In what is likely only the first step in a trek to the U.S. Supreme Court, on September 30, 2019, Harvard College defeated a challenge to its admissions policy brought in the federal District Court in Massachusetts on behalf of Asian-American applicants. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Civil Action No. 14-cv-14176-ADB, U.S. District Court Judge Allison D. Burroughs found that Harvard’s admissions policies did not violate Title VI of the Civil Rights Act or the strict scrutiny standard of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. We will summarize the lengthy court decision in this comparatively short piece. The decision itself outlines extensive factual findings based on written submissions and the testimony from eighteen current and former Harvard employees, four expert witnesses, and eight current or former Harvard college students.
On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA). Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.
On August 12, 2019, Governor Cuomo signed legislation making sweeping changes to the New York Human Rights Law (“NYHRL”). Although we previously posted summaries of the significant amendments to the Human Rights Law and their potential impact on employers, we take this opportunity to explain how those amendments pose challenges for New York colleges and universities.
Today, President Trump will sign a new Executive Order (EO): Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. The EO focuses on two areas: free speech and consumer awareness.
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.
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.
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.
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.
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.
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.
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.
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.
