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New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

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Government Relations; Authorizations & Regulations

Request by College and University Professional Association for Human Resources to the U.S. Dep’t of Treasury and Internal Revenue Service to Delay Implementation of the New UBTI Provisions (May 21, 2018)

Urgent Request by the College and University Professional Association for Human Resources (CUPA-HR) to the Department of Treasury and Internal Revenue Service (IRS) to delay the implementation of new unrelated business income provisions in the Tax Cuts and Jobs Act (TCJA). At issue are two requirements: section 512(a)(6), which would require organizations with “more than one unrelated trade or business” to compute unrelated business income “separately with respect to each such trade or business,” and section 512(a)(7), which would levy a 21% tax on qualified, pre-tax transportation fringe benefits. In the absence of detailed guidance on these provisions from the IRS, CUPA-HR urges the Dep’t of Treasury and the IRS to delay their implementation until one year after Final Rules are promulgated so that higher education institutions can develop responsive systems and processes to meet these new requirements.

5/23/2018
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Government Relations; Authorizations & Regulations

U.S. Dep’t of Education Launches New Website Accessibility Technical Assistance Initiative (May 17, 2018)

Announcement by the U.S. Department of Education’s Office of Civil Rights (OCR) on a New Technical Assistance Initiative. The initiative aims to make online programs, services, and activities delivered by schools, districts, state education agencies, libraries, colleges, and universities more accessible to individuals with disabilities. OCR will provide a series of webinars on the matter and individuals interested in participating should visit OCR’s Disability Discrimination site for scheduling and registration information.

5/17/2018
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Government Relations; Authorizations & Regulations

Public Comment by Thirteen Higher Education Associations on the Social Medial Proposal for Nonimmigrants by the State Department (May 4, 2018)

Public Comment by the American Council on Education (ACE) and twelve other higher education associations on the State Department’s information collection proposal to change the application for nonimmigrant visas. Specifically, the State Department’s proposal requires all nonimmigrant visa applicants to report five years of their identifying information on social media platforms and five years of their previously used telephone numbers, email addresses, and international travel. The public comment states that “these new requirements send a message that we no longer welcome members of the international community who wish to enter our campus gates,” which will result in adverse effects on America’s higher education mission of global engagement and ability to recruit and retain international students and scholars. Moreover, the public comment notes that providing no additional funding to consulates while requiring them to collect this information will result in slower processing times, notwithstanding the significant privacy concerns that may be implicated with collecting and maintaining this information. The public comment closes by affirming each associations’ commitment to working with the State Department to address national security concerns while “upholding our nation’s values and interests.”

5/16/2018
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Government Relations; Authorizations & Regulations

Policy Memorandum by USCIS on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors (May 10, 2018)

Policy Memorandum by U.S. Citizenship and Immigration Services (USCIS) providing guidance on the calculation of unlawful presence for students, exchange visitors, or vocational students and their dependents while in the U.S. The Policy Memorandum also revises USCIS’s Adjudicator’s Field Manual on the subject matter. Under its former policy, student (F), exchange visitor (J), and vocational student (M) nonimmigrants accrued unlawful presence on the day after USCIS formally found a nonimmigrant status violation, either through a USCIS adjudication or by order of an immigration judge. The new policy provides that F, J, or M nonimmigrants who have failed to maintain their nonimmigrant status before August 9, 2018 will start accruing unlawful presence on that day, unless the clock had otherwise already begun. F, J, or M nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018 will accrue unlawful presence the day after 1) they no longer pursue their authorized activity or course of study, 2) they complete their study or program, 3) their Form I-94 expires, or 4) an immigration judge orders them excluded, deported, or removed. The policy memorandum provides that the new guidance aims to “reduce the number of overstays and to improve how USCIS implements that unlawful presence ground of inadmissibility” under the Immigration and Nationality Act.

5/15/2018
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Government Relations; Authorizations & Regulations

Letter from Thirty-Five Higher Education Associations to Congress on Proposed Rescissions to Non-Defense Spending (May 4, 2018)

Letter from the American Council on Education and thirty-four other higher education associations to Congress on proposed rescissions to non-defense funding in the 2018 fiscal year budget. The letter outlines concerns specific to higher education, specifically the significant harm students who receive financial aid may face, given the timing of federal student aid disbursements and the date of a final decision on the rescissions in late summer or early fall. The letter provides that “[s]tudents and schools depend on the guarantees the federal government gave when they made their decisions about where they will attend before giving up their other options.” The letter strongly urges Congress not to include student aid funds in its rescission package and urges Congress to reject a special message from the Trump Administration to impound student aid packages until the budget process is resolved. The group sent a similar letter to the Director of the Office of Management and Budget.

5/8/2018
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Government Relations; Authorizations & Regulations

Public Comment by Seven Higher Education Associations on Reporting Requirements for Sexual Harassment and Similar Acts by the National Science Foundation (May 4, 2018)

Public Comment by the American Council on Education (ACE) and six other higher education associations on proposed new reporting requirements for sexual harassment, sexual assault, and other forms of harassment by the National Science Foundation (NSF). The NSF proposed new requirements for awardee organizations to notify NSF of any individuals in a position of trust (Principal Investigators or Co-Principal Investigators) who are put on administrative leave for sexual harassment, sexual assault, or other forms of harassment. The proposed new requirements would also allow NSF to take “unilateral action, as appropriate, to require… suspension or termination of the award, or a reduction in the award funding amount.” Among its recommendations, the public comment notes that reporting the placement of such an individual on “administrative leave” may have a chilling effect on interim measures used to determine whether or not misconduct occurred, while the unilateral action proposed by NSF may deter individuals from reporting harassment because the potential exposure to future FOIA requests may impact their careers. The public comment includes a number of recommendations to NSF—such as proposed language that increases uniformity and clarity and a request to implement an appeals process—and concludes by affirming a commitment to work with NSF to effectively address sexual misconduct in the scientific workplace.

5/7/2018
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Government Relations; Authorizations & Regulations

NACUBO “What Did I Miss in Washington?” April 17 – April 30, 2018

Summary from the National Association of College & University Business Officers (NACUBO) on legislative and regulatory actions that occurred between April 17 – April 30, 2018. This summary highlights the passage of a number of bills in the House that aim to reform customer service initiatives and cybersecurity programs within the IRS, the confirmation of Carlos Muñiz as general counsel for the Department of Education, and an updated publication of the Cyber Security Framework by the U.S. Department of Commerce National Institute of Standards and Technology.

4/30/2018
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Government Relations; Authorizations & Regulations

Delay of the Revisions to the Federal Policy for the Protection of Human Subjects (April 20, 2018)

Notice of Proposed Rulemaking and Interim Final Rule delaying the effective date and general compliance date for final rule revisions to the Federal Policy for the Protection of Human Subjects. The 2018 Requirements, which previously had an effective date of July 19, 2018, now have a six-months delayed effective date of January 21, 2019. The delay grants interested stakeholders more time to prepare for implementing revisions and allows interested parties to comment on the 2018 Requirements’ definition of “research,” the lack of annual continuing review for certain categories of research, and the elimination of the requirement that institutional review boards review grant applications related to the research.

4/23/2018
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