Higher Education Law Report

On December 19, 2019, the National Labor Relations Board (the Board) held that employers can require employees to keep internal investigations confidential during the pendency of the investigations. This decision, Apogee Retail d/b/a Unique Thrift Store, overturns a 2015 decision banning employer rules requiring confidentiality in internal investigations, and has significant repercussions for higher education institutions that engage in such investigations.  

In Apogee Retail d/b/a Unique Thrift Store, the Board majority held that a workplace rule requiring employees to maintain the confidentiality of open workplace investigations is lawful under the National Labor Relations Act (NLRA). This is because the adverse impact on employees' Section 7 rights is relatively slight and outweighed by the employer's justification for having such a rule.  The Board majority also held, however, that a rule requiring employees to maintain the confidentiality of workplace investigations that have been completed requires individualized scrutiny in each case to determine "whether any post-investigation adverse impact on NLRA-protected conduct is outweighed by legitimate justifications." 

This decision applies to employers covered by the NLRA, which encompasses almost all private sector employers (even if not unionized), including higher education institutions. Colleges and universities, which conduct internal investigations regarding Title IX, sexual harassment, internal policy, and other violations, may now require employees to keep confidential information learned in the scope of those investigations until they have concluded. Employers should be aware, however, that the Equal Employment Opportunity Commission has taken the position that broad confidentiality rules- such as those that may be present in policy manuals- are not allowed under the law because they could discourage employees from exercising their protected rights to alert management or an administrative agency to discrimination. Therefore, to the extent employers seek to issue such policies, they should clearly delineate that the confidentiality provisions do not prevent employees from engaging in said protected activities.  

Our attorneys in the Higher Education Law Practice Group are available to assist with these matters at any time.

On December 12, 2019, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in Kollaritsch v. Michigan State University Board of Trustees, a decision which impacts students’ Title IX claims against their colleges or universities.

When the U.S. Supreme Court examined the issue of institutional liability for student-on-student sexual harassment in 1999, it held that a school may be found liable for student-on-student harassment only if it “acts with deliberate indifference to known acts of harassment in its programs or activities,” and the harassment is “severe, pervasive, and objectively offensive.” Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Under Davis, a school “may not be held liable for damages unless its deliberate indifference ‘subjects’ its students to harassment.” Id. at 644. In the years since the Davis decision, a split developed between the Circuit Courts regarding the interpretation of this standard, with some courts finding that a school’s actions must lead to further harassment, and others holding that the school’s actions must only make the students vulnerable to the possibility of further harassment.

In Kollaritsch, four female students alleged that they were sexually assaulted by four male students. Each female student subsequently reported her alleged assault to the University’s administration, which commenced investigations. In their combined lawsuit, the students alleged that the University acted with “deliberate indifference” by failing to engage in adequate investigations of their claims under Title IX, and in so doing, made them “vulnerable” to future harassment.

One of the students claimed that because she saw her alleged attacker on campus multiple times after reporting her assault, the University failed to act quickly enough to remove her alleged attacker from campus and, in doing so, caused her harm. Another student claimed that the University acted with deliberate indifference by reinstating her alleged attacker’s student status after previously expelling him. Finally, another student alleged that the fact that her alleged attacker (who had withdrawn as a student) could return to campus without prior notification to her by the University made her vulnerable to future harassment.

The Court rejected each of the students’ arguments and found that the University’s actions did not cause the students’ continued harassment. Specifically, the Court held that for a school’s response to a Title IX complaint to meet the “deliberate indifference” standard, it must be “clearly unreasonable,” and that unreasonableness must cause further harassment to the student. Overall, the Court held that a student must plead, and ultimately prove: 1) an incident of actionable sexual harassment, 2) the school’s actual knowledge of that incident, 3) some further incident of actionable sexual harassment, and 4) that the further actionable harassment would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response.

U.S. Immigration and Customs Enforcement’s (“ICE”) latest compliance activity involves site visits of those employers who employ F-1 nonimmigrant students under STEM Optional Practical Training (“STEM OPT”) work authorization.  With STEM OPT, F-1 students who have earned STEM (e.g., science, technology, engineering and mathematics) degrees from U.S. institutions of higher education can apply for and obtain an additional 24 months of OPT work authorization in addition to the 1 year of post-graduation OPT granted to all eligible F-1 students.  

Read More >> <p>STEM OPT Site Visits – Why ICE Is Knocking On Your Door Now - Higher Education Law Report</p>

In what is likely only the first step in a trek to the U.S. Supreme Court, on September 30, 2019, Harvard College defeated a challenge to its admissions policy brought in the federal District Court in Massachusetts on behalf of Asian-American applicants.  In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Civil Action No. 14-cv-14176-ADB, U.S. District Court Judge Allison D. Burroughs found that Harvard’s admissions policies did not violate Title VI of the Civil Rights Act or the strict scrutiny standard of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.  We will summarize the lengthy court decision in this comparatively short piece.  The decision itself outlines extensive factual findings based on written submissions and the testimony from eighteen current and former Harvard employees, four expert witnesses, and eight current or former Harvard college students. 

Read More >> <p>Race-Conscious Admissions and the Race to the Supreme Court - Higher Education Law Report</p>

On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA).  Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.

Read More >> <p>Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing - Higher Education Law Report</p>

On August 12, 2019, Governor Cuomo signed legislation making sweeping changes to the New York Human Rights Law (“NYHRL”). Although we previously posted summaries of the significant amendments to the Human Rights Law and their potential impact on employers, we take this opportunity to explain how those amendments pose challenges for New York colleges and universities. 

Read More >> <p>New York Legislation Redefines Harassment Standard - Higher Education Law Report</p>

Today, President Trump will sign a new Executive Order (EO): Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. The EO focuses on two areas: free speech and consumer awareness.

Read More >> <p style="text-align:justify">New Executive Order Regarding Free Speech and Consumer Awareness</p>

On November 16, 2018, more than a year after rescinding Obama administration era Title IX subregulatory guidance on colleges’ and universities’ obligations under Title IX, the United States Department of Education published its long-awaited proposed Title IX regulations. The proposed regulations will likely be viewed by institutions as a mixed bag. On the one hand, the regulations promise a narrower scope of enforcement and greater deference to institutional decisions. On the other hand, notwithstanding Secretary of Education Betsy DeVos’s assertions that the prior administration had inappropriately imposed highly technical and overly-stringent compliance obligations on colleges and universities, the proposed regulations would legislate significantly in this area, mandating detailed new processes, many of which are arguably beyond the Department’s discretion to require and some of which may create conflicts with the requirements of state laws such as New York Education Law Article 129-B. The following are some of the most noteworthy provisions.

Read More >> <p>Proposed Title IX Regulations Would Necessitate Extensive Changes to Institutional Policies and Practices</p>

Irrespective of one’s political point of view, the Kavanagh confirmation hearings captured the Nation’s attention and created watercooler debates, heated at times, as to respective views of the truth in a case involving sexual assault.  And while the public may becoming adept at sideline adjudications of wildly divergent versions of events, Colleges have long been on the front line. 

Read More >> <p>New York High Court Renders Important Decision Deferring to Institutional Determination in Sexual Misconduct Proceeding</p>

On August 8, the NCAA Division I Board of Directors adopted Proposals 2018-16_and_2018-17.  These proposals, which arose out of the work of the Commission on College Basketball (and associated working groups), will necessitate new content in employment agreements with certain institutional personnel executed, extended or renewed on or after August 8, 2018.

Read More >> <p>New NCAA Legislation Necessitates Changes to Institutional Employment Agreements</p>

A class action lawsuit against New York University, which alleged that the fiduciaries of its two retirement plans breached their ERISA duties by failing to diligently monitor the plans’ investment funds and allowing the plans to pay excessive fees, was recently dismissed.¹ After an eight-day bench trial, U.S. District Judge Katherine B. Forrest ruled that, despite some “troubling” deficiencies in the manner in which the fiduciaries discharged their duties, the plaintiffs failed to prove any fiduciary breach.

Read More >> <p>The Recent NYU ERISA Decision and Best Practices for ERISA Fiduciaries</p>

As you know from the August 2, 2018 Higher Education Law Report, the U.S. Citizenship and Immigration Services’ (“USCIS”) policy memorandum dramatically changing the way USCIS calculates unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents took effect on August 9, 2018. Very late in the evening of August 9, 2018, USCIS released a revised final policy memorandum which supersedes the prior one and addresses unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications and J nonimmigrants who are reinstated by the U.S. Department of State, the agency that administers the J-1 exchange visitor program.

Read More >> <p>VERY LATE BREAKING NEWS: USCIS Issues Revised Final Guidance on Unlawful Presence for Nonimmigrant Students and Exchange Visitors</p>