On June 29, 2023, the U.S. Supreme Court issued its long-awaited decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.[1] The Court considered the admissions practices of Harvard College and University of North Carolina (UNC) and found that neither could withstand the “strict scrutiny” demanded for race-based admissions decisions. Although nominally about these two particular admissions programs, the Court’s rationale for its ruling leaves virtually no possibility that race-based admissions practices will withstand judicial challenge.
BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon.
On May 25, 2023, the United States Department of Education’s Office for Civil Rights (OCR) released a Dear Colleague Letter (DCL) “as part of the Department’s launch of an Antisemitism Awareness Campaign” described in the Biden-Harris Administration’s U.S. National Strategy to Counter Antisemitism dated the same day. The DCL specifically notes the “nationwide rise in reports of antisemitic harassment, including in schools,” and reiterates the applicability of Title VI in this context. Title VI prohibits discrimination based upon race, color, or national origin by higher education institutions (IHEs) receiving federal financial assistance, and this protection from discrimination extends to students who experience discrimination, including harassment, based upon their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity. Therefore, students who are or are perceived to be Jewish are protected under this basis, and the DCL cautions that IHEs and K-12 “[s]chools must take immediate and appropriate action to respond to harassment that creates a hostile environment for these students.”
On Feb. 15, 2023, the U.S. Department of Education (Department) surprised the higher education community with a Dear Colleague Letter (DCL GEN-23-03) that sets forth new guidance on third-party servicers with whom institutions of higher education (IHE) contract to help administer student assistance programs under Title IV of the Higher Education Act of 1965, as amended (Title IV). The Department requires IHEs to report contracts with third-party servicers and imposes certain requirements not only upon IHEs, but also upon the third-party vendors. For a list of those requirements, click here.
The United States Department of Education announced today a delay in the anticipated date for release of its Final Rule setting forth revised Title IX regulations. The Department had previously advised that the Final Rule would be released during the month of May, but now anticipates publication in October.
In the past six months, the federal courts have addressed some novel issues about what is a “sport” under Title IX, as well as questions of standing, retaliation, financial aid, class certification and Title IX’s equitable opportunities and benefits requirements. These cases reflect that the landscape of Title IX continues to change and requires careful attention to ensure that your school or institution does not inadvertently drift into Title IX violation.
Although transgender athletes have been competing for many years – recall Renee Richards playing professional women’s tennis in the 1970’s – the participation of trans-female athletes has recently resurfaced as a sensational headline topic. The Trump and Biden administrations took polar opposite positions and federal courts have issued conflicting rulings on this issue, which appears headed to the U.S. Supreme Court.
It is a common practice in collegiate athletics to separate teams in two or more “tiers” of “major” and “minor” or “revenue” and “non-revenue” sports. Tiering may not be explicitly intended by administrators, but informal tiering is relatively common by virtue of emphasizing some teams over others. While tiering is not per se a violation of Title IX, it must be organized properly to avoid violations.
In February 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a resource to the higher education community reiterating some of the core concepts it uses to evaluate whether institutions are providing equal athletic opportunities consistent with Title IX. For colleges and universities, this new resource should serve as a not-so-subtle prompt to review their programs for compliance with applicable standards.
The U.S. Department of Education (Department) recently surprised the higher education community with a Dear Colleague Letter (DCL GEN-23-03) that sets forth new guidance on third-party servicers with whom institutions of higher education (IHE) contract to help administer student assistance programs under Title IV of the Higher Education Act of 1965, as amended (Title IV). Entities that fall under the definition of a third-party servicer are subject to Department oversight and must abide by specified rules, and IHEs have long been required to ensure that their agreements with third-party servicers contain specified provisions, and to disclose their relationships with those vendors to the Department.[1] Historically, these obligations had been limited to vendors assisting institutions with core Title IV administrative functions; DCL GEN-23-03 would expand these obligations to a wide array of institutional vendors.
On Jan. 31, 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a new fact sheet interpreting Title VI of the Civil Rights Act of 1964, which prohibits discrimination in federally assisted programs and activities based upon race, color or national origin. OCR is charged with enforcement of Title VI in educational settings.[1]
On Dec. 15, 2022, a New York appellate court unanimously affirmed a lower court’s order, entered June 24, 2022 (discussed here), which had permanently enjoined Yeshiva University (YU) from refusing to recognize the Yeshiva Pride Alliance as an official student organization.
