Court Issues Preliminary Injunction Against Institution That Declined to Apply New Title IX Regulations Retroactively 

October 23, 2020

By Christa Richer Cook

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 </p>

CDC Releases New COVID-19 Guidance for Colleges and Universities with Focus on Testing

October 7, 2020

By Barbara A. Lee, Ph.D.

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>

Centers for Disease Control and Prevention Issues Guidance on Student Foreign Travel

October 7, 2020

By Barbara A. Lee, Ph.D.

The Centers for Disease Control and Prevention (CDC) has issued guidance for institutions whose students are planning international travel or participation in study abroad programs. 

The Guidance suggests that colleges and universities “consider postponing or canceling student international travel programs” because of the continuing COVID-19 pandemic in a number of international destinations. The Guidance suggests that “students may face unpredictable circumstances, such as travel restrictions, challenges returning home, and challenges accessing health care while abroad.”

Read More >> <p>Centers for Disease Control and Prevention Issues Guidance on Student Foreign Travel</p>

Enough is Enough Data Due October 1

September 17, 2020

By Stephanie M. Campbell

The new Title IX rule, which became effective August 14, 2020, has garnered much attention in the higher education community over the summer. Many schools have scrambled to put new policies in place and to adequately resource and train staff for new responsibilities. For New York institutions, it is important to remember that schools also have requirements under the New York’s Enough is Enough law.

Importantly, Enough is Enough (New York Education Law Article 129-B) requires colleges and universities to submit annually aggregate data on reported incidents of sexual violence and their adjudication and handling.

In 2017, the New York State Board of Regents adopted regulations for reporting this information. A link to those regulations is provided below. Reports were due last year for calendar year 2018 so institutions should have familiarity with compiling and filing this Aggregate Data Report.

The October 1, 2020 deadline for calendar year 2019 reports is fast approaching. Any institution of higher education who has not yet submitted its 2019 Aggregate Data Report should attend to finalizing it and submitting the Report by the October 1 deadline. The Report should be submitted electronically.

Helpful links are provided below.

If you have any questions about the information presented here, please contact any attorney in Bond’s Higher Education practice, or the attorney in the firm with whom you are regularly in contact.

Additional COVID-19 Requirements for New York Higher Education Institutions

September 2, 2020

On August 28, 2020, the New York State Department of Health released supplemental guidance for COVID-19 containment at higher education institutions. In addition to complying with the state’s reopening guidance, all higher education institutions in New York state are required to comply with this supplemental guidance. 

The supplemental guidance provides when, and for how long, an institution must restrict in-person learning and on-campus activities as a result of COVID-19 infection rates. The guidance provides the minimum thresholds that institutions must adhere to, but local health departments and institutions may establish stricter thresholds.

Whenever the lesser of 100 individuals or 5% of the total on-campus population at an institution location tests positive for COVID-19 within a 14-day period, the location must immediately, for a period of at least 14 days: 

  • Deliver all classes remotely;
  • Convert campus dining and food services options to takeout/delivery only; and
  • Suspend in-person athletics, extracurricular programs, and non-essential student activities.

However, an institution, in consultation with the local health department, may conduct certain clinical, laboratory or other in-person activity required to obtain or maintain a professional licensure, or research activity which must be conducted in-person, only if public health and safety can be maintained. 

During this two-week period, residential facilities must remain open. Only those students identified as contacts of a positive case are required to quarantine, and only positive cases will be ordered into isolation. If the institution decides to close for the semester or academic year, then the residence halls will be closed. In such instances, institutions may provide limited on-campus housing for students who otherwise lack access to secure housing, if approved by the local health department. 

For purposes of computing the threshold, the total on-campus population includes all students, faculty and staff who are on the campus location. Students, faculty or staff who test positive for COVID-19 prior to arrival on campus, as well as those who test positive while quarantined due to out-of-state travel restrictions prior to participation in on-campus activities are not counted. An institution location refers to a self-contained location or campus of a given institution. 

Even if the institution has fewer than 100 individuals or less than 5% of the total on-campus population who have tested positive for COVID-19 over a 14-day period, local health departments retain the ability to restrict in-person learning as the situation may warrant. Particularly, if the local health department, in consultation with the New York State Department of Health (DOH), finds that at any time a cluster of positive COVID-19 cases exceeds the institution’s ability to contact trace, quarantine or isolate, it can require the institution to transition all in-person learning to remote and limit on-campus activities. 

After 14 days, the local health department will evaluate the institution’s efforts to contain COVID-19 infections. If the local health department, in consultation with the DOH, determines that the institution has effectively contained the spread of COVID-19, then the location will be authorized to reopen for in-person learning. If the institution has not demonstrated it has effectively contained the spread of COVID-19, then the local health department may require a continued suspension of in-person learning. 

If you have any questions about the information presented here, please contact any attorney in Bond’s Higher Education practice or the attorney in the firm with whom you are regularly in contact. 

Two Courts Deny Preliminary Injunction Against the New Title IX Rule. Are These Decisions Harbingers of What’s to Come?

August 24, 2020

By Gail M. Norris

Two federal court judges refused to issue a preliminary injunction to stop the new Department of Education’s Title IX rule (the Rule) from taking effect on its August 14, 2020 effective date. In the meantime, there remain four lawsuits1 pending against the Department of Education challenging the Rule on a number of legal grounds. Although the legal standards for issuing a preliminary injunction are different than those used to reach a decision on the merits of a suit, the decisions on preliminary injunction give some indication of the uphill battle the pending lawsuits face.

New York Decision

In State of New York, et. al. v. United States Department of Education, et. al., the plaintiffs brought suit alleging that the Rule violated various provisions of the Administrative Procedures Act and contended that the Department of Education’s (DOE) actions in adopting the Rule were “arbitrary and capricious.” The plaintiffs moved for a preliminary injunction to stop the implementation of the Rule while the suit is pending. 

In his decision, U.S. District Judge John Koeltl, Southern District of New York, reiterated that the well-established standards for the issuance of a preliminary injunction including that the plaintiffs show that they are likely to succeed on the merits. As such, Judge Koeltl gave us a look at his view of the merits of the underlying claims in the suit. In his decision, Judge Koeltl serially addressed the plaintiffs’ complaints about the Rule’s definition of sexual harassment, its prescriptive grievance process, its limited definition of “program or activity,” and plaintiffs’ claims that the DOE generally failed to justify or adequately consider other aspects of the Rule. The decision echoes many of the comments discussed in the lengthy preamble to the Rule about each of the plaintiffs’ claims.

In the end, the judge concluded that the reasons provided by the DOE for changes in past policies and the rationale for the provisions of the Rule were adequate to satisfy the court that the department’s rulemaking was not arbitrary and capricious. As Judge Koeltl noted, while an agency must show that there are good reasons for its new policy, it need not show that the reasons for the new policy are better than the reasons for the old one. As such, the court determined that the plaintiffs did not show that they were likely to succeed on the merits of their claims and declined to grant an injunction.

Attorneys General Decision

In Commonwealth of Pennsylvania, et. al. v. Elisabeth Devos, et. al., 17 states and the District of Columbia sued challenging the Rule and also moved for a preliminary injunction to stop the implementation of the Rule pending judicial review of the suit. 

In his decision, U.S. District Judge Carl Nichols (D.C.) also cited the standards for the issuance of a preliminary injunction, including that the plaintiffs show that they are likely to succeed on the merits. Judge Nichols’ decision, too, gave us some insight to his view of the merits of plaintiffs’ claims in the underlying suit.

Plaintiffs in this suit proffered some claims that were the same as those in the New York case. These include claims that the definition of sexual harassment was improper, that the Rule’s requirement that the harassment be connected to an educational program and activity was ill considered, and that several aspects of the grievance process were objectionable. In addition, the plaintiffs added claims (1) that the mandated grievance process in K-12 schools exceeded the department’s authority and was arbitrary and capricious by impermissibly intruding into the school’s disciplinary procedures and failing to account for the unique environment of K-12 schools, and (2) that the Rule impermissibly restricted schools from taking a more proactive approach to sexual harassment by investigating a broader array of allegations.

Judge Nichols reviewed many of the arguments (also discussed in the preamble to the Rule) on each of these issues. The judge concluded that, while it may be that the Rule is overly prescriptive and that it might be better to fashion a rule that grants more flexibility to investigate, make determinations and discipline sexual harassment, the court is not supposed to substitute its judgment for that of the DOE to decide whether another alternative is better. Rather, it can only decide if the Rule is arbitrary and capricious. 

What the Decisions Mean for the Pending Lawsuits

Both decisions refer to the well-developed rationale expressed by the DOE in the 2,000-page preamble to the Rule. Most of the issues raised by the plaintiffs in the pending suits were the subject of some of the 125,000 written comments submitted to the department when the proposed rule was published. The department’s use of the preamble to lay out the issues, discuss the pros and cons raised by the comments and articulate a reasoned justification for the final Rule’s provision has served it well in the defense of these suits. As Judge Koeltl wrote in his decision, the comments discussed in the preamble “showed that there were bitter disputes about which policy was the most appropriate to implement in almost every aspect of the Rule’s provisions.” Plaintiffs’ arguments in their lawsuits repeat one side of the disputes referenced in the judge’s comments.

The legal standard that a court will used in addressing the claims in the pending lawsuit is different than, and largely not as burdensome as, the standard imposed by the courts in deciding whether to issue a preliminary injunction. The legal standard used in most of the plaintiffs’ claims in the existing lawsuit is whether the DOE was “arbitrary and capricious.” The decisions of Judge Koeltl and Judge Nichols give us some early signals that the rationale laid out by the DOE in the preamble of the Rule for the most controversial aspects of the Rule is likely to withstand the challenge that the department’s rulemaking was arbitrary and capricious.

Still, there is uncertainty about how the courts in the remaining two lawsuits might view similar claims or whether the courts will reach a different conclusion after a fuller briefing on the merits. The resolution of these cases is likely to take months. In the interim, a presidential election will occur that could have further impact on the Rule.

Educational institutions subject to the Rule might consider what their policies should look like should all or parts of the Rule be overturned by a court or revoked under a new administration so that they can move quickly to eliminate those portions of the Rule that they find most troublesome.

If you have any questions about the information presented here or any Title IX related issues, please contact Gail Norris, any member of Bond’s Title IX Task Force or Higher Education practice, or the attorney in the firm with whom you are regularly in contact. 


1 In addition to the lawsuits brought by the State of New York and by Attorneys General from 17 states that underlie the preliminary injunctions requested and discussed in this memorandum, suits have also been brought against the U.S. Department of Education by the American Civil Liberties Union and the National Women’s Law Center.

Barbara Lee Joins Bond, Schoeneck & King’s Higher Education Practice 

August 4, 2020

By Barbara A. Lee, Ph.D.

Bond, Schoeneck & King is pleased to announce that Barbara A. Lee has joined the firm as of counsel in its New York City office. Prior to joining Bond, Lee served as Senior Vice President for Academic Affairs for Rutgers University where she still holds the position of Distinguished Professor in the School of Management and Labor Relations. Her background in the law and as both a faculty member and academic leader uniquely positions Lee to effectively counsel clients.

Read More >> <p>Barbara Lee Joins Bond, Schoeneck & King’s Higher Education Practice </p>

Sixth Circuit Loosens Pleading Standard for Title IX Wrongful Outcome Cases

July 28, 2020

By Howard M. Miller, Monica C. Barrett, and Sarah A. Luke

Sexual assaults on college campuses are an issue to be taken seriously. Colleges and universities are well aware of their responsibility under Title IX to address and remediate sexual abuse; but with that responsibility comes an obligation to identify unsubstantiated claims. To fulfill these obligations, colleges have enacted comprehensive anti-harassment and sexual misconduct policies, conducted training and promulgated adjudicatory procedures that serve to provide protection and redress for victims of sexual assault, while ensuring that those accused of sexual assault are provided with fair protections from unsubstantiated allegations. 

Read More >> <p>Sixth Circuit Loosens Pleading Standard for Title IX Wrongful Outcome Cases</p>

ICE Reverses Course Again – International Students May Now Attend Online-Only Institutions in the U.S. During the Fall 2020 Semester

July 15, 2020

By Joanna L. Silver

As we reported last week, on July 6, 2020, U.S. Immigration and Customs Enforcement (ICE) announced that F-1 and M-1 nonimmigrant students attending schools operating entirely online were not permitted to remain in the U.S. and take a full online course load during the fall 2020 semester. As a result of this directive, students in the U.S. currently enrolled in entirely online schools and/or programs for the fall 2020 semester would have had to depart the U.S. or transfer to another institution with in-person instruction to remain in valid student status. Further, this modification would have applied: (i) where a school pivoted from in-person or hybrid instruction to online-only instruction mid-semester (like what occurred during the spring 2020 semester); and/or (ii) where a nonimmigrant student changed their course selections from a combination of in-person and online courses to online-only courses. 

Read More >> <p>ICE Reverses Course Again – International Students May Now Attend Online-Only Institutions in the U.S. During the Fall 2020 Semester</p>

ICE Reverses Course, Prohibits International Students from Attending Online-Only Institutions in the U.S. During the Fall 2020 Semester 

July 8, 2020

By Joanna L. Silver and Caroline M. Westover

As COVID-19 forced colleges and universities across the country to abruptly close their campuses and pivot to online-only instruction models for the remainder of the spring and the entire summer semesters, Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) instituted a welcome -- albeit temporary -- regulatory exemption permitting F and M students to take more online courses than allowed under the federal regulations in order to maintain a full course of study and their nonimmigrant status in the U.S. during the pandemic.

Read More >> <p>ICE Reverses Course, Prohibits International Students from Attending Online-Only Institutions in the U.S. During the Fall 2020 Semester </p>

Reopening Higher Education

June 22, 2020

By Gail M. Norris

On Saturday, June 20, the state released Interim Guidance on Reopening and Operating Higher Education Campuses. As with prior industry guidance, institutions of higher education (IHEs) will need to adopt a Safety Plan that meets state guidance. The Interim Guidance outlines the following considerations that should be used in developing a Safety Plan for campuses.

Read More >> <p>Reopening Higher Education</p>

National Labor Relations Board Reverses Obama-Era Decision Regarding Standard for Asserting Jurisdiction Over Faculty Members at Religious Institutions

June 17, 2020

By Mary E. Aldridge

On June 10, 2020, the National Labor Relations Board (the NLRB or the Board) issued a decision that reversed a 2014 Board decision regarding the test for exercising jurisdiction over faculty members at religious institutions.  In Bethany College, the Board held that the test for exercising such jurisdiction that was established by the Board in Pacific Lutheran University was inconsistent with U.S. Supreme Court and D.C. Circuit Court of Appeals precedent, and restored the test established by the D.C. Circuit Court of Appeals in University of Great Falls v. NLRB.

Read More >> <p>National Labor Relations Board Reverses Obama-Era Decision Regarding Standard for Asserting Jurisdiction Over Faculty Members at Religious Institutions</p>