Higher Education

The Fifth Circuit Extends Injunction of the Biden Administration’s Borrower Defense to Repayment Rules

April 12, 2024

By Seth F. Gilbertson and Alison K. Roach

In a decision affecting the ever-shifting legal and regulatory dynamics of Borrower Defense to Repayment (BDR) claims, the Fifth Circuit postponed the effective date of a Biden administration plan to expand student debt relief to more borrowers who claim they were misled by institutions of higher education (IHE).

Read More >> The Fifth Circuit Extends Injunction of the Biden Administration’s Borrower Defense to Repayment Rules

Financial Value Transparency and Gainful Employment Regulations: What We Know Now

April 11, 2024

By Seth F. Gilbertson

The U.S. Department of Education’s recent Financial Value Transparency and Gainful Employment (FVT/GE) rules reflect an attempt to focus the federal regulatory apparatus on financial accountability and transparency. Slated for implementation on July 1, 2024, these regulations aim to enhance the informational paradigm available to students and their families regarding the financial aspects and potential outcomes of educational programs. This initiative, announced on October 10, 2023, signifies a comprehensive effort to enhance decision-making processes and protect the financial interests of both students and the U.S. fisc that underwrites the student financial aid system.

Read More >> Financial Value Transparency and Gainful Employment Regulations: What We Know Now

Past and Present College Athletes Sue NCAA Over Transgender Participation Rules

March 29, 2024

By Kristen J. Thorsness and Seth F. Gilbertson

Only about .007% of athletes who complete in NCAA sports are transgender. However, this group has attracted an outsized amount of social, media, regulatory and now litigant, attention. Under National Collegiate Athletic Association (NCAA) rules dating to January 2022, transgender female athletes may compete in women’s events if the national governing body for the specific sport allows transgender athletes to compete.

Read More >> Past and Present College Athletes Sue NCAA Over Transgender Participation Rules

Second Circuit Litigation Threatens to Further Confuse Regulatory Standards Applied to Borrower Defense Applications

January 9, 2024

By Seth F. Gilbertson and Alison K. Roach

The Second Circuit Court of Appeals released a new decision in the NYLAG v. Cardona et al. case that may have implications for the everchanging legal and regulatory environment of Borrower Defense to Repayment (BDR) claims. Here are the key takeaways from this latest ruling:

Read More >> Second Circuit Litigation Threatens to Further Confuse Regulatory Standards Applied to Borrower Defense Applications

ED Statement Clarifies Cause of Recent Borrower Defense Activity

November 10, 2023

By Seth F. Gilbertson and Alison K. Roach

The U.S. Department of Education (ED) released a statement on Nov. 8, 2023, saying that the scores of borrower defense to repayment (BDR) application notifications that institutions of higher education (IHE) have received in recent months are part of its response to the Sweet v. Cardona litigation. This statement confirms much of our prior understanding regarding the causes of recent BDR activity by ED, but also provides some additional insights.

Read More >> ED Statement Clarifies Cause of Recent Borrower Defense Activity

Colleges and Universities Experience a Surge of Borrower Defense to Repayment Claims

October 17, 2023

By Seth F. Gilbertson and Alison K. Roach

Over the past several months, institutions of higher education (IHE) have seen an influx of Borrower Defense to Repayment (BDR) applications from former students.

Student loan borrowers with federal student loans can apply for a BDR loan discharge through the U.S. Department of Education (ED). Generally, in order to be successful, a borrower must demonstrate that they enrolled in an IHE or continued to attend an IHE based on misleading information or other related misconduct covered by the regulation, such as breach of contract.  

Read More >> Colleges and Universities Experience a Surge of Borrower Defense to Repayment Claims

A Case of First Impression in the Second Circuit: Court Rules Garcetti Defense Not Applicable to Professor’s Claim of Academic Freedom

September 8, 2023

By Howard M. Miller

Freedom of speech in the public employment arena presents a double-edged sword; on the one hand, freedom of speech is one of the most cherished values that undergirds the proverbial marketplace of ideas in a university setting but can also cause a public university to wade into a thicket of unsettled case law when it comes to denying tenure or otherwise undertaking any type of adverse employment action against an outspoken faculty member.

A major defense available to most public employers in a First Amendment retaliation case is the so-called “Garcetti defense.” In Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court held that when public employees engage in speech as part of their official duties, such speech is not protected by the First Amendment. This happens, for example, when a high school department chair makes an internal complaint about school curriculum. See Schulz v. Commack Union Free Sch. Dist., No. 21-CV-5646-RPK, ––– F.Supp.3d ––––, ––––, 2023 WL 2667050, at *7 (E.D.N.Y. Mar. 28, 2023).[1]

 

Read More >> A Case of First Impression in the Second Circuit: Court Rules Garcetti Defense Not Applicable to Professor’s Claim of Academic Freedom

The De-Evolution of Post-Garcetti Public Employee Speech Regulation in Higher Education

August 3, 2023

By Seth F. Gilbertson and Ariyana DeWitz*

In 2006, the Supreme Court’s decision in Garcetti v. Ceballos granted public employers’ broad discretion in regulating their employees’ work-related speech.[1] Before 2006, under the so-called Pickering Connick test, employees who were speaking as citizens about “matters of public concern” were only subject to limited restrictions when the government employer’s interest in effective workplace operations outweighed the employee’s free speech rights.[2]

Read More >> The De-Evolution of Post-Garcetti Public Employee Speech Regulation in Higher Education

November 3, 2023 Deadline for NCAA Division I DEI Self-Assessment and Attestation

July 19, 2023

By E. Katherine Hajjar, John G. Long, II, and Kristen J. Thorsness

As part of the NCAA’s efforts to promote diversity and gender equity in intercollegiate athletics, NCAA Bylaw 20.2.4.3 requires that all Division I athletic departments perform a diversity, equity and inclusion (DEI) assessment and file an attestation of completion of the review with the NCAA by November 3, 2023.   

Read More >> November 3, 2023 Deadline for NCAA Division I DEI Self-Assessment and Attestation

BREAKING: U.S. Supreme Court Rules on Affirmative Action in Admissions 

June 29, 2023

By Laura H. Harshbarger

BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon. 

Read More >> BREAKING: U.S. Supreme Court Rules on Affirmative Action in Admissions 

U.S. Department of Education Issues Dear Colleague Letter on May 16, 2023 to Update Earlier Guidance on Third-Party Servicers

June 7, 2023

On Feb. 15, 2023, the U.S. Department of Education (Department) surprised the higher education community with a Dear Colleague Letter (DCL GEN-23-03) that sets forth new guidance on third-party servicers with whom institutions of higher education (IHE) contract to help administer student assistance programs under Title IV of the Higher Education Act of 1965, as amended (Title IV). The Department requires IHEs to report contracts with third-party servicers and imposes certain requirements not only upon IHEs, but also upon the third-party vendors. For a list of those requirements, click here.

Read More >> U.S. Department of Education Issues Dear Colleague Letter on May 16, 2023 to Update Earlier Guidance on Third-Party Servicers