Higher Education Law Report

The National Labor Relations Board’s treatment of college and university students as “employees” covered by the National Labor Relations Act has been the subject of a tortured history. In the Fall of 2000, in a case involving NYU, the NLRB held that graduate assistants could be employees under the Act and therefore subject to the Act’s protections for organizational activity and collective bargaining.  Thereafter, in a number of cases, including one involving Brown University ("Brown I"), the Board rejected arguments that the work of research assistants, teaching assistants and similar graduate student positions were closely tied to their degree requirements such that it constituted more of an educational, rather than economic relationship and concluded that graduate assistants could be employees under the Act.  Then, in 2004, in a second case involving Brown University ("Brown II"), the Board made a sharp return to its earlier position, expressly overruling NYU, and deciding that graduate student teaching and research assistants are not statutory “employees” under the NLRA. Based on Brown II, NYU withdrew recognition from its graduate assistants who had earlier voted for representation by the UAW.  Eventually, a later group of graduate students organized again and petitioned for a union representation election at NYU in Manhattan and NYU’s then recently-acquired Polytechnic Institute in Brooklyn (separate election petitions were filed in the Manhattan and Brooklyn Regional Offices of the NLRB).  The petitions were dismissed at the Region level, without a hearing, on the authority of the Brown II decision.  The petitions were remanded for further consideration by the Board, but after a hearing, the petitions were again dismissed at the Region level on the authority of Brown II.  The Board granted a request for review of the dismissal and asked for amicus briefs on whether Brown II should be overruled, setting the stage for yet another reversal . However, in November of 2013, NYU and the UAW reached an agreement, pursuant to which NYU agreed to recognize and bargain with the union if a majority of graduate assistants voted in favor of joining the union.  The pending Board petitions were subsequently dismissed as moot, removing at least temporarily the possibility that the Board could once again reverse course and overrule Brown II. As we noted in an earlier post, the Board granted Northwestern University’s request for review of the recent Regional Director’s decision directing an election in a unit of grant-in-aid scholarship football players at Northwestern.  Thus it seemed the stage was set for the Board to revisit the student/employee issue yet again. Yesterday, the Board issued a Notice and Invitation to File Briefs to interested parties in the Northwestern case.  The Notice expressly raises six questions that parties were invited to brief.  Question 2 is:

Insofar as the Board’s decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?

It is now evident that the Board indeed has found the vehicle it needs to once again flip flop on the issue of students/employees.

Under Title IX, the concept of “responsible employee” has a great deal of significance, as recently reaffirmed by OCR in its Questions and Answers on Title IX and Sexual Violence (Q&A), and previously reported in this blog. OCR deems an institution to have notice of student-on-student sexual harassment and/or misconduct if a “responsible employee” knew, or in the exercise of reasonable care should have known, that harassment/misconduct occurred.  And, of course, it is that knowledge that triggers an institution’s obligation to take appropriate steps to investigate and, as appropriate, end and remedy that harassment/misconduct.  Responsible employees also have the initial obligation to report incidents of sexual harassment/misconduct to the Title IX coordinator (or other appropriate designee). So who is a “responsible employee” in the eyes of OCR?  While OCR’s Q&A may provide some clarification of this very significant issue, it continues to leave a number of unanswered questions for colleges and universities. At one place in its Q&A, OCR provides that a responsible employee is any employee:

(a)  who has the authority to take action to redress sexual harassment/misconduct;

(b)  who has been given the duty of reporting incidents of sexual harassment/misconduct or any other misconduct by students to the Title IX coordinator or other appropriate designee; or

(c)  who a student reasonably believes has this authority or duty.

(The standard provided in the Q&A actually refers to “sexual violence,” not sexual harassment/misconduct, but in a note OCR makes it clear that the same standards apply to sexual violence and “other forms of sexual harassment,” which would include sexual assault.  We use the broader reference to sexual harassment/misconduct for this discussion.)  This first prong of this definition seems clear, and since institutions in the first instance have the ability to determine who they give the authority to take action to redress sexual harassment/misconduct, this prong seemingly provides an institution with some latitude to self-determine who is a responsible employee and therefore whose notice of an incident triggers the institution’s obligation to act. There is less clarity around the second prong of the definition.  On its face, the Q&A provides that a responsible person is someone “given the duty of reporting…to the Title IX coordinator.”  This reference – “reporting … to the Title IX coordinator” – is pretty precise and could be read as suggesting that someone whose duty is to report misconduct, but not to the Title IX coordinator, is not a responsible employee.  Later in the Q&A, however, there is a lengthy discussion regarding RAs (Resident Assistants/Advisors). In that discussion, OCR seems to say that an individual who has a duty to report misconduct of any kind that violates school policy (e.g., drug and alcohol violations, etc.), regardless of to whom they are obligated to report it (the Title IX coordinator or someone else), is a responsible employee. The Q&A also fails to define the “employee” part of the term “responsible employee.”  Is a student, who receives free room and board in exchange for “monitoring” a floor in a dormitory really an “employee” at all (for example, for Fair Labor Standards Act purposes, that student may not be considered an “employee” despite their assignments)?  Leaving aside the question of whether someone is “responsible” (discussed above), OCR’s latest guidance does not tell institutions who are “employees” for this purpose. And does OCR really mean that any employee who has any “misconduct” reporting duty is a “responsible employee”?  The above referenced definition provides that someone who has been given the duty of reporting incidents of sexual violence “or any other misconduct by students” is a responsible employee.  Generally speaking, faculty at most institutions are likely to have an obligation to report plagiarism and cheating.  Leaving aside for a minute the third prong of the definition – someone who a student could reasonably believe has the authority or duty to act – does this mean that all faculty are actually responsible employees, merely because they report cheaters? We simply do not know.  Presumably, OCR intended that an employee with broad based misconduct reporting responsibilities be viewed as a responsible employee, regardless of whether they are charged with reporting directly to the Title IX coordinator or not, but just how far this definition goes remains unclear. The third prong of the definition also raises some unanswered questions.  In the first instance, the third prong suggests that when someone might only “appear” to have the requisite duty or authority to act, but really does not, an institution can protect against that person being a responsible employee by clearly indicating that he or she is indeed not a responsible employee.  For example, assuming faculty at a particular institution do not have any institutionally-assigned duty to report any kind of student misconduct and/or authority to redress sexual harassment/misconduct, and therefore do not fall within the first two prongs of the definition, it might nonetheless be reasonable for a student to believe that they do, thereby making them responsible employees under the third prong.  If institutional policy clearly and visibly provides that faculty are not responsible employees, it would seem that a reasonable basis to believe that they are would no longer exist, the result being that a faculty member’s awareness of sexual harassment/misconduct would not necessarily constitute institutional knowledge and trigger any obligation to act.   Of course, institutions must determine whether they are better off attempting to exclude faculty (or any other group) from the category of responsible employee (in an attempt to avoid potential liability in the event a faculty member fails to act), or clearly including them in that category (to ensure the strongest likelihood of rooting out harassment and misconduct). What about an individual who falls squarely within the first two prongs of the definition?  Can an institution effectively remove them from the responsible employees category, simply by saying so?  There certainly are parts of the Q&A that suggest that the answer is yes.  For example, the Q&A advocates for institutions to designate individuals (beyond professional and pastoral counselors) on campus as “confidential” resources for victims, which would take them out of the responsible employee category (provided the institution provides clear notice of that fact).  In fact, the Q&A specifically contemplates that possibility for an RA, despite other misconduct reporting obligations which would seemingly place them within the second prong of the definition. But just how much latitude might an institution have in this regard?  Can it carve out of the responsible employee category all employees who otherwise have a duty to report a wide range of other types of student misconduct?  Can it effectively whittle down the category of responsible employees to just one or two specifically identified persons on campus – in an effort to limit its “knowledge” of assaults and therefore its obligation to act?  It is hard to believe that OCR would want an institution to have that much latitude, but there are mixed messages from the Q&A as to just what is permitted and what is not. Once it is finally determined who is a responsible employee, and that person becomes aware of sexual harassment/misconduct, the institution is responsible for ensuring that he or she reports to the Title IX coordinator (or other appropriate person) all relevant details about the alleged harassment/misconduct that have been provided.  This includes the names of the alleged perpetrator (if known), the student who experienced the alleged harassment/misconduct, other students involved in the incident, as well as relevant facts such as date, time, and location. In addition, colleges and universities are required by OCR to make clear (or as clear as they can, given the ambiguities in the Q&A) to all employees and students which staff members are responsible employees, both so students can make informed decisions about in whom to confide and so employees can understand their reporting obligations. Finally, this newest OCR guidance states that an institution needs to instruct responsible employees that, when talking to a student who might reveal information which he or she may wish to keep confidential, the responsible employee must in effect “Mirandize” the student before that information is revealed.  That is, the responsible employee needs to (1) warn the student of the employee’s obligation to report any information the student reveals to the Title IX coordinator, (2) explain to the student his or her option to ask that the institution nonetheless consider maintaining the confidentiality of that information, but that the institution may not be able to guarantee confidentiality (more about this in a future post), and (3) advise the student of the ability to instead share this information with counseling, advocacy, health, mental health or other sexual assault-related resources who are not obligated to report it to the Title IX coordinator. Clearly, a basic task for every institution is to make a reasoned determination concerning who it considers id a responsible employee (and who it does not) and to make that determination well known.  Then, it is incumbent on the institution to make sure that responsible employees fully understand – and comply with – their obligations. No doubt the intent of OCR’s Q&A was to provide clarifying and useful guidance to institutions.  Regrettably, as has often been the case with OCR guidance in this area, the Q&A leaves a number of unanswered questions.

In April, the Supreme Court issued its decision in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s State Constitutional Amendment prohibiting, among other things, any preferential treatment on the basis of race in the admissions process at Michigan’s public colleges and universities. Yesterday, the Department of Education responded to that decision by “confirming” that Schuette leaves intact the Supreme Court’s prior decisions recognizing that institutions may use all legally permissible methods to achieve diversity goals, noting that

[t]hese include, absent any restrictions in state law, appropriately tailored programs that consider the race of individual applicants as one of several factors in an individualized process to achieve the educational benefits that flow form a diverse student body.

This “Dear Colleague” letter also reaffirmed the continuing impact of the Department’s previously issued “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education” and its “Questions and Answers about Fisher v. University of Texas at Austin.”  While clearly the Department is correct that, as a legal matter, the Court’s most recent decision does nothing to directly alter the legal landscape for private institutions when it comes to promoting diversity (if for no other reason than Schuette did not present that question to the Court), it begs the question whether this decision nonetheless brings the Court just one step closer to a significant change if the question does present itself for review again.

As reported last week, The White House Task Force To Protect Students From Sexual Assault issued its first report.  Simultaneously, OCR issued Q&As on Title IX obligations and related documents to help guide institutions and to reinforce the government’s interest in pushing colleges and universities to better respond to campus sexual assaults.  The effort to protect students on college and university campuses from sexual assaults is unquestionably a good thing, although one might question some of the government’s tactics.  Towards the end of last week, the Department of Education turned the heat up on institutions.  On May 1, DOE made public a list of 55 higher education institutions currently the subject of OCR Title IX investigations, both complaint and compliance driven.  Bear in mind that these are simply situations in which a complaint has been filed, whether warranted or not, or the institution is the subject of a compliance review.  While the DOE’s press release stated that an “appearance on this list and being the subject of a Title IX investigation in no way indicates at this stage that the college or university is violating or has violated the law,” it seems that this latest tactic is intended as the equivalent of a “perp walk” designed to put pressure on institutions by making them look bad, although they have not been found in violation of the law in any way.  Although OCR noted that the list will be updated regularly, thus sending a message well beyond the 55 institutions named, it is notable that OCR did not indicate any intention to publicize, in a similar manner, those institutions cleared of any allegations of misconduct.  This current wave of action to attack sexual assault has not been limited to the federal government.  Last week the Connecticut House and Senate both passed legislation dealing with campus sexual assaults.  Under this legislation, both public and private colleges and universities in Connecticut will be required, among other things, to: 

• provide free counseling services to students who have been sexually assaulted, whether on or off campus,
• provide annual prevention and awareness programs for students and employees,
• provide concise written notice of a student’s right to seek disciplinary action in the event of a sexual assault and of the availability of any free healthcare and counseling related to an assault,
• enter into an agreement with at least one community-based sexual assault crisis service and a domestic violence agency to provide free help to students, and
• provide legislators on an annual basis with the institution’s sexual assault policies, the number and type of risk reduction programs in place, the number of incidents of sexual assault, domestic violence and stalking, the number of disciplinary cases related to sexual assaults and their outcomes. 

Time will tell if other states will follow suit with their own unique brand of campus sexual assault legislative oversight.  In the meantime, institutions will need to prepare for the possible negative public image impact of OCR’s decision to publicize any complaint or compliance review, regardless of outcome or merit.

Today the White House issued the “first” report from its task force on sexual assault.  The Report provides a number of recommendations for colleges and universities and is a “must read” for any administrator charged with any aspect of Title IX compliance. Among the items addressed in the Report are the following:

• Campus Climate Surveys.  The Report begins by noting that the first step in solving a problem is to identify it.  To assist institutions in identifying problems on their campuses, the Report provides a “toolkit" for conducting a Campus Climate Survey.  The Report suggests that an institution that is “serious” about addressing the problem of sexual assaults will voluntarily conduct a survey.  It also indicates that the government will be exploring legislative or administrative options to require schools to conduct a survey in 2016.
• Engaging Men.  The Report presses institutions to engage men as “allies” in the cause to combat campus sexual assaults, noting: “Most men are not perpetrators – and when we empower men to step in when someone’s in trouble, they become an important part of the solution.”  Towards this end, the Report offers information on “Bystander-Focused Prevention of Sexual Violence.”
• Effectively Responding.  A major component of the Report is its emphasis on institutions’ need to effectively respond to complaints of sexual assault by students.  The Report discusses a host of issues related to policy language and investigation and hearing procedures.  (The Report is detailed in this regard and contains far more than can be covered in a single blog post.  Future posts will explore specific topics in more detail.) 

One of the most intriguing aspects of the Report is its encouragement for institutions to have a confidential resource with whom victims can talk and from whom they can receive advice and support that does not require the commencement of an investigation, if the victim is not ready to take that step.   Until this point, the issue of confidential campus resources (meaning whether such confidential resources are permissible and, if so, who could be designated as a confidential resource) has been a subject of much speculation and confusion.  According to the Report, institutions should “make it clear up front, who on campus can maintain a victim’s confidence and who can’t – so a victim can make an informed decision about where best to turn.”  The Report provides institutions with sample language for a confidentiality protocol. Interestingly, this sample language indicates that institutions are permitted to have “confidential” advocates (including non-professionals) who, if contacted, would keep the Title IX Coordinator informed of the general extent and nature of the incident, but would provide no personally identifying information to the institution and would not trigger an investigation.  These individuals are distinguished from “responsible employees” who have a different reporting role and whose receipt of a report will generally trigger an investigation.  Issued with the Report is an extensive “Q&A" from OCR, which provides more detail as a follow up to its April 4, 2011 “Dear Colleague Letter” and also addresses this use of confidential advocates among many other issues). The Report also includes a Checklist for Campus Sexual Misconduct Policies to assist institutions in drafting and/or reevaluating their own misconduct policies.  

• Transparency.  The Report affirms the government’s commitment to making enforcement efforts more transparent.  Towards that end, it has created a new website, NotAlone.gov to “give students a roadmap for filing a complaint if they think their school has not lived up to its obligations.”  It also notes that OCR is strengthening its enforcement procedures by instituting time limits on negotiating voluntary resolution agreements, making it clear that institutions should provide victims with interim relief (such as housing or schedule changes), that OCR should make itself more visible on campus during investigations, and that OCR should improve its coordinating efforts with the Department of Justice.

The above merely touches upon the highlights of the Report.  Over the coming weeks, we will provide more information about the details of the Report and its accompanying documents.  For now, one thing seems clear: the federal government is signaling an even greater enforcement effort with respect to sexual assault on campus.  All colleges and universities should take this opportunity to review their current policies and procedures, in light of the Report and its recommendations, as the Report is clearly the government’s new roadmap.

In a not surprising development, the National Labor Relations Board announced today that it has granted Northwestern University’s Request for Review of the Regional Director’s decision directing an election among the University’s grant-in-aid scholarship football players, citing the existence of “substantial issues warranting review.”  The NLRB will later issue a briefing schedule, which will invite amicus briefs from other interested parties. While the election among the University’s eligible student-athletes will still take place tomorrow, April 25, 2014, as scheduled, the ballots will be impounded, instead of counted, until after the NLRB issues its final decision.

The Chronicle has reported in the recent past about a division of views within the AAUP as to its proper focus.  In 2012, a slate of officers running under the “AAUP Organizing for Change” banner won election fairly handily (although only about 10% of the AAUP’s membership actually voted).  At the time of that election, a former AAUP Staff member described the election outcome as affecting “to a large extent, whether the association remains anchored principally to its commitment to the profession and its standards and principles or becomes an organization principally focused on a particular means—unionization—of achieving these objectives." This past February a slate of challengers, seeking to return AAUP to its traditional focus instead of a unionization focus, looked to unseat the “Organizing for Change” leadership.  At that time, The Chronicle reported on an interview given by Rudy H. Fichtenbaum, the “Organizing for Change” candidate  running for re-election as the AAUP’s president, in which he was said to have described “the real choice before the AAUP membership [as] whether the association would continue to build a national network of activist chapters or retreat into being a group focused on running a Washington office that weighs in on few controversies each year.”  Mr. Fichtenbaum was quoted as saying, “Our emphasis has totally been on organizing people.” The election results were just reported and all four top spots will continue to be held by the “Organizing for Change” incumbents.  Although Mr. Fitchtenbaum’s election was close, winning with just under 52% of the vote, the other candidates on that slate won more handily.  Despite all of the controversy, however, only 4,433 valid votes were cast, out of a total membership of about 47,000.  So it is hard to draw too many conclusions about what these results actually reflect within the full academic community.  Nonetheless, it seems safe to assume that this latest victory will be viewed as a “mandate” by the “Organizing for Change” leadership to continue, and perhaps even increase, AAUP’s focus on unionization. Historically, this may not have had meant much for private colleges and universities.  Since the U.S. Supreme Court’s 1980 decision in NLRB v. Yeshiva University, which held that in the traditional higher education setting, faculty are “managerial” employees not eligible for unionization under the National Labor Relations Act, the full time faculty at most colleges and universities have not had the legal option to unionize.  However, the Obama National Labor Relations Board – at full strength for the first time in a decade --  has been actively overturning a host of NLRB precedents and established practices which collectively increase the likelihood of union organizing.   These changes have occurred against the backdrop of declining unionization – organized labor represents only about 6.7%  of American workers in the  private sector, which is near its  all-time record low.  While the NLRB does not have the authority to simply “overturn” a Supreme Court decision, the Yeshiva decision requires a very fact specific application.  As a result, the NLRB may have room  to “interpret” Yeshiva in a different way going forward, while still utilizing the framework of the Court’s analysis. The NLRB clearly has signaled its intention to consider that course of action.  Recently, in connection with its review of a faculty election issue involving Pacific Lutheran University, the NLRB has invited interested parties to submit briefs on a number of issues related to its application of Yeshiva, including:

• Which of the factors identified in NLRB v. Yeshiva University, 444 U.S. 672 (1980), and the relevant cases decided by the Board since Yeshiva are most significant in making a finding of managerial status for university faculty members and why?
• In the areas identified as “significant,” what evidence should be required to establish that faculty make or “effectively control” decisions?
• Are  the factors identified in the Board case law to date sufficient to correctly determine which faculty are managerial?
• If the factors are not sufficient, what additional factors would aid the Board in making a determination of managerial status for faculty?
• Is the Board’s application of the Yeshiva factors to faculty consistent with its determination of the managerial status of other categories of employees and, if not, (a) may the Board adopt a distinct approach for such determinations in an academic context, or (b) can the Board more closely align its determinations in an academic context with its determinations in non-academic contexts in a manner that remains consistent with the decision in Yeshiva?
• Do the factors employed by the Board in determining the status of university faculty members properly distinguish between indicia of managerial status and indicia of professional status under the Act?
• Have there been developments in models of decision making in private universities since the issuance of Yeshiva that are relevant to the factors theBoard should consider in making a determination of faculty managerial status? If so, what are those developments and how should they influence the Board’s analysis?
• As suggested in the Yeshiva decision, are there useful distinctions to be drawn between and among different job classifications within a faculty--such as between professors, associate professors, assistant professors, and lecturers or between tenured and untenured faculty--depending on the faculty's structure and practices?

Changes in how the NLRB applies the Supreme Court’s Yeshiva decision, coupled with an AAUP more inclined to pursue union organizing, could lead to some very interesting developments for private colleges and universities in the next year or so.  Stay tuned.

In a number of cases since Regents of the Univ. of Cal. v. Bakke, the Supreme Court has upheld in a variety of contexts the use of some degree of race based preferences in the admissions process for colleges and universities.  Although not its most recent decisions in this area, two of its most discussed decisions came out of Michigan.  In one, Gratz v. Bollinger the Supreme Court in 2003 found that the undergraduate admissions process at the University of Michigan violated the Equal Protection Clause of the U.S. Constitution by its use of race based preferences.  At the same time, it also held, in Grutter v. Bollinger, that the University of Michigan Law School’s use of race based preferences was permissible. Following these decisions, Michigan voters adopted Proposal 2, which became Article I, Section 26 of the State Constitution.  As relevant, it provides:

The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (Emphasis added.)

 This Proposal was challenged in two cases.  The District Court initially found that it was permissible for the voters of Michigan to adopt this constitutional amendment.  The Sixth Circuit Court of Appeals, in an original 2-1 decision and a subsequent 8-7 en banc decision, held that the Proposal was unconstitutional.  Today, in a 6-2 decision in Schuette v. Coalition to Defend Affirmative Action, the U. S. Supreme Court has upheld the State’s adoption of this amendment.  The plurality opinion was written by Justice Kennedy, and joined in by Chief Justice Roberts (who also issued a concurrence) and Justice Alito.  Justice Scalia issued a concurrence which was joined by Justice Thomas.  Justice Sotomayor wrote a dissent, joined in by Justice Ginsburg.  Justice Kagan did not participate in the Court’s decision. As Justice Kennedy noted at the outset of the Court’s decision:

Before the Court addresses the question presented, it is important to note what this case is not about.  It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. … In Fisher [v. University of Texas at Austin], the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met.  In this case, as in Fisher, that principle is not challenged.  The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decision, in particular with respect to school admissions.

The plurality opinion essentially concludes that notwithstanding prior Court precedent (creating the “political-process" doctrine) which recognized that voter action which effectively “insinuate[d] the State into [a] decision to discriminate by encouraging that practice,” in a way that “was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race,” could be unconstitutional, that was not the case here.  Justice Kennedy closed his opinion by noting that “[t]his is not about how the debate about racial preferences should be resolved.  It is about who may resolve it.  There is no authority in the Constitution of the United States or in this court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.” Justice Scalia, joined by Justice Thomas, would overrule the Court’s precedent establishing the political process doctrine, rather than distinguish it away as the plurality did.  Justice Scalia also noted that he was parting company with the plurality because he found that their view at least left “ ajar an effects-test escape hatch” that might permit the finding of an Equal Protection Clause violation in the absence of discriminatory intent, based on disparate impact, which he argues has no place in the Court’s jurisprudence. For Justice Sotomayor, Proposal 2 fell squarely within the political-process doctrine:  “When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.”  As she noted in closing:

The Constitution does not protect racial minorities form political defeat.  But neither does it give the majority free rein to erect selective barriers against racial minorities.  The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success.  Today, the Court discards that doctrine without good reason.

As noted at the outset, this decision does not change the legal landscape with regard to the permissibility, as a matter of federal constitutional law, of race conscious admissions policies in higher education.  And in fact it has little bearing on what may or can happen in the world of private higher education.  It does, however, reaffirm the ability of the electorate to enforce its views at the ballot box on this highly important and charged issue in the realm of public education.

Recent articles and postings not only highlight the continuing focus on sexual assault cases on college campuses by the victims of those assaults, but also on the threat of litigation by those accused of the assaults.  In the past two years, at least half a dozen actions have been brought against institutions by those accused, generally alleging various issues with the handling of their cases.  A recent decision by a federal court in Ohio, in Wells v. Xavier University, illustrates institutions’ potential liability to the accused. In this case, a student athlete at Xavier was accused, falsely he claimed, by another student of a sexual assault.  The University’s Conduct Board found the student responsible for a “serious violation” of the Code of Student Conduct.  At some point, the University apparently issued a statement, naming the student, and indicating that he was “found….responsible for a serious violation of the Code of Student Conduct” and that he was expelled from the University. The expelled student brought an action against the University raising a number of claims.  Among other things, he asserted that he did not in fact commit a violation of the Code of Student Conduct, serious or otherwise (he claimed that any sexual encounter was consensual), that it was apparent to the community that the University’s statement was referring to a sexual assault, and that he had therefore been libeled.  In addition, he claimed that his rights under Title IX had been violated by the University’s conduct because it was reacting against him, erroneously, as a male and in response to several OCR investigations critical of how the University had responded to past sexual assault cases involving other students. The University moved to dismiss these two claims, arguing that as a matter of law they failed to state a claim upon which relief could be granted.  The Court denied this request, allowing both of these counts to proceed.  Specifically, the Court concluded that the University’s statement (in the context of the student’s allegations that the Conduct Board was ill equipped to conduct a hearing on such a serious matter, that outside government authorities (the prosecutor) had questioned the outcome of this internal process, and that press coverage demonstrated damage to the student’s reputation) supported the libel claims.  As the Court noted:

[I]t appears to the Court that the [hearing body], a body well-equipped to adjudicate questions of cheating, may have been in over its head with relation to an alleged false accusation of sexual assault.  Such conclusion is strongly bolstered by the fact that the County Prosecutor allegedly investigated, found nothing, and encouraged [the University’s President] to drop the matter.  Plaintiff’s allegations suggest [the President] did not do so due to Xavier’s mishandling of other cases that were at nearly the same time, subject to investigation by the OCR.

This, the Court concluded, was enough to allow the claim to proceed.  In addition, the Court allowed the Title IX claims to proceed because the plaintiff adequately pled that the University had engaged in a pattern of decision-making that resulted in an alleged false outcome for him, in response to other OCR investigations.  The Court also found that, at this early stage, the allegations were sufficient to support a claim of deliberate indifference by the institution because, he alleged, despite warnings from the prosecutor that the allegations against him were unfounded, the University proceeded with internal hearings “with the goal of demonstrating to the OCR that Xavier was taking assault allegations seriously.” Of course it remains to be seen whether the plaintiff in this case will be able to prove any of these allegations.  But at this stage the only question for the Court was whether, if his allegations were taken as true, they would form a basis for liability, and it answered in the affirmative. This case serves as just one more reminder for institutions of the need to tread very carefully in the context of sexual assault cases.  While they must be mindful of the victims’ rights, and protecting the campus community from further acts of misconduct, they too must be sensitive to the rights of the accused.  Careful review of policies to ensure that they meet the requirements of state and federal law for both the accuser and the accused, training of those charged with applying those policies, and sensitivity to the rights of the individuals charged, are necessities.  Institutions face potential liability from “both sides” and they need to know the proper path to walk.

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.

Many institutions of higher education, like employers in many industries, use background checks as an integral part of their hiring process.  A recently filed class action lawsuit serves as a reminder to institutions of the importance of strict compliance with the Fair Credit Reporting Act (FCRA). The FCRA limits the purposes for which a background check (including a credit check or criminal background check) can be obtained.  One of the permissible purposes is for employment, including hiring decisions.  However, the Act imposes strict requirements in order to lawfully obtain and use a report.  One of those requirements is that the employer must provide applicants with a stand-alone disclosure and authorization form prior to obtaining a background check.  15 U.S.C. § 1681b(b)(2)(A).  This form must be separate from the employment application, and cannot include any type of language attempting to release the institution from liability associated with obtaining the background check.  Unfortunately, many institutions still fail to comply with this law by relying solely on a disclosure located on employment application to inform applicants that they will be subject to a background check, or by attempting to include additional language on the disclosure. This particular requirement is the focus of a recent class action lawsuit filed against Whole Foods Market California.  Whole Foods is accused of using a legally invalid form to obtain consent to conduct backgrounds checks during their employment application process.  In this case, it is alleged that the employer relied on a background check consent that was included alongside several other consent paragraphs on an online employment application.  Additionally, that consent included a release of claims related to obtaining the background check.  If the employer is found to have used an invalid form the consequences are significant, including invalidation of the consent, statutory damages in the amount of up to $1,000 for each applicant, costs and attorneys’ fees and, potentially, punitive damages. This lawsuit is a reminder that FCRA compliance makes good business sense, and that institutions should periodically review their application and hiring forms and processes to ensure strict compliance.