On June 26, 2017, the final day of its judicial term before summer recess, the United States Supreme Court addressed the Trump Administration’s hotly contested travel ban. The Supreme Court issued a per curiam decision on June 26, 2017 allowing the federal government to implement a portion of the travel ban set forth in Executive Order 13780 (Protect­ing the Nation From Foreign Terrorist Entry Into the United States), which was signed on March 6, 2017.  Recall, EO 13780 called for the suspension on the admission of all refugees for 120 days and also sought to impose a 90-day “temporary pause” on the admission of foreign nationals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen.

The Supreme Court’s June 26^th decision marks the latest move in the game of legal ping pong regarding the Trump Administration’s stated efforts to protect Americans and safeguard the nation’s security interests.  The Supreme Court will fully consider the legal arguments at stake when the fall session begins in October 2017.  For now, the Supreme Court’s decision will allow the Trump Administration to exclude foreign nationals from each of the six countries of concern, provided they have no “credible claim of a bona fide relationship with a person or entity in the United States”.  Stated differently, if a foreign national can establish the existence of a “close familial relationship” with someone already in the United States or a formal, documented relationship with an American entity, the travel ban will not apply.  It is expected that enforcement of this limited travel ban will begin on June 29, 2017, just as the nation’s peak summer travel season gets underway.

Not surprisingly, the Supreme Court’s decision leaves a number of unanswered questions regarding the meaning of the “bona fide relationship” standard.  In an effort to shed some light on this issue, the Supreme Court provided several examples of the circumstances that would satisfy the “bona fide relationship” standard:

• Individuals seeking to come to the United States to live or visit a family member (i.e., spouse, mother-in-law), though it remains to be seen just how far the federal government will go to recognize a “close” familial relationships (e.g., cousins, aunts, uncles, nieces, nephews, etc.);
• Students who have been admitted to an educational institution in the United States;
• Foreign nationals who have been extended, and have accepted, an offer of employment with a corporate entity in the United States;
• Foreign nationals who have been invited to temporarily address an American audience as lecturers; and
• Refugees who have family connections in the United States or who have connections with refugee resettlement agencies.

While the examples provided by the Supreme Court are helpful to a certain degree, they do not address all scenarios that may arise for foreign nationals seeking to enter into the United States in the immediate future. Nevertheless, it appears that individuals who currently hold valid immigrant and/or non-immigrant visas will not be subject to the travel ban.

In response to the Supreme Court’s decision, the Department of Homeland Security issued a statement on June 27, 2017 noting that DHS’ implementation of EO 13780 will be “done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry”.

We will continue to apprise clients regarding any developments as they unfold.

It’s that time of year again! Just a friendly reminder that New York colleges and universities must file their Article 129-A and Article 129-B of the Education Law Certification of Compliance with the New York State Education Department (NYSED) on or before July 1, 2017.  By signing and submitting the Certification of Compliance with NYSED, each institution confirms that it is in compliance with Article 129-A of the Education Law, which relates to the regulation of conduct on campuses and other college property used for educational purposes, and Article 129-B, which relates to the implementation by colleges and universities of sexual assault, dating violence and stalking prevention and response policies and procedures.  Unlike last year, institutions do not have to submit their related policies and procedures to NYSED with their Certifications of Compliance.

To file the Certification of Compliance with NYSED, institutions must use the electronic filing system established by NYSED. The Certification of Compliance form, instructions on submitting the same to NYSED and a link to the filing system can be found at  http://www.highered.nysed.gov/ocue/Article129ABcert.html.

Please note that the annual aggregate data reports mandated by §6449 of the Education Law are not required to be submitted to NYSED at this time.  According to NYSED, information about how and when to submit the aggregate data reports will be provided to institutions as soon as it is available.

If you have any questions or need assistance with meeting the fast approaching July 1 deadline, do not hesitate to contact us.

Perhaps lost in the media stories about the so-called “bathroom wars” is the emotional toll that they have taken on individuals whose lives are directly impacted by the controversy. While both sides have fiercely advocated the social and emotional import at the core of the dispute, courts have struggled to find a uniform answer to: “What is the law here?” The federal guidance document that was the subject of a Fourth Circuit ruling has been rescinded by the Trump administration and the court’s decision itself vacated by the Supreme Court and remanded back to the Fourth Circuit.   Some states, like New York, have filled in the gap with legislation that requires public school districts to allow transgender students to use the bathroom corresponding to their gender identity.  But, what about states that don’t have such a law?  Yesterday, in Whitaker v. Kenosha Unified School District No. 1 Bd. of Educ. (7^th Cir. May 30, 2017), the Seventh Circuit answered that question.  In what could be a landmark ruling, the Court held that under Title IX and the Equal Protection Clause of the Constitution, a transgender high school student could not be barred from choosing to use the bathroom that corresponded with the student’s gender identity.  Prior to this ruling no court had directly held that Title IX offered specific protection to transgender students on the grounds of “sex stereotyping” and “gender noncomformance,” terms that are more frequently seen in employment cases under Title VII. The Whitaker court addressed the Title IX issue head on, holding: “By definition, a transgender individual does not conform to the sex?based stereotypes of the sex that he or she was assigned at birth.” In affirming the district court’s grant of a preliminary injunction in favor of the student, the Court clearly expressed its edict:

…[The student] can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender. A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non?conformance, which in turn violates Title IX.

The school district argued that its decision to deny the student access was reasonable in light of the privacy rights of other students.   That argument, which has been a focal point of grassroots discussions and legal briefs, was given short shrift by the Seventh Circuit:

A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions. Or for that matter, any other student who uses the bathroom at the same time. Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.

At some point the Supreme Court will take on this issue. Until then, even in states where there are controlling statutes, school districts and postsecondary institutions should carefully review with counsel the implications of the Whitaker decision.  Some state laws, like the Dignity Act in New York, do not provide a private right of action that allows students to sue the school institution for money damages.  In contrast, under the Whitaker decision, if followed by other courts, there could now be federal claims for damages.  

Apparently prompted by allegations from students and advocates, New York Governor Andrew Cuomo is reportedly directing an audit, to be conducted by representatives from the New York State Department of Education, Department of Health, Office of Victim Services and State Police, of institutions’ compliance with Education Law Article 129-B, the so-called “Enough is Enough” campus sexual violence legislation. According to published reports, between now and September 1, the audit would review institutional policies and websites to determine compliance with, among other things, the statutory requirements for adoption of policies and disclosures to students.  A second phase would then examine institutions’ handling of individual cases. The precise details of these reviews are as yet unknown, but the second phase has the potential to equal or exceed, in scope and depth, reviews conducted by the Office for Civil Rights of the United States Department of Education under Title IX. OCR reviews are, of course, typically prompted by individual complaints.  By contrast, the Governor’s audit program, if it proceeds as reported, would apparently target all colleges and universities in New York State, essentially subjecting them to a similar process even in the absence of particular concerns or complaints. Pursuant to Education Law Section 6440(3), the Education Department had previously indicated its intent to conduct “random audits, at any time after September 1, 2016” to monitor compliance with the statutory requirements.  This initiative, however, appears to be more comprehensive in terms of its coverage of institutions throughout the State, seemingly in conflict with the statutory dictate that audits be conducted “by random selection.” Needless to say, the roll-out and implementation of this initiative bear watching.

On April 21, 2017, the Acting Regional Director of Region Five of the National Labor Relations Board (“NLRB”) issued a Decision and Direction of Election holding that Resident Advisors (“RAs”) at George Washington University are employees under the National Labor Relations Act (“NLRA”) who are entitled to vote in a union representation election.  This decision comes on the heels of the NLRB’s recent decision in Columbia University, holding that graduate and undergraduate student assistants are employees who are also entitled to unionize.  This ruling by NLRB Region Five could potentially open the door for unions to organize RAs at other private institutions of higher education. The representation petition at George Washington was filed by Local 500 of the Service Employees International Union (“SEIU”).  SEIU sought to represent a bargaining unit of all full-time and regular part-time RAs at George Washington, which consisted of approximately 110 individuals.  As a condition of becoming an RA, an individual must be a full-time undergraduate student enrolled in a degree-granting program, and must have completed his or her first year of studies.  RAs at George Washington are expected to be in good academic and judicial standing.  George Washington argued that RAs should not be considered “employees” under the NLRA for two principal reasons:  (1) its requirement for RAs to be undergraduate students is necessary for the RAs to develop a “peer-to-peer mentoring relationship” with their assigned residents; and (2) RAs are an important part of George Washington’s residence life program, which is an extension of its academic program. The Acting Regional Director of NLRB Region Five rejected George Washington’s arguments after a hearing on these issues, finding that the RAs have an employment relationship with the University.  The Acting Regional Director determined that RAs perform services for the University, are subject to the University’s control, and perform their services in exchange for payment.  The RAs at George Washington receive a stipend of $2,500 for the academic year, less applicable tax withholdings, as well as free on-campus housing valued at $12,665 per year.  The RA position description at George Washington sets forth four main categories of job duties, along with a list of particular expectations for each category of job duties.  The Acting Regional Director also found that RAs are subject to discipline, up to termination, if they fail to comply with George Washington’s policies or if they fail to remain in good academic or judicial standing.  One particular piece of evidence that the Acting Regional Director found to be significant was that RAs at George Washington are required to sign a four-page document entitled “Resident Advisor Employment Agreement,” which describes the University’s “expectations and employment terms” for RAs. According to the Acting Regional Director, the mere fact that being an RA might be part of the educational experience of an undergraduate student at George Washington does not preclude a determination that the relationship is principally an economic relationship.  The Acting Regional Director wrote:  “Employment experiences can simultaneously be educational or part of one’s personal development, yet they nonetheless retain an indispensable economic core.” A representation election will be scheduled in the coming weeks for the RAs at George Washington to determine if they wish to be represented by SEIU for purposes of collective bargaining.  George Washington has the right to seek review by the NLRB and potentially by a federal appellate court if SEIU wins the election.  At this point, two of the three occupied seats on the NLRB are filled by Democratic appointees who are pro-union.  There are also two vacancies on the NLRB.  When those vacancies are filled by President Trump, it is expected that the NLRB will have its first Republican majority in approximately nine years.  Therefore, this ruling by NLRB Region Five may not be the last word on this important issue for institutions of higher education.

The Middle States Commission on Higher Education has proposed the adoption of a policy that would prohibit Middle States-accredited colleges and universities from providing “incentive payment” (e.g., tuition sharing or per capita payments) to recruiters “based on [their] success in securing student enrollment….” If approved, the policy would apply to the recruitment of prospective students in the United States and internationally. As to prospective applicants in the United States, the policy would not result in significant change as a practical matter, as the United States Department of Education’s Title IV program integrity rules already prohibit payment of such compensation in connection with the recruitment of prospective students eligible for Title IV aid. Historically, however, institutions have been able to pay incentive compensation for the recruitment of foreign students residing outside the United States who are not eligible to participate in Title IV programs.  (In 2013 and 2014, the National Association for College Admission Counseling (NACAC) approved an amended Statement of Principles of Good Practice that allows institutions to use commissioned agents to recruit students outside the United States, while encouraging the implementation of protections designed to protect applicants and their families against potential conflicts of interest resulting from the practice.) If adopted, the proposed policy would pose challenges for Middle States-accredited institutions (in Delaware, the District of Columbia, Maryland, New Jersey, New York, Pennsylvania, Puerto Rico and the Virgin Islands) that compete for international enrollments with peer institutions accredited by other regional accreditors, who would not be similarly restricted absent adoption of corresponding prohibitions by their respective regional accreditors. Middle States is accepting public comments on its proposed policy through April 17, 2017. Unless the proposed policy is withdrawn following closure of the comment period, the policy (including any revisions based on comments received) will likely be submitted for approval by vote of the Chief Executive Officers of Middle States’ member institutions sometime this summer.

Late Wednesday, March 15, just hours before President Trump’s new travel ban was scheduled to take effect, the U.S. District Court for the District of Hawaii granted a temporary restraining order that prevents the implementation of Executive Order 13780.  Recall, President Trump issued Executive Order 13780, entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO 13780”), on March 6, 2017.  The temporary restraining order issued by the U.S. District Court in Hawaii prohibits the federal government from enforcing EO 13780 on a nationwide basis. As you know from our March 7, 2017 blog post, EO 13780 sought to suspend the entry of non-immigrants from Iran, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period if they were not physically present in the U.S. on March 16, 2017, did not have a valid visa at 5:00 pm EST on January 27, 2017, and did not have a valid visa on March 16, 2017.  EO 13780 also sought to suspend the entire refugee admission program for 120 days and to cap the admission of refugees to no more than 50,000 for fiscal year 2017.  As a result of the decision of the U.S. District Court in Hawaii on March 15, foreign nationals hailing from any of the restricted countries may continue to travel to the U.S. until further notice. At a rally in Nashville, Tennessee on Wednesday evening, President Trump criticized the ruling issued by the U.S. District Court in Hawaii and further declared that his administration will fight to uphold EO 13780, including the travel ban, all the way to the Supreme Court, if necessary.  Given the fluidity of this situation, we continue to advise that individuals from the restricted countries who are presently in the U.S. forego any unnecessary international travel at this time.

The Supreme Court will not review the Fourth Circuit’s decision in Gloucester County School Board v. G.G. despite agreeing in October 2016 to do so. The Fourth Circuit’s decision in favor of G.G., a transgender Virginia high school student, had been stayed by the Supreme Court while it considered whether to grant the School Board’s petition for certiorari. The effect of that stay was that the Fourth Circuit’s invalidation of the School Board policy restricting bathroom and locker room access to students’ biological gender was put on hold until the Supreme Court heard the case. However, in a surprise move on March 6, 2017 the Supreme Court vacated the Fourth Circuit’s decision in favor of G.G., and remanded the case back to the Fourth Circuit for further consideration in light of the February 22, 2017 joint guidance from the Departments of Education and Justice. The Departments’ February 22 joint guidance (“February 22 Dear Colleague Letter”) rescinded Obama era guidance that interpreted Title IX’s prohibition against sex discrimination to encompass discrimination based on gender identity and transgender status.  The nation’s highest court, through this decision to vacate and remand, has declined the opportunity to settle the question of whether federal Title IX protections against sex discrimination in education extend to gender identity and transgender status. The Trump Administration’s February 22 Dear Colleague Letter giving states and local districts the responsibility of deciding policy as it relates to transgender students will create inconsistent conditions for transgender students across the country, and the Fourth Circuit’s decision on remand will likely add to the jurisdictional variations on this issue. The Supreme Court’s refusal to hear this case vitiates an opportunity to set a national standard for transgender students’ rights in education. While the February 22 Dear Colleague Letter rescinded the previous administration’s transgender guidance in education, there is nothing in the February 22 Dear Colleague Letter that prohibits institutions of higher education from continuing to promulgate and enforce current transgender policies that are consistent with the previous administration’s guidance. However, the Fourth Circuit’s decision on remand, which will have the effect of law, not mere guidance, may affect the policies for those institutions within the Fourth Circuit’s jurisdiction, which includes Virginia, North Carolina, South Carolina, West Virginia, and Maryland. Institutions across the country should refer to their state and local discrimination laws and consult with counsel should they decide to make changes to policies affecting transgender students, employees, and visitors.

As Yogi Berra once said: “It’s like déjà vu all over again.” Since mid-February, the Trump Administration promised the imminent release of a revised and improved executive order addressing travel ban and refugee admissions. The wait is over.  On Monday, March 6, 2017, President Trump signed a new executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the new EO).  The new EO revokes and replaces Executive Order 13769 (EO 13769), which President Trump signed on January 27, 2017.  From the get-go, there was significant confusion surrounding the scope and implementation of EO 13769, immediately followed by numerous legal challenges.  On February 9, 2017, the United States Court of Appeals for the Ninth Circuit upheld a temporary restraining order issued by a lower court, which prohibited the federal government from enforcing any restrictions contained in EO 13769. Unlike EO 13769, which was effective immediately, the new EO allows for a ten-day grace period and will not become effective until 12:01 a.m. on Thursday, March 16, 2017. Similar to its predecessor, the new EO imposes a 90-day “temporary pause” on the entry into the United States of nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Most notably, Iraq is no longer on the list. Nevertheless, the new EO states that Iraqi nationals will be subject to additional scrutiny where they may “have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” In an effort to avoid the chaos that ensued following EO 13769, the new EO provides greater clarity on the scope of the travel ban. Specifically, the 90-day travel ban will apply only to those foreign nationals from the six enumerated countries of concern if:

• the foreign national is not physically present in the United States on the effective date of the order (March 16, 2017);
• the foreign national did not have a valid visa at 5:00 pm EST on January 27, 2017; and
• the foreign national does not have a valid visa on March 16, 2017.

The new EO order is very clear that it does not apply to green card holders, those with validly issued visas, and dual citizens.   In addition, the new EO allows for exceptions and individualized assessments to be made by consular and border immigration officers in certain cases. In addition to implementing a revised travel ban, the new EO also addresses the current refugee program. Specifically, the new EO:

• caps the admission of refugees to no more than 50,000 for fiscal year 2017;
• directs the Secretary of State to suspend refugee travel into the United States for 120 days (beginning on March 16, 2017); and
• directs the Secretary of Homeland Security to suspend decisions on applications for individuals seeking refugee status for 120 days (beginning on March 16, 2017).

Noticeably absent from the new EO is the indefinite ban on the admission of Syrian refugees that appeared in EO 13769. While the headlining topics of the new EO remain focused on travel restrictions and refugee admissions, it is worth noting that the new EO also mandates the following:

• the immediate suspension of the Visa Interview Waiver Program (but for individuals seeking a visa based upon diplomatic or diplomatic-type visa status);
• a review of non-immigrant visa reciprocity agreements currently in place with other countries to ensure that such agreements are “truly reciprocal”;
• the collection and disclosure of certain data to the American people pertaining to foreign nationals and their involvement in or connection to certain nefarious activities (i.e., terrorist-related offenses, acts of gender-based violence against women, etc.).

Despite the Trump Administration’s efforts to narrowly tailor this newest EO, we anticipate that there will be legal challenges filed by various stakeholders in the coming days and weeks.

On February 22, 2017, in its first “Dear Colleague Letter,” the Trump Administration withdrew existing U.S. Department of Justice and Department of Education guidance that interpreted Title IX’s protections against sex discrimination to encompass discrimination based on gender identity and transgender status. In this joint Dear Colleague Letter (“February 22 DCL”), the Departments point to recent litigation challenging the previous administration’s interpretation of Title IX as applied to transgender students as reason to withdraw the existing guidance so that the Departments could “further and more completely consider the legal issues involved.” The Departments specifically cite to the Fourth Circuit’s decision in G.G. v. Gloucester County School Board, which deferred to the Obama era Departments’ interpretation that Title IX’s protections against sex discrimination encompass discrimination based on gender identity and transgender status, as well as the U.S. District Court for the Northern District of Texas’ nationwide injunction of the federal guidance in State of Texas et al. v. United States of America et al. States’ Rights and Local Educational Policy In essence the February 22 DCL initiates an analytical shift. The Departments no longer discuss transgender students’ rights as a question of civil rights, but rather, now, as one of educational policy and States’ rights: “the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.” The February 22 DCL does not replace the guidance it withdraws with new policy or requirements. While it rescinds protections for transgender students, in the penultimate paragraph the Departments note, generally, that the U.S. Department of Education’s Office for Civil Rights will “continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms.” It is unclear what this statement means for transgender students in the context of this rollback document. There is nothing in the February 22 DCL that prevents institutions from continuing to enforce their current transgender policies, including nondiscrimination policies that are consistent with the Departments’ 2016 guidance. However, institutions in states with laws that require persons to use the single-sex facilities that correspond to their biological sex, rather than their gender identity, could be compelled to change institutional policies to reflect state standards. The Trump Administration’s decision to give states and local districts the responsibility of deciding “educational policy” as it relates to transgender students will almost certainly foster inconsistent conditions for transgender students across the country. New York State The New York State Attorney General Eric Schneiderman and the New York State Department of Education (NYSED) issued a prompt joint reminder on February 23, 2017 in which they “vehemently objected” to the Departments’ revocation of the prior guidance. New York State reminded its school districts, if not explicitly its higher education institutions, that they have an independent obligation to follow state and local laws and New York State Education Department guidance prohibiting harassment and discrimination of transgender students. The New York Attorney General said that his office will “use all the existing tools of federal, state, and local law to ensure that transgender kids are safe in their schools and are provided equal access to all programming and facilities consistent with their gender identity.” Bond’s recent Information Memo has more on the impact of the February 22 DCL on school districts. The Supreme Court’s review of G.G. v. Gloucester County School Board On October 28, 2016, the Supreme Court announced its intention to review the Fourth Circuit’s decision in G.G. v. Gloucester County School Board that was based on the federal appellate court’s deference to the Department of Education’s interpretation of federal law. It is unclear what, if any, impact the rescission of prior Department transgender guidance will have on the Supreme Court’s decision to review Gloucester County, but it is possible that a decision by the Supreme Court in that case may settle – in ways that agency guidance cannot – the question of whether Title IX protections against sex discrimination include discrimination based on gender identity and transgender status.  

Last month, Bond, Schoeneck & King  sought  an exemption from cybersecurity regulations proposed by the New York State Department of Financial Services (DFS) for colleges, universities and other charitable organizations that would have been covered under the regulations solely because they operate charitable gift annuity programs.  Joined by the Commission on Independent Colleges and Universities, Bond submitted a letter to DFS urging adoption of the exemption noting, among other reasons, that the proposed regulations, designed for large financial institutions such as banks, would impose an exceptional financial and administrative burden on institutions and organizations unrelated to their mission, size, resources or operations. Moreover, as set forth in the letter, these organizations are already covered by other cybersecurity laws and regulations.

We are pleased to report that the Final Regulations, issued by DFS on February 16, 2017, granted this exemption. As a result, hundreds of institutions, ranging from some of the largest universities, museums, social service and religious organizations in the State to smaller social service and advocacy organizations, are exempt and need not comply with the regulations.

After hearing oral arguments earlier this week from attorneys representing the White House and the states of Washington and Minnesota, last night, the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the U.S. District Court for the Western District of Washington’s February 3, 2017 issuance of a temporary restraining order prohibiting the federal government from enforcing President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13769).  As you know from our previous blog posts, EO 13769 suspends the entire refugee admission program for 120 days, the Syrian refugee program indefinitely and the entry of immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period.  For now, as a result of the Ninth Circuit’s decision, citizens from the seven restricted countries will be able to travel to the U.S. Despite the fact that the Ninth Circuit’s ruling refuses to reinstate EO 13769’s travel ban, it is important to note that this situation will continue to be fluid, and the Trump administration will very likely seek to appeal this latest decision. As such, we continue to advise that individuals from the seven restricted countries who are presently in the U.S. forego unnecessary international travel at this time.  In addition, for those individuals from the restricted countries who have valid U.S. visas, who are presently outside the U.S. and who have the intent to return to the U.S., we recommend that they consider traveling to the U.S. while there remains an opportunity to do so.