Higher Education Law Report

It has been over two months since the federal District Court’s July 28, 2021 decision in Victim Rights Law Center et al v. Cardona vacating the section of the United States Department of Education’s 2020 Title IX Final Rule that precluded postsecondary institutions from considering any statement made by a party or witness who does not submit to cross examination at a live adjudicatory hearing. Since the decision, institutions have sought to assess its impact on their processes for adjudicating allegations of sexual harassment, including the possibility of changes to eliminate this preclusion requirement from their procedures.

Read More >> <p>Assessing the Evolving Impact of <em>Victim Rights Law Center et al v. Cardona</em> on College and University Title IX Procedures</p>

The General Counsel for the National Labor Relations Board (NLRB or Board), who has authority for setting prosecutorial policy for the NLRB, issued a General Counsel Memorandum (GC Memo) today, reversing the prior Board General Counsel’s position and asserting the employee status of certain student athletes at private educational institutions. Board General Counsel Jennifer Abruzzo conveyed her enforcement position in a memorandum to the Board’s Regional Directors. Because non-unionized employees have rights under the federal labor law, the immediate impact will be that the NLRB’s enforcement arm will be processing complaints related to allegations of adverse treatment of certain student athletes for all variety of internal complaints against private institutions.

Read More >> <p>NLRB General Counsel Abruzzo Issues Memo on Employee Status of Players at Academic Institutions</p>

One month has passed since the NCAA Board of Directors adopted emergency legislation permitting student-athletes to monetize their name, image and likeness (NIL) without violating the long-standing amateurism requirements of NCAA Bylaw 12. Specifically, the NCAA: (1) acknowledged that a state law/executive order regarding NIL supersedes NCAA rules; and (2) provided blanket NIL coverage to student-athletes located in states that do not have a state law/executive order in place. This major change in NCAA legislation is charting new pathways for how student-athletes must be monitored by their institutions to avoid ineligibility. The creation of an internal institutional policy is one way to help organize and manage this new process.

Read More >> <p>NCAA Student-Athlete Name, Image and Likeness</p>

On June 21, 2021, in an opinion providing a very interesting historical overview of collegiate athletics going back to the 19th century and the founding of what is now the National Collegiate Athletic Association (NCAA), the U.S. Supreme Court released its decision in the NCAA v. Alston case. The Supreme Court affirmed the lower court’s injunction of NCAA rules that restrict education-related benefits to Division I basketball and bowl subdivision football student-athletes. 

Read More >> <p><em>NCAA v. Alston </em>Case: Supreme Court Strikes Down NCAA Rules Restricting Benefits to Student-Athletes</p>

Today’s corporate workplaces include workers in nontraditional working arrangements. Companies in many industries are increasingly establishing a core group of employees in many of their business units and supplementing them with other workers under more flexible work arrangements. Higher education has not followed this business trend, but the financial pressures on our industry have invited more careful consideration of this possibility. This information memo reviews the legal issues that arise when two schools share one or more employees.

Read More >> <p>Sharing Employees with Other Institutions of Higher Education</p>

On March 19, 2021, the U.S. Department of Education (Department) issued new guidance to institutions of higher education (IHEs) regarding the use of funds received pursuant to the Higher Education Emergency Relief Fund (HEERF) grant programs. The Department’s stated goal is to allow greater flexibility in the use of these funds to permit IHEs to better meet students’ needs. The major points are: (1) allowing IHEs to charge pre-award costs back to March 13, 2020; (2) additional guidance on the use of funds for and calculation of lost revenue; and (3) including students who are qualified aliens to receive student aid funding. The guidance documents respond to many of the unanswered questions raised by higher education groups including ACE and NASFAA. 

Read More >> <p>New HEERF Guidance Adds Flexibility, Extends Time Period for Institutions&rsquo; Costs and Lost Revenue</p>

Yesterday, President Biden issued an Executive Order on Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers. Among other things, the executive order instructs the U.S. Department of Education to develop and provide “evidence-based guidance to institutions of higher education on safely re-opening for in person learning,” as well as related advice to institutions on matters including distance and other means of delivering curricular content, and the promotion of mental health and social-emotional well-being. In developing its guidance, the Department is directed to consult with institutional officials, students, educators, unions and families. 

Read More >> <p>Federal Government to Issue Additional COVID-19 Guidance for Colleges and Universities</p>

In March 2020, the CARES Act created the Higher Education Emergency Relief Fund (HEERF) to provide funds to higher education institutions and their students for support related to the COVID-19 pandemic. The CARES Act provided roughly $14 billion to HEERF. 

Read More >> <p>Additional Relief for Higher Education</p>

On Dec. 22, 2020, the U.S. District Court for the Northern District of California partially granted a petition for preliminary injunctive relief barring the enforcement of Executive Order 13950, Combatting Race and Sex Stereotyping, (EO or Order) against federal contractors and grantees. The lawsuit, Santa Cruz Lesbian & Gay Community Center, et al. v. Donald J. Trump, Case no. 5:20-cv-07741 (N.D. Ca. Dec. 22, 2020), seeks to permanently enjoin enforcement of the entire Order as unconstitutional on two grounds:

1. The Order violates the first amendment by unlawfully chilling Plaintiffs’ exercise of constitutionally protected speech based on the content and viewpoint of the speech and 
2. The Order is unconstitutionally vague because it does not provide adequate notice of the conduct it purports to prohibit.

Read More >> <p>Court Issues Nationwide Preliminary Injunction Preventing Enforcement of &ldquo;Divisive Concepts&rdquo; Executive Order Against Institutions of Higher Education</p>

On Dec. 14, 2020, the IRS added guidance to its FAQs on the Higher Education Emergency Relief Fund and Emergency Financial Aid Grants under the CARES Act, clarifying that higher education institutions are not required to report these emergency financial aid grants to students on Form 1098-T. 

Read More >> <p>New Guidance from IRS on Treatment of CARES Act Payments to Students</p>

On May 6, 2020, the U.S. Department of Education (DOE) issued new Title IX regulations which imposed significant changes in the way in which colleges and universities must investigate and adjudicate sexual assault cases. The revised Title IX regulations have an effective date of August 14, 2020. On August 5, 2020, the DOE’s Office for Civil Rights (OCR) announced that the new regulations do not apply to institutional responses to sexual assaults that allegedly occurred prior to August 14 relying on the preamble to the regulations. Despite OCR’s seemingly clear position on retroactivity, a recent federal court case out of the Northern District of New York raises new questions as to whether and when the new Title IX rules must be applied retroactively to cases preceding their effective date. 

Read More >> <p>Court Issues Preliminary Injunction Against Institution That Declined to Apply New Title IX Regulations Retroactively&nbsp;</p>

The Centers for Disease Control and Prevention (CDC) issued guidance earlier this year on dealing with the COVID-19 pandemic. That earlier guidance did not recommend testing of students or employees. Many colleges and universities followed that guidance, and when some of them reopened this fall, they saw substantial outbreaks of the disease. The CDC has since then changed its guidance.

Read More >> <p>CDC Releases New COVID-19 Guidance for Colleges and Universities with Focus on Testing</p>