On April 6, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR) announced plans to begin a comprehensive review of its regulations implementing Title IX of the Education Amendments of 1972, in response to President Joe Biden’s executive order of March 8, 2021, “Executive Order on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity” (Executive Order 14021).
My grandmother lived by the rule that summer flowers should not be planted before spring break, no matter how much warm weather March might bring. The week after spring break would find her working furiously in her garden, sometimes catching up with her neighbors who had planted early, but more often taking a bit of satisfaction in looking over the prematurely planted and frostbitten flowers in surrounding yards. The freeze warning I just received from my smartphone app reminded me of this sage advice from this beloved, wise, and masterful gardener. But it also reminded me that Title IX claim season is now upon us.
On March 8, 2021, President Joe Biden signed the “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity,” making clear his administration’s intention to implement changes to the regulations issued on May 6, 2020 (effective August 14, 2020), by the U.S. Department of Education, regarding the handling of sexual misconduct allegations under Title IX of the Education Amendments of 1972.
The Texas Commission on Human Rights Act (TCHRA) prohibits discrimination in employment based on sex. The state law defines “sex discrimination” to include “discrimination because of or on the basis of pregnancy, childbirth, or a related medical condition.” In South Texas College v. Arriola, a Texas appellate court considered for the first time whether the TCHRA protects an employee who has announced her intention to become pregnant.
On February 26, 2021, U.S. Citizenship and Immigration Services (USCIS) announced that it was offering additional flexibility for international students affected by the delayed issuance of receipt notices for Form I-765, Application for Employment Authorization. USCIS had previously acknowledged that it was “experiencing delays in issuing receipt notices for some applications and petitions filed at a USCIS lockbox facility,” and, in particular, “significant delays” for Form I-765 applications relating to F-1 students.
On March 2, 2021, Texas Governor Greg Abbott issued Executive Order No. 34 (GA-34), rescinding most of his earlier executive orders related to COVID-19, including the statewide mask mandate and business occupancy restrictions. GA-34 becomes effective at 12:01 a.m. on March 10, 2021.
On November 30, 2020, a federal district judge in the matter of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, et al., No. 16-1170, issued an order to uphold the Obama-era program permitting extensions of optional practical training (OPT) work authorizations for certain international students with qualifying science, technology, engineering, and math (STEM) degrees.
In Harrisburg Area Community College v. Pennsylvania Human Relations Commission, No. 654 C.D. 2019, (October 29, 2020), the Commonwealth Court of Pennsylvania recently examined the interaction between Pennsylvania’s Medical Marijuana Act (MMA) and the Pennsylvania Human Relations Act (PHRA). Specifically, the court addressed whether the PHRA’s prohibition against disability discrimination required a college to accommodate a student’s lawful use of medical marijuana under the MMA.
We previously reported on COVID-19–related employment lawsuits that we tracked from late March 2020 through early May 2020. Since then, the number of lawsuits has steadily risen as employers have resumed operations after shelter-in-place or stay-at-home orders were lifted and students returned to school in virtual or hybrid environments. To track this litigation and to identify trends, we developed an Interactive COVID-19 Litigation Tracker that details where COVID-19–related litigation is taking place by state, the industries affected, and the types of claims asserted against employers and educational institutions.
On July 24, 2020, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) issued updated guidance for international students pursing education programs in the United States. The follow-up guidance states that active students in F-1 and M-1 status, as well as schools certified by SEVP, should abide by SEVP guidance originally issued in March 2020, enabling schools and students to engage in distance learning in excess of regulatory limits during the COVID-19 public health emergency.
U.S. Immigration and Customs Enforcement (ICE) has agreed to rescind a proposed rule that would have required international students on F-1 and M-1 visas to either attend in-person classes at U.S. colleges and universities or face having to leave the United States.
On July 6, 2020, the U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) announced plans to update its online study policies for F-1 and M-1 nonimmigrant students for the fall 2020 semester. According to the proposed policies, SEVP intends to prohibit F-1 and M-1 students from taking a fully online course load while in the United States during the fall 2020 semester.
On June 10, 2020, the National Labor Relations Board (NLRB) renounced jurisdiction over faculty employees at most religious educational institutions. The Bethany College case overruled the NLRB’s 2014 Pacific Lutheran University decision, through which many NLRB Regional Directors had ordered union elections at religiously-affiliated schools (such as a Catholic university in Seattle) In Bethany College, the NLRB adopted a new jurisdictional standard, adopted from a 2002 opinion from the U.S. Court of Appeals for the District of Columbia Circuit, University of Great Falls v. NLRB, under which it will not assert jurisdiction over an institution that: (a) holds itself out to the public as a religious institution, (b) is nonprofit, and (c) is religiously affiliated.
On May 6, 2020, the U.S. Department of Education released final regulations governing how institutions that receive federal financial assistance covered by Title IX of the Education Amendments of 1972 (Title IX) must respond to allegations of sexual harassment. Notably, in the decades during which the department has been responsible for overseeing Title IX compliance, this is the first time it has issued regulations addressing sexual harassment as a form of prohibited sex discrimination under Title IX.
On May 21, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued Considerations for Institutes of Higher Education, outlining recommendations and guidance on ways universities and colleges can safely open while helping to protect their students, faculty, staff, administrators, and community members. The CDC cautions that “[t]he more an individual interacts with others, and the longer that interaction, the higher the risk of COVID-19 spread.”
Universities continue to see a rise of COVID-19-related class action lawsuits alleging that campus closures deny students the full benefits of an on-campus college experience. This new wave of class action lawsuits generally seek full refunds for tuition, room and boarding costs, and other matriculation fees based on a breach of contract theory and claims of unjust enrichment. Many colleges and universities have already taken proactive measures that will help defend against these lawsuits. Some institutions implemented policies to refund student monies or apply room and boarding fees for the impacted term of enrollment toward future enrollment periods. For universities that have not taken these measures, the Coronavirus Aid, Relief, and Economic Security (CARES) Act may provide a potential, unintended defense to a class action.
President Donald Trump signed the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) (Pub. L. No. 115-232) into law on August 13, 2018. Section 889 of the NDAA applies to schools, including hospital systems, labs, and research affiliates, receiving federal contracts, grants, and loans. Specifically, § 889(a)(1)(A), which went into effect on August 13, 2019, prohibits an executive agency from “procur[ing] or obtain[ing] or extend[ing] or renew[ing] a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as a part of any system.”
After switching to online learning in response to the COVID-19 pandemic and sending students home, colleges and universities are beginning to face class action lawsuits seeking refunds of tuition, housing costs, meal plans, and fees. One such lawsuit is Church v. Purdue University, No. 4:20-CV-0025, in the U.S. District Court for the Northern District of Indiana.
In Theidon v. Harvard University, No. 18-1279 (January 31, 2020), the U.S. Court of Appeals for the First Circuit affirmed a lower court’s decision granting summary judgment for Harvard University as to a female professor’s gender discrimination and retaliation claims.
On December 12, 2019, the United States Court of Appeals for the Sixth Circuit held that a sexual misconduct complainant’s fear of further contact with the respondent was not enough to support a claim against the university for deliberate indifference under Title IX of the Education Amendments of 1972.
On September 30, 2019, Governor Gavin Newsom signed California legislation—Senate Bill (SB) 206—that would permit college student athletes to benefit financially (for example, from endorsement deals) from their names, images, and likenesses while still in school. Governor Newsom signed the Fair Pay to Play Act, which Senator Nancy Skinner (D-Berkeley) and Senator Steven Bradford (D-Gardena) sponsored, with much fanfare, alongside a high-profile professional basketball player and several former college student athletes. The new law is scheduled to take effect in January 2023.
On October 11, 2019, the Office of Federal Contract Compliance Programs (OFCCP) published to its website the long-awaited Educational Institutions Technical Assistance Guide (TAG).
The Fourth Circuit Court of Appeals issued a published opinion on March 18, 2019, that will undoubtedly become a pivotal Equal Pay Act of 1963 (EPA) case in the context of higher education.
This is an update to our article, Back to School for ERISA Fiduciary Claims: How to Prepare for This Trend in University Litigation, which was published on August 22, 2017.
In January 2019, the Internal Revenue Service (IRS) issued Notice 2019-09, which provides interim guidance for Section 4960 of the Internal Revenue Code of 1986.
Section 4960 of the Internal Revenue Code of 1986 (IRC), as amended, imposes an excise tax on compensation of certain highly compensated employees of tax-exempt organizations.
Recent statistics show that approximately 70 percent of college graduates will leave college with an average of at least $30,000 in student loan debt. Cumulatively, the national student loan debt is approximately $1.5 trillion. This burden is causing millennials to wait longer than previous generations to buy houses, start families, and save for retirement. Although student loan indebtedness is not an issue employers can solve alone, a few are finding ways to recruit and retain talent by offering a helping hand to employees dealing with massive debt burdens.
The National Collegiate Athletic Association (NCAA) and 11 of its member conferences are on trial in In Re: National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (4:14-md-2541) to defend against antitrust challenges to current rules limiting the amount members may pay to student-athletes for the cost of attendance.
July 26, 2018, is National Intern Day according to WayUp, the job site for college students and recent graduates. The organization’s campaign to acknowledge the role of interns in the workforce is intended to “encourage employers to celebrate, empower and recognize interns.” WayUp encourages employers to participate in the “holiday” by celebrating their interns (“anything from a mentorship session to a free pizza lunch or anything that feels right for your company”).