On November 16, 2018, more than a year after rescinding Obama administration era Title IX subregulatory guidance on colleges’ and universities’ obligations under Title IX, the United States Department of Education published its long-awaited proposed Title IX regulations. The proposed regulations will likely be viewed by institutions as a mixed bag. On the one hand, the regulations promise a narrower scope of enforcement and greater deference to institutional decisions. On the other hand, notwithstanding Secretary of Education Betsy DeVos’s assertions that the prior administration had inappropriately imposed highly technical and overly-stringent compliance obligations on colleges and universities, the proposed regulations would legislate significantly in this area, mandating detailed new processes, many of which are arguably beyond the Department’s discretion to require and some of which may create conflicts with the requirements of state laws such as New York Education Law Article 129-B. The following are some of the most noteworthy provisions.

Read More >> Proposed Title IX Regulations Would Necessitate Extensive Changes to Institutional Policies and Practices

Irrespective of one’s political point of view, the Kavanagh confirmation hearings captured the Nation’s attention and created watercooler debates, heated at times, as to respective views of the truth in a case involving sexual assault.  And while the public may becoming adept at sideline adjudications of wildly divergent versions of events, Colleges have long been on the front line. 

Read More >> New York High Court Renders Important Decision Deferring to Institutional Determination in Sexual Misconduct Proceeding

On August 8, the NCAA Division I Board of Directors adopted Proposals 2018-16_and_2018-17.  These proposals, which arose out of the work of the Commission on College Basketball (and associated working groups), will necessitate new content in employment agreements with certain institutional personnel executed, extended or renewed on or after August 8, 2018.

Read More >> New NCAA Legislation Necessitates Changes to Institutional Employment Agreements

A class action lawsuit against New York University, which alleged that the fiduciaries of its two retirement plans breached their ERISA duties by failing to diligently monitor the plans’ investment funds and allowing the plans to pay excessive fees, was recently dismissed.¹ After an eight-day bench trial, U.S. District Judge Katherine B. Forrest ruled that, despite some “troubling” deficiencies in the manner in which the fiduciaries discharged their duties, the plaintiffs failed to prove any fiduciary breach.

Read More >> The Recent NYU ERISA Decision and Best Practices for ERISA Fiduciaries

As you know from the August 2, 2018 Higher Education Law Report, the U.S. Citizenship and Immigration Services’ (“USCIS”) policy memorandum dramatically changing the way USCIS calculates unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents took effect on August 9, 2018. Very late in the evening of August 9, 2018, USCIS released a revised final policy memorandum which supersedes the prior one and addresses unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications and J nonimmigrants who are reinstated by the U.S. Department of State, the agency that administers the J-1 exchange visitor program.

Read More >> VERY LATE BREAKING NEWS: USCIS Issues Revised Final Guidance on Unlawful Presence for Nonimmigrant Students and Exchange Visitors

August 9, 2018, the effective date of U.S. Citizenship and Immigration Services' (“USCIS”) policy memorandum that dramatically changes the way USCIS will calculate unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents, is just around the corner. As such, it is essential for Designated School Officials (“DSO”) on college and university campuses to remind nonimmigrant students and exchange visitors of the upcoming policy change to ensure that they do not violate it and jeopardize their stay in the U.S.

Read More >> As the Fall Semester Gets Underway, Colleges and Universities Should Remind Nonimmigrant Students and Exchange Visitors of New Unlawful Presence Policy to be Implemented by USCIS Beginning August 9, 2018 - Higher Education Law Report

As described in our initial client alert (See: Is Your Institution in Control of “GDPR” Compliance?), effective May 25, 2018, the European Union’s General Data Protection Regulation (“GDPR”) imposes new obligations on entities that collect and/or process “personal data” from people in the European Union (“EU”).  U.S. higher education institutions (“HEIs”) that collect personal data from any person located within the EU (**regardless of the HEI’s location or the person’s citizenship or residency**), will likely need to comply with the GDPR.  Any HEI in violation of GDPR requirements may be subject to significant fines.

Read More >> U.S. Colleges and Universities - Are You Ready for the GDPR? Why You Should Be Taking Steps Toward GDPR Compliance Right Now!

As described in our initial client alert (See: Is Your Institution in Control of “GDPR” Compliance?), effective May 25, 2018, the European Union’s General Data Protection Regulation (“GDPR”) imposes new obligations on entities that collect and/or process “personal data” from people in the European Union (“EU”).  U.S. higher education institutions (“HEIs”) that collect personal data from any person located within the EU (**regardless of the HEI’s location or the person’s citizenship or residency**), will likely need to comply with the GDPR.  Any HEI in violation of GDPR requirements may be subject to significant fines.

Read More >> U.S. Colleges and Universities - Are You Ready for the GDPR? Why You Should Be Taking Steps Toward GDPR Compliance Right Now!

Join Joseph Vigorito, Director, Mobility & Security at Annese, and Lisa Christensen of Bond’s Cyber Security Practice on April 27 from 10 - 11 a.m. for an overview of the EU’s General Data Protection Regulation (GDPR), and discussion of how your organization can implement compliance measures before the GDPR’s May 25, 2018 effective date.

Please RSVP and send in any questions you would like covered in the webinar by April 20 to lchristensen@bsk.com.

Register today!

Read More >> Complimentary Webinar: Time to Get Educated on the GDPR: 30 Days Left to Cram for the Final (Effective Date)!

In the spirit of accentuating the positive, there are a few bits of good news for colleges and universities in the Tax Act…as Mary Poppins might say, a spoonful (or three) of sugar to help the medicine go down. Unfortunately, after those very small doses of sugar go down, what follows is more like a 50 gallon drum of cod liver oil for many colleges and universities (and their respective donors). 

One very welcome point to highlight at the outset, is that several of the more unpopular provisions in the House and Senate versions failed to make the final cut. For example, the Tax Act does not change the (i) exclusion for qualified tuition reductions, (ii) exclusion for employer-provided housing, (iii) American Opportunity tax credit or Lifetime Learning credit, (iv) deduction for student loan interest, (v) deduction for qualified tuition and related expenses, (vi) exclusion for educational assistance programs, or (vii) exclusion for interest on United States savings bonds used for higher education expenses.

Read More >> Let's BOND Over the Tax Act¹ Part II - The Higher Education Edition

Effective May 25, 2018, the European General Data Protection Regulation (“GDPR”) imposes new obligations on persons or entities that are “controllers” or “processors” of “personal data”1 about people in the European Union (“EU”). Unlike U.S. or even existing European privacy laws, the GDPR (i) can apply to entities that are located entirely outside of the EU, and (ii) applies to “personal data” about anyone in the EU, regardless of whether they are a citizen or permanent resident of a country in the EU (each country is a “Member”2).

Institutions in violation of the GDPR could face significant fines. Depending on the nature of the violation, an institution in violation of the GDPR could be fined up to €20,000,000 (which amounts to over US $24,000,000) or up to 4 percent of a company’s global revenue, whichever is higher. There is some uncertainty with regard to the methodology that will be used to calculate global revenue for U.S. colleges and universities, but it is unlikely that substantive further guidance will be available on the subject before the GDPR becomes effective in May 2018.

Read More >> Is Your Institution in Control of “GDPR” Compliance? - Higher Education Law Report

Two federal judges have blocked President Trump’s third try at implementing a nationwide travel ban.

The first ruling blocking the administration from enforcing the September 24^th Presidential Proclamation, which restricts travel into the U.S. by foreign nationals from eight countries, came from the U.S. District Court for the District of Hawaii on Tuesday, October 17, 2017, just hours before the travel ban was scheduled to go into effect. The Hawaii District Court issued a temporary restraining order (“TRO”), basing its decision on the same analysis used by the Ninth Circuit Court of Appeals when it set aside the earlier version of the travel ban – that is, that President Trump exceeded his authority under statutory federal immigration law. As a result of the TRO, nationals from Chad, Iran, Libya, Somalia, Syria and Yemen are exempt from the travel ban, but nationals from North Korea and Venezuela remain subject to the travel restrictions set forth in the Presidential Proclamation.

In his decision, Judge Watson noted that the latest travel ban is being challenged in part because the original travel ban, issued back in January of this year, was an attempt to create a “Muslim Ban”, and President Trump “has never renounced or repudiated his calls for a ban on Muslim immigration.” He wrote that the third iteration of the ban “suffers from precisely the same maladies as its predecessor”, and that it “plainly discriminates based on nationality” in a way that is opposed to federal law.

The second ruling, issuing a preliminary injunction blocking the ban from being enforced, came from the U.S. District Court for the District of Maryland on Wednesday, October 18, 2017. In a narrower decision, Judge Chuang blocked the administration only from enforcing the travel ban against travelers from Iran, Libya, Somalia, Syria, Yemen and Chad with a “bona fide relationship” with people or institutions in the U.S. Judge Chuang found that the Presidential Proclamation violated the First Amendment’s establishment clause since it is aimed at Muslims.

In response to the injunctions, the Justice Department has stated that it plans to appeal the Hawaii District Court’s ruling. We anticipate that the Maryland District Court ruling will also be appealed. In the meantime, the TRO and preliminary injunction are intended to maintain the status quo.

We will continue to apprise clients regarding any developments as they unfold.