Ensuring Accessibility as Institutions Shift Instruction and Operations Online

April 10, 2020

By Sarah A. Luke

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

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

April 2, 2020

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

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

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The Importance of Documentation During Extraordinary Times

April 1, 2020

By Gail M. Norris

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

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Business Immigration in the Era of COVID-19: Focus on Colleges and Universities

March 27, 2020

By Joanna L. Silver

COVID-19 has created a constantly evolving immigration environment. Federal agencies and the White House have responded with several temporary policy and procedural changes to help minimize the spread of the virus and to help employers with compliance during this extremely challenging time. It is essential for colleges and universities to maintain immigration compliance during the COVID-19 national emergency and to take the necessary steps to maintain the nonimmigrant status and work authorization of certain foreign national employees. 

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Campus Closed, Case Closed? Not So Fast.

March 18, 2020

By Sarah A. Luke

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

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Freedom of Expression and Federal Grants – New Proposed Rule

February 10, 2020

By Jane M. Sovern

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

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New Ruling Allows Employers to Mandate Confidentiality of Internal Investigations

January 6, 2020

By Theresa E. Rusnak

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

In Apogee Retail d/b/a Unique Thrift Store, the Board majority held that a workplace rule requiring employees to maintain the confidentiality of open workplace investigations is lawful under the National Labor Relations Act (NLRA). This is because the adverse impact on employees' Section 7 rights is relatively slight and outweighed by the employer's justification for having such a rule.  The Board majority also held, however, that a rule requiring employees to maintain the confidentiality of workplace investigations that have been completed requires individualized scrutiny in each case to determine "whether any post-investigation adverse impact on NLRA-protected conduct is outweighed by legitimate justifications." 

This decision applies to employers covered by the NLRA, which encompasses almost all private sector employers (even if not unionized), including higher education institutions. Colleges and universities, which conduct internal investigations regarding Title IX, sexual harassment, internal policy, and other violations, may now require employees to keep confidential information learned in the scope of those investigations until they have concluded. Employers should be aware, however, that the Equal Employment Opportunity Commission has taken the position that broad confidentiality rules- such as those that may be present in policy manuals- are not allowed under the law because they could discourage employees from exercising their protected rights to alert management or an administrative agency to discrimination. Therefore, to the extent employers seek to issue such policies, they should clearly delineate that the confidentiality provisions do not prevent employees from engaging in said protected activities.  

Our attorneys in the Higher Education Law Practice Group are available to assist with these matters at any time.

No Deliberate Indifference: Circuit Court Finds University Not Liable for Student-on-Student Sexual Harassment

December 23, 2019

By Theresa E. Rusnak

On December 12, 2019, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in Kollaritsch v. Michigan State University Board of Trustees, a decision which impacts students’ Title IX claims against their colleges or universities.

When the U.S. Supreme Court examined the issue of institutional liability for student-on-student sexual harassment in 1999, it held that a school may be found liable for student-on-student harassment only if it “acts with deliberate indifference to known acts of harassment in its programs or activities,” and the harassment is “severe, pervasive, and objectively offensive.” Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Under Davis, a school “may not be held liable for damages unless its deliberate indifference ‘subjects’ its students to harassment.” Id. at 644. In the years since the Davis decision, a split developed between the Circuit Courts regarding the interpretation of this standard, with some courts finding that a school’s actions must lead to further harassment, and others holding that the school’s actions must only make the students vulnerable to the possibility of further harassment.

In Kollaritsch, four female students alleged that they were sexually assaulted by four male students. Each female student subsequently reported her alleged assault to the University’s administration, which commenced investigations. In their combined lawsuit, the students alleged that the University acted with “deliberate indifference” by failing to engage in adequate investigations of their claims under Title IX, and in so doing, made them “vulnerable” to future harassment.

One of the students claimed that because she saw her alleged attacker on campus multiple times after reporting her assault, the University failed to act quickly enough to remove her alleged attacker from campus and, in doing so, caused her harm. Another student claimed that the University acted with deliberate indifference by reinstating her alleged attacker’s student status after previously expelling him. Finally, another student alleged that the fact that her alleged attacker (who had withdrawn as a student) could return to campus without prior notification to her by the University made her vulnerable to future harassment.

The Court rejected each of the students’ arguments and found that the University’s actions did not cause the students’ continued harassment. Specifically, the Court held that for a school’s response to a Title IX complaint to meet the “deliberate indifference” standard, it must be “clearly unreasonable,” and that unreasonableness must cause further harassment to the student. Overall, the Court held that a student must plead, and ultimately prove: 1) an incident of actionable sexual harassment, 2) the school’s actual knowledge of that incident, 3) some further incident of actionable sexual harassment, and 4) that the further actionable harassment would not have happened but for the objective unreasonableness (deliberate indifference) of the school’s response.

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

October 11, 2019

By Joanna L. Silver

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

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

October 2, 2019

By Monica C. Barrett and Sarah A. Luke

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

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