrepresentation rules. The court remands to the District Court and the Department of Education for further proceedings consistent with its opinion. The court rejects appellant APCU’s challenge to the incentive compensation rule, finding it to be validly promulgated by the Department under the Higher Education Act (HEA), except that it remands to the Department for further explanation its elimination of the safe harbor based upon students completing their academic program, or one year of their academic program; and to address concerns expressed by commentators on the proposed rule that it would have an adverse effect on minority enrollment. With respect to the misrepresentation rule, the court holds it exceeded the Department’s in three respects: by allowing the Department to take action enforcing the rule without procedural protections; by proscribing misrepresentations with respect to subjects that are not covered by the HEA; and by proscribing statements that are merely confusing. With respect to the State Authorization rule, the court upholds the rule, except that it affirms the holding of the District Court that the section of the rule applying it to distance education was not validly promulgated because of lack of notice and opportunity to comment.
Complete text (5 pages including text of E.O. 13607) of May 31 letter from Department of Veterans Affairs sent to institutional financial aid officers requesting that institutions affirm by June 30 their intent to comply by the end of academic year 2012-2013 with the Principles of Excellence for Educational Institutions Serving Service Members, Veterans, Spouses and Other Family Members set forth in Executive Order 13607. The letter includes an attachment (Form B) for institutions to use to indicate their agreement (or non-agreement) to comply. The letter further warns that institutions not responding by June 30 may not being shown as having agreed to comply with the Principles on the Department’s GI Bill website. Executive Order 13607 directs the Departments of Defense, Veterans Affairs and Education to develop Principles of Excellence to apply to educational institutions receiving funding from Federal military and veterans’ educational benefits programs, including benefits programs provided by the Post-9/11 GI Bill and the Tuition Assistance Program. The order directs that the Principles embody eight specific elements, including: use of a personalized, standardized pre-enrollment form developed by the Department of Education to understand among other items the total cost of their educational program, the amount covered by federal educational benefits, and their estimated student loan debt upon graduation; informing eligible students of their potential eligibility for federal financial aid before arranging private student loans; ending fraudulent and aggressive recruiting techniques on and off military installations and requiring compliance with the misrepresentation, incentive compensation and state authorization rules issued by the Department of Education; re-admitting and otherwise accommodating service members temporarily absent from a program due to service requirements; and the provision of individual education plans for aid recipients showing how they will fulfill graduation requirements and estimated timeline for graduation. The Executive Order also calls for strengthened enforcement and compliance mechanisms including a centralized complaint system for students receiving federal military and veterans educational benefits.
Complete text (37 pages) of plaintiffs’ proposed order and injunction (Exhibit A) and supporting memorandum of law following the opinion of the District Court (350 pages) finding against the plaintiffs with respect to almost all of their claims of copyright infringement involving documents maintained in electronic reserves by Georgia State University. Analysis of the proposed order and injunction is
Complete text (55 pages) of summary issued by the CollegeBoard listing resources for undocumented students in the 14 states that permit undocumented students to qualify for in-state tuition rates at public institutions. The summary lists resources in the area of admissions, financial aid and scholarships and supporting organizations.
Complete text (24 pages) of updated report from the Acting General Counsel of the National Labor Relations Board (NLRB). The report examines seven employer social media policies. Six of the policies are determined to be overbroad because of their potential to chill employee exercise of the NLRA Section 7 rights to engage in concerted activities, including sharing information on their terms and conditions of employment. The Acting General Counsel finds that one of the social media policies discussed in the memorandum is not overbroad and that policy is included as an appendix to the report. The updated report follows earlier reports issued by the Acting General Counsel on January 24 and August 18.
Complete text (4 pages) of amended guidance directive issued by the U.S. State Department on May 25. The amended guidance replaces the guidance directive issued by the Department on May 17. Specifically, the amended guidance clarifies that 1) when conducting university or college-based activities with Confucius Institutes, a college or university sponsor’s accreditation is sufficient to comply with the regulations set forth at 22 CFR 62.20(c); 2) Exchange Visitors sponsored by university or college sponsors who are teaching in primary or secondary schools are not required to depart the United States at the end of this academic year, unless that was their intended date of departure; and 3) the Department will work with sponsors to ensure Exchange Visitors are sponsored in the proper category with the appropriately-designated sponsor.
Complete text of press release issued by the Department of Justice (DOJ) on May 24 announcing new technical assistance documents regarding application of the Americans with Disabilities Act (ADA) to swimming pools. Specifically DOJ released a document entitled “Questions and Answers: Accessibility Requirements for Existing Swimming Pools at Hotels and Other Public Accommodations” (applicable to facilities covered by Title III, including private colleges and universities). DOJ also issued an updated version, dated May 24, of its January 31 memorandum entitled “Accessible Pools—Means of Entry and Exit”. Earlier DOJ postponed the compliance date, as applied to the requirements for accessible means of entry for existing pools (public entities, Title II) and as applied to the barrier removal requirements for accessible means of entry for existing pools (place of public accommodation, Title III), to January 31, 2013.judgment action to litigate an anticipated federal defense in federal court.
Complete text (11 pages) of decision by U.S. Seventh Circuit Court of Appeals vacating the decision of the District Court and remanding the case with instructions to dismiss for lack of subject matter jurisdiction. The Tribune had requested certain University of Illinois records under the Illinois Freedom of Information Act (FOIA). The university denied the request, citing an exemption in the Illinois FOIA for information specifically prohibited from disclosure by federal law or regulations. The Tribune sought a declaratory judgment by the U.S. District Court that disclosure of the records was not prohibited by the Family Educational Rights and Privacy Act (FERPA). The District Court held that FERPA did not specifically prohibit disclosure of education records for purposes of the Illinois Freedom of Information Act, reasoning that FERPA instead merely conditioned the receipt of federal student financial aid funding on non-disclosure. The Court of Appeals, in dismissing for lack of subject matter jurisdiction, holds that as the natural plaintiff in a claim arising under state law the Tribune cannot use a declaratory judgment action to litigate an anticipated federal defense in federal court.
Complete text (4 pages) of Notice and Invitation to File Briefs issued by the National Labor Relations Board (NLRB) on May 22 in the pending case of Point Park University. The Notice describes the procedural posture of the case which was originally filed in 2003 and in 2006 was remanded by order of the U.S. Court of Appeals for the District of Columbia with instructions that the Board identify which of the relevant factors in NLRB v. Yeshiva University (444 U.S. 672) are more and less significant in a determination that an employer’s faculty are not managerial employees. The Board now invites the parties and amici to file briefs addressing that instruction and in particular eight specific questions posed in the Notice. Briefs are due on or before July 6, 2012.
Complete text (69 pages) of brief of petitioner Abigail Fisher in Fisher v. University of Texas et al. The question before the court is “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 brief of Respondent University of Texas is due on August 6, and amicus briefs are due on August 13. Documents relating to the case can be found here.
Complete text (8 pages) of Issue Brief posted by the Association of Research Libraries. The document summarizes the holding of the U.S. District Court in Cambridge University Press et al. v. Becker et al., addressing the application of the fair use doctrine to college and university library electronic reserves.
Complete text (3 pages) of Guidance Directive 2012-06 dated May 17 and issued by the Bureau of Educational and Cultural Affairs, U.S. Department of State. The Guidance Directive states that teaching primary and secondary school students in public school systems or private schools is not permitted by J-1 professors, research scholars, short-term scholars, or college/university students. The Guidance further states that teaching by J-1 professors of Chinese courses offered by Confucius Institutes is only permissible if the Institute is U.S. accredited. NAFSA has posted a summary of the guidance.
Complete text (7 pages) of final rule issued by the U.S. Department of Justice, Civil Rights Division and published in the May 21 Federal Register. The final rule postpones the compliance date, as applied to the requirements for accessible means of entry for existing pools (public entities, Title II) and as applied to the barrier removal requirements for accessible means of entry for existing pools (place of public accommodation, Title III) to January 31, 2013. The Department had earlier extended the compliance deadline for existing pools from March 15, 2012 to May 21, 2012. Sections 242 and 1009 of the 2010 ADA Standards for Accessible Design set forth the compliance standards for swimming pools, wading pools and spas (Sec. 242) and pool lifts, sloped entries, transfer walls, transfer systems, and pool stairs (Sec. 1009). The further 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.
Complete text (9 pages) of guidance by the Association on Higher Education and Disability (AHEAD) providing a framework for disability accommodation and documentation practices in light of the 2008 amendments to the Americans with Disabilities Act and the updated regulations and guidance to Titles II and III of the ADA. It should be noted that the guidance does not address the use of service animals, for which institutions expressly may not require documentation under the updated ADA regulations.
Complete text (18 pages) of decision by U.S. District Court (District of Columbia) holding that the National Labor Relations Board’s (NLRB’s) recently effective rules on expedited representation case procedures are invalid because a quorem of the Board did not participate in the vote adopting the rules. In response to the court’s decision, the NLRB suspended the implementation of the rules and the NLRB acting General Counsel withdrew guidance issued to regional offices and advised regional directors to revert to their previous practices for election petitions.
Complete text (2 pages) of Executive Order 13610 issued by the White House on May 10. The order further implements Executive Order 13563, issued January 18, 2011, requiring 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. The new Executive Order requires agencies to invite on a regular basis public suggestions about regulations in need of retrospective review, and that retrospective analyses of regulations, including supporting data, shall be released to the public on-line. The Executive Order also requires that agencies give priority to those regulatory review initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens, and also that agencies shall give consideration to the cumulative effects of their own regulations, including cumulative burdens.
Complete text (350 pages) of decision by U.S. District Court (N.D. GA) in copyright infringement suit brought by Cambridge University Press, Oxford University Press and Sage Publications against Georgia State University based on placement of texts in electronic reserves (e-reserves). The court finds that only five of the 99 alleged instances of infringement in fact violated plaintiffs’ copyrights, while all other instances constituted fair use. In analyzing the four statutory fair use factors, the court finds in favor of the institution with respect to factor one (non-profit educational nature of the use) and factor two (the informational nature of the copyrighted work). In analyzing factor three (amount and substantive nature of the work used), the court sets forth a guideline of 10% of total page count for works of nine or fewer chapters, or a single complete chapter for works of ten or more chapters. With respect to factor four(effect on the market) the court decided this factor in favor of the institution if there was no evidence that a digital license for use of excerpts from a work were available. The court concludes by directing plaintiffs to propose a remedy for the five instances in which the court found infringement to have occurred. Analysis of the court’s opinion can be found here and here.
Complete text (135 pages) of Gainful Employment Operations Manual issued by the U.S. Department of Education and posted on May 11 to the Federal Student Aid (FSA) web page. The manual contains information on the 2010 and 2011 gainful employment regulations and provides guidance regarding implementation and compliance with each aspect of the gainful employment regulations. Topics include reporting of data by institutions; disclosures required by institutions; adding and removing gainful employment programs; explanation of debt measures; and publication and access to gainful employment debt measures and loan medians for disclosures.
Complete text (14 pages) of summary report prepared by the American Bar Association (ABA) Commission on Ethics 20/20 and submitted for consideration by the ABA House of Delegates at its August 8 meeting. Addressing the use of technology by lawyers and its impact on confidentiality, the Commission recommends revisions to the Model Rules of Professional Conduct to clarify a lawyers ethical duty to protect the confidentiality of client information, including information stored electronically. The Commission also recommends revisions to the Model Rules on how to deal with inadvertently sent communications, including communications and documents containing metadata. Other proposed amendments deal with the growth and impact of global and cross-jurisdictional practice.
Complete text (37 pages) of appeal to the Secretary of Education by the Department of Education office of Federal Student Aid (FSA) of the ruling in favor of Virginia Tech issued by the Department’s Office of Hearings and Appeals. In the ruling, the Chief Judge of the Office of Hearings and Appeals found 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 did not warrant a financial penalty. In its appeal, FSA asserts the Virginia Tech failed to issue a timely warning and that a fine of $55,000 should be imposed.
EEOC / Discrimination: Macy v. Holder
(May 8, 2012)
Complete text (16 pages) of EEOC agency decision ruling – for the first time – that employment discrimination against transgender individuals is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. While a number of states prohibit discrimination against transgender individuals, and some district courts have found Title VII to prohibit discrimination against transgender individuals, this ruling applies to all employers subject to Title VII, on the federal level. The complainant Macy alleged she was promised a job with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, when she applied as a man, but that the offer was rescinded when she informed the agency that she was in the process of transitioning to a female gender. The agency found that such intentional discrimination against a transgender individual because that person is transgender is, by definition, “based on . . . sex,” and such discrimination therefore violates Title VII. The case was remanded for further proceedings on the merits.
Complete text (6 pages) of proposed rule issued by the Copyright Royalty Board, Library of Congress, and published in the April 25 Federal Register. The proposed rule sets forth royalty rates to be paid by college and university radio stations not affiliated with National Public Radio for the broadcast of musical compositions for the period 2013 – 2017. The proposed rule is the result of negotiations between the American Council on Education (ACE), the National Association of College and University Business Officers (NACUBO) and BMI, ASCAP and SESAC. The proposed royalty rates may be found in §381.5(c) of the proposed rule. NACUBO has posted a summary of the proposed rule here. Comments on the proposed rule are due no later than May 25.
Complete text (49 pages) of draft State Authorization Reciprocity Agreement (SARA) developed by the Council of State Governments (CSG). The Reciprocity Agreement seeks to establish a system whereby an institution’s authorization to offer educational programming by its home state would be recognized by other states in which it seeks to offer distance education programming and similar activity. A description of the main objectives and features of the draft agreement can be found here. CSG is seeking comments on the draft agreement.
Complete text (4 pages) of Executive Order issued by the White House on April 27. The Executive Order directs the Departments of Defense, Veterans Affairs and Education to develop Principles of Excellence to apply to educational institutions receiving funding from Federal military and veterans’ educational benefits programs, including benefits programs provided by the Post-9/11 GI Bill and the Tuition Assistance Program. The order directs that the Principles eight specific elements, including: use of a personalized, standardized pre-enrollment form developed by the Department of Education to understand among other items the total cost of their educational program, the amount covered by federal educational benefits, and their estimated student loan debt upon graduation; informing eligible students of their potential eligibility for federal financial aid before arranging private student loans; ending fraudulent and aggressive recruiting techniques on and off military installations and requiring compliance with the misrepresentation, incentive compensation and state authorization rules issued by the Department of Education; re-admitting and otherwise accommodating service members temporarily absent from a program due to service requirements; and the provision of individual education plans for aid recipients showing how they will fulfill graduation requirements and estimated timeline for graduation. The Executive Order also calls for strengthened enforcement and compliance mechanisms including a centralized complaint system for students receiving federal military and veterans educational benefits. The American Council on Education (ACE) has prepared a summary of the Executive Order.
Complete text of Department of Education letter announcing the Department’s intent to establish a negotiated rulemaking committee to prepare proposed regulations for Federal Student Aid Programs under the Higher Education Act. The committee would develop proposed regulations designed to prevent fraud and ensure proper use of Title IV funds, and to improve and streamline campus-based Federal Student Aid programs pursuant to the Department’s Plan for Retrospective Analysis of Existing Regulations.
Complete text (7 pages) of Final Rule published in the April 27 Federal Register, establishing the process and procedures to certify qualifying colleges or universities as Hispanic-Serving Agricultural Colleges and Universities (“HSACU”).
First Amendment: McGlone v. Bell
(April 27, 2012)
Complete text (23 pages) of decision by the U.S. Court of Appeals for the Sixth Circuit, reversing a lower court decision in favor of Tennessee Technological University (“TTU”), after the University required a Christian evangelist to comply with its policy requiring that non-affiliated individuals who wish to speak or distribute literature on campus must submit an application 14 days in advance, providing information about their identity and their purpose on campus. The Court of Appeals held that TTU’s 14-day notice period was unreasonable and not narrowly tailored to serve a significant government interest. Moreover, the University failed to show how requiring applicants to provide information about their identity and the purpose of their speech is narrowly tailored to serve a significant government interest. The Court remanded the case for further proceedings on the merits.
Complete text (20 pages) of decision by the Supreme Court of Kentucky. After being fired pursuant to university policy for having a weapon in his car on campus, an at-will university employee with a valid concealed carry permit argued that his termination was contrary to public policy – namely the right to bear arms. The Supreme Court of Kentucky agreed, finding that the right to bear arms was a well-defined public policy as evidenced by multiple sections of the Kentucky Revised Statutes, and that the University of Kentucky had terminated the employee based upon his exercise of that right. The case was remanded for further proceedings to the lower court, which had initially granted summary judgment for the University of Kentucky.
Complete text (55 pages) of new EEOC enforcement guidance on criminal background checks by employers, issued by the EEOC on April 25. This guidance consolidates and updates the EEOC’s previous guidance documents regarding the use of arrest or conviction records in employment decisions, under Title VII of the Civil Rights Act of 1964. The EEOC also published a “Questions and Answers” document related to the new guidance.
Complete text (24 pages) of guidance memorandum issued on April 26 by the Acting General Counsel of the NLRB, outlining in detail how regional offices will implement the new representation case procedures, which were adopted as a Final Rule on December 22, 2011, and which take effect on Monday, April 30. The General Counsel’s office also issued a set of Frequently Asked Questions explaining the Board’s revised rules and procedures.
Complete text (2 pages) of Final Rule issued by the IRS removing the final regulations contained in TD 9524 relating to withholding by government entities on payments to certain persons providing property or services. This rule is the result of the 3% Withholding Repeal and Job Creation Act, which repealed the provision of the Internal Revenue Code underlying the final regulations before that provision became effective.
Complete text (52 pages) of Final Audit Report issued by the Office of Inspector General (OIG), U.S. Department of Education asserting that institution was not eligible to participate in Title IV programs during the period covered by the report (July 1, 2005 – June 30, 2010) because over 50% or more of its students were enrolled in correspondence courses rather than telecommunications or on-campus courses as defined in applicable Department regulations, and also asserting additional violations of Department financial aid regulations. The report recommends that the institution’s participation in Title IV programs be terminated and that the Department require the return of over $42 million in Title IV disbursed during the years in question plus all funds disbursed during award year 2010-2011. The institution in its response (Appendix B) denies that over 50% or more of its students were enrolled in correspondence courses during the period in question and asserts that the Department is misapplying regulatory definitions, including retroactively applying standards not in effect during the audit period.
Complete text (25 pages) of decision by U.S. Supreme Court holding that a private attorney retained by a city government to investigate suspected employee wrongdoing may claim qualified immunity in a subsequent 42 U.S.C. §1983 suit brought by the employee alleging violation of constitutional rights.
Complete text (4 pages) of Notice of Request for Comments issued by the U.S. Patent and Trademark Office (USPTO) and published in the April 20 Federal Register. In the Notice, USPTO asks for comments on whether the United States should identify and bar from publication and issuance certain patent applications as detrimental to the nation’s economic security. The Notice is in response to a congressional directive. The Notice describes current procedures in place for screening and review by the Department of Defense and other agencies of patent applications deemed potentially detrimental to national security and the use of secrecy orders with respect to such patent applications. The Notice seeks comments on whether the U.S. government should institute a new regulatory scheme for patent applications, publication of which would be potentially detrimental to national economic security, modeled on that currently applied to patents based on national security concerns, and poses 13 specific questions. Comments are due by June 19.
Complete text (16 pages) of decision by U.S. District Court (D. Idaho)holding that defendant institution did not violate the First Amendment rights of faculty members by refusing access to a university-moderated listserv to circulate a draft faculty senate constitution, contrary to the wishes of the university administration.
Complete text (3 pages) of letter sent by the American Council on Education (ACE) and additional higher education associations to the Department of Health and Human Services (HHS) asking that HHS use its authority under the Affordable Care Act to specify that self-funded student health benefit plans (SHBPs) which substantially comply with the required elements of “student health insurance coverage” as defined in the final student health insurance plans regulations are a form of “minimum essential health coverage”, enabling students that purchase coverage through compliant SHBPs to satisfy their ACA requirement to maintain “minimum essential coverage”; otherwise such students may be subject to the tax penalties set forth in the ACA failure to satisfy the “minimum essential coverage” requirement. The letter points out that more than 30 non-profit institutions of higher education offer self-funded SHBPs, covering more than 300,000 students and more than ten percent of those enrolled in student health insurance programs.
Complete text (2 pages) of Order issued by the U.S. Court of Appeals for the District of Columbia granting appellants’ emergency motion for injunction pending appeal and blocking enforcement by the National Labor Relations Board (NLRB) of the Final Rule on Notification of Employee Rights Under the National Labor Relations Act requiring most private sector employers to post a notice advising employees of their rights under the National Labor Relations Act. The rule had been scheduled to take effect on April 30. The court further orders that the appeal of the decision of the District Court be scheduled for argument in September 2012.
Complete text of decision (31 pages) by New York state trial court, following remand from the Court of Appeals, finding that defendant institution’s decision not to award a DDS degree to plaintiff was based on academic, administrative and financial reasons, and not solely due to plaintiff’s failure to timely pay tuition. Under New York state law plaintiff was therefore required to commence an Article 78 proceeding within four months of the final denial of his degree by defendant institution, and since he did not do so the court dismisses plaintiff’s suit as time-barred.
Complete text (31 pages) of decision by U.S. District Court (SC) granting plaintiffs’ motion for summary judgment and finding that the National Labor Relations Board (NLRB) lacked authority under the National Labor Relations Act to promulgate it’s Final Rule on Notification of Employee Rights Under the National Labor Relations Act requiring most private sector employers to post a notice advising employees of their rights under the National Labor Relations Act. The rule is scheduled to take effect on April 30. In an earlier decision the U.S. District Court for the District of Columbia had held that only 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.
Complete text (11 pages) of report by the Office of Inspector General, U.S. Department of Education finding that the Department’s oversight of institutional compliance with regulations implementing the Drug Free Schools and Campuses Act has been non-existent or deficient. The Act requires institutions receiving Federal financial assistance to certify to the Secretary of Education that they have adopted and implemented a program to prevent the use of illicit drugs and abuse of alcohol by students and employees, including the annual distribution in writing of specified drug and alcohol abuse prevention information to each student and employee and conducting a biennial institutional review of the program. In its response, the Department indicates it is amending and clarifying its program review procedures and providing corresponding training to all program review staff.
Complete text (12 pages) of decision by U.S. District Court (DC) granting defendants’ motion for summary judgment and holding that plaintiff, an association of tax exempt secondary schools and universities organized to pool risk and obtain insurance did not qualify as a tax exempt organization under Sec. 501(c)(3) of the Internal Revenue Code.n academic dismissal and therefore the minimal due process accorded plaintiff was sufficient.
Complete text (7 pages) of decision by Massachusetts Court of Appeals reversing the decision of the lower court and finding that college’s denial of tenure to a faculty member was not subject to binding arbitration. The court cites the language of the collective bargaining agreement stating that “[t]he granting or failure to grant tenure shall be arbitrable but not binding”, and rejects plaintiff-appellant’s contention that the arbitration award was binding because it turned on the college’s failure to follow tenure procedures, rather than on the merits of the tenure decision itself.
Complete text of decision by U.S. District Court (W.D. Kentucky) granting summary judgment to defendant university in a case of dismissal from school of nursing. The court finds that the dismissal of plaintiff based on her MySpace posting describing the birth of child by a client assigned to her as part of a clinical childbearing class did not violate plaintiff’s First Amendment rights, because plaintiff had signed a consent form restricting use of information about the childbirth to the student’s oral and written assignments shared with the student’s instructor and the restrictions contained in the consent form were related to legitimate pedagogical concerns. The court further determines that plaintiff’s dismissal was an academic dismissal and therefore the minimal due process accorded plaintiff was sufficient.
Complete text (2 pages) of Notice published by the U.S. Citizenship and Immigration Service (USCIS) in the March 27 Federal Register announcing proposed changes to Form I-9, Employment Eligibility Verification, and to the Form I-9 instructions. USCIS has provided a table listing the proposed changes
. The changes include new optional fields to collect employee email addresses and phone numbers; and new fields to collect foreign passport numbers and country of issuance. Comments on the proposed changes are due by May 29, 2012.
Complete text (16 pages) of final rule issued by the EEOC and published in the March 30 Federal Register. The final rule implements the holding of the U.S. Supreme Court in Smith v. City of Jackson, 544 U.S. 228 (2005). That case held that in ADEA adverse impact cases, if the plaintiff showed that an employment practice disproportionately harmed older workers, the employer did not have to prove the business necessity of the rule. Rather, the employer instead needed to show only that the employment practice was justified by a reasonable factor other than age (RFOA). The final rule provides a non-exhaustive list of factors to be considered in determining if an employment practice is a RFOA. The EEOC has also published a Q & A List about the final rule. The rule is effective April 30.
DoD Military Tuition Assistance Program: DOD Announcement
(April 5, 2012)
Complete text of announcement dated March 30 posted by the U.S. Department of Defense (DoD). The announcement states that DoD has revised its earlier Memorandum of Understanding (MOU) governing institutional participation in the Department’s military tuition assistance program, and that the revised memorandum will soon be posted to the Department’s MOU web page. The announcement lists some of the new guidelines in the revised MOU, and indicates it will go into effect in the summer of 2012. Once in effect, only those schools that have signed the revised MOU will be able to participate in the tuition assistance programs. Institutions that have signed the earlier MOU will not have to re-sign the revised MOU.
Complete text (20 pages) of decision by U.S. Ninth Circuit Court of Appeals affirming the decision of the district court and holding that California Proposition 209 does not violate the Equal Protection Clause of the U.S. Constitution. Proposition 209, adopted by California voters in 1996, bars the state from discriminating against, or granting preferential treatment to, any individual or group of individuals on the basis of race, sex, color, ethnicity or national origin in the operation of public education.
The court declares that it is bound by the earlier Ninth Circuit decision (Coalition for Economic Equity v. Wilson, 122 F.3d 692) finding proposition 209 to be constitutional, and rejects plaintiffs’ contention that the earlier decision cannot be reconciled with the U.S. Supreme Court decision in Grutter v. Bollinger (539 U.S. 306).
According to the court, Grutter upheld as permissible certain race-based affirmative action programs, but did not hold that such programs are constitutionally required.
Complete text (38 pages) of report issued by the Association of American Medical Colleges (AAMC) entitled “Implementing the Final Rule on Financial Conflicts of Interest in Public Health Service Funded Research. The report addresses compliance with the Final Rule on Financial Conflicts of Interest issued by the Department of Health and Human Services (HHS) on August 25, with a compliance date of August 24, 2012. According to the text, the goal of the report is to provide institutions subject to the new rule with some insight into how peer institutions have been thinking about issues related to compliance with the rule during the first few months since it was issued. HHS also has a web page with a recently updated list of Frequently Asked Questions (FAQ) about the rule.
Complete text (28 pages) of monograph issued by the American Council on Education (ACE) entitled “A President’s Guide to the Clery Act”.