Higher Education

NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

December 20, 2022

By Peter A. Jones, Thomas G. Eron, Richard J. Evrard, and Paige Carey

The National Labor Relations Board (NLRB) General Counsel has issued a complaint against the University of Southern California (USC), the Pac-12 Conference and the NCAA claiming that certain USC student-athletes are employees under the National Labor Relations Act (NLRA), and that the conference and the NCAA, along with the university, can be held jointly responsible employers for the treatment of those students under the law. This NLRB litigation portends fundamental consequences for private college and university athletic programs.

Read More >> NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

Recent Cases Demonstrate the Need for Caution When Disciplining Students

December 8, 2022

By James E. McGrath, III and Catherine A. Graziose

Two cases were decided at the end of November 2022 concerning institutions of higher education disciplining students for alleged misconduct.

In Matter of Mozdziak v. SUNY Maritime, 2022 NY Slip Op 06759 (Nov. 29, 2022), the New York State Appellate Division, First Department overruled the State University of New York Maritime College’s determination, which had affirmed its disciplinary hearing board’s expulsion of a student upon findings that he engaged in misconduct. The student was alleged to have carved a racial epithet into a dormitory elevator door. Two students made a joint, unsworn written statement alleging that they had witnessed the student engage in this misconduct. Notwithstanding that these two students who wrote the statement did not testify at the hearing, their two-sentence statement was credited over actual alibi witnesses who testified that the student was elsewhere when the claimed misconduct occurred.

Read More >> Recent Cases Demonstrate the Need for Caution When Disciplining Students

CBD on Campus: Many Questions, Few Answers

October 17, 2022

By Barbara A. Lee, Ph.D.

Although there is clarity under federal law that colleges and universities may not permit marijuana (also known as cannabis) to be used or possessed on campus by either students or employees,[1] there is less clarity about whether colleges and universities can, or should, permit another form of cannabis—cannabidiol (CBD)—to be used or possessed on campus. Although CBD is technically legal under federal law (and the law of many states), its legal status does not tell the whole story.

Read More >> CBD on Campus: Many Questions, Few Answers

New OCR Fact Sheet Reiterates that Terminating a Pregnancy is Protected Under Title IX

October 6, 2022

By Seth F. Gilbertson

The U.S. Department of Education’s Office for Civil Rights (OCR) released a “Fact Resource” on Oct. 4, 2022 reaffirming legal authority that Title IX protects both students and employees from discrimination based upon pregnancy and related conditions. While the new resource is broadly worded, the timing and presentation suggests that it is intended to signal an enforcement agenda targeted toward the protection of abortion rights for students and employees of educational institutions.

Read More >> New OCR Fact Sheet Reiterates that Terminating a Pregnancy is Protected Under Title IX

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?