Federal Courts Weigh In: Title IX Proceedings During COVID-19

April 30, 2020

By Samuel G. Dobre and Jane M. Sovern

The ongoing COVID-19 pandemic has presented new challenges for college administrators as they evaluate whether to continue Title IX investigations through telephone and video conferences or postpone interviews and hearings until “stay at home” orders are withdrawn by state and local governments. 

If Title IX investigations are postponed, victims of alleged sexual misconduct on campuses may sustain prolonged trauma. On the other hand, students accused of wrongdoing may be at a disadvantage if cases proceed through telephone or videoconferences. The mounting uncertainty created by the coronavirus pandemic poses unique scenarios for institutions committed to prompt and equitable resolution of complaints. 

Read More >> <p>Federal Courts Weigh In: Title IX Proceedings During COVID-19</p>

A New Epidemic: Class Actions Against Colleges and Universities by Students Demanding Refunds

April 29, 2020

By Monica C. Barrett and Gregory B. Reilly

As a result of the COVID-19 crisis, many universities and colleges across the country suspended in-person classes and required students to vacate school housing. Students have since filed a wave of federal class action lawsuits against these institutions claiming breach of contract and unjust enrichment for alleged failure to refund the students for tuition, housing and various activities fees. We provide a quick update and overview below.

Read More >> <p>A New Epidemic: Class Actions Against Colleges and Universities by Students Demanding Refunds</p>

First Circuit Decision: No Fiduciary Duty to Students for Higher Education Institutions

April 15, 2020

By Mallory A. Campbell

In Squeri v. Mount Ida College, the First Circuit Court of Appeals upheld a ruling by the Massachusetts District Court dismissing students’ claims against Mount Ida College for closing its doors.1 In doing so, the First Circuit explained that the officers and trustees of a higher education institution owe a fiduciary duty to the institution itself, but not to its students. This is an important clarification as other higher education institutions face the difficult decision, especially in the wake of the COVID-19 pandemic, of whether or not to close.

Read More >> <p>First Circuit Decision: No Fiduciary Duty to Students for Higher Education Institutions</p>

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. 

Read More >> <p>Ensuring Accessibility as Institutions Shift Instruction and Operations Online</p>

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.

Read More >> <p>Treatment of Student Workers Under the COVID-19 Emergency Family Medical Leave Expansion Act and the Emergency Paid Sick Leave Act</p>

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.

Read More >> <p>The Importance of Documentation During Extraordinary Times</p>

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. 

Read More >> <p>Business Immigration in the Era of COVID-19: Focus on Colleges and Universities</p>

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. 

Read More >> <p>Campus Closed, Case Closed? Not So Fast.</p>

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. 

Read More >> <p>Freedom of Expression and Federal Grants &ndash; New Proposed Rule</p>

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.