Higher Education

Yeshiva University Pride Alliance—Update

September 16, 2022

By Lisa R. Feldman

This is an update to our prior information memo, which you can read here.

On Sept. 14, 2022, the U.S. Supreme Court denied Yeshiva University’s application for a stay pending appeal of the permanent injunction issued by a New York State trial court in June. Accordingly, the University must now “immediately grant [ ] YU Pride Alliance the full and equal accommodations, advantages, facilities, and privileges afforded to all other student groups at Yeshiva University,” as directed by the trial court. The Supreme Court’s September 14 decision vacated the temporary stay previously granted to Yeshiva just days earlier by Justice Sotomayor.

Read More >> Yeshiva University Pride Alliance—Update

U.S. District Court Holds that Visual Room Scan Prior to Online Exam Violates the Fourth Amendment

August 31, 2022

By Philip J. Zaccheo

In a decision issued last week, the U.S. District Court for the Northern District of Ohio ruled that a public institution conducted an unreasonable “search,” in violation of the Fourth Amendment to the United States Constitution, by performing a visual inspection of a student‘s remote testing location prior to an online exam.

As is customary, the institution in question (Cleveland State University) reserved the right to employ a variety of safeguards designed to ensure integrity in online academic exercises. Among other things, the University provided instructors discretion to require students to show their surroundings via webcam before, during or after an exam, in order to demonstrate that they were not using prohibited resources or assistance. The student in question was scheduled to take a chemistry examination and was notified approximately two hours prior to the start of the exam that the proctor would be checking his surroundings by visual observation. The proctor did so at the start of the exam, asking the student to perform a room scan that lasted “less than a minute, and as little as ten to twenty seconds.” The student complied with the request, but subsequently sued the University claiming that he had “confidential settlement documents” in the form of IRS forms 1099 in his room that could not be secured prior to the examination (the proctor testified that she did not see any tax documents during the room scan).

In a somewhat surprising decision, the court held that the room scan was an unreasonable search in violation of the Fourth Amendment. Under applicable precedent, whether a particular search is reasonable “is judged by balancing its intrusion on the individual‘s Fourth Amendment interests against its promotion of legitimate governmental interests."1 While acknowledging the University’s interest in ensuring academic integrity, the court nevertheless found the room scan requirement to be unreasonable, among other reasons because the instructor announced the requirement after the start of the course (theoretically leading the student to believe he would not be subject to a room scan until shortly before the time of his test), and because other students could see the room scans. The court also expressed skepticism that the room scans would be effective in preventing cheating, and asserted that the University had other procedural safeguards available to guard against cheating, such as “employing proctors to monitor for suspicious movement or using proctoring programs that perform functions like preventing students from accessing the internet or other programs during the test, recording students during tests, and using artificial intelligence to detect suspicious movement or plagiarism.” With apparent disregard for pedagogical considerations and academic freedom, the court also noted that alternatives to tests, such as projects or papers, might minimize or eliminate the need for remote room scans. In consideration of these factors, the court determined that the student’s privacy interests outweighed the University’s interests in enabling the proctor to view his room and concluded that the room scan was unconstitutional.

This decision is perplexing on many levels, most significantly in that it apparently reflects a determination that conducting a visual inspection of the testing environment for as little as ten seconds after having given a student two hours’ advance notice to secure items he did not wish to be viewed, in the interest of academic integrity, was unreasonable. That said, the likely impact of this decision outside its immediate context, if any, is questionable. For example, it should have no impact on private institutions, and much of the court’s reasoning seems to have revolved around the specific facts of the case, including a perceived lack of consistency in messaging to students as to whether room scans would be required, and the degree of advance notice provided to students. It is possible, and perhaps even likely, that early and consistent messaging in this regard, including timely guidance to students that they should secure any items they do not wish to be viewed, will protect against similar results in other contexts.

If you have any questions, please contact Philip Zaccheo, any attorney in Bond's higher education practice or the Bond attorney with whom you are regularly in contact.


1  Skinner v. Railway Labor Execs.' Ass'n, 489 U.S. 602, 619 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979))

Department of Education Releases Proposed Changes to Title IX Regulations

June 24, 2022

By Sandra M. Casey, Seth F. Gilbertson, Laura H. Harshbarger, and Philip J. Zaccheo

Announcing it as a commemoration of the 50th Anniversary of the enactment of Title IX (though anticipated for the past 18 months), the U.S. Department of Education (DOE) announced sweeping proposed amendments to the Title IX regulatory scheme that went into effect less than two years ago.

Read More >> Department of Education Releases Proposed Changes to Title IX Regulations

Office for Civil Rights Faults College for Failing to Accommodate a Pregnant Student

June 16, 2022

By Seth F. Gilbertson and Paige Roseman

A recent finding by the U.S. Department of Education, Office for Civil Rights (OCR) that a college failed to accommodate a pregnant student is a pointed reminder of the obligation of colleges and universities to fully and carefully address accommodation requests from pregnant students. 

Read More >> Office for Civil Rights Faults College for Failing to Accommodate a Pregnant Student

Gov. Hochul Signs New State Law Prohibiting the Withholding of Transcripts of Students who are Indebted to the Institution

May 5, 2022

By Sandra M. Casey

On May 4, 2022, Gov. Hochul signed into law A.06938B, which amends New York State Education Law by adding a new Article 13-C; §640, which prohibits degree-granting institutions and licensed private career schools from withholding transcripts of students who owe a debt to the institution. It is also unlawful under §640 for institutions to condition the release of a transcript upon the student’s payment of the debt. Finally, institutions may not charge a higher fee or provide less favorable treatment of a transcript request because a student owes a debt to the institution.

Read More >> Gov. Hochul Signs New State Law Prohibiting the Withholding of Transcripts of Students who are Indebted to the Institution

Is a Censure a Form of Censorship Under the First Amendment?

April 4, 2022

By Seth F. Gilbertson

In Houston Community College System v. Wilson, the Supreme Court of the United States recently addressed the scope of impermissible retaliation under the First Amendment in the context of a dispute between the members of the governing board of an institution of higher education. In a unanimous decision authored by Justice Gorsuch, the Court held that verbal censure by one’s fellow board members alone does not give rise to an actionable First Amendment retaliation claim. 

Read More >> Is a Censure a Form of Censorship Under the First Amendment?

So, You Want To Be a University?

March 23, 2022

By Joanna L. Silver

Colleges in New York have explored the possibility of becoming a university and often found it difficult to do so given the state’s definition of university set forth in section 50.1(l) of the Commissioner’s Regulations. Since 1969, New York’s Board of Regents has defined a university as “a higher educational institution offering a range of registered undergraduate and graduate curricula in the liberal arts and sciences, degrees in two or more professional fields, and doctoral programs in at least three academic fields.” With this definition in place, New York was the only state in the country requiring the creation and operation of doctoral programs in order for an institution to be a university. This requirement made it difficult for colleges to market themselves to prospective students around the U.S. and abroad in a way that appropriately reflected the breadth and depth of their academic programs. This changed at the Board of Regents’ January 2022 meeting when the Board adopted a new definition of “university.” Effective Jan. 26, 2022, the Commissioner’s Regulations define a university as “a higher educational institution offering a range of registered undergraduate and graduate curricula in the liberal arts and sciences, including graduate programs registered in at least three of the following discipline areas: agriculture, biological sciences, business, education, engineering, fine arts, health professions, humanities, physical sciences and social sciences.” By removing the doctoral programs and degrees in two or more special professional fields from the definition of university, the Board of Regents has created a path for more New York colleges with both undergraduate and graduate programs to become universities if they so choose. 

Read More >> So, You Want To Be a University?

The Clery Act: A Refresher

March 22, 2022

By Catherine A. Graziose

While “Clery reporting requirements” and “compliance with the Clery Act” are familiar terms to staff and faculty at colleges and universities, many are unsure exactly what the Clery Act requires and why it matters. Here, in question-and-answer format, is a refresher on the Clery Act’s history, purpose and requirements.

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Dealing with the Student Mental Health Crisis on Campus: Are Involuntary Withdrawal Policies or Mandatory Medical Leaves the Answer?

January 10, 2022

By Christa Richer Cook

There is little debate that the student mental health crisis at colleges and universities is at an all-time high. Just last month, news headlines shared the story of a university’s response to receiving an anonymous letter describing a potential suicide that was to take place on campus before the holiday break. The university immediately published a Community Notice encouraging the student at risk to seek help and advising the campus community to be vigilant in reporting and responding to mental health issues amongst their peers. While this student mental health crisis was not caused by COVID-19, it has been intensified by the pandemic and all of the changes it has caused to ‘normal’ college life. According to a survey of college presidents conducted by the American Council on Education (ACE) in September 2021, student mental health was identified as one of their most pressing concerns. 

Read More >> Dealing with the Student Mental Health Crisis on Campus: Are Involuntary Withdrawal Policies or Mandatory Medical Leaves the Answer?

COVID-19 Student Refund Lawsuits: Has the Tide Turned in New York?

December 21, 2021

By Suzanne M. Messer

The challenges confronted by higher educational institutions in the face of the COVID-19 pandemic have been unprecedented. Faced by legal mandates that limited gatherings and ultimately required campus closings during the spring 2020 semester, colleges and universities transitioned to instruction by remote means almost overnight. While it was not the semester anyone had planned for, institutions carried out their missions to educate and devoted significant efforts and resources to supporting their students.

Read More >> COVID-19 Student Refund Lawsuits: Has the Tide Turned in New York?

Implications for Colleges and Universities of Expanded Legal Protections for LGBTQ+ Students, Faculty and Staff

October 25, 2021

By Barbara A. Lee, Ph.D. and Megan L. Anderson, Lathrop GPM

In its Bostock v. Clayton County, Georgia ruling in June 2020, the U.S. Supreme Court ruled that the prohibition on “sex” discrimination under Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation and/or gender identity. The Bostock ruling raised, but did not decide, the question of whether or not other federal sex discrimination laws, such as Title IX of the Education Amendments of 1972 and the Fair Housing Act, might also inherently prohibit LGBTQ+ discrimination. While the Bostock ruling applies only to Title VII claims, the Biden administration has announced that federal agencies will apply Bostock’s definition of “sex” to other federal civil rights laws. On the day he was inaugurated, Jan. 20, 2021, President Biden issued an executive order stating that federal sex discrimination laws besides Title VII – including Title IX and the Fair Housing Act – should be interpreted as prohibiting gender identity and sexual orientation discrimination. Subsequently, in June 2021, the U.S. Department of Education (ED) issued guidance that Title IX prohibits LGBTQ+ discrimination. In addition, in February 2021, the U.S. Department of Housing and Urban Development (HUD) announced that it would enforce the sex discrimination provisions of the Fair Housing Act as encompassing LGBTQ+ discrimination.

Read More >> Implications for Colleges and Universities of Expanded Legal Protections for LGBTQ+ Students, Faculty and Staff