Higher Education

NCAA Student-Athlete Name, Image and Likeness

July 29, 2021

By Kyle D. Ritchie and Richard J. Evrard

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>

NCAA v. Alston Case: Supreme Court Strikes Down NCAA Rules Restricting Benefits to Student-Athletes

June 30, 2021

By TaRonda Randall

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>

Sharing Employees with Other Institutions of Higher Education

April 27, 2021

By Gail M. Norris

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>

New HEERF Guidance Adds Flexibility, Extends Time Period for Institutions’ Costs and Lost Revenue

March 24, 2021

By Jane M. Sovern and Philip J. Zaccheo

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>

Federal Government to Issue Additional COVID-19 Guidance for Colleges and Universities

January 22, 2021

By Philip J. Zaccheo

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>

Court Issues Nationwide Preliminary Injunction Preventing Enforcement of “Divisive Concepts” Executive Order Against Institutions of Higher Education

January 5, 2021

By Sarah A. Luke

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>

New Guidance from IRS on Treatment of CARES Act Payments to Students

December 17, 2020

By Jane M. Sovern, Gail M. Norris, and Philip J. Zaccheo

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>

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&nbsp;</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>

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.