Higher Education

First Circuit Decision: No Fiduciary Duty to Students for Higher Education Institutions

April 15, 2020

By Mallory A. Campbell

In Squeri v. Mount Ida College, the First Circuit Court of Appeals upheld a ruling by the Massachusetts District Court dismissing students’ claims against Mount Ida College for closing its doors.1 In doing so, the First Circuit explained that the officers and trustees of a higher education institution owe a fiduciary duty to the institution itself, but not to its students. This is an important clarification as other higher education institutions face the difficult decision, especially in the wake of the COVID-19 pandemic, of whether or not to close.

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Ensuring Accessibility as Institutions Shift Instruction and Operations Online

April 10, 2020

In response to the COVID-19 pandemic, colleges and universities have shifted to online education to encourage social distancing and prevent the spread of the virus. A herculean task for many institutions, this presents a unique opportunity for institutions to evaluate the accessibility of their websites, learning management systems and online communication platforms for compliance with applicable law. 

Read More >> Ensuring Accessibility as Institutions Shift Instruction and Operations Online

Treatment of Student Workers Under the COVID-19 Emergency Family Medical Leave Expansion Act and the Emergency Paid Sick Leave Act

April 2, 2020

By Hannah K. Redmond, Gail M. Norris, and Jane M. Sovern

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act, which enacted the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act. These Acts make new categories of leave available to eligible employees of covered public employers as well as private employers with fewer than 500 employees. This 500-employee threshold has left many higher education institutions wondering whether their student workers may be counted as employees and whether their students are entitled to leave.

Read More >> Treatment of Student Workers Under the COVID-19 Emergency Family Medical Leave Expansion Act and the Emergency Paid Sick Leave Act

The Importance of Documentation During Extraordinary Times

April 1, 2020

By Gail M. Norris

The work world during the COVID-19 pandemic has been changing at an astounding pace. As change has occurred, your organization has been making out-of-the ordinary decisions. This communication is a reminder that it is important to appropriately document the decisions you have made and the rationale for them. When this crisis is over and work returns to a new normal, it may be difficult to remember the daily decisions made during these stressful times.

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Campus Closed, Case Closed? Not So Fast.

March 18, 2020

While many colleges and universities shift to online instruction to prevent the community spread of COVID-19, administrators must consider how their institutions will handle investigations during this time. Institutions face the challenge of ensuring substantial compliance with governing law and internal policy in a new environment, where key stakeholders practice social distancing, may reside in different times zones, and may have different levels of access to technology. 

Read More >> Campus Closed, Case Closed? Not So Fast.

Freedom of Expression and Federal Grants – New Proposed Rule

February 10, 2020

By Jane M. Sovern

On January 16, 2020, in a move that highlights two First Amendment issues, the U.S. Department of Education (Department) issued a Notice of Proposed Rulemaking (NPRM) that proposed revisions to current regulations to (1) encourage institutions of higher education to foster environments that promote open and diverse debate and (2) avoid discrimination against faith-based entities in the awarding and administration of Department research and education grants. 

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New Ruling Allows Employers to Mandate Confidentiality of Internal Investigations

January 6, 2020

By Theresa E. Rusnak

On December 19, 2019, the National Labor Relations Board (the Board) held that employers can require employees to keep internal investigations confidential during the pendency of the investigations. This decision, Apogee Retail d/b/a Unique Thrift Store, overturns a 2015 decision banning employer rules requiring confidentiality in internal investigations, and has significant repercussions for higher education institutions that engage in such investigations.  

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STEM OPT Site Visits – Why ICE Is Knocking On Your Door Now - Higher Education Law Report

October 11, 2019

By Joanna L. Silver

U.S. Immigration and Customs Enforcement’s (“ICE”) latest compliance activity involves site visits of those employers who employ F-1 nonimmigrant students under STEM Optional Practical Training (“STEM OPT”) work authorization.  With STEM OPT, F-1 students who have earned STEM (e.g., science, technology, engineering and mathematics) degrees from U.S. institutions of higher education can apply for and obtain an additional 24 months of OPT work authorization in addition to the 1 year of post-graduation OPT granted to all eligible F-1 students.  

Read More >> STEM OPT Site Visits – Why ICE Is Knocking On Your Door Now - Higher Education Law Report

Race-Conscious Admissions and the Race to the Supreme Court - Higher Education Law Report

October 2, 2019

By Monica C. Barrett

In what is likely only the first step in a trek to the U.S. Supreme Court, on September 30, 2019, Harvard College defeated a challenge to its admissions policy brought in the federal District Court in Massachusetts on behalf of Asian-American applicants.  In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Civil Action No. 14-cv-14176-ADB, U.S. District Court Judge Allison D. Burroughs found that Harvard’s admissions policies did not violate Title VI of the Civil Rights Act or the strict scrutiny standard of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.  We will summarize the lengthy court decision in this comparatively short piece.  The decision itself outlines extensive factual findings based on written submissions and the testimony from eighteen current and former Harvard employees, four expert witnesses, and eight current or former Harvard college students. 

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Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing - Higher Education Law Report

September 24, 2019

By Robert F. Manfredo

On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA).  Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.

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New York Legislation Redefines Harassment Standard - Higher Education Law Report

September 16, 2019

By Taylor E. Reynolds, Theresa E. Rusnak, and Subhash Viswanathan

On August 12, 2019, Governor Cuomo signed legislation making sweeping changes to the New York Human Rights Law (“NYHRL”). Although we previously posted summaries of the significant amendments to the Human Rights Law and their potential impact on employers, we take this opportunity to explain how those amendments pose challenges for New York colleges and universities. 

Read More >> New York Legislation Redefines Harassment Standard - Higher Education Law Report