Cases and Documents
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higher education cases http://www.nacua.org/documents/reported by West
The Secretary of Education invites institutions of higher education that participate in the student assistance programs authorized under Title IV of the Higher Education Act of 1965, as amended (the HEA), and other parties, to propose ideas for new institutionally based experiments designed to test alternative ways of administering the student financial assistance programs to be a part of the ongoing Experimental Sites Initiative (ESI). For this set of experiments, the Secretary seeks suggestions for creative experiments to test innovations that have the potential to increase quality and reduce costs in higher education, while maintaining or increasing the programmatic and fiscal integrity of the student financial assistance programs authorized by Title IV of the HEA (Title IV, HEA programs).
Decision by the Ninth Circuit Court of Appeals affirming the lower court’s ruling in favor of the FCC against the Minority Television Project’s suit arguing that a statute that “prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates” violates the First Amendment. The court ruled that the statutory advertising ban under 47 U.S.C. § 399b is constitutional because the government has a substantial interest in “imposing advertising restrictions in order to preserve the essence of public broadcast programming” and the statutory advertising restrictions are narrowly tailored to that end.
Letter from the U.S. Department of Education Family Policy Compliance Office (FPCO) in response to an inquiry from University of Massachusetts regarding how an institution can comply with FERPA without a written agreement when disclosing education records to a state longitudinal data system. FPCO advises that while it does not interpret state law, the university may, under these circumstances, disclose requested student records to a state longitudinal data system without a written agreement under FERPA's audit and evaluation exception if it properly designates the requesting entity as an authorized representative of the state through a written agreement between the state and the requestor that contains specified required provisions, as outlined in the 2012 FERPA regulatory amendments. Further, the receipt of the records must be in connection with an audit or evaluation of a federal or state-supported education program or compliance with program-related federal legal requirements.
Order by the U.S. District Court of the Eastern District of Michigan denying the University’s motion to dismiss because some acts of harassment, deliberate indifference, and retaliation occurred within the three-year statute of limitations period that are similar to earlier acts. Dibbern was an engineering graduate student who claims that she was subjected to severe and pervasive sexual harassment and discrimination by her male peers, faculty, and university employees and that the University retaliated against her.
Order by the U.S. District Court of the District of Arizona denying the Arizona Board of Regents’ motion for partial judgment on the pleadings because some aspects of Kunzi’s hostile work environment claim took place within the two-year statute of limitations and the facts are sufficient to show a systemic violation under Section 1983. Kunzi was a graduate student that alleges that she was sexually harassed and retaliated against by a professor, with whom she had a relationship with for several months, and that the university administration failed to stop the harassment. Because components of her claim are within the statute of limitations, the court will consider the entire timeline of events.
NCAA report stating that Fordham University failed to adequately monitor its scholarship program. According to the report, Fordham’s staff mistakenly believed that NCAA rules allowed the university to award scholarships to athletes enrolled in just three credit hours over a summer session, though NCAA rules required students to be enrolled in six summer credits to be eligible for scholarship. Fordham must pay a $20,000 fine, take an NCAA rules seminar on compliance, and pass a compliance review by an outside agency, in addition to being subject to two years of probation.
Decision by the Third Circuit Court of Appeals affirming the dismissal of a lawsuit brought by former professors at Louisiana College. In their original complaint, four professors alleged that the college’s president, among others, had defamed them and violated their academic freedom. Further, the professor alleged that provisions of the faculty handbook were not in congruence with the terms of a previous settlement agreement. The Court of Appeals found that an adjudication of the case would require the court to evaluate the truth of certain religious beliefs and to do so would violate the Establishment Clause of the first amendment.
Agreement between Minnesota Attorney General Lori Swanson and Herzing, Inc. Herzing University is a Wisconsin-based for-profit institution that began offering an associates degree program in clinical medical assisting in 2011. The program was not accredited by the American Association of Medical Assistants (AAMA), an accreditation that is favorable to many employers. In the agreement, Herzing has agreed to disclose to students the accreditation status of programs it offers in the state and provide refund options for students who enrolled in the unaccredited program.
Decision by the Maryland Court of Special Appeals affirming the Circuit Court’s decision allowing The Johns Hopkins University to develop an 138-acre farm near the campus. The farm was sold to Hopkins by Elizabeth Banks for a fraction of its market value in 1989. Newell, Bank’s nephew, claims that Banks would have never sold the property had she known of Hopkins’ commercial plans. The court ruled that Banks sold the land solely and unambiguously in terms of permissible uses. The contract permits the University’s plans and thus it should be honored.
The Department of Education has responded to FIRE's inquiry regarding new sexual harassment policies at the University of Montana, which the Department had referenced as a "blueprint" for future sexual harassment policies. Many organizations, including FIRE, voiced issues with the policies to the Office for Civil Rights. The letter, written by assistant secretary Catherine E. Llhamon, responds to some of these issues and states that the Agreement in the Montana case does not represent OCR or DOJ policy.
Proposed federal legislation introduced by Representative Tony Cardenas (CA), which would require high-revenue collegiate athletic departments to provide institutional aid to student-athletes whose scholarships are not renewed due to a qualifying injury or illness, provided they maintain their academic standing and are not in violation of institutional disciplinary standards. Among other requirements, the proposed bill would also mandate that institutions teach athletes about concussions, financial aid and debt management, time management, campus academic resources, and the institution’s obligations for medical costs.
Report by the NCAA Division III Committee on Infractions (“the committee”) finding that the College of Staten Island committed NCAA violations, including impermissible recruiting inducements, unethical conduct by the head coach of the men’s swimming team, and failure of the institution to exercise control and to monitor its athletics program. The committee imposed the following penalties: 4 years of probation, a 4-year “show cause” order for the former coach, and a 2-year postseason ban for the men’s swimming team. The institution has taken several proactive measures including self-reporting the violations and enacting major, self-imposed remedial measures, such as placing athletics under the direct supervision of the president’s office.
The Department of Education has posted a notice in the Federal Register regarding their intentions to create a new rule making committee to cover topics such as Title IV Federal Student Aid Programs and revising the state authorization rule. The enforcement of the state authorization rules has already been pushed back a year.
Decision by the U.S. District Court for the Southern District of New York granting Google’s motion for summary judgment and dismissing the Authors Guild’s copyright infringement case against Google and its “Google Books” project. Judge Denny Chin assumed for purposes of the motion that plaintiffs established a claim of copyright infringement, but found that Google’s use of the copyrighted materials was permissible under the “fair use” doctrine of copyright law. Judge Chin found that Google’s use of the copyrighted works provides significant public benefits and advances the arts and sciences while maintaining respectful consideration of the rights of authors and others; it is highly transformative, serves several important educational purposes, and improves book sales. Judgment was therefore entered in favor of Google, dismissing the complaint.
Letter from the U.S. Department of Education levying a $275,000 fine on Lincoln University (Missouri) for failing to maintain a crime log and distribute annual security reports, and improperly defining its geographic boundaries, among other things. The Department also cited Lincoln for violations related to its sexual assault policies.
New draft of the Department of Education’s proposed gainful employment rule that seeks accountability for vocational programs at for-profit institutions and community colleges. The new draft, which observers say is significantly stricter than the first proposed draft (posted September 3, 2013), includes a loan-default metric and a measure of repayment rates across a program’s entire “portfolio of loans” – measures said to close loop-holes in the original draft that may have been used by programs that experience high dropout rates.
Order by the U.S. District Court for the Northern District of California certifying class-action status for current and former student-athletes seeking an injunction barring the NCAA from prohibiting current and former student-athletes from entering into group licensing deals for the use of their names, images, and likenesses. The court declined to certify class action status for the subclass of former student athletes suing for damages. This subclass failed to satisfy the manageability requirement by not identifying a viable way to determine which members of the subclass were actually harmed by the NCAA’s conduct.
Decision by the U.S. District Court for the District of New Jersey granting summary judgment for Rutgers against a former nursing school student who claimed that Rutgers breached its implied contract and discriminated against him based on his military status. The student was dismissed from Rutgers’ nursing program after he received four grades worse than “B,” which was prohibited under the grading policies. The court found Rutgers did not breach any contract with the student, and provided the student with constitutionally adequate due process; furthermore, the student did not provide any evidence of retaliatory animus or a connection between his dismissal from the program and his military status.
Decision by the Iowa Court of Appeals reversing and remanding the lower court’s dismissal of lawsuit filed against Drake University for denying the plaintiff access to classes while being assisted by a service dog she was training. The lower court dismissed the case, holding there was no private right of action under Iowa Code chapter 216C – which pertains to the rights of persons to have access to public places accompanied by a service dog. The Court of Appeals reversed the decision and held that the Iowa legislature intended for citizens afforded rights under this chapter to be able to seek redress when those rights are violated.
Report by the NCAA Division II Committee on Infractions (“the committee”) finding that Chadron State College did not exercise control over its athletics department. According to the report, the former head football coach maintained outside bank accounts for the football program, an ineligible football student-athlete was allowed to compete, and the school did not ensure that all coaches signed their squad lists before the team’s first game. The committee imposed the following penalties: 3 years of probation, a $5,000 fine, and vacation of wins in which a student-athlete competed while ineligible. The University also self-imposed recruiting restrictions and an external audit of the athletics program.
Voluntary settlement agreement between the U.S. Department of Education’s Office for Civil Rights (OCR) and the State University of New York system (SUNY). OCR reviewed 159 individual cases of alleged sexual harassment (including sexual assault and violence) from four campuses. In some instances, OCR found “deficiencies,” which led OCR to require that SUNY ensure, among other things, that its campuses have designated Title IX coordinators, guarantee that these officials conduct annual reviews of sex-discrimination complaints, revise grievance procedures, assure that campuses do not delay initiating sex discrimination investigations pending the conclusion of a criminal proceeding, provide training to staff and students, and conduct annual “climate checks” of the effectiveness of these measures and report their findings to OCR in 2014, 2015, and 2016. According to the letter and an accompanying press release by the Department, SUNY worked collaboratively with OCR and proactively implemented a number of changes during the investigation in response to OCR’s 2011 “Dear Colleague” Letter.
Notice in the Federal Register announcing the Department of Education’s final regulations to amend the Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan (FFEL) Program, and William D. Ford Federal Direct Loan Program. These regulations respond to changes made to the Higher Education Act by the Student Aid and Fiscal Responsibility Act (SAFRA), which ended the creation of new loans under the FFEL Program; therefore, all new Stafford, PLUS, and Consolidation loans with first disbursement on or after July 1, 2010, will be made under the Direct Loan Program. These regulations also reflect changes made to interest rates in the Direct Loan Program and are meant to provide consistency between the various Title IV loan programs.
Clery Act / Liability: Virginia v. Peterson
(October 31, 2013)
Decision by the Virginia Supreme Court overturning a jury verdict awarding the families of two victims of the 2007 Virginia Tech massacre $4 million each (later reduced to $100,000 because of a state cap on damages). The plaintiffs originally won the wrongful death case on the basis that the special relationship between the university and its students created a duty for Virginia Tech to warn students about potential criminal acts by third parties. Though the Virginia Supreme Court agreed that there was a special relationship, the court found that there was no duty to warn students because it was not known or reasonably foreseeable that the victims would fall victim to criminal harm.
Decision by the U.S. Court of Appeals for the Ninth Circuit reversing the district court’s partial denial of Corinthian’s motion and directing all plaintiffs’ claims to arbitration. Plaintiffs, former students at for-profit schools owned by Corinthian, claim that Corinthian misled prospective students about the quality of its education and its graduates’ career prospects, among other things. The Ninth Circuit held that the Federal Arbitration Act preempts California’s Broughton-Cruz rule that exempts claims seeking injunctive relief for the benefit of the general public from arbitration.
Decision by the U.S. District Court for the Northern District of California denying the NCAA’s motion to dismiss antitrust claims regarding the commercial use of college athletes’ names and likenesses. The court questioned the “sweeping proposition” that student-athletes would be barred from receiving monetary compensation for the commercial use of their names, images, and likeness at any point in their lives. The court also stated that the broadcast-related claims cannot be dismissed based on the First Amendment because it is plausible that at least some of the broadcast footage was used primarily for commercial purposes. Lastly, the court held that the plaintiffs’ claims are not preempted by the Copyright Act because they are based on injury to competition.
Decision by the Superior Court of New Jersey-Appellate Decision reversing the lower court’s ruling that an email between a college basketball coach and university general counsel was discoverable because attorney-client privilege had been waived. The lower court had ruled that because the basketball coach had released the email to the NCAA in a separate investigation, attorney-client privilege had been waived. On appeal, the appellate division ruled that the coach was not acting under the authority of the university when she released the letter, and that the right to waive the privilege is reserved for the organizational client alone.
Statement by the Association of Governing Boards of Universities and Colleges, designed to provide governing boards with guidance regarding their fiduciary duty and overall responsibility to collaborate with institutional leadership to address issues related to sexual misconduct. Among other things, the statement provides a brief overview of applicable laws and guidance; highlights the role of campus culture; and suggests practices for governing boards and institutional administrative leadership. NACUA members and staff participated in the drafting and editing of this statement and are acknowledged at the end of the document.
This MAP, the third in a series published by IES Abroad, is aimed at setting institutional standards for managing individual student health and safety cases, and for managing crises occurring abroad, in order to help protect U.S. college and university students, prevent claims, mitigate risk, and reduce institutional liability. The MAP is authored by NACUA member Bill Hoye, with a preface by NACUA member Peter McDonough.
Notice by the Department of the Treasury and the Internal Revenue Service (IRS) of their request for applicants or nominations for the IRS Advisory Committee on Tax Exempt and Government Entities (ACT) for the following vacancies: 2 employee plans; 2 exempt organizations; 3 federal, state, and local governments; 2 Indian Tribal Governments; and 1 tax-exempt bonds. Selected applicants will participate in an organized public forum in June 2014 and give regular input to the IRS on current or proposed policies during their two-year terms. Applications and nominations are due by November 4, 2013.
Due to the federal government shutdown, institutions are not required to submit their Campus Security and Fire Safety reports to the Department of Education at this time, as required under 34 CFR 668.41(e). The Department will provide further guidance to institutions regarding a new deadline for the required electronic submissions. However, this delay in electronic reporting to the Department of Education has no effect on the institution’s responsibility under the Clery Act to provide the Annual Security Report and Fire Safety Report to its students and employees.
NACUBO, in collaboration with attorneys from Morgan, Lewis & Bockius, authored a comprehensive report that provides background information, advice on drafting a waiver request, best practices for collecting Social Security numbers (SSNs) from students, and a sample response letter to the IRS.
Uniform agreement developed by the Association of American Medical Colleges, and designed to spell out roles and responsibilities between medical education programs and clinical affiliates, comply with accreditation standards, ensure an appropriate learning environment for medical students, and provide a consistent framework for managing an increasing number of students participating in clinical trainings away from their home institutions. The AAMC developed the Uniform Agreement after substantial outreach including a session at the 2013 NACUA Annual Conference, and solicitation of input from individual NACUA attorneys. The stated goal of the Agreement is to eliminate unnecessary time and resources spent negotiating agreements with various clinical affiliates.
Draft report by the American Association of University Professors (AAUP) regarding what it calls increasing “tensions” between universities and their faculty over the ownership of patentable inventions and products of faculty research since the 2011 Supreme Court decision in Stanford v. Roche. The report states that universities have responded to this decision by incorporating new clauses in faculty employment contracts and research agreements, or by having faculty sign letters requiring assignment of all future patent rights, and argues that the Roche decision should bolster faculty’s freedom to control the disposition of their scholarship without such university interference. The report concludes by reproducing principles 11-21 from the intellectual property section of AAUP’s forthcoming book, Recommended Principles to Guide Academy-Industry Relations. In addition to releasing this report, the AAUP states that it is “launching an educational campaign to inform faculty about their rights and to encourage faculty senates and contract negotiating teams to secure the rights the Supreme Court has confirmed.”
Comments filed with the Department of Defense (DoD) by the American Council on Education (ACE) and other higher education associations on a proposed rule by the Department of Defense implementing the Tuition Assistance (TA) program. The comments, similar to the associations’ June 22, 2012 letter on the same topic, highlight the associations’ support for the DoD’s goals, but also note concern or a need for clarification on the following topics: 1) the proposal that institutions return TA money similarly to how they return Title IV funds to the Department of Education; 2) the requirement that TA participants also participate in Title IV; 3) the proposal to limit the use of TA funds to tuition, as opposed to both tuition and fees; and 4) the types of consumer information that need to be provided to service members.
Decision by the U.S. District Court for the District of Maryland ruling that Maryland’s policies and practices of allowing “unnecessary program duplication” at historically black institutions (HBIs) and traditionally white institutions (TWIs) constitute illegal discrimination. The court found that the state’s maintenance of duplicative programs at HBIs and TWIs is a holdover from when it operated a segregated system of higher education, it limits HBI competitiveness in program offerings, and there is no sound educational justification for this to persist. Accordingly, the court recommended that the parties enter mediation to create a suitable plan to address the problem.
Proposed Principles and Model for a New Governance Structure by the Division I Faculty Athletics Representatives Board (1A FAR) detailing how the National Collegiate Athletic Association (NCAA) should be restructured. The 1A FAR Board recommends that there be a new, separate division for Football Bowl Series programs and the consolidation of some NCAA leadership entities to allow for broader representation of upper-level athletic administrators and representatives, including FARs.
Decision by the Superior Court of Pennsylvania denying Jerry Sandusky’s appeal of his conviction, in which he argued the trial court judge mishandled two jury instructions, a prosecutor made improper references to Sandusky not testifying on his own behalf, and his trial lawyers did not have sufficient time to prepare. The court found that the absence of the prompt complaint instruction did not prejudice Sandusky and that the trial court properly instructed the jury on character evidence. Second, because Sandusky merely objected to the prosecutor’s references, he waived his claim. Lastly, Sandusky’s counsel’s own testimony proves that he suffered no prejudice from the trial court’s denial of the continuance requests.
Decision by the U.S. District Court for the Northern District of Alabama granting New Life Art, Inc.’s motion for summary judgment. The University of Alabama originally alleged that artist Daniel Moore infringed on the University’s trademark rights when he depicted Alabama football players in many of his paintings. On June 11, 2012, the 11th Circuit rejected the University’s argument that there could be confusion over whether the paintings were official products of the university and remanded the case to district court. On remand, the district court ruled that although Moore breached one of the licensing contracts, the University acquiesced in New Life’s breach by selling mugs and other products containing Moore’s print.
Decision by the U.S. District Court for Massachusetts granting NIH’s motion for summary judgment, in case where neighborhood residents near Boston University brought suit to enjoin federal funding that would support the construction of a lab to study deadly infectious diseases. The court ruled that the risks posed to the public from accidents or malevolent acts was extremely low or beyond reasonably foreseeable.
Decision by the U.S. District Court for the Western District of Michigan granting law firm Kurzon Strauss’s (“Kurzon”) motion for summary judgment. Cooley Law School argued that attorneys for Kurzon defamed the law school in the course of a previous lawsuit, by saying, among other things, that Cooley “grossly inflates its post-graduate employment data and salary information” and “schools like Thomas Cooley will continue to defraud unwitting students unless held civilly accountable.” The court argued that Kurzon attorneys did not have any subjective awareness of the “probable falsity” of any of their statements.
The University of Montana’s new discrimination and sexual misconduct policy, approved by the Department of Justice and Department of Education, after a settlement agreement with the institution in May 2013.
Announcement that the Department of Education has opened its comment period for the Integrated Postsecondary Education Data System (IPEDS). IPEDS is a web-based system designed to collect basic data from all postsecondary institutions in the United States. Comments are due November 1, 2013.
Announcement that the Department of Education has opened its comment period for the Title V application focused on developing Hispanic serving institutions. The application is used to collect information to evaluate which Hispanic-serving institutions will be awarded congressional appropriations. Comments are due November 1, 2013.
Decision by the U.S. District Court for the District of Columbia granting the Department of Education’s motion to dismiss a lawsuit challenging the 2011 FERPA regulatory amendments. The court ruled that the plaintiffs lacked standing to bring suit because they have not suffered any real injuries from the regulations. Among other things, the 2011 regulations added student ID numbers to the list of “directory information” that institutions can make public, for example, by displaying them on student ID badges. The court rejected the plaintiff’s argument that this could expose students to the risk of identity fraud.
Decision by the U.S. District Court for the Western District of Pennsylvania granting summary judgment in favor of the University of Pittsburgh in a case brought by former head football coach whose employment contract was terminated after he was arrested for domestic battery. Haywood argued that the University breached the written contract and its oral agreement to buy out the remaining term of his contract. The court found that a reasonable jury could find that the University had just cause to terminate Haywood and that it exercised good faith in making that decision. As such, the University had no obligation to buy out the remaining contract and there was no breach. The court denied motion for summary judgment on the University’s breach of confidentiality counterclaim.
Questions & Answers guidance from the U.S. Department of Education and U.S. Department of Justice on the Supreme Court’s June 2013 decision in Fisher v. University of Texas. The Departments reiterate that their 2011 guidance documents “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education” and “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools” remain in effect. The five questions and answers intended to clarify the Fisher decision note that schools can continue to take steps to achieve a diverse student body and that the Supreme Court did not invalidate the use of race as a factor in higher education admissions.
Decision by the United States Court of Appeals for the Fourth Circuit holding that the Virginia Alcoholic Beverage Control Board Commission’s ban on alcohol advertisements is unconstitutional as it applies to college newspapers. The court ruled that the advertising ban is not appropriately tailored to Virginia’s stated aim to curb underage and abusive college drinking. Specifically, the ban prohibits a large population of adults who are 21 years of age or older from receiving truthful information about alcohol, which they can legally consume. The court highlighted the fact that roughly 60% of the newspapers’ readership is age 21 or older in deciding that the challenged regulation is unconstitutionally overbroad.
Principles approved by the Assembly of the National Association for College Admission Counseling (NACAC), which include a change that would allow commissioned agents to recruit students outside the United States. Though federal law bars the use of commissions in recruiting American students, the newly amended section (I.A.3) would allow member institutions to use commissioned agents as long as the agent can ensure “accountability, transparency, and integrity.”
Settlement agreement between the U.S. Department of Education and Dominican College in New York regarding the Department’s findings that the institution failed to comply with crime reporting guidelines in the Clery Act, by failing to properly define its campus and report crime statistics for non-campus property. The institution will pay $200,000 as part of the settlement.
Order by a superior court judge fining the University of Washington $723,290.50 for improperly withholding 12,000 documents that the plaintiff requested in 2009, but the University did not disclose until the end of 2011. The court found that the university violated the Public Records Act. The plaintiff-professor brought a discrimination claim alleging that she was wrongfully denied tenure because of her gender and national origin. The court ruled that the disclosed documents could have helped the plaintiff prove her discrimination case.
Notice in the Federal Register announcing the Department of Education’s technical amendments to the final regulations for improving integrity in the programs authorized under Title IV of the Higher Education Act (HEA). These amendments were made in accordance with a D.C. Circuit order that the Department’s misrepresentation regulations exceeded the HEA’s limits.
Announcement that the Securities and Exchange Commission (SEC) has ruled that college and university board members will be exempt from registering as “municipal advisors” as required by the Dodd-Frank Act. The ruling applies to both elected and appointed trustees of public or private non-profit universities acting in their official capacity, where the university borrows proceeds of a municipal securities offering. Additionally, the announcement states that university employees acting within the scope of their employment are exempt from registration. The rule will become effective 60 days after publication in the Federal Register.
Notice in the Federal Register announcing the Department of Education’s plan to convene a panel to write new reporting rules for campus safety. The panel will be tasked with preparing rules to address recent changes to the campus safety and reporting requirements of the Clery Act. The committee will include representatives of organizations or groups with interests that are significantly affected by the subject matter of the proposed regulations. Nominations for the panel must be received on or before October 21, 2013.
Order from the District Court of Massachusetts granting the College of the Holy Cross’s (“Holy Cross”) motion for summary judgment. The male student plaintiff claimed, among other things, that Holy Cross had violated Title IX by holding a disciplinary hearing for a sexual assault charge that was not equitable or compliant with due process. The court found the Holy Cross Code of Conduct clear and free of bias. Additionally, the court found no triable issues regarding any alleged disparate impact arising from past applications of the Code of Conduct. The court granted summary judgment in favor of Holy Cross on all counts.
Decision by Illinois Appeals Court overturning the lower court’s dismissal of a professor’s free speech and defamation claims. The plaintiff, a tenured professor at Northeastern Illinois University, brought a defamation suit alleging retaliation for her activism on campus. The university did not dispute any elements of the defamation claim and the court found that it failed to meet its burden of proof that the plaintiff’s case was a SLAPP (strategic lawsuit against public participation). This ruling allows the plaintiff to pursue her initial lawsuit against the university in federal court.
Fourth Amendment: Barrett v. Claycomb
(September 16, 2013)
Decision in the Western District of Missouri barring Linn State Technical College (“Linn State”) from requiring all students to undergo drug testing. The court found that the University’s drug testing policy was a suspicionless search, but did not fall within the “closely guarded category of constitutionally permissible suspicionless searches,” and thus constituted a violation of the Fourth Amendment. The court rejected Linn State’s argument that the policy was necessary to promote student safety. Rather, the court found that the policy was instead conceived to promote goals like improving retention and graduation rates. Lastly, the opinion allows Linn State to test students enrolled in certain programs that may require a heightened degree of safety (i.e., the aviation maintenance program).
Report by the NCAA Division I Committee on Infractions (“the committee”) finding that Iowa State University committed NCAA violations, including impermissible telephone calls and text messages to recruits, impermissible coaching activities involving non-scholastic teams, and a failure to monitor. The committee imposed the following penalties: 2 years of probation, reductions in official paid visits, and restrictions on recruiting-related telephone calls. The committee did commend the school because it self-discovered and self-reported the initial violations that led to an internal investigation.
Decision by the U.S. 11th Circuit Court of Appeals affirming the district court’s judgment entered in the plaintiff’s favor. The plaintiffs brought claims against ASU for racial and sexual harassment, stating they were subject to racial slurs, sexual advances, inappropriate behavior, and retaliation at the hands of their superiors. After the district court awarded over $300,000 dollars to each of the plaintiffs, ASU appealed the decision, claiming, among other things, that the district court erred in awarding the plaintiff’s front pay. The Circuit Court rejected the argument, finding that front pay is appropriate because reinstatement would not be a feasible remedy and that the plaintiffs had properly mitigated their damages.
These regulations are effective September 12, 2013. The amendments’ stated purpose is to improve the quality and effectiveness of grant-making decisions and reduce the burden on applicants and grantees.
First Amendment / Attorney’s Fees: Moore v. Watson
(September 6, 2013)
In an order issued on March 29, 2013, but recently made public, the U.S. District Court for the Northern District of Illinois mandated that Chicago State University (CSU) pay $213,231 in court costs and attorney’s fees to the plaintiffs. In 2012, the court held that CSU’s termination of a former faculty advisor in retaliation for the content of the school newspaper violated the First Amendment and ordered that CSU reinstate him. The student could not obtain relief, however, because he voluntarily withdrew from CSU and was free to return after paying his tuition.
First Amendment: Demers v. Austin
(September 6, 2013)
Decision by U.S. Court of Appeals for the Ninth Circuit overturning the lower court’s grant of summary judgment in the university’s favor. The plaintiff, a tenured professor at Washington State University, brought suit alleging that university administrators retaliated against him in violation of the First Amendment for distributing writings that called for changes in the management of the communications school and broadly criticized the university’s administration. The Ninth Circuit ruled that the 2006 U.S. Supreme Court decision Garcetti v. Ceballos does not apply to teaching and academic writing by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by the 1968 Supreme Court ruling in Pickering v. Board of Education. Because his writings addressed a matter of public concern, it was protected under Pickering. This decision creates a split among the federal appeals courts with the Third, Sixth, and Seventh Circuits holding that Garcetti denies public college faculty members the ability to bring retaliation claims for certain types of speech related to their jobs.
Decision by the Pennsylvania Commonwealth Court denying the NCAA’s plea to dismiss a lawsuit filed by Pennsylvania Senator Jake Corman and Treasurer Rob McCord to keep all proceeds from a $60 million dollar fine – levied on Penn State in response to the Jerry Sandusky scandal – within Pennsylvania. The NCAA had expressed its intentions to use the funds on a national campaign to end child abuse. The court found that Corman and McCord have legal standing to sue the NCAA because of their roles in overseeing the endowment into which the PSU money is to be paid. The court also found that the Pennsylvania law created to collect and disperse the money is constitutionally permissible.
Settlement agreement whereby Emory University agreed to pay $1.5 million to settle claims that it violated the federal False Claims Act by improperly billing for clinical trial services at the university’s Winship Cancer Institute. Prosecutors said that there had been no determination of liability in settling the claims.
Brief filed with the U.S. Supreme Court by the University of California, opposing the brief filed by Michigan’s attorney general, which urged the Supreme Court to uphold Michigan’s 2006 ban prohibiting race from being considered in college admission policies. The brief provides an overview of how a statewide ban on the consideration of race has played out in California, and argues that universities in the California system have actually experienced dramatic declines in the percentages of African Americans and American Indians enrolling.
Drafted in preparation for a negotiated rulemaking session, these proposed regulations would establish standards for programs that prepare students for gainful employment in a recognized occupation. This language will be used as a starting point for discussion for the first meeting of the negotiating committee that begins meeting on September 9, 2013.
Decision by U.S. District Court for the District of Vermont granting the defendant university’s motion for summary judgment upholding the dismissal of a student-athlete from the men’s ice hockey team. The plaintiff challenged his dismissal on breach of contract, due process, and defamation grounds. The court found that there was no breach of contract or deprivation of due process because the plaintiff did not attempt to appeal his coach’s decision to dismiss him, which is required under the university’s Student-Athlete Code of Conduct. Furthermore, there was no contract for a scholarship for the next year because NCAA rules prohibit any financial aid awarded for more than one year at a time. At the time of the student’s dismissal, financial aid awards had not been offered for the following year. The court ruled that the coach’s statement that the leadership and staff took time before dismissing the plaintiff was not defamatory because it was true. Additionally, because the statement was not defamatory, there was no viable stigma plus claim resulting in a violation of the plaintiff’s liberty interests.
Decision by the U.S. District Court for the Western District of Washington at Tacoma granting Respondent’s motion to dismiss. Following the D.C. Court of Appeals’ ruling in Noel Canning v. NLRB, the court held that the Petitioner was “without power” to issue the underlying unfair labor practice complaint against Respondent under the National Labor Relations Act. The court ruled that the NLRB Acting General Counsel’s appointment to the post was invalid and, therefore, he could not have lawfully delegated the authority to request a temporary injunction to Petitioner. Specifically, the Acting General Counsel’s appointment was ruled invalid because he was never confirmed by the Senate. Rather, he was serving in the “Acting” capacity pursuant to President Obama’s appointment under the Federal Vacancies Reform Act (FVRA) and he was not a first assistant to the departing General Counsel, as required for an appointment under the FVRA.
Final Rules announced on August 27, 2013, by the U.S. Department of Labor, regarding the hiring and employment of veterans and people with disabilities. One rule updates the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and the other updates Section 503 of the Rehabilitation Act of 1973 – both of which require federal contractors and subcontractors (including many colleges and universities) to affirmatively recruit, hire, train and promote qualified veterans and people with disabilities, respectively. The new rules contain a number of new regulatory obligations for contractors, including the requirement that contractors determine and implement annual benchmarks for hiring protected veterans, and establish a 7% utilization goal for individuals with disabilities. Contractors must also invite all job applicants to identify as disabled or veteran and must collect and document data regarding the number of disabled and veteran applicants and hires. The new regulations will take effect 180 days from publication in the Federal Register.
Announcement that the U.S. Department of Treasury and the Internal Revenue Service (IRS) have ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes, regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage. The ruling implements federal tax aspects of the June 26 Supreme Court decision invalidating Section 3 of the Defense of Marriage Act (DOMA). The ruling does not apply to domestic partnerships, civil unions or similar formal relationships recognized under state law. The announcement also states that Treasury and IRS intend to issue streamlined procedures for employers who wish to file refund claims for payroll taxes paid on previously-taxed health insurance and fringe benefits provided to same-sex spouses; as well as further guidance on cafeteria plans, qualified retirement plans, and other tax-favored arrangements.
North Carolina legislation signed into law on Friday, August 23, guaranteeing any student at the 17 constituent institutions within the University of North Carolina System the right to be represented during a disciplinary hearing, at the student’s expense, by a licensed attorney or non-attorney advocate who may fully participate during the disciplinary procedure. The law includes exceptions to this right for allegations of academic dishonesty, or where the institution has implemented a student honor court fully staffed by students to address disciplinary violations.
Decision by a Florida district court of appeals reducing – from $10 million to $200,000 – the damages awarded to the family of a University of Central Florida (UCF) football player who died following conditioning drills in 2008. The court held that UCF’s control over UCF Athletics Association (UCFAA) was sufficient to afford the association sovereign immunity to civil judgments – meaning that any award over $200,000 must be approved by the legislature. The ruling also reversed the awarding of attorney’s fees and costs of more than $2 million. The court denied UCFAA’s request for a new trial, finding that UCFAA was not denied a fair trial, nor did a medical release signed by the student athlete expressly waive his rights to sue UCFAA.
Order by U.S. District Court for the Southern District of Indiana, denying the NCAA’s motion to dismiss a complaint by a former football player challenging two NCAA bylaws – the prohibition on multi-year scholarships and the cap on the number of allowable scholarships. The complaint alleges that the NCAA bylaws create an illegal horizontal restraint under the Sherman Antitrust Act. This was the third time the court had ruled on this plaintiff’s complaint, and the first time the court found that the complaint alleged sufficient factual allegations to support a plausible antitrust claim. The court cautioned that the burdens at subsequent stages of litigation are significantly higher and noted that the plaintiff may struggle to identify evidence to support some of the allegations that were necessarily accepted as true for purposes of ruling on the NCAA’s motion to dismiss.
Decision by the Iowa Court of Appeals, reversing in part a $1.28 million verdict in a whistleblower case brought against Iowa State University by a former employee. The court found that the employee had been a victim of harassment by his supervisors, but had failed to prove retaliation under the state’s whistle-blower law, which requires that retaliation be in response to a complaint filed with a public official. The court found that the plaintiff’s superiors starting retaliating against him after he made initial complaints to lower-level employees, but before taking his case to a “public official” – in this case, the University President. Thus, the court overturned $784,000 in damages awarded to the plaintiff under the Iowa whistle-blower law, but upheld a $500,000 award for emotional distress.
Complete text (14 pages) of decision by the National Labor Relations Board (NLRB) Division of Judges ruling that Respondent violated Section 8(a)(1) of the National Labor Relations Act by maintaining and requiring its employees to sign an Employee Arbitration Agreement (EAA) that requires employees to waive their rights to maintain class or collective actions and which employees reasonably would believe bars or restricts them from exercising their right to file charges with the NLRB. The Judge also ruled that Respondent engaged in unfair labor practices and violated the Act when it discharged the Complainant for her refusal to sign the Employee Arbitration Agreement. Among other remedies ordered, the college must rescind or revise the EAA to make it clear that the agreement does not constitute a waiver of employees’ right to maintain employment-related class or collective actions and does not restrict the right of employees to file charges with the NLRB. In addition, the college must offer Complainant reinstatement to her previous position and provide restitution for any lost earnings and benefits.
Complete text (6 pages) of letter from the U.S. Department of Education to the Accrediting Commission for Community and Junior Colleges (ACCJC) finding that ACCJC is not in compliance with four federal regulations under the Secretary’s Criteria for Recognition regarding the composition of its evaluation teams, conflicts of interest, clear identification of institutional deficiencies, and compliance deadlines for institutions. The investigation of ACCJC was initiated in response to a complaint filed by the California Federation of Teachers. The Department has ordered that ACCJC must correct these areas of non-compliance within one year.
Complete text of a proposed rule by the Department of Defense implementing the Voluntary Education Programs for Military Service members. The requirements in the proposed rule include: (1) All educational institutions providing education programs through the DoD Tuition Assistance (TA) Program: (a) Will provide meaningful information to students about the financial cost and attendance at an institution so military students can make informed decisions on where to attend school; (b) Will not use unfair, deceptive, and abusive recruiting practices; and (c) Will provide academic and student support services to Service members and their families. (2) Implement rules to strengthen existing procedures for access to military installations by educational institutions. (3) DoD must conduct an annual review and notification is required if there are changes made to the uniform semester-hour (or equivalent) TA caps and annual TA ceilings. (4) Military Departments must provide their Service members with a joint services transcript (JST). (5) Implement the DoD Postsecondary Education Complaint System for Service members, spouses, and adult family members to register student complaints. (6) Authorize the Military Departments to establish Service-specific TA eligibility criteria and management controls. Comment period ends on September 30, 2013. NACUBO has prepared a helpful summary including a redline version of the proposed changes to the draft Memorandum of Understanding that institutions must sign to participate in the TA program.
Ruling by the U.S. District Court for the District of Columbia that the Federal Reserve (Fed) set swipe fees for debit card transactions higher than Congress intended in the Dodd-Frank Wall Street Reform and Consumer Protection Act and thus "clearly disregarded Congress' statutory intent by inappropriately inflating all debit card transaction fees by billions of dollars." According to the National Association of College and University Business Officers (NACUBO), retailers typically have increased the prices of goods to offset the high interchange fee, especially for low-priced items, so with lower swipe fees, institutions and campus stores could pass savings along to students. The Fed must convene a new rulemaking process to lower the cap on fees. Until then, the existing rules remain in effect.
Decision by the Minnesota Court of Appeals holding that a state agency cannot rely on the Federal Copyright Act to refuse to disclose data that is the subject of a request for disclosure under Minnesota’s Government Data Practices Act after the district court determines, without dispute, that the requestor intends only fair use of the data as defined by the copyright act. The National Council on Teacher Quality (NCTQ) had requested copies of course syllabi maintained by the Minnesota State Colleges and Universities, which the colleges had refused to provide, citing its faculty members’ intellectual property rights under the Federal Copyright Act. The district court agreed with NCTQ’s assertion that its use of the syllabi would constitute “fair use” and because the colleges did not contest that ruling, the appeals court affirmed.
Complete text (6 pages) of final rule issued the Bureau of Industry and Security (BIS), U.S. Department of Commerce, and published in the August 9 Federal Register. Section 764.5 of the Export Administration Regulations (EAR) provide for voluntary disclosure of potential EAR violations to the BIS Office of Export Enforcement (OEE). Such disclosures can be accorded great weight by BIS in determining what if any administrative sanctions it may seek. A voluntary disclosure must be followed by submission of a narrative account of the suspected violation, including all
relevant documentation. The final rule establishes a deadline of 180 days from the date of the initial disclosure for submission of the narrative account to BIS. It also sets forth procedures and criteria for extension of the 180 day deadline, including examples of circumstances that might support a request for extension. Lastly, the final rule makes slight changes to the authorized methods for notification by BIS of administrative enforcement proceedings.
Letter from the U.S. Department of Education Office of Postsecondary Education, providing guidance on the documentation of “other actions” that institutions may use to establish they have met the State authorization regulatory requirements set forth in 34 CFR 600.9(a)(1)(i). This letter also provides guidance regarding State recognition of educational programs beyond secondary education. Furthermore, this letter provides guidance on the requirement that States take an “active role” in approving or licensing institutions, including the documentation institutions may use to distinguish between postsecondary and secondary education in order to comply with 34 CFR 600.9(a)(1)(ii)(A). Finally, this letter provides some examples of alternative State approval or licensure processes that can be used by institutions to comply with the State authorization regulatory requirements under 34 CFR 600.9(a)(1)(ii)(B).
Complete text (4 pages) of joint letter from the U.S. Department of Justice, Civil Rights Division (DOJ) and the U.S. Department of Education, Office of Civil Rights (OCR) responding to June 6 letter from the American Association of University Professors Committee on Women in the Academic Profession. In its June 6, letter, the Committee expressed concern regarding the definition of sexual harassment in the May 9 Resolution Agreement entered into by DOJ and OCR with the University of Montana. While commending certain aspects of the resolution agreement, the Committee in its letter expressed concern that the definition of sexual harassment in the agreement may pose a threat to academic freedom in the classroom, and called attention to the AAUP’s Statement on Sexual Harassment: Suggested Policies and Procedures for Handling Complaints. In their joint response, DOJ and OCR assert that “[t]itle IX does not reach curriculum or in any way prohibit or abridge the use or particular textbooks or curricular materials” and that “…neither the Findings Letter nor existing Title IX guidance inhibits academic freedom in the classroom”.
Complete text (11 pages) of decision by the U.S. Court of Appeals for the Sixth Circuit reversing the lower court’s ruling that granted the university’s motion to dismiss. Plaintiff, who travels to public universities to share his religious beliefs with students, alleged that the university’s policies requiring any person not affiliated with the university to obtain sponsorship in order to speak on campus violated his First Amendment right to free speech and his Fourteenth Amendment right to due process. He argued further that the university’s two policies requiring that all speakers who are not affiliated with the university receive sponsorship from a person or organization affiliated with the university in order to speak on campus are unconstitutionally vague. The court ruled that because the two policies are contradictory and do not clearly establish who holds decision-making authority for sponsorships, it is likely that the plaintiff would succeed on the merits of a vagueness challenge and is, therefore, entitled to a preliminary injunction.
Complete text (23 pages) of August 2 letter from the American Council on Education (ACE) and 38 other higher education associations to the leadership of the U.S. House of Representatives Committee on Education and the Workforce. The letter provides numerous recommendations for the Committee as it prepares for reauthorization of the Higher Education Act. Section 2 on Consumer Information (pp. 8 – 12) and Section 8 on Federal Regulatory Burden (pp. 19 – 20) address directly and provide recommendations concerning certain aspects of the regulation of institutions of higher education by the Department of Education pursuant to the Higher Education Act. The Association of American Universities (AAU) joined the ACE letter but also issued a separate letter which at p. 3 and pp. 8-9 also addresses federal regulation of higher education.
Complete text (44 pages) of decision of U.S. Ninth Circuit Court of Appeals in class action complaint by former college athletes alleging that Electronic Arts, Inc. violated their right of publicity under California state law by including their likenesses in its NCAA Football video series. Defendant Electronic Arts, Inc. (EA) filed a motion to strike the complaint under California’s anti-SLAPP (strategic lawsuit against public participation) statute, which the District Court denied. The Court of Appeals affirms, holding that EA’s use of the players’ likenesses is not entitled as a matter of law to First Amendment protection. The Court, noting that in its video series EA seeks to replicate each school’s entire team as accurately as possible, with each player represented by an avatar with the player’s actual jersey number and virtually identical height, weight, build, skin tone, hair color, and unique identifiable playing behaviors, rules that EA does not meet the “transformative use” test under California’s anti-SLAPP jurisprudence which would entitle its use to First Amendment protection.
Complete text (18 pages) of decision by the U.S. Court of Appeals for the Sixth Circuit affirming the district court’s judgment dismissing Plaintiffs’ complaint for failure to state any claim upon which relief could be granted. Plaintiffs, all of whom are graduates of Cooley Law School, sued the school alleging that it had 1) violated Michigan’s Consumer Protection Act; 2) committed common-law fraud under Michigan state law; and 3) committed negligent misrepresentation under Michigan state law. Plaintiffs allege that Defendant misrepresented graduates’ employment and salary statistics in its publications. The Court affirmed the lower court’s ruling that the Michigan Consumer Protection Act did not cover Plaintiffs’ purchasing of a legal education and, further, that Plaintiffs’ reliance on information in Defendant’s Employment Report and Salary Survey was unreasonable and, therefore, they failed to state a claim of fraudulent or negligent misrepresentation under Michigan law.
Complete text of notice published in the July 31 Federal Register by the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture. The notice stays the Final Rule issued by the Department on December 31, 2012 requiring research facilities and other entities regulated by APHIS to develop contingency plans for response to and recovery from emergencies most likely to happen to their facilities and to train their employees on those plans. According to the rule, written contingency plans were required to be in place at all regulated facilities by July 26, 2013, all employees trained by September 27, 2013 and plans be available upon request by APHIS inspectors after September 27, 2013. The plans were required to identify common emergencies that could occur at each facility; outline specific tasks that facility staff will undertake in emergency situations; establish a clear chain of command; identify materials and resources for use during an emergency that are available at the facility or elsewhere; and provide for training of all employees on the contents of the plan. The rule was effective January 30, 2013. In its July 31 Notice staying the rule, APHIS states it is issuing the stay in order to undertake a review and analysis of the rules requirements and to further consider the impact of the required contingency plans on regulated entities.
Complete text (14 pages) of decision by U.S. Fourth Circuit Court of Appeals affirming the decision of the District Court granting summary judgment for defendant university in suit filed by plaintiff alleging, inter alia, that the university’s allegedly deficient investigation and response to a fraternity hosting a party at which plaintiff was raped created a hostile educational environment and was a violation of Title IX. In affirming the District Court, the Court of Appeals notes that, based on state law, the applicable statute of limitations for plaintiff’s Title IX claim was three years, and the only events falling within the three year period were a form letter sent by the university informing plaintiff that she could not seek re-enrollment if she transferred to another institution, and the failure of plaintiff’s father to secure a meeting with the university’s president. The court finds that neither of those events contributed to a hostile educational environment based on sex under Title IX.
Complete text (22 pages) of decision by the Court of Appeals of the State of California, First Appellate District affirming the trial court’s ruling that the names of the UC Davis police officers referenced in reports about a 2011 incident, during which officers were videotaped pepper spraying demonstrators who were protesting nonviolently on the UC Davis campus, must be disclosed. The court denied the petition for writ of mandate from the trial court’s order filed by the Federated University Police Officers Association (FUPOA), a labor union representing University of California police officers, because the information requested by several newspapers under the California Public Records Act (CPRA) does not fall within any category of exempted information under California Penal Code section 832.7, subdivision (a). The court also ruled, however, that the stay order previously issued by the court remains effective until the time for filing a petition for review in the California Supreme Court has expired.
Complete text (19 pages) of July 12 settlement agreement resolving allegations that Louisiana Tech University violated the Americans with Disability Act (ADA) through use of an internet-based learning application that was inaccessible to a blind student. The settlement agreement, which has a term of five years, requires the university to adopt and disseminate revised policies, including specific reference to the requirement of deploying accessible technology and course content. The required content of such policies is set forth in detail in Exhibit 1 of the agreement, which addresses the purchase, acquisition, development and use of instructional technology or materials accessible to persons who are blind or have other vision disabilities. The Exhibit also requires all new and pre-existing university websites comply with the Web Content Accessibility Guidelines 2.0 level AA (“WCAG 2.0 AA”). Other provisions of the settlement agreement require the university to develop annual training programs for all individuals providing course-related instruction to university students, to all university administrators, and to all incoming students, and prescribes the content of such training. The settlement agreement also requires annual reports to the U.S. Department of Justice regarding the university’s compliance with the settlement agreement. Finally, under the agreement, the student filing the complaint is to be paid $23,543. The agreement states the University disputes the Department’s determinations and admits no liability or wrongdoing. The Department announced the settlement in a July 25 press release.
Complete text (26 pages) of report by the Office of Inspector General (OIG), U.S. Department of Education, entitled “Transparency of Proprietary Schools Financial Statement Data for Federal Student Aid Programmatic Decisionmaking”. OIG reviewed the FY2010 audited financial statements for 521 proprietary schools (both privately owned and publicly traded) disbursing Title IV funds, and concludes that the financial statements submitted by such schools to the Department did not provide transparent information because the presentation of instruction and marketing expenses was not consistent across schools. OIG found that the financial statements of 78% of the 294 publicly traded institutions disbursing Title IV funds did not present the amounts spent on instruction and marketing. The report concludes with three recommendations, one of which is that the Department establish uniform account classification rules and procedures for all (emphasis added) postsecondary schools, including proprietary schools, which would include the creation and use of a standard chart of accounts that includes expense classifications that clearly define the types of costs to be recorded under each expense account. In its response to OIGs recommendations, the Department indicated that regulatory changes would be needed to establish uniform account classification rules, and that it would be at least two years before a negotiated rulemaking could begin.
Complete text (34 pages) of decision by the U.S. District Court for the Eastern District of Michigan, Southern Division granting Defendant’s motion to dismiss. Among Plaintiff’s five claims, he asserts that the university retaliated against him for constitutionally protected speech and engaged in viewpoint discrimination in violation of the First Amendment and treated him differently than similarly situated students in violation of his Equal Protection rights under the Fourteenth Amendment. The court held that Plaintiff’s “expressions of lust” for his instructor and lewd descriptions of the instructor’s physical appearance in his writing assignments for the course are not protected speech under the First Amendment and, therefore, dismissed his constitutional claims under Fed. Rule of Civ. Pro. 12(b)(6) and held that Defendant did not violate Plaintiff’s First Amendment rights when they disciplined him in response to those writings.
Complete text (15 pages) of decision by U.S. District Court (S.D. Ohio) granting plaintiff’s motion for a temporary restraining order and, citing the U.S. Supreme Court decision in United States v. Windsor, ordering Ohio state official to recognize the same-sex marriage of Ohio residents married in Maryland, although Ohio law prohibits the legal recognition of same-sex marriages. The court rules that plaintiffs established a substantial likelihood of success that they will prevail at trial on their claim that by treating same-sex marriages lawful in other states differently than it treats opposite sex marriages lawful in other states, Ohio law violates the Equal Protection Clause of the U.S. Constitution, and that failure to grant the temporary restraining order would result in irreparable harm to the plaintiffs.
Complete text of July 15 letter from the American Council on Education and six additional higher education associations supporting H.R. 2637, which would repeal the State Authorization, Gainful Employment and Credit Hour rules. The legislation would also prohibit the Secretary of Education from issuing new state authorization or gainful employment regulations until the Higher Education Act is reauthorized for a period of at least two fiscal year; and completely prohibit the Secretary from issuing any regulation with respect to the definition of a credit hour.
Link to U.S. Department of Labor (DOL) website with public database containing permanent labor certifications (PERMs) filed by employers asserting that they have been unable to find minimally qualified U.S. workers to fill positions for which they are sponsoring qualified foreign workers. The database also contains employer filings related to foreign employee visas, described in by DOL in a Labor Certification Registry Document Availability Schedule.
Complete text (5 pages) of July 16 letter to U.S. Treasury Department from the American Council on Education (ACE) and eight other higher education associations. The letter follows an earlier March 18 letter on the proposed rule issued by the Internal Revenue Service (IRS) implementing the employer shared responsibility mandate of the Affordable Care Act. The Act generally requires covered employers to offer minimum essential and adequate health insurance coverage to full time employees (those working 30 hour or more per week) or make a “shared responsibility” payment to the federal government. With respect to student employees, the associations in their March 18 letter requested that the IRS issue guidance clarifying that for purposes of calculating a student’s hours under the ACA, institutions may apply the standards developed by the Department of Labor under the Fair Labor Standards Act (FLSA). With respect to Work-Study students, the associations request guidance clarifying that institutions may exclude the hours worked by a student who is enrolled in classes at least half time and who receives a wage as part of a job under a work-study program. In their July 16 letter, the associations renew their request that the IRS include those safe harbors for student employees when the IRS issues a final rule. They also call attention to a third category of student employees, those working as part of internship or cooperative educational programs. The letter expresses concern that employers may be reluctant to participate in such programs if required by the ACA to provide health insurance coverage to such student employees. The associations propose that the final regulations permit employers deem students working as part of a college-or university-sponsored internship or cooperative education program as per se seasonal employees exempt from the employer’s obligation to offer health insurance coverage under the employer shared responsibility requirement.
Complete text (11 pages) of decision by the U.S. District Court for the District of Kansas granting Defendant's motion to dismiss employee Plaintiff's lawsuit alleging that the university violated Title VII of the Civil Rights Act. Plaintiff claimed that the university discriminated against him based on his race and then retaliated against him after he filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). The university argued that Plaintiff's discrimination charge is barred because he failed to exhaust the university's administrative remedies and that both the discrimination and retaliation charges fail to state a claim upon which relief may be granted. The Court agreed with the Defendant and ruled that Plaintiff failed to allege sufficient facts to support any of his claims against the university and, therefore, granted Defendant's motion to dismiss.
Complete text (62 pages) of decision by the 4th Circuit Court of Appeals, on remand from the Supreme Court, rejecting plaintiff university’s challenge to the individual and employer mandates in the Patient Protection and Affordable Care Act (ACA) and affirming the judgment of the district court. Plaintiffs argued that the employer mandate was not a valid exercise of Congress’ authority under the Commerce Clause; Congress does not have authority under Article I of the Constitution to enact the employer mandate; the mandates violate their rights to free exercise of religion; and the ACA religious exemptions violate the Establishment Clause and their Fifth Amendment equal protection rights. The court found that plaintiffs had standing to challenge the ACA mandates, but dismissed the complaints on their merits for failing to state a claim upon which relief could be granted. The court also exercised judicial discretion in ruling that no circumstance existed that would justify its consideration of plaintiffs’ post-remand brief challenges to the ACA implementing regulations, given that these claims were not raised in the district court. Plaintiffs have announced that they will file a petition for writ of certiorari in the Supreme Court.
Complete text (51 pages) of unanimous decision by the 7th Circuit Court of Appeals reinstating plaintiff’s case alleging that ITT knowingly submitted false claims to the Department of Education in order to receive funding from federal student financial assistance programs. The court ruled that plaintiff’s claims are not substantially similar to prior public disclosures and, therefore, the federal district court has jurisdiction over plaintiff’s lawsuit under the False Claims Act and her case can proceed on the merits. The court reversed the lower court’s dismissal of plaintiff’s case and the monetary sanctions imposed on plaintiff’s counsel, and remanded the case for further proceedings.
Complete text (3 pages) of Internal Revenue Service Notice 2013-45 providing the transitional guidance promised in the Treasury Department’s announcement that it will provide an additional year (until January 1, 2015) before the Affordable Care Act (ACA) mandatory employer and insurer reporting requirements in §6055 and §6056 of the ACA take effect; and the same would apply to the §4980H employer shared responsibility provisions and no employer shared responsibility payments will be assessed for 2014. The Notice states that both the information reporting and employer shared responsibility provisions will be fully effective for 2015. The Notice also states that once the proposed information reporting rules are issued, employers are encouraged to voluntarily comply with such provisions for 2014.
Complete text of announcement issued by U.S. Treasury Department on July 2. In the announcement, Treasury states it will provide an additional year before the Affordable Care Act (ACA) mandatory employer and insurer reporting requirements begin, and will provide formal guidance concerning the transition next week. The announcement goes on to say that this summer the Department will publish proposed rules on required information reporting, including reporting by employers with respect to health care coverage offered to their full-time employees. According to the announcement, the administration will strongly encourage employers to voluntarily implement information reporting in 2014, with full application of the reporting provisions in 2015. The announcement concludes by stating that the transition relief regarding required information reporting will make it impractical to determine which employers owe shared responsibility payments under Sec. 4980H for 2014, and so the transition relief is also extended to employer shared responsibility payments. Employer shared responsibility payments will not apply until 2015.
Complete text (51 pages) of decision by the U.S. District Court for the Eastern District of Michigan Southern Division finding, in part, that plaintiffs have stated a plausible claim that Michigan’s Public Act 297 violates the Equal Protection Clause and shown a likelihood of succeeding on that claim. Plaintiffs are five same-sex couples who allege that Public Act 297— which prohibits public employers from providing medical and other benefits to any person living with a public employee unless that person is legally married to the employee, is a legal dependent, or eligible to inherit from the state employee—violates the Equal Protection and Due Process Clauses. Plaintiffs argue that although the law does not reference same-sex partner benefits by name, the intended purpose of the law is to discriminate against same-sex couples on the basis of their sexual orientation. Citing U.S. v. Windsor, the court found that plaintiffs stated a valid claim under the Equal Protection Clause and, therefore, granted plaintiffs’ motion for a preliminary injunction. The court did not find, however, that the plaintiffs stated a viable substantive due process claim. The court followed the Supreme Court’s recent historical and textual analysis of the Defense of Marriage Act in analyzing Public Act 297.
Complete text (95 pages) of report and guidance entitled “Guide for Developing High-Quality Emergency Operations Plans for Institutions of Higher Education” and issued on June 19 by the U.S. Department of Education and five additional federal departments or agencies. According to the Introduction, it is recommended that planning teams at institutions of higher education responsible for developing and revising emergency operations plans use the document to guide their efforts. The guide includes four sections: principles of emergency management planning for institutions of higher education; process for developing, implementing and continually refining higher education emergency operations plans with community partners; the content of higher education emergency operations plans; and section that looks at specific issues such as the Clery Act, information sharing, international students, campus law enforcement, and active shooter situations. With respect to the Clery Act, the guidance at page 49 states that “IHEs must take appropriate steps to ensure that timely warnings are communicated to individuals with disabilities, including those who have hearing or vision disabilities, as effectively as they are to others.” Similarly, with respect to Clery Act emergency notifications, at page 50 the guidance states “the IHE should take steps to ensure the emergency notification planning, testing, and implementation will provide such notifications and related information to individuals with disabilities, including those with vision or hearing disabilities, as effectively as they are provided to others.”
Complete text (6 pages) of an order by Virginia Circuit Court ruling that faculty email correspondence related to academic research constitutes a public record under Virginia’s Freedom of Information Act (FOIA) when the faculty members are government employees on government property using government facilities for government purposes. The court further rules, however, that all of the records sought by petitioners qualified for exclusion under the Virginia FOIA exemption for “data, records or information of a proprietary nature produced or collected by or for faculty of staff of public institutions of higher education…..in the conduct of or as a result of study or research on medical, scientific or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body, where such data, records or information has not been publicly released, copyrighted or patented” or under the exemption for personnel records. The court also holds purely personal email messages are not public records under the Virginia FOIA. Although the court does not address the academic freedom and First Amendment issues argued by the parties, it notes that the research exception in the Virginia FOIA does arise from the concept of academic freedom and from the interest in protecting research. Petitioners have requested discretionary review by the Virginia Supreme Court.
Link to information security self-assessment tool developed by members of the EDUCAUSE Higher Education Information Security Council. According to the abstract provided, the tool was created to evaluate the maturity of higher education information security programs. It was created for use by institutions as a whole although a unit within the institution may also use it to determine the maturity of its individual information security program. The tool is an extensive list of questions and will require the participation of Chief Information or Chief Information Security officers or their designees.
Complete text (31 pages) of final rules issued by the U.S. Departments of Labor, Treasury and Health and Human Services and published in the July 2 Federal Register. Under the Affordable Care Act (ACA) and regulations and guidance promulgated pursuant to the Act, non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage are required to provide benefits for certain women’s preventive health services without cost sharing. Such preventive health services must include all Food and Drug Administration (FDA) approved-contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity. A narrowly defined set of religious employers are exempted from the requirement, and many church or religious-affiliated institutions of higher education do not fall within the scope of the exemption (non-exempt organizations). In the final rule, the Departments seek to address the concerns of non-exempt, non-profit religious organizations, such as non-profit religious hospitals and institutions of higher education, that object to providing contraceptive coverage for their employees or students. Under the final rule, such organizations will not be required to contract, arrange, pay for or refer contraceptive coverage to which they object on religious grounds, but such coverage will nonetheless be made available to women enrolled in their health plans at no cost to the institutions. With respect to insured health plans, including student health plans, the institution must provide notice to its insurer that it objects to the provision of contraceptive coverage. The insurer will then notify health plan participants this it is providing them separate access to contraceptive services at no cost. With respect to self-insured health plans, the institution must provide notice to its third party plan administrator that it objects to the provision of contraceptive coverage, and the administrator will then notify plan participants that it is providing or arranging separate no-cost payments for contraceptive services. The final rules regarding non-exempt organizations apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014. Contemporaneously with the issuance of the final rules, the Department of Health and Human Services issued guidance extending the temporary safe harbor previously provided to non-exempt institutions from August 1, 2013 to January 1, 2014. The guidance also includes a “self-certification form” to be executed by an institution seeking to be treated as an eligible organization for purposes of the accommodations set forth in the final rules. According to the guidance, organizations that qualify under the safe harbor are not required to execute another self-certification but are required to provide another notice (also include in the guidance) to plan enrollees in connection with any new plan year. The Department has also issued a Model Notice of Availability of Separate Payments for Contraceptive Services to be used by plan issuers.
Complete text of letter from Senator John McCain to Attorney General Holder requesting information concerning the recent settlement of the Department of Justice’s Title IX investigation at the University of Montana. In the letter, Senator McCain asserts that the Department has redefined the meaning of sexual harassment at all colleges and universities receiving public funding. The letter inquires of the Department the basis of its authority for its actions and poses a series of questions about what speech or conduct would now be considered by the Department to constitute sexual harassment.
Complete text (2 pages) of June 25 “Dear Colleague” letter issued by the U.S. Department of Education Office for Civil Rights (OCR). The letter references the high percentage of students who dropped out of public high schools and cited becoming a parent as a major factor in their decision to leave school. The letter announces that OCR has prepared a pamphlet to assist secondary school administrators, teachers and counselors in supporting pregnant and parenting students so they can complete their education. The letter also states that although the pamphlet focuses on secondary schools, the legal principles apply to all recipients of federal financial aid, including postsecondary institutions. Among the legal precepts cited in the letter are the following: it is illegal under Title IX to exclude pregnant students from participating in any part of an educational program. Schools must treat pregnant students in the same way they treat similarly situated students. Any special services provided to students who have temporary medical conditions must also be provided to pregnant students. A student who is pregnant or has given birth may not be required to submit medical certification for school participation unless such certification is required for all other students with physical or emotional conditions requiring the attention of a physician. Institutions must excuse a student’s absences due to pregnancy or childbirth for as long as the student’s doctor deems the absences to be medically necessary. When a student returns to school, she must be allowed to return to the same academic and extracurricular status as before her medical leave began.
Complete text (10 pages) of decision by the U.S. Court of Appeals for the First Circuit affirming the lower court’s damages award of $675,000 to plaintiff recording companies under the Copyright Act and holding that the large amount of the award did not violate defendant’s right to due process. The court ruled that plaintiff’s behaviors of knowingly and illegally downloading copyrighted music over a period of years, despite repeated warnings to cease, lying about his actions during discovery, and distributing over five thousand illegally downloaded songs were precisely the behaviors Congress sought to deter with statutory damages under the Copyright Act. Therefore, the court held that the jury’s award did not violate due process.
Complete text (41 pages) of decision by U.S. Supreme Court holding that the 5th Circuit Court of Appeals did not apply the proper level of strict scrutiny in its opinion upholding the University of Texas at Austin’s race-conscious admissions program. The Court vacates and remands the case to the 5th Circuit so that the university’s admissions process can be considered and judged under a correct analysis. The Court notes that in Grutter v. Bollinger it held that a university’s educational judgment that such diversity is essential to its educational mission is one to which the Court defers and that holding is not at issue in the case before it. However, the Court goes on to note that Grutter also held that the means chosen to attain diversity must be narrowly tailored to that goal, and on this point the institution receives no deference. In particular, the Court notes that narrow tailoring requires reviewing courts to verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity, and this involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. While stating that strict scrutiny does not require exhaustion of every conceivable race neutral alternative, strict scrutiny does require a court to examine with care, and not defer to, a university’s serious good faith consideration of workable race-neutral alternatives, and the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. According to the court, the Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications rather than following the command of Grutter that all racial classifications imposed by the government must be analyzed by a reviewing court under strict scrutiny.
Complete text (5 pages) of letter dated November 23, 2012 and posted to OCR website. The letter addresses 2006 complaints filed by a student alleging CUNY’s sponsorship of a “Black Male Initiative” (BMI) violated Title VI of the Civil Rights Act of 1964 and Title IX. The complaints alleged discrimination against students and personnel based the improper use of race, color, ethnicity and or sex. In the letter, OCR states that based on its investigation the allegations are not appropriate for further investigation or resolution and administratively closes all of the complaints (a total 18 against CUNY and its various colleges). In its letter, OCR states that it is not a per se violation of Title VI or Title IX for postsecondary institution to operate a race-themed and/or gender-themed mentoring and support program so long as it does not exclude students on the basis of their race or sex and does not use race- or sex-exclusive recruiting. OCR notes that CUNY makes clear on its website that participation in BMI is open to all, regardless of race, color, national origin or sex. OCR also states that it is permissible for a college to conduct race-targeted recruiting which seeks to ensure that students from particular groups are aware of opportunities, but does not exclude others from being recruited or participating.
Complete text (2 pages) of order from the U.S. District Court for the Western District of Pennsylvania granting a preliminary injunction on behalf of plaintiff Geneva College prohibiting the U.S. Department of Health and Human Services from requiring that the college’s student health insurance plan provide abortifacients contrary to their religious objections until the court rules on the merits of the case.
Complete text of Notice issued by the U.S. Immigration and Customs Enforcement (ICE) extending an earlier notice which suspended certain requirement for F-1 non-immigrant students from Syria experiencing severe economic hardship as a result of the civil unrest in Syria since March 2011. The previous notice enabled F-1 Syrian students to obtain employment authorization, work an increased number of hours while school was in session, and reduce their course load, while continuing to maintain their F-1 status. Complete eligibility requirements are set forth in the earlier notice.
Complete text (56 pages) of decision by U.S. Supreme Court affirming the decision of the Seventh Circuit Court of Appeals and holding that under Title VII the defendant University was not vicariously liable for the alleged creation of a racially hostile work environment because the employee alleged to have created the hostile work environment was a co-worker of the plaintiff-appellant, and not their supervisor. The Court holds that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim of the harassment.
Complete text (52 pages) of decision by U.S. Supreme Court vacating and remanding the decision of the 5th Circuit Court of Appeals and holding that plaintiffs alleging retaliation for asserting their rights under Title VII of the Civil Rights Act of 1964 must prove that the retaliatory action would not have occurred but for a discriminatory move on the part of the defendant employer. The Court rejects the assertion that in Title VII retaliation claims it would suffice to show that the motive to discriminate was one of the employer’s motives for taking retaliatory action, even if the employer had other lawful motives for the action it took.
Complete text (28 pages) of decision by the U.S. District Court for the Middle District of Pennsylvania granting the NCAA’s motion to dismiss a complaint filed by the Commonwealth of Pennsylvania. Plaintiffs alleged that the sanctions imposed on Pennsylvania State University by the Defendant after the university’s child sexual abuse scandal violated Section 1 of the Sherman Act as an unlawful agreement to restrain trade by ruining the university as an athletic competitor and causing a domino effect of economic turmoil throughout the Commonwealth. The court granted Defendant’s motion to dismiss on the grounds that the Plaintiff fails to allege commercial activity subject to the Sherman Act; fails to allege that Defendant’s activity constituted a violation of Section 1 of the Sherman Act; and fails to allege that Plaintiff suffered an antitrust injury.
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 (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.