The U.S. Department of Education (ED) released a statement on Nov. 8, 2023, saying that the scores of borrower defense to repayment (BDR) application notifications that institutions of higher education (IHE) have received in recent months are part of its response to the Sweet v. Cardona litigation. This statement confirms much of our prior understanding regarding the causes of recent BDR activity by ED, but also provides some additional insights.
Over the past several months, institutions of higher education (IHE) have seen an influx of Borrower Defense to Repayment (BDR) applications from former students.
Student loan borrowers with federal student loans can apply for a BDR loan discharge through the U.S. Department of Education (ED). Generally, in order to be successful, a borrower must demonstrate that they enrolled in an IHE or continued to attend an IHE based on misleading information or other related misconduct covered by the regulation, such as breach of contract.
Freedom of speech in the public employment arena presents a double-edged sword; on the one hand, freedom of speech is one of the most cherished values that undergirds the proverbial marketplace of ideas in a university setting but can also cause a public university to wade into a thicket of unsettled case law when it comes to denying tenure or otherwise undertaking any type of adverse employment action against an outspoken faculty member.
A major defense available to most public employers in a First Amendment retaliation case is the so-called “Garcetti defense.” In Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court held that when public employees engage in speech as part of their official duties, such speech is not protected by the First Amendment. This happens, for example, when a high school department chair makes an internal complaint about school curriculum. See Schulz v. Commack Union Free Sch. Dist., No. 21-CV-5646-RPK, ––– F.Supp.3d ––––, ––––, 2023 WL 2667050, at *7 (E.D.N.Y. Mar. 28, 2023).[1]
On Aug. 14, 2023, the Office for Civil Rights of the United States Department of Education and the United States Department of Justice issued joint guidance to institutions of higher education with respect to the Supreme Court's recent decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The guidance, in the form of a Dear Colleague Letter and a Q&A document, clarifies the Departments’ position as to practices that are and are not permissible in the wake of the decision, and encourages institutions’ continued use of lawful means to enroll and support a diverse student body. For example:
In 2006, the Supreme Court’s decision in Garcetti v. Ceballos granted public employers’ broad discretion in regulating their employees’ work-related speech.[1] Before 2006, under the so-called Pickering Connick test, employees who were speaking as citizens about “matters of public concern” were only subject to limited restrictions when the government employer’s interest in effective workplace operations outweighed the employee’s free speech rights.[2]
As part of the NCAA’s efforts to promote diversity and gender equity in intercollegiate athletics, NCAA Bylaw 20.2.4.3 requires that all Division I athletic departments perform a diversity, equity and inclusion (DEI) assessment and file an attestation of completion of the review with the NCAA by November 3, 2023.
On June 29, 2023, the U.S. Supreme Court issued its long-awaited decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.[1] The Court considered the admissions practices of Harvard College and University of North Carolina (UNC) and found that neither could withstand the “strict scrutiny” demanded for race-based admissions decisions. Although nominally about these two particular admissions programs, the Court’s rationale for its ruling leaves virtually no possibility that race-based admissions practices will withstand judicial challenge.
BREAKING: U.S. Supreme Court ruled that Harvard’s and UNC’s admissions programs, which factor an applicant’s race into account during the admissions process, are unconstitutional based on Equal Pro-tection Clause/Fourteenth Amendment grounds. A link to the decision can be found here. The decision will have resounding impacts on institutions’ admissions processes. Our higher education attorneys are studying the decision and its implications, and we will be providing commentary and guidance soon.
On May 25, 2023, the United States Department of Education’s Office for Civil Rights (OCR) released a Dear Colleague Letter (DCL) “as part of the Department’s launch of an Antisemitism Awareness Campaign” described in the Biden-Harris Administration’s U.S. National Strategy to Counter Antisemitism dated the same day. The DCL specifically notes the “nationwide rise in reports of antisemitic harassment, including in schools,” and reiterates the applicability of Title VI in this context. Title VI prohibits discrimination based upon race, color, or national origin by higher education institutions (IHEs) receiving federal financial assistance, and this protection from discrimination extends to students who experience discrimination, including harassment, based upon their actual or perceived: (i) shared ancestry or ethnic characteristics; or (ii) citizenship or residency in a country with a dominant religion or distinct religious identity. Therefore, students who are or are perceived to be Jewish are protected under this basis, and the DCL cautions that IHEs and K-12 “[s]chools must take immediate and appropriate action to respond to harassment that creates a hostile environment for these students.”
On Feb. 15, 2023, the U.S. Department of Education (Department) surprised the higher education community with a Dear Colleague Letter (DCL GEN-23-03) that sets forth new guidance on third-party servicers with whom institutions of higher education (IHE) contract to help administer student assistance programs under Title IV of the Higher Education Act of 1965, as amended (Title IV). The Department requires IHEs to report contracts with third-party servicers and imposes certain requirements not only upon IHEs, but also upon the third-party vendors. For a list of those requirements, click here.
The United States Department of Education announced today a delay in the anticipated date for release of its Final Rule setting forth revised Title IX regulations. The Department had previously advised that the Final Rule would be released during the month of May, but now anticipates publication in October.
In the past six months, the federal courts have addressed some novel issues about what is a “sport” under Title IX, as well as questions of standing, retaliation, financial aid, class certification and Title IX’s equitable opportunities and benefits requirements. These cases reflect that the landscape of Title IX continues to change and requires careful attention to ensure that your school or institution does not inadvertently drift into Title IX violation.
