As COVID-19 forced colleges and universities across the country to abruptly close their campuses and pivot to online-only instruction models for the remainder of the spring and the entire summer semesters, Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) instituted a welcome -- albeit temporary -- regulatory exemption permitting F and M students to take more online courses than allowed under the federal regulations in order to maintain a full course of study and their nonimmigrant status in the U.S. during the pandemic.
On Saturday, June 20, the state released Interim Guidance on Reopening and Operating Higher Education Campuses. As with prior industry guidance, institutions of higher education (IHEs) will need to adopt a Safety Plan that meets state guidance. The Interim Guidance outlines the following considerations that should be used in developing a Safety Plan for campuses.
On June 10, 2020, the National Labor Relations Board (the NLRB or the Board) issued a decision that reversed a 2014 Board decision regarding the test for exercising jurisdiction over faculty members at religious institutions. In Bethany College, the Board held that the test for exercising such jurisdiction that was established by the Board in Pacific Lutheran University was inconsistent with U.S. Supreme Court and D.C. Circuit Court of Appeals precedent, and restored the test established by the D.C. Circuit Court of Appeals in University of Great Falls v. NLRB.
On May 6, the U.S. Department of Education (Department) released final regulations under Title IX. These regulations significantly change how higher education institutions, and to a lesser extent, school districts, must respond to sexual assault and harassment on campus.
As we reported in our recent information memo, COVID-19 has created an evolving immigration environment. The related federal agencies and the White House have responded with a number of temporary policy and procedural changes to help minimize the spread of the virus in the U.S. and to help employers comply with various laws during this extremely challenging time. It remains essential for employers to maintain immigration compliance during the COVID-19 emergency and to take the steps necessary to maintain the nonimmigrant status and work authorization of their foreign national employees. In addition, now that businesses and organizations are beginning to reopen pursuant to government guidelines, employers are advised to keep abreast of the latest legal developments and various obligations they may have over the next few months as we slowly return to our workplaces.
On April 24, 2020, the Tenth Circuit Court of Appeals revived a former college coach’s retaliation claim brought against his previous employer. The case, Marc Benjamin v. Board of Trustees of Barton Community College, involves a former women’s softball coach who claimed he was terminated by the college because he “blew the whistle” on other college coaches who had violated league rules. The district court that first heard the case granted summary judgment in favor of the college, effectively finding that no reasonable jury could find in favor of Mr. Benjamin’s claims. Mr. Benjamin appealed, and the Tenth Circuit subsequently reversed the district court’s decision.
In a decisionon April 10, 2020, the U.S. District Court for the Southern District of New York denied a college’s motion to dismiss a claim of common law negligence in a lawsuit challenging its administrative response to allegations of sexual assault. Application of this common law standard to such cases is infrequent, and the court’s analysis highlights important differences between a common law theory of negligence and the federal “deliberate indifference” standard applied under Title IX.
On Wednesday, May 6, the U.S. Department of Education (USDOE) released final regulations under Title IX. These regulations come after the USDOE sifted through over 124,000 comments during the public comment period. The new regulations focus on how colleges and universities must investigate and adjudicate sexual misconduct cases under Title IX.
Here are two breaking developments we do not want you to miss. On May 6, 2020, the same day the U.S. Department of Education’s Office for Civil Rights issued its sweeping Title IX Final Rule, the Department’s Office of Federal Student Aid announced that all recipients of funding from the Higher Education Emergency Relief Fund (HEERF) under the Coronavirus Aid, Relief, and Economic Security (CARES) Act must post on their primary websites specific details about how they allocated funding for emergency grants to students. This posting must be done within 30 days of receipt of the funds from the federal government.
The ongoing COVID-19 pandemic has presented new challenges for college administrators as they evaluate whether to continue Title IX investigations through telephone and video conferences or postpone interviews and hearings until “stay at home” orders are withdrawn by state and local governments.
If Title IX investigations are postponed, victims of alleged sexual misconduct on campuses may sustain prolonged trauma. On the other hand, students accused of wrongdoing may be at a disadvantage if cases proceed through telephone or videoconferences. The mounting uncertainty created by the coronavirus pandemic poses unique scenarios for institutions committed to prompt and equitable resolution of complaints.
As a result of the COVID-19 crisis, many universities and colleges across the country suspended in-person classes and required students to vacate school housing. Students have since filed a wave of federal class action lawsuits against these institutions claiming breach of contract and unjust enrichment for alleged failure to refund the students for tuition, housing and various activities fees. We provide a quick update and overview below.
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.