In the Spring of 2014, MIT launched a survey of all of its undergraduate and graduate students (just under 11,000), related to issues of student sexual assault.  More than 3,800 undergraduate and graduate students responded, or about 35% of the institution’s total student population.  (This 35% consisted of 46% of surveyed undergraduate females, 35% of undergraduate males, 37% of graduate females and 30% of graduate males.)  As noted by MIT Chancellor  Barnhart last week in the release of the survey results, “[b]ecause the survey was not a random sample and was voluntary, and the topic of unwanted sexual behaviors is focused, we know the results reflect a degree of self-selection. Since it is impossible to tell how this may have altered the results, it would be a mistake to use these numbers to generalize about the prevalence of unwanted sexual behavior in the lives of all MIT students.”  Nonetheless, she noted, the survey “clearly tells us that, like many other colleges and universities, we face a serious problem.” While the full results of the survey are available online, some of the many interesting survey results are noted below:

• 14% of undergraduate females indicated that they had experienced stalking, being followed and/or receiving repeated unwanted messages/texts/emails that made them uncomfortable (2% of undergraduate males reported similar experiences);
• 10% of undergraduate females reported experiencing a sexual assault and 5% reported having been raped (undergraduate male responses were 2% and 1% respectively);
• 72% of all respondents indicated that another MIT student was responsible for the unwanted sexual behavior (which was not limited to sexual assault or rape) they experienced.  For 98% of the females, the perpetrator was a male; for male respondents the perpetrators were males in 35% of the instances and females in 67%.
• 40% of female and male undergraduate respondents indicated that the perpetrator was a friend;
• While 63% of those experiencing an unwanted sexual experience reported it to someone (90% to a friend, 19% to family, 13% to medical personnel), only 5% reported the experience to someone in an official capacity;
• Respondents who indicated that they had experienced unwanted sexual behavior were asked of any thoughts or concerns that came to mind in deciding whether to share their experiences.  Of those responding:
  • 72% did not think the incident was serious enough to officially report
  • 55% indicated that it was not clear that harm was intended
  • 47% did not want any action to be taken
  • 44% felt that they were at least partly at fault or it wasn’t totally the other person’s fault (results from another portion of the survey indicated that 20% of female undergraduate respondents and 25% of male undergraduate respondents “agreed” or “strongly agreed” with the statement: “When someone is raped or sexually assaulted, it’s often because the way they said ‘no’ was unclear or there was some miscommunication.”);
• 53% of respondents (with the same percentage for both females and males) “agreed” or “strongly agreed” that “Rape and sexual assault can happen unintentionally, especially if alcohol is involved.”
• 73% of female respondents and 76% of male respondents “agreed” or “strongly agreed” that they feel confident in their ability to judge if a person is too intoxicated to consent;
• With respect to bystander activity, 91% of females and 89% of males “agreed” or “strongly agreed” that their friends would watch out for them if it seemed like something bad might happen to them and that more than 9 out of 10 respondents  “agreed” or “strongly agreed” that most MIT students would respect someone who did something to prevent a sexual assault.  Yet 56% of respondents who knew a perpetrator did not confront that person about their behaviors or take any action, and 50% of females and 59% of males “do not usually try to distract someone who is trying to take a drunk person to do something sexual.”

As noted, the voluntary nature of the survey and its narrow focus make it hard to know why students self-selected in or out of the survey and whether it was in a way that might bias the results.  Nonetheless, the University noted that while that does mean that the rates based on those who responded cannot be extrapolated to the MIT population as a whole and cannot be validly compared to results from other surveys, it does not make the results any less accurate.  Nor does it make those results any less important. In the coming 12-18 months, either as a result of the federal government’s “encouragement” that institutions undertake surveys or pending legislation that might require them (e.g., Senator McCaskill’s Campus Accountability and Safety Act we undoubtedly will see many more colleges and universities engage in similar efforts in as they attempt to better understand the dynamics on their campuses, and how they can better address this issue.

A few weeks ago, Inside Higher Ed issued its 2014 Survey of College and University Human Resources Officers.  Like Inside Higher Ed’s other surveys, this one provides very interesting reading. Among the topics covered in this survey of 330 responding institutions are several questions pertaining to adjunct employment.  Given the continued union organizing efforts among adjuncts, these questions are particularly timely.  Only 20% of all respondents “strongly agreed” that their institutions fairly compensated adjuncts, down from 24% in 2013.  (The full survey provides a further breakdown of all survey results by whether the responding institutions are public/private and by degrees awarded.)  Only 19% “strongly agreed” that an appropriate benefits package was provided to adjuncts.  (For example, only 27% of respondents indicated that their institutions provide health insurance benefits for adjuncts.)  An even lower number, 15%, “strongly agreed” that their institution provides appropriate job security and due process protections for adjuncts.  Yet, perhaps surprisingly given these results, only 4% “strongly agreed” (with another 8 percent “agreeing”) that unions help adjuncts secure better wages, benefits and working conditions (73% “disagreed” or “strongly disagreed” that unions help). The Survey also focused on retirement concerns.  Sixty-four percent of respondents were “very concerned” or “moderately concerned” about faculty working past retirement age, with 54% concerned that their institutions lacked sufficient retirement incentives for eligible faculty (only 18% “strongly agreed” that their institutions offered sufficient phased retirement options for faculty).  Not surprisingly, 67% were “very concerned” or “moderately concerned” about health care costs for retirees. Some of the benefits information was also very interesting.  While 64% of institutions reported allowing telecommuting, that number was based on 87% of responding public institutions allowing it, and only 41% of private institutions.  As to be expected, 93% of all responding institutions provide financial support for employee enrollment in higher education courses, but only 81% provide it for children of employees (69% of public institutions and 95% of private institutions).  Health care coverage for opposite sex domestic partners is only provided by 58% of the responding institutions, with 55% of institutions providing other benefits to same sex domestic partners.  Thirty-three percent of respondents (47% of public institutions and 18% of private institutions) provide onsite child care for employees. With respect to criminal background checks, 81% of all institutions (83% public, 79% private) reported conducting these checks as part of the faculty hiring process.  A slightly higher amount, 89%, reported doing criminal background checks on staff. Other topics covered by the Survey include sexual harassment efforts and non-discrimination policies, hiring and training practices, and social media policies. The Survey is well worth a close review.

Back in September, we reported that the Center for Disease Control (CDC) had issued guidance to colleges and universities on how to respond to the spread of Ebola in West Africa.  The guidance included suggested precautions with respect to (a) study abroad programs, research and other education-related travel to the region, and (b) individuals arriving on campus from the region or otherwise known to have been exposed to Ebola. Given the ongoing concerns and availability of more guidance and information relating to Ebola, we are offering this update with our own recommendations to ensure that you have current information and consider the aspects of this health concern from the perspective of a college or university. According to the CDC, a person infected with Ebola is not contagious until symptoms appear. Symptoms may appear anywhere from 2 to 21 days after exposure to Ebola but the average is 8 to 10 days. The signs and symptoms of Ebola typically include:

• Fever (greater than 38.6°C or 101.5°F) • Severe headache • Muscle pain • Vomiting • Diarrhea • Stomach pain • Unexplained bleeding or bruising

Diagnosing Ebola in a person who has been infected for only a few days is difficult because the early symptoms, such as fever, are not specific to Ebola infection. However, if a person has symptoms of Ebola and had contact with blood or body fluids of a person sick with Ebola, contact with objects that have been contaminated with blood or body fluids of a person sick with Ebola or contact with infected animals, the individual should be isolated and public health professionals notified. Samples from the individual can then be collected and tested to confirm infection. The CDC’s recommendations for student health centers in responding to potential Ebola exposure and managing individuals presenting with symptoms consistent with Ebola disease are the same as those for other US health care workers and settings. As a planning step, colleges and universities should review and consider utilizing the American College Health Association Emergency Preparedness Planning Considerations for College Health Centers Regarding Ebola Virus Disease:

1. Is your campus emergency response plan up to date so it can be activated if needed to respond to a case of Ebola on campus or in the local community? Is it coordinated with the local public health department on a community response to a case of Ebola?  

2. Does your campus have a communications plan and team in place to respond to the communications need if a case were to emerge on campus, in the community, or at another institution? Is the communications plan coordinated with the local community so that your campus would be informed if a case emerges in the community, allowing communication to students and parents?  

3. If the public health department orders a quarantine for a high risk exposure, does the campus have a location and plan to provide food and clothing to a quarantined person? Does the campus have a mechanism (qualified contractor) in place to dispose of waste?

 4. Is the student health center screening all patients for travel in the past 21 days? Are there plans in place to quickly respond to an ill student with a travel history from an Ebola affected area? What about other emerging pathogens?

 5. Is there a mechanism to identify and contact students, faculty, and staff who are returning to campus from an Ebola affected area and refer appropriately to the public health department for monitoring?

 6. Who is responsible for monitoring individual and group institutional travelers? Is there a policy and/or mechanism in place to restrict travel based on the CDC travel warning?

In keeping with these recommended planning steps, institutions should consider the following actions:

• Ensure that student health center staff are aware of exposure risks, signs and symptoms      of Ebola and are prepared to follow recommendations in the CDC Health Advisory: Guidelines for Evaluation of US Patients Suspected of Having Ebola Virus Disease.
• Consider providing information to the campus community with recommendations for people who have recently arrived from countries where Ebola outbreaks are occurring  and provide specific Ebola education to all people who have recently arrived from countries where outbreaks are occurring in accordance with the screening procedures.
• Continue to monitor the countries of concern in terms of Ebola outbreak. Here are the current CDC travel notices related to Ebola      even if travelers do not plan to be in contact with people infected with the virus:

Warning - Avoid nonessential travel: Ebola in Liberia, Guinea and Sierra Leone Alert - Practice enhanced precautions: Ebola in Democratic Republic of the Congo Watch - Practice usual precautions: Ebola in Nigeria

• Based on current travel notices consider making adjustments to programs for the current semester and upcoming spring semester which would involve travel by students and faculty to these regions.
• Identify students, faculty, and staff who have been in countries where Ebola  outbreaks are occurring within the past 21 days and conduct a risk      assessment with each identified person to determine his or her level of risk exposure (high- or low-risk exposures, or no known exposure). Consult      the CDC’s algorithm for evaluation of a returned traveler:

The following steps are consistent with current CDC guidance:

• If the student, faculty, or  staff member has had NO symptoms of Ebola for 21 days since leaving a West African country with Ebola outbreaks, they do NOT have Ebola. No further assessment is needed.
• If the student, faculty, or staff member has had a high or low-risk exposure, state or local public health authorities should be notified, and school officials should consult with public health authorities for guidance about how that person should be monitored. Anyone with a potential exposure should receive thorough education about immediately reporting symptoms and staying away from other people if symptoms develop.
• In the event that a student, faculty, or staff member who has had a high or low-risk exposure develops symptoms consistent with Ebola, the person should be medically evaluated while following recommended infection control precautions. Guidance is available in the CDC Ebola Virus Disease Information for Clinicians in U.S. Healthcare Settings. Public health authorities should be notified.
• If the student, faculty, or staff member displays no symptoms and presents no known exposure risk, institutions are advised to instruct the individual to self-monitor through temperature and symptom reporting until the end of the 21 day period, and to report immediately if symptoms appear.

Note that the CDC is still not recommending that colleges and universities quarantine individuals based solely on travel history. The system presently relies on individuals, including college students, to self-monitor for the onset of symptoms and to take immediate steps to self-report. This raises the questions as to whether the self-monitoring/reporting system is reliable enough or whether other steps should be considered to protect the campus community. Reasonable minds may differ as to whether all return travelers are reliable enough to self-monitor without some other level of mandatory oversight. One option, for example, may be for the Campus Health Center to actively participate in the monitoring of individuals to ensure accurate assessments and timely reporting and action if the individual develops symptoms.

• In the event that a potential case is  identified, isolate the individual pending diagnostic testing.
• Although not a full list of precautions, student health center clinicians should be sure to follow these steps when caring for someone who is sick or may be sick with Ebola:

• Separate the sick individual in a private room with its own bathroom.
• Use proper infection prevention and control measures; standard, contact, and droplet precautions are recommended if Ebola is suspected.
• Wear the right personal protective equipment (PPE), including masks, gloves, gowns, facemask and eye protection, when entering the patient care area. Before leaving the patient area, carefully remove PPE and make sure not to contaminate skin and clothing. Dispose of PPE as biohazard waste.
• After removing PPE, wash hands using soap and water (preferred) or an alcohol-based hand sanitizer containing at least 60% alcohol. Use soap and water when hands are visibly dirty.
• Notify local or state health department immediately if Ebola is suspected. The health department can provide additional guidance regarding medical evaluation or testing, if indicated.
• Follow protocols for  cleaning and disinfecting reusable medical equipment and proper disposal of needles and other disposable equipment.

The United States Court of Appeals for the Eleventh Circuit issued a long-awaited decision in the Georgia State e-reserves copyright case on October 17, 2014. The Court of Appeals reversed and remanded to the District Court for reconsideration in light of its opinion rejecting that court’s formulaic fair use analysis. In 2008, three publishers (Cambridge University Press, Oxford University Press, and Sage Publications) filed suit in the Northern District of Georgia, alleging that Georgia State University’s e-reserves system – through which students could access electronic content posted by faculty – infringed copyrights held by the publishers. In 2012, the District Court issued an order finding that the university had infringed the publisher’s copyrights in several instances, but that the fair use defense applied to the majority of the alleged infringements. The court applied the four factors of a fair use defense: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market. The court granted declaratory and injunctive relief to the publishers, but ultimately found that the University was the prevailing party and awarded costs and attorneys’ fees.  On appeal, the Court of Appeals reviewed the District Court’s application of the four factors, as well as the District Court’s balancing of the outcome of the four factors, noting that because of the circumstances of this case some of the factors weigh more heavily on the fair use determination than others. Regarding the first (the purpose and character of the use) and fourth (the effect of the use upon the potential market for or value of the copyrighted work) fair use factors, the Court of Appeals affirmed the District Court’s holdings that these weighed in favor of a fair use defense. On the second factor, the nature of the copyrighted work, the Court of Appeals reversed, holding that the District Court should have evaluated each work copied to determine whether it contained “evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information.” If the work contained more than was necessary, then it should have weighed in favor of the publishers or been neutral, although the Court noted that this factor is largely unimportant since the works at issue are not fictional works. On the third factor, the District Court had utilized a quantitative test with respect to the “amount and substantiality taken” in relation to the copyrighted work as a whole, relying on the 10% or one chapter approach set forth in the “Classroom Guidelines” which form part of the legislative history of the Copyright Act. In rejecting that type of blanket approach, Court of Appeals found that the lower court should have applied a more individualized fair use analysis, “considering the quantity and quality of the material taken, including whether the material taken constituted the heart of the work.” The Court of Appeals emphasized that the Classroom Guidelines have never been codified and are too formulaic for a balanced fair use analysis. The Court of Appeals vacated the injunction, declaratory relief, and award of attorney's fees and costs, and remanded to the lower court for further proceedings. The Way Forward for Universities Even though this case will continue, the Court of Appeal’s ruling provides useful guidance to institutions of higher education. Specifically, a formulaic approach to fair use rather than a case-by-case inquiry opens a fair use analysis to criticism and attack. As a result, copyright policies or guidelines should require an individualized analysis of the amount taken of a copyrighted work in relation to the work as a whole, rather than simply relying on the 10% or one chapter rubric set forth in the “Classroom Guidelines.” Both the quantity and the quality of the material taken must be considered under the third factor, including whether the material taken constitutes “the heart of the work,” and whether the material used is excessive in light of the purpose of the use and the threat of market substitution.

The Center for Disease Control (CDC) has issued guidance to colleges and universities on how to respond to the spread of Ebola in West Africa.  The guidance includes suggested precautions with respect to (a) study abroad programs, research and other education-related travel to the region, and (b) individuals arriving on campus from the region or otherwise known to have been exposed to Ebola. Recommendations on Education-Related Travel to Countries Where the Ebola Outbreaks are Occurring The CDC has issued a Warning-Level 3 Travel Notice for Guinea, Liberia and Sierra Leone, and an Alert-Level 2 Travel Notice for Nigeria. The CDC recommends that all non-essential travel to Guinea, Liberia and Sierra Leone be avoided, and advises that education-related travel to these countries by students and/or faculty be postponed until further notice.  The CDC has not yet advised against travel to Nigeria, but recommends that travelers to Nigeria use enhanced precautions to prevent the spread of the Ebola virus.  In addition, the CDC cautions that if conditions worsen in Nigeria, it may additionally recommend against non-essential travel to Nigeria, and advises that institutions consider this possibility when deciding whether to proceed with education-related travel plans in Nigeria. These recommendations extend to all travelers, even if travelers do not plan to be in contact with people infected with the virus.  The CDC advises that there is currently no known risk of contracting Ebola in other countries in the West Africa region where Ebola cases have not been reported, but cautions that circumstances could change rapidly and advises institutions to continue to monitor the situation. Recommendations with Respect to Students and Faculty Arriving to Campus from Countries where the Ebola Outbreaks are Occurring or Otherwise Known to Have Been Exposed to the Virus The CDC is not recommending that institutions quarantine individuals based solely on travel history.  Rather, the CDC recommends that institutions conduct a symptom and risk exposure screening for all individuals (including students and faculty) who have traveled to countries where the Ebola outbreak is occurring, or who have had contact with an infected person, within the last 21 days.  In the event that symptom screening is positive or if a student or faculty member has had any high or low risk exposure, the institution is advised to notify state or local health authorities for instructions regarding medical monitoring, lab testing, and control measures such as patient quarantines or isolation. If an individual displays no symptoms and presents no known exposure risk, institutions are advised to instruct the individual to self-monitor through temperature and symptom reporting until the end of the 21 day period, and to report immediately if symptoms appear. Additional Guidance and Recommendations The CDC’s advice includes additional information as to how Ebola is, and is not, transmitted, and guidance as to corresponding cautionary measures for persons on campus.

As previously noted in this blog, the National Labor Relations Board (“NLRB”) has sought amicus curiae briefing in the Northwestern University and College Athletes Players Association matter on review of the NLRB Regional Director’s decision that the University’s grant in aid scholarship football players are employees and the subsequent direction of election.  A number of interested parties, including the Higher Education Council of the Employment Law Alliance (“HEC-ELA”), filed amicus curiae briefs in support of Northwestern University, the putative employer, in the case.  Bond, Schoeneck & King, PLLC, a member of the HEC-ELA, served as counsel on the amicus brief along with a number of other law firms.  To download or read the HEC-ELA amicus curiae brief, please click here. The NLRB’s decision in the Northwestern University matter could have far reaching implications, not only for Division I college athletes, but also for graduate students and others should the Board decide to revisit its ruling in Brown University, 342 NLRB 483 (2004).  After the Regional Director’s decision and direction of election, the NLRB did conduct an election, but those ballots have been impounded pending the outcome of the proceeding at the Board level.

The New York State Senate passed a bill today that would amend New York’s Campus Safety Act to require institutions, effective immediately upon its enactment, to notify law enforcement of any report of a violent felony or that a student who resides in institution owned or operated student housing is missing.  The proposed legislation, which was previously passed by the New York State Assembly on May 5, 2014, will now be presented to the Governor for signature.  Under the proposed legislation, institutions would be required to notify law enforcement as soon as practicable, but no later than 24 hours after receiving any such report.  The New York State Education Law currently requires institutions to adopt and implement plans for notifying law enforcement, but does not mandate that notification be given. Under federal law, the Clery Act requires institutions to have a policy that encourages the reporting of all crimes to campus police and to law enforcement.  The Clery Act already requires institutions to notify law enforcement when any student who lives in on-campus housing has been determined to be missing for 24 hours.  Therefore, if the proposed legislation is enacted, institutions would comply with its missing student notification requirements by continued compliance with the notification procedures required under the Clery Act. Notably, the proposed legislation’s reporting requirements “shall take into consideration applicable federal law, including, but not limited to, the federal Campus Sexual Assault Victims’ Bill of Rights under Title 20 U.S. Code Section 1092(f) which gives the victim of a sexual offense the right on whether or not to report such offense to local law enforcement agencies.”  This language makes clear that if a sexual assault occurs which constitutes a violent felony under New York State law, an institution’s reporting requirements under the proposed legislation would give way to the rights of the victim under federal law to decide whether or not to report the incident.

Effective June 14, 2014, the New York City Human Rights Law will extend its nondiscrimination protections to unpaid interns.  An intern is defined as “an individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff.” The amendment was enacted in response to Wang v. Phoenix Satellite Television US, Inc., a 2013 Southern District of New York decision which held that unpaid interns do not qualify as employees under the New York City’s Human Rights Law. There is a similar effort underway to amend the New York State Human Rights Law, which could reach a Senate vote shortly. This has implications for higher education institutions in New York City who host interns from other institutions on their campuses, as well as for their own students who intern off-campus.  And in those circumstances where an institution is sufficiently involved with a hosting employer that it could constitute a joint employer for employment law purposes with that hosting employer, there is the potential for additional exposure.  In this latter instance, the impact of the amendment could even extend to institutions outside of New York City (and the direct jurisdiction of the NYC Human Rights Law) that send students to intern with New York City employers.  The nondiscrimination policies of all these institutions should be reviewed to ensure that they appropriately address interns. On a somewhat related note, lawyers from Bond recently submitted an amicus brief on behalf of the American Council on Education, and others, urging the Second Circuit to defer to higher education institutions on the value of unpaid internships in the context of federal wage-hour law.

Inside Higher Education recently issued its 2014 Survey of College and University Presidents, conducted by Gallup, and it makes for some very interesting reading.  The survey results are based on responses from 846 college and university presidents and chancellors (and some other top administrators), with 438 responses from public institutions, 347 from private institutions and 37 from the for-profit sector. The survey provides responses to questions covering government collection of data and reporting, budget and finances, sexual assault policies, race relations and the American Studies Association Boycott of Israeli universities. With respect to the federal government’s efforts to collect and publish career data and other outcomes for graduates, about half of the respondents agreed that it was appropriate (with 17% strongly agreeing) for the government to do so.  However, only 13% agreed (2% strongly) that the government would accurately collect and report that data. Just a little more than 60% of responding institutions indicated that they now report institutional average loan debt of graduates on their websites, with just under 60% reporting institutional job placement rates for graduates.  Far fewer reported average loan debts (19%) and job placement rates (45%) at the program level, although that information likely would be more valuable to students.  Interestingly, 53% reported that they should report program level debt and 74% reported that they should report program level job placement rates, raising the obvious question of why so many more institutions think they should report this information than actually do so.  Only a little more than 30% reported starting salaries of recent graduates, 9% reported income of graduates 5 years out, and only 4% reported income 10 years out. While 62% of all respondents were confident that their institution’s financial model was sustainable over the next 5 years, that number dropped to 50% when looking at a 10 year horizon.  Interestingly, public and private non-profit institutions responded in those same percentages, but for-profit institutions showed greater confidence in the sustainability of their models with 73% agreeing that their financial model was sustainable over 5 years and 70% over 10 years.  Fifteen percent of all respondents did not have confidence that their institution’s model was sustainable over the next 5 years, and 22% lacked confidence when looking over 10 years. Only 18% of all respondents agreed that reports of a significant number of higher education institutions facing an existential financial crisis are overblown, while 60% did not agree that these concerns are overblown.   Only 22% agreed that the economic downturn starting in 2008 was effectively over at their institutions, while 54% disagreed that this was the case on their campuses. With respect to sexual assaults, 71% of all respondents agreed that higher education institutions, generally, need to improve the way they respond to sexual assault reports, while 95% felt that their own institutions handled sexual assault cases appropriately.  Forty-nine percent of all respondents felt that sexual assault allegations are best investigated by law enforcement, rather than the institution, while 30% disagreed with that view. Similarly viewing their own campuses as better than “the rest,” 90% of all respondents felt that race relations on their campuses were excellent or good, while only 53% felt that was the case on campuses across the country. The full survey, which contains considerably more information and breaks down survey responses by type of institution (public/private/for-profit and doctoral/masters/baccalaureate), is well worth reviewing.

As reported here last week, the NLRB’s Regional Director in Chicago has determined that those members of the Northwestern University football team who receive grants-in-aid are “employees” under the National Labor Relations Act.  Even aside from the questionable basis for this conclusion, the Regional Director’s decision begs the question what are the possible unintended consequences of this decision?  And there are quite a few, only some of which are mentioned below. Perhaps the first unintended consequence is whether the Board’s determination, if upheld, will actually render these student athletes ineligible to play intercollegiate football.  Under NCAA By-law 12.1.2, only amateurs are eligible for competition under NCAA rules.  Therefore,  student-athletes may not use their athletic skill for pay in any form in the sport in which they compete.  If a student-athlete is receiving compensation for their services, as determined by the Regional Director, is that student-athlete now receiving “pay in any form in [their] sport” and as a result no longer an amateur able to compete?  The irony of course is if that ends up being the NCAA’s interpretation of its by-law, that would of course defeat the very purpose behind unionizing in the first place.  Moreover, this possibility is not dependent upon the student-athletes actually unionizing but rather on the mere fact that they are now “paid” for playing.  It would seem that if bargaining actually resulted and any additional benefits were provided to these student-athletes, the likelihood of a loss of amateur status would be even greater. For any other “employee” being “compensated” for their services, income tax is required to be paid on that compensation.  While the test for an employee under the National Labor Relations Act may not be identical to the test used by the IRS, how far behind can taxation be?  Using the numbers reported in the Regional Director’s decision for the value of the players’ grants-in-aid (as much as $76,000 per year at Northwestern), where is a player, or his family, going to come up with the cash to cover this tax bill? In addition, if an employee for this purpose, do players now become employees for purposes of Workers’ Compensation law, and the exclusivity of relief against their “employer” for injuries incurred “on the job” (which may well be less than beneficial to players)? Just how effective can collective bargaining even be in this circumstance?  Colleges and universities are constrained by NCAA rules in terms of benefits that can be given to student-athletes, so it is hard to imagine how bargaining could result in “more” than what is currently provided student-athletes.  In addition, the impact of Title IX would likely require any benefits provided to, for example, football players to be provided to a comparable number of scholarship student-athletes on women’s teams.  Or more likely, the added cost of so complying with Title IX simply makes it that much less likely that any meaningful benefits would flow from bargaining.  And would there be any institutional incentive to provide benefits to non-scholarship players, who even the Regional Director found were not employees?  What would the impact be of some student athletes on a team having the benefits of collective bargaining and others not? Of course, this ruling is presumably not limited to football teams and players.  How does it impact other sports where perhaps only a minority of team members receive grants in aid (and therefore might be “employees” who can be covered by a collective bargaining agreement), but the majority do not (and therefore are not employees at all)? In fact, this ruling presumably is not even limited to athletics.  At some institutions, members of the marching band receive scholarships in return for the “services” they provide.  Undoubtedly, they too are subject to various rules that constrain when and what they can and cannot do (for example, not schedule classes that conflict with afternoon practices).  Other student activities (e.g., Debate at some institutions) also carry stipends or scholarships and likely subject participating students to certain rules not applicable to others.  Are they all now “employees” eligible to organize?  And given the Board’s willingness to recognize “micro-units,” will these all be separate bargaining units? These are just some of the “unintended consequences” flowing from what appears on any number of levels to be an ill thought out determination, as the NLRB continues to attempt to make itself “relevant” in an era when traditional unionization of American workers remains at or near all-time lows. Of course we may not know the answer to these questions for years to come.  The nature of the NLRB review process in an organizing context makes it likely that this issue will not come before the courts, where it is most likely to be resolved, for many years to come.

In a stunning and potential landmark decision, a Regional Director of the National Labor Relations Board has found that football players receiving grant-in-aid scholarships from Northwestern University (the University) are “employees” under the National Labor Relations Act.  In his decision released Wednesday afternoon, the Regional Director determined that “players receiving scholarships to perform football-related services for [the University] under a contract for hire in return for compensation are subject to [the University]’s control and are therefore employees within the meaning of the Act.”  Accordingly, the Regional Director ordered that an election be conducted among all football players receiving grant-in-aid scholarships who have not exhausted their playing eligibility for the University. In support of his decision, the Regional Director found that the players receive compensation for the athletic services they perform in the form of scholarships, which pay for the players’ tuition, fees, room, board, and books and can total as much as $76,000 per calendar year for up to five years.  Furthermore, the Regional Director found that the players are under the strict control of the University throughout the year.  The coaches determine the location, duration, and manner in which the players carry out their football-related activities; they monitor the players’ adherence to NCAA and team rules; and they control “nearly every aspect of the players’ private lives,” including their living arrangements, applications for outside employment, off-campus travel, social media posts, and communications with the media.  In contrast, the Regional Director held that “walk-ons do not meet the definition of ‘employee’ for the fundamental reason that they do not receive compensation for the athletic services that they perform.” The University has confirmed that it plans to appeal the decision to the full National Labor Relations Board in Washington, D.C.   If upheld, the decision has the potential to dramatically alter the world of big-time athletics in higher education as it would open the door for scholarship athletes at all private universities to unionize.  Indeed, the decision could have implications for scholarship students in a number of areas beyond athletics. The Union, College Athletes Players Association (CAPA), which has the financial backing of the United Steelworkers, is seeking, among other demands, financial coverage for former players with sports-related medical expenses and the creation of an educational trust fund to help former players graduate.

Following the lead of North Carolina last year, members of the Virginia legislature have  become the latest to propose legislation to provide students at public colleges and universities the right to attorney representation in on-campus disciplinary proceedings. With narrow exceptions generally arising only at public institutions (e.g., in circumstances where a student faces parallel criminal charges arising out of an incident giving rise to an on-campus proceeding), courts have almost uniformly held that students have no right to counsel during campus disciplinary proceedings.  Even in those circumstances where courts have mandated the presence of an attorney, the attorney has been restricted to providing advice to protect the interests of the student, rather than being permitted to perform a formal advocacy role in which he or she presents a defense on a student’s behalf. Like the 2013 North Carolina law after which it appears to have been modeled, the proposed Virginia legislation would change this equation drastically at public institutions. With limited exceptions for charges of academic dishonesty, any student who is accused of a violation punishable by a suspension of greater than 10 days or expulsion would have the right to be represented, at the student's expense, by a licensed attorney (or nonattorney advocate). If present, the attorney would be entitled to "fully participate" during the proceedings, presumably meaning that counsel would be entitled to present opening and closing arguments, cross-examine witnesses (either directly or through the hearing body), make objections, and generally function in a manner similar to defense counsel in a criminal court.  If this represents the start of a trend in higher education disciplinary law, it is a concerning one.  Colleges and universities do not design their disciplinary systems to function with all of the technicalities of a criminal process, and with good reasons. Campus disciplinary proceedings are designed to be educational in nature, and a core component of the learning experience is a student's ability to speak on his or her own behalf, to take responsibility for his or her behaviors, and to learn from them. Much of this will be lost in the event that students are permitted to have attorneys speak for them throughout the disciplinary process. Reasonable minds can, of course, differ as to whether the foregone educational benefit is outweighed by the need to protect accused students in the context of potentially career-altering additions to their records; however, attorney mandates have other, more significant and less debatable, adverse implications.  Ironically, proponents of these legislative efforts have characterized them as “leveling the playing field” between accused students and their institutions, but the presence of active defense counsel would almost certainly swing the balance in the opposite direction, making it both more difficult and more costly for colleges and universities to regulate conduct on their campuses.  Indeed, the presence of counsel for accused students may well lead an institution to retain counsel on behalf of the disciplinary panel and/or institutional representatives presenting charges, and to allow student complainants to retain private counsel, turning the entire process into a hypertechnical, confrontational and protracted legal proceeding. The potential costs to institutions, both financial and in terms of the functioning of their disciplinary processes, are not insignificant. It may be that the courts and regulatory authorities in jurisdictions adopting attorney mandates will bring some degree of reasonableness to the analysis; for example, it is possible to argue that the right for an attorney to “fully participate during any disciplinary procedure” means that attorneys can only participate to the extent that an institution’s process otherwise allows any advocate to function in the place of an accused student, and/or that institutions may have procedures that limit the role of counsel (e.g., by precluding cross-examination) provided that the procedural limitations are applied even-handedly.  However, this is far from clear, and appears to be contrary to the expectations of those who have sought to implement these reforms. Perhaps more troubling, a mandate to allow active attorney advocacy in on-campus proceedings raises the prospect of serious inequities in the disciplinary process.  For example, although the Virginia legislation (like the North Carolina legislation before it) permits the use of "non-attorney advocates," affluent students who are able to retain the highest quality (and correspondingly highest-priced) counsel may have a greater chance of successfully defending disciplinary proceedings and avoiding responsibility for their actions than will students from underprivileged backgrounds. Similarly, these requirements may have chilling effects on institutions’ ability to address allegations of sexual misconduct, where institutions are required to afford complainants rights equivalent to those granted to accused students. Although this may not translate into a requirement that institutions furnish counsel to complainants in such cases (as noted above, accused students are required to pay for their own counsel), many complainants may not have the financial wherewithal or inclination to retain counsel in such circumstances, so as to enable them to have their accounts presented as effectively as those of their alleged assailants or harassers.  They may also be understandably fearful of the prospect of being cross-examined by defense counsel (directly or, as is common, through the hearing body) in the manner that often proves traumatic in criminal processes. If this increases the reluctance to report sexual misconduct with which so many institutions already struggle, it will be a truly unfortunate byproduct of these legislative efforts to protect student rights. None of this is to say that accused students are not entitled to a process that is fundamentally fair when facing charges of misconduct; this has always been the law, and students sanctioned by institutions already have the right to seek judicial review of disciplinary determinations in most jurisdictions. Thus, colleges and universities are already accountable for their processes, and should of course take steps to ensure that their proceedings are conducted fairly and even-handedly. Moreover, if institutions are concerned that accused students need legal advice to protect their interests, they always have the option to design their procedures to permit (as many do) the presence of counsel to provide quiet advice to the accused.  However, “lawyering up” the entire process by requiring institutions to permit full and active advocacy by counsel would seem, on the whole, to be counterproductive.