Two federal court judges refused to issue a preliminary injunction to stop the new Department of Education’s Title IX rule (the Rule) from taking effect on its August 14, 2020 effective date. In the meantime, there remain four lawsuits1 pending against the Department of Education challenging the Rule on a number of legal grounds. Although the legal standards for issuing a preliminary injunction are different than those used to reach a decision on the merits of a suit, the decisions on preliminary injunction give some indication of the uphill battle the pending lawsuits face.
Bond, Schoeneck & King is pleased to announce that Barbara A. Lee has joined the firm as of counsel in its New York City office. Prior to joining Bond, Lee served as Senior Vice President for Academic Affairs for Rutgers University where she still holds the position of Distinguished Professor in the School of Management and Labor Relations. Her background in the law and as both a faculty member and academic leader uniquely positions Lee to effectively counsel clients.
Sexual assaults on college campuses are an issue to be taken seriously. Colleges and universities are well aware of their responsibility under Title IX to address and remediate sexual abuse; but with that responsibility comes an obligation to identify unsubstantiated claims. To fulfill these obligations, colleges have enacted comprehensive anti-harassment and sexual misconduct policies, conducted training and promulgated adjudicatory procedures that serve to provide protection and redress for victims of sexual assault, while ensuring that those accused of sexual assault are provided with fair protections from unsubstantiated allegations.
As we reported last week, on July 6, 2020, U.S. Immigration and Customs Enforcement (ICE) announced that F-1 and M-1 nonimmigrant students attending schools operating entirely online were not permitted to remain in the U.S. and take a full online course load during the fall 2020 semester. As a result of this directive, students in the U.S. currently enrolled in entirely online schools and/or programs for the fall 2020 semester would have had to depart the U.S. or transfer to another institution with in-person instruction to remain in valid student status. Further, this modification would have applied: (i) where a school pivoted from in-person or hybrid instruction to online-only instruction mid-semester (like what occurred during the spring 2020 semester); and/or (ii) where a nonimmigrant student changed their course selections from a combination of in-person and online courses to online-only courses.
As COVID-19 forced colleges and universities across the country to abruptly close their campuses and pivot to online-only instruction models for the remainder of the spring and the entire summer semesters, Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) instituted a welcome -- albeit temporary -- regulatory exemption permitting F and M students to take more online courses than allowed under the federal regulations in order to maintain a full course of study and their nonimmigrant status in the U.S. during the pandemic.
On Saturday, June 20, the state released Interim Guidance on Reopening and Operating Higher Education Campuses. As with prior industry guidance, institutions of higher education (IHEs) will need to adopt a Safety Plan that meets state guidance. The Interim Guidance outlines the following considerations that should be used in developing a Safety Plan for campuses.
On June 10, 2020, the National Labor Relations Board (the NLRB or the Board) issued a decision that reversed a 2014 Board decision regarding the test for exercising jurisdiction over faculty members at religious institutions. In Bethany College, the Board held that the test for exercising such jurisdiction that was established by the Board in Pacific Lutheran University was inconsistent with U.S. Supreme Court and D.C. Circuit Court of Appeals precedent, and restored the test established by the D.C. Circuit Court of Appeals in University of Great Falls v. NLRB.
On May 6, the U.S. Department of Education (Department) released final regulations under Title IX. These regulations significantly change how higher education institutions, and to a lesser extent, school districts, must respond to sexual assault and harassment on campus.
On April 24, 2020, the Tenth Circuit Court of Appeals revived a former college coach’s retaliation claim brought against his previous employer. The case, Marc Benjamin v. Board of Trustees of Barton Community College, involves a former women’s softball coach who claimed he was terminated by the college because he “blew the whistle” on other college coaches who had violated league rules. The district court that first heard the case granted summary judgment in favor of the college, effectively finding that no reasonable jury could find in favor of Mr. Benjamin’s claims. Mr. Benjamin appealed, and the Tenth Circuit subsequently reversed the district court’s decision.
In a decisionon April 10, 2020, the U.S. District Court for the Southern District of New York denied a college’s motion to dismiss a claim of common law negligence in a lawsuit challenging its administrative response to allegations of sexual assault. Application of this common law standard to such cases is infrequent, and the court’s analysis highlights important differences between a common law theory of negligence and the federal “deliberate indifference” standard applied under Title IX.
On Wednesday, May 6, the U.S. Department of Education (USDOE) released final regulations under Title IX. These regulations come after the USDOE sifted through over 124,000 comments during the public comment period. The new regulations focus on how colleges and universities must investigate and adjudicate sexual misconduct cases under Title IX.
Here are two breaking developments we do not want you to miss. On May 6, 2020, the same day the U.S. Department of Education’s Office for Civil Rights issued its sweeping Title IX Final Rule, the Department’s Office of Federal Student Aid announced that all recipients of funding from the Higher Education Emergency Relief Fund (HEERF) under the Coronavirus Aid, Relief, and Economic Security (CARES) Act must post on their primary websites specific details about how they allocated funding for emergency grants to students. This posting must be done within 30 days of receipt of the funds from the federal government.
