U.S. Department of Education Announces Plans to Conduct Comprehensive Review of Title IX Regulations

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).

Title IX Regulations: Biden Administration Signals Changes Ahead

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.

What Colleges and Universities Need to Know About the Department of Education’s Final Title IX Rules

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.

The Department of Education Withdraws Obama-Era Title IX Guidance, Issues Interim Q&A

On Friday, September 22, 2017, when the Trump administration announced that it was rescinding Obama-era Title IX sexual assault guidance and issuing a new question and answer document while undertaking a formal review, most assumed it meant the previous Questions and Answers on Title IX and Sexual Violence issued by the U.S. Department of Education on April 29, 2014, had been rescinded.

Back to School for ERISA Fiduciary Claims: How to Prepare for This Trend in University Litigation

In the past 10 years, there have been an increasing number of lawsuits asserting Employee Retirement Income Security Act of 1974 (ERISA) fiduciary claims. These have been accompanied by an increased focus by the Department of Labor (DOL) on fiduciary matters.  This trend began with lawsuits against 401(k) plan fiduciaries alleging poor investment options and has evolved into lawsuits challenging not only the performance of investments offered under the plan, but also the fees associated with those investments. In addition, almost all of the more recent lawsuits examine not only the expenses associated with the investments, but all of the fees that the plan pays. They also allege that plan participants suffered losses to the value of their retirement savings.

NCAA Sacks Sackos Suit: Why NCAA Student-Athletes Are Not Employees Under the FLSA

An Indiana federal court has dismissed Berger v. NCAA et al, a suit brought under the Fair Labor Standards Act by former student-athletes from the University of Pennsylvania (Penn). More commonly known as Sackos, the case was filed against the National Collegiate Athletic Association (NCAA) and more than one hundred Division I schools by Samantha Sackos, a former women’s soccer player and student-athlete from the University of Houston, on October 14, 2014. The complaint argued that Sackos and other student-athletes were in an employer-employee relationship with their institutions and therefore entitled to payment under the wage and hour provisions of the FLSA. Sackos withdrew as the representative plaintiff and was replaced by Lauren Anderson, Gillian Berger, and Taylor Hennig, three present and former participants in women’s track and field at Penn.

Play for Pay? Not Today, Says the Ninth Circuit in the Latest NCAA Ruling

Whether the amateurism rules of the National Collegiate Athletic Association (NCAA) violate federal antitrust laws remains an active issue before the Ninth Circuit Court of Appeals. But the dramatic changes ordered by U.S. District Judge Claudia Wilken to take effect for scholarship offers made starting on August 1, 2015, have been stayed by the Ninth Circuit panel considering the NCAA’s appeal.

NLRB Moves to Assert Jurisdiction Over Religious Educational Institutions

Before December of 2014, religious colleges and universities could generally assume that under the National Labor Relations Board’s (NLRB) “substantial religious character” test, the NLRB would decline to assert jurisdiction over them because of their religious missions. The Board’s Pacific Lutheran University decision, however, changed the NLRB standard to assert jurisdiction over religious educational institutions.

Who Got It Right?

Gallaudet University Chief Diversity Officer Angela McCaskill’s job was to promote a diverse and inclusive university community. Not only was she the institution’s first chief diversity officer, she was the first black, deaf woman to earn a Ph.D. from Gallaudet, which was founded to serve deaf and hard-of-hearing students. As…..

Supreme Court Holds Voters Have a Right to Reject Government-Funded Racial Preferences in Public Higher Education

On April 22, 2014, the Supreme Court of the United States held that although consideration of race in admissions is constitutionally permissible, voters have every right to reject it. The case, Schuette v. Coalition to Defend Affirmative Action, began as an opportunity to reconsider race-conscious admissions at Michigan’s public colleges…..

NLRB Regional Director Rules College Football Players Can Unionize

On March 26, 2014, a regional director for the National Labor Relations Board (NLRB) issued a decision and direction of election in a union representation petition filed by the College Athletes Players Association (CAPA) seeking to represent Northwestern University’s football players. CAPA, led by former Northwestern quarterback Kain Colter, petitioned…..

Is the Joint DOJ and OCR Guidance on Discrimination in K-12 Student Discipline a Warning Shot for Colleges and Universities?

We’ve known it was coming for at least a year, and on January 8, 2014, the U.S. Department of Education’s Office for Civil Rights (OCR), in conjunction with the Civil Rights Division of the U.S. Department of Justice (DOJ), released its first-ever federal policy guidance addressing discipline in elementary and…..

Nassar’s “But For” Requirement Breaks the Chain for Retaliation Plaintiffs Relying on Temporal Proximity to Establish Causation

In a decision in favor of the University of Pennsylvania entered on August 7, 2013, the Third Circuit Court of Appeals reviewed the “but for” standard for liability under University of Texas Southwestern Medical Center v. Nassar and provided a roadmap for employers accused of retaliation to defeat the inference…..

The Basics of Complying With the “Dear Colleague” Letter Issued by the U.S. Department of Education on April 4, 2011

This is part one of a four-part series discussing compliance with the “Dear Colleague” Letter on Sexual Violence issued by U.S. Department of Education Office for Civil Rights (OCR) on April 4, 2011, as well as subsequently issued guidance and recently adopted statutes addressing sexual harassment and sexual violence under Title IX of the Education Amendments of 1972.

Supreme Court Approves Affirmative Action in College Admissions, but Remands for Additional Analysis of Admissions Process

Justice Kennedy, in an opinion joined by Chief Justice Roberts and Justices Alito, Scalia, Thomas, Breyer, and Sotomayor, wrote that public universities’ race-conscious admissions policies are constitutionally permissible and acknowledged that “the educational benefits that flow from a diverse student body” constitute a compelling government interest. Race may be a factor in admissions when “no workable race-neutral alternatives would produce the educational benefits of diversity.”

No Obligation to Coordinate or Pay for Disability-Based Personal Care Services at Colleges and Universities

Some students with disabilities need on-campus personal care attendants to assist them with daily activities such as dressing, transferring to and from wheelchairs, feeding, personal hygiene, and navigating the campus. Both college and university officials and disabled students often misunderstand the obligation, if any, of a postsecondary institution to provide personal aids…..

As Compliance Deadline Nears, the Eleventh Circuit Leaves Employer Provisions of Alabama’s Immigration Law Intact

Effective April 1, 2012, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act will prohibit Alabama employers from knowingly hiring, employing, or continuing to employ unauthorized aliens. Every employer in the state of Alabama will be required to verify the immigration status (entitlement to be present within the United States) of its employees. Although enforcement of several provisions of the law has been blocked by the courts, most employer provisions remain in place. On March 8, 2012, the Eleventh Circuit Court of Appeals struck two additional sections of the law.