On November 27, 2015, the United States Department of Education announced a reversal of its previously existing prohibition against the payment of incentive compensation based on students’ program completion or graduation rates.  The announcement follows two successive federal appeals court decisions, in 2012 and 2014, that the Department had not articulated a sufficient rationale for the prohibition. Although the announcement may impact retention and graduation based incentives on any number of fronts, it is of particular interest in the context of coaching and other athletics personnel employment contracts, where the prohibition had created significant uncertainty as to the permissibility of bonuses based on these metrics. As many will recall, on October 29, 2010, the Department adopted so-called Title IV “Program Integrity Rules.” Among other things, these new regulations eliminated previously existing regulatory safe harbors under the statutory prohibition against payment of incentive compensation for securing enrollment, and reversed a prior Department position that payments based on retention, degree completion or graduation were not considered impermissible enrollment-based compensation.   In response to a comment questioning the applicability of the prohibition to the recruitment of student-athletes, the Department explained that:

[r]ecruitment of student-athletes is not different from recruitment of other students.  Incentive compensation payments to athletic department staff are governed by the restrictions included in [the regulations].  If the payments are made based on success in securing enrollments or the award of financial aid, the payments are prohibited; however, the Department does not consider “bonus” payments made to coaching staff or other athletic department personnel to be prohibited if they are rewarding performance other than securing enrollment or awarding financial aid, such as a successful athletic season, team academic performance, or other measures of a successful team.

Based upon the Department’s statements that (a) incentivizing retention, degree completion or graduation is equivalent to prohibited incentivization of success in securing enrollments, and (b) athletic recruitment is no different than recruitment of other students, it appeared as though athletic department bonuses tied to student-athlete retention or program completion (e.g., graduation rate bonuses and/or Academic Progress Rate (APR)-based bonuses) would violate the new regulations. On March 17, 2011, however, the Department issued a “Dear Colleague” letter for the stated purpose of clarifying a number of new Title IV regulatory requirements, including the revised incentive compensation restrictions.  Among other things, the “Dear Colleague” letter noted that:

 [t]he preamble [to the new regulations] noted that bonuses for athletic personnel to reward performance other than securing enrollment or awarding financial aid, such as a successful athletic season, team academic performance, or other measures of a successful team, are permitted. . . .  This statement merely reflects the fact that the payment of bonuses to athletic personnel is a common practice and is not typically viewed as incentive compensation based on recruitment of individuals as students, but at most may indirectly reward success in recruiting that small subset of individuals whose enrollment would benefit the institution’s athletic program.

 Unfortunately, this “clarification” created more ambiguity than it resolved.  For example, one could adopt a narrow reading of this explanation as standing for the proposition that payments based on successful on-field/on-court performance reward only indirectly success in recruiting, and that such bonuses (but not bonuses based on retention or academic progress) are therefore permissible.  Alternatively, one could read the explanation more broadly as stating that athletic personnel may be paid bonuses based on retention or academic progress because they are not recruiting individuals for the purpose of increasing general student enrollment, but are instead recruiting individuals for the limited benefit of the institution’s athletics program.   Under this broader reading, the incentive compensation prohibitions would not apply to athletic department staff insofar as they related solely to the recruitment of student-athletes. In the wake of the Dear Colleague letter, institutions adopted varying practices with respect to retention- or graduation-based incentive compensation in coaching and other athletics employment agreements.  Some institutions proceeded cautiously, and restructured academic performance bonuses to be based on GPA or other clearly permissible metrics.  Others, believing strongly in the merit of compensating personnel for keeping student-athletes in school and questioning whether the Department truly intended to prohibit this practice, retained graduation rate and APR-based bonus structures.  Thankfully, the Department’s November 27 announcement removes any remaining uncertainty in this regard, and clearly supports the use of such bonus structures, as well as retention- or graduation-based compensation in other contexts. The Department’s announcement does not change other aspects of the continuing prohibition on paying commissions, bonuses or other forms of incentive compensation based directly or indirectly on securing enrollments or financial aid.  Among other things, the Department expressly refused to alter its prohibition on compensation tied to minority enrollments, which had also been questioned in the court decisions referenced above, stating that the Program Integrity Rules bar compensation based on the number of students enrolled, “irrespective of the student’s minority or other status and irrespective of whether the goal of the recruiters is to increase diversity.”

On October 19, 2015, the U.S. Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register regarding optional practical training (OPT) extensions for F-1 students with U.S. degrees in science, technology, engineering or mathematics (STEM). The proposed rule is essentially a response to an August 2015 decision of the U.S. District Court for the District of Columbia to vacate the present STEM OPT extension regulation for procedural deficiencies in its promulgation, effective February 12, 2016.  Under the proposed rule, the length of STEM OPT extension would be increased from 17 months to 24 months.  In addition, the rule requires employers to develop and implement mentoring and training programs to bolster students’ learning through practical experience and provides safeguards for U.S. workers seeking employment in related fields.  DHS is accepting comments on the proposed rule through November 18, 2015 and is making every effort to have the final rule take effective prior to the February 12, 2016 sunset of the present STEM OPT extension regulation. STEM OPT Extensions.  Under the proposed rule, the length of STEM OPT extensions would increase from 17 months to 24 months and F-1 students would be limited to two 24-month STEM OPT extensions (for example, one after earning U.S. master’s STEM degree and another after earning U.S. doctoral STEM degree).  The proposed rule extends the maximum period of unemployment for F-1 students to 150 days – 90 days during the initial 12-month period of post-completion OPT and 60 days during the 24-month STEM OPT extension.  If the DHS rule is implemented as proposed, the STEM OPT extension will be a benefit to F-1 students and U.S. employers alike, as students will be able to work in the U.S. for three full years before additional work authorization (e.g., H-1B, O-1, etc.) would be necessary, and employers will have a generous amount of time in which to assess F-1 employees’ performance before undertaking sponsorship for additional work authorization.  As with the present STEM OPT extension regulation, under the proposed rule, STEM OPT extensions are only available if the employer participates in the U.S. Citizenship and Immigration Services’ E-Verify employment eligibility verification program. New Employer Responsibilities.  The proposed rule establishes a couple of new responsibilities for employers seeking to employ F-1 nonimmigrants on the STEM OPT extension.  First, employers would be required to implement formal mentoring and training programs for STEM OPT students to enhance their practical skills.  The student would be required to prepare a Mentoring and Training Plan – including the training goals and a description of how those goals will be met -- with the employer and to submit the plan to the student’s designated school official (DSO) at his/her institution before the DSO could recommend and authorize a STEM OPT extension for the student.  Second, employers would be required to attest and provide assurances on a number of items including that they will not terminate, layoff or furlough a U.S. worker as a result of hiring an F-1 student on STEM OPT and that the duties, hours and compensation for the F-1 student employee are commensurate with similarly situated U.S. workers.  If an employer fails to comply with the new requirements, DSOs will be prohibited from recommending students for a STEM OPT extension. We will continue to monitor this proposed rule as the February 12, 2016 deadline approaches and provide updates so F-1 student employees and their employers can plan accordingly

The United States Court of Appeals for the Ninth Circuit issued its highly anticipated decision in the O’Bannon case on September 30, 2015. This case was an appeal of the United States District Court for the Northern District of California’s decision finding that certain NCAA rules were an unlawful restraint of trade in violation of federal antitrust law. Specifically, the District Court issued a permanent injunction prohibiting the NCAA from enforcing rules regarding scholarship caps, and requiring the NCAA to allow member schools to pay deferred compensation to certain student-athletes of up to $5,000 per year of eligibility to compensate them for revenues generated from the use of their names, images and likenesses. The Court of Appeals affirmed the portion of the District Court’s decision regarding scholarship caps and vacated the portion pertaining to deferred compensation. In reaching its decision, the Court of Appeals found that while the NCAA rules in question were procompetitive, they were not exempt from antitrust scrutiny, and were subject to antitrust law’s “Rule of Reason” test. Using this test, the Court of Appeals agreed with the District Court that the plaintiffs had demonstrated that the NCAA’s amateurism rules had an anticompetitive effect on the college education market. The analysis then turned to the procompetitive justifications for the amateurism rules posited by the NCAA. The Court of Appeals accepted two of the NCAA’s four proffered justifications as identified by the District Court: “integrating academics with athletics” and “preserving the popularity of the NCAA’s product by promoting its current understanding of amateurism.” The Court of Appeals next observed that not all of the NCAA’s compensation rules that restrict the market are necessary to preserve the “character” of collegiate athletics, and moved to consideration of whether there were “substantially less restrictive alternatives” to the NCAA’s compensation rules at issue in this case. The Court of Appeals agreed with the District Court that permitting institutions to set the grant-in-aid cap at student-athletes’ full cost of attendance was a less restrictive alternative to the NCAA’s current restrictions on compensation. In so doing, the Court of Appeals observed that the NCAA’s current rule “has no relation whatsoever to the procompetitive purposes of the NCAA: by the NCAA’s own standards, student-athletes remain amateurs as long as any money paid to them goes to cover legitimate educational expenses.” However, the Court of Appeals disagreed with the District Court regarding the payment of compensation to student-athletes for the use of their names, images and likenesses. According to the Court of Appeals, when the District Court found “that paying student-athletes would promote amateurism as effectively as not paying them,” the District Court “ignored that not paying student-athletes is precisely what makes them amateurs.” (Emphasis in original). The Court of Appeals continued:

The difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap. Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point…

To summarize, the Court of Appeals’ decision permits the offering of grants-in-aid up to the full cost of attendance (which, notably, had already been approved by the so-called “autonomy conferences” and was scheduled to take effect on August 1, 2015), but continues to permit the NCAA to enforce its rules prohibiting (among other things) the payment of deferred compensation to student-athletes in the form contemplated by the District Court. At this point, either party could seek review of the decision by the full Court of Appeals (as this decision was rendered by a three judge panel) or seek to appeal to the U.S. Supreme Court. The Court of Appeals’ decision is important in that it makes clear that the NCAA’s rules are not exempt from scrutiny under antitrust law, and specifically a “Rule of Reason” analysis. However, the decision regarding deferred compensation signifies a potentially important victory for the NCAA’s tradition and principles of amateurism, and may prove beneficial to the NCAA in its defense of Jenkins v. NCAA and other similar lawsuits. Elizabeth D’Agostino, a 2015 graduate of Albany Law School who is awaiting admission to the New York State bar, contributed to this blog post.

On September 30, 2015, the United States Court of Appeals for the Ninth Circuit issued its highly anticipated opinion on the NCAA’s appeal of the District Court’s decision in the O’Bannon case (a summary of the District Court’s decision is available here). After a lengthy discussion in which the Ninth Circuit ruled that the NCAA’s compensation rules are subject to scrutiny under antitrust laws, the Ninth Circuit affirmed in part and reversed in part the District Court’s decision. The Ninth Circuit upheld that part of the District Court’s ruling which enjoined the NCAA from enforcing its rules precluding member institutions from providing athletic scholarships up to the full cost of attendance. The Ninth Circuit reasoned that this constituted a substantially less restrictive alternative to the NCAA’s current compensation rules because this would have virtually no impact on amateurism. The Ninth Circuit disagreed, however, with that part of the District Court’s decision which would have required the NCAA to permit member institutions to pay deferred compensation to student-athletes in an amount up to $5,000 per year for the use of their names, images and likenesses. The Ninth Circuit was particularly critical of the District Court’s decision here, noting that the District Court ignored the fact that not compensating student-athletes is precisely what renders them amateurs. As a result of the Ninth Circuit’s ruling, member institutions may provide FBS football and Division I basketball recruits with grants-in-aid up to the full cost of attendance, but remain prohibited by NCAA rules from providing the $5,000 per year deferred compensation contemplated by the District Court’s decision. A more detailed summary of the Ninth Circuit’s decision will be published on Bond’s Higher Education Law Report in the coming days.

In a long-awaited decision issued on August 17, 2015, the five-member National Labor Relations Board (“Board”) unanimously shut down an attempt by Northwestern University’s scholarship football players to become the first group of college athletes to form a labor union.  This Board holding vacates the direction of election issued by an NLRB Regional Director in March 2014 and dismisses the representation petition filed by the College Athletes Players Association (“CAPA”), but does not address the fundamental issue of whether the players are “employees” under the National Labor Relations Act (“Act”).  Instead of deciding this issue, the Board declined to assert jurisdiction over this case based on its conclusion that it “would not promote stability in labor relations” and therefore would not effectuate the policies of the Act. The Board noted that it had never been asked to assert jurisdiction in a case involving college athletes, nor had there ever been a petition for representation of a unit of a single college team, or even a group of college teams.  The Board also pointed out that the players in this case did not “fit into any analytical framework” the Board had used in other cases involving college students (such as graduate student assistants or student janitors and cafeteria workers) because this case involved student athletes who receive scholarships to participate in what traditionally has been regarded as an extracurricular activity.  The Board also distinguished these scholarship players from professional athletes, because the scholarship players are required to be enrolled full time as students and meet various academic requirements.  The Board further observed that bargaining units in professional sports have never been limited to a single team’s players – they have always included the players of all teams in the entire league.  Therefore, the Board concluded that there was no precedent that required it to assert jurisdiction, and that it was free to exercise its discretion to decline jurisdiction over this case. In justifying its decision to decline jurisdiction, the Board explained that Northwestern is a member of the National Collegiate Athletic Association (“NCAA”), which has a “substantial degree of control over the operations of individual member teams, including many of the terms and conditions under which the scholarship players (as well as walk-on players) practice and play the game.”  Under these circumstances, the Board determined that its assertion of jurisdiction over only Northwestern and its scholarship football players would not promote stability in labor relations across the NCAA.  The Board further explained that Northwestern competes in the NCAA Football Bowl Subdivision (“FBS”), where 108 of the 125 member schools are public institutions that are not covered by the Act.  As a result, the Board does not have jurisdiction over the vast majority of the FBS teams.  In fact, the Board pointed out that because Northwestern is the only private school in the 14-member Big Ten Conference, it “cannot assert jurisdiction over any of Northwestern’s primary competitors.”  The Board cited this as an additional reason why its assertion of jurisdiction over only Northwestern and its scholarship football players would not promote stability and uniformity in labor relations. Although the Board’s exercise in restraint in this decision comes as somewhat of a surprise given this Board’s activism in expanding the reach of the Act, the Board made clear that its decision does not “preclude a reconsideration of this issue in the future,” and should be interpreted narrowly.  In fact, the Board seemingly opened the door for consideration of a broader proposed bargaining unit than scholarship football players at one university by stating that its decision is not intended to “address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities).”  So, the landscape of collegiate athletics will remain the same for now, but this may not be the last unionizing effort of student athletes that we see.

On July 31, 2015, the United States Court of Appeals for the Ninth Circuit granted the NCAA’s request to stay the injunctions ordered by the District Court in the O’Bannon v. NCAA case. In August 2014, the District Court enjoined the NCAA from enforcing its rules that prohibited member schools and conferences from offering FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses and from offering to deposit a limited share of licensing revenue in trust for such student-athletes. As a result of the stay, the NCAA’s current rules may continue to be enforced until such time as the Ninth Circuit rules on the NCAA’s appeal of the District Court’s decision.

On July 2, 2015, in Glatt v. Fox Searchlight Pictures and Wang v. The Hearst Corporation, the Second Circuit Court of Appeals addressed when unpaid interns are “employees” entitled to compensation under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). This was a question of first impression for the Second Circuit. The plaintiff interns in Glatt argued that whenever an employer receives an immediate benefit from an intern’s efforts the intern is functioning as an employee. The U.S. Department of Labor, as amicus curiae in support of the plaintiffs, asserted that its exhaustive six factor test derived from Walling v. Portland Terminal, a nearly seventy year old Supreme Court case about prospective railroad brakemen, was the appropriate standard to use to assess whether an intern is an employee. The defendant employers urged the Second Circuit to consider an approach in which an intern is only an employee when the “primary beneficiary” of the internship is the employer rather than the intern. In an amicus brief in support of neither party, but submitted on behalf of the American Council on Education and five other organizations representing the collective interests of higher education institutions, Bond attorneys argued that the Department of Labor’s rigid six factor test is inappropriate in the intern context. The amici asked the Court to recognize the role that institutions of higher education play in assessing the value of an internship experience and adopt an analysis that focused on the “primary beneficiary” of the internship. A nuanced approach would, according to the amici, both preserve essential experiential learning opportunities and identify those internships that are exploitative. Institutions of higher education have long understood that real-world experiences offered by internships, combined with classroom instruction, best prepare students to become productive members of the workforce. Many colleges and universities integrate internships into their curriculum, also recognizing that competitive job applicants are those who have not just spent four years in the bubble of academia, but can also cite real-world experience. The amici, concerned with preserving as many legitimate internship experiences as possible, further pointed out that student-interns, upon their return to campus, often share their varied experiences in the classroom to the benefit of their peers as well as the institution, which becomes a more vibrant center for learning because of the experiences of its students. In Glatt and Wang the higher education community cautioned against an outcome that would unduly pressure employers to end unpaid internship programs because of concerns about FLSA and NYLL liability. The Second Circuit ultimately rejected the Department of Labor’s rigid six factor test and instead created a multi-factored, non-exhaustive set of considerations that while consistent with the spirit of Portland Terminal focuses on the “primary beneficiary” of the intern-employer relationship. The Second Circuit’s non-exhaustive set of considerations as articulated in Glatt are:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa;
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands?on training provided by educational institution;
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit;
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar;
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning;
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern;
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The Second Circuit, in these cases, recognized the importance of preserving experiential learning opportunities. Its non-exhaustive set of factors outlined in Glatt is a compromise that will help achieve two important goals of the higher education community: protecting interns from exploitative practices and preserving essential hands-on learning opportunities. For more on Wang and Glatt see Bond’s July 7, 2015 post here.

The U.S. Department of Labor recently released its highly anticipated proposed rule on the Fair Labor Standards Act white-collar overtime exemptions, along with a fact sheet summarizing the proposed rule.  The good news for colleges and universities is that “teachers” will still not be subject to any salary level or salary basis requirements in order to qualify as exempt employees. The USDOL did not propose any changes to the teaching professional exemption, which applies to any employee who is engaged in the primary duty of “teaching, tutoring, instructing or lecturing in the activity of imparting knowledge” in an educational establishment by which the employee is employed, regardless of whether the employee is paid on a salary basis or at a minimum salary level. The bad news is that the proposed rule more than doubles the salary requirement to qualify for other executive, administrative, professional, and computer employee exemptions, from the current level of $455 per week to an amount that is expected to be $970 per week by the first quarter of 2016.  Employees who perform “administrative functions directly related to academic instruction or training in an educational establishment” will continue to fall within the administrative exemption if they meet the new salary level requirement or if they are compensated on a salary basis at a level which is at least equal to the entrance salary for teachers in the educational establishment by which they are employed. It also significantly increases the salary threshold to qualify for the “highly compensated employee” exemption.  The proposed rule also includes a procedure to automatically raise the minimum salary levels to qualify for the white-collar exemptions from year to year without further rulemaking.  The USDOL estimates that nearly five million employees who are currently classified as exempt will immediately become eligible for overtime pay if the proposed rule is adopted as the final rule. USDOL also estimates that average annualized direct employer costs will total between $239.6 and $255.3 million per year, depending on the updating methodology although certain transition strategies may help control and/or alleviate these costs. The USDOL is proposing to set the salary requirement to qualify for the executive, administrative, professional, and computer employee exemptions at the salary level equal to the 40th percentile of earnings for full-time salaried workers, and the salary requirement to qualify for the highly compensated employee exemption at the salary level equal to the 90th percentile of earnings for full-time salaried workers.  The USDOL used data compiled by the Bureau of Labor Statistics from 2013 in drafting the proposed rule, which provides for a minimum salary level of $921 per week to qualify for the executive, administrative, professional, and computer employee exemptions, and a minimum salary level of $122,148 per year to qualify for the highly compensated employee exemption.  However, the USDOL stated in its Notice of Proposed Rulemaking that it will likely rely on data from the first quarter of 2016 if the proposed rule is adopted, which will result in a projected minimum salary level of $970 per week to qualify for the executive, administrative, professional, and computer employee exemptions. There was some speculation that the duties requirements would also be revised to make the exemptions more restrictive, but the USDOL’s proposed rule does not include any revisions to the duties requirements to qualify for any of the white-collar exemptions.  However, the USDOL stated in its Notice of Proposed Rulemaking that it is nevertheless seeking comments on whether the duties tests are working as intended to screen out employees who are not bona fide executive, administrative, or professional employees.  So, there is still a possibility that the duties requirements could be revised based on comments received by the USDOL about the proposed rule. Notwithstanding that the proposed salary level changes do not impact teachers, colleges and universities, like most other employers, undoubtedly have a number of non-teaching positions currently classified as exempt which fall between the current $455 per week salary level and the proposed $970 per week salary level that they should immediately begin assessing. Certainly one purpose behind this review should be to determine whether to raise the salary level of some of these positions should the regulations become finalized, in order to keep the exemption. In some cases, an institution may determine that the increase to $970, especially when coupled with little or no “overtime” work for the position, is such that it makes more sense to simply convert those positions to hourly.   The proposed rule should also serve as impetus for institutions to review their exempt classifications generally, to make sure that they are comfortable with their assessment of where these positions stand in light of the duties test. Application of the FLSA’s exemption is often a complicated and very fact specific analysis, which isn’t always repeated as jobs change over time. As a result, it is not uncommon for all employers to have at least some misclassified positions. Now would be a good time for institutions to look at all of their exempt positions from both a duties and salary perspective.

As expected, New York Governor Andrew M. Cuomo signed the “Enough is Enough” legislation into law on July 7, 2015.  As a result, the majority of the legislation’s provisions imposing obligations on colleges and universities will become effective 90 days from that date, on October 5, 2015.  Of course, institutions can, and likely will want to, make the necessary modifications to their policies, procedures and practices in advance of the effective date, so as to avoid the need to alter processes during the upcoming academic year. The provisions of the legislation requiring biennial campus climate assessments and statistical reports to the New York State Department of Education will become effective in one year, on July 7, 2016. Bond is discussing the legislation’s provisions in detail with our college and university colleagues in our ongoing statewide briefings, and will continue to do so in our Higher Education Law Report blog.

Governor Andrew Cuomo announced that he and State Legislative Leaders have reached an agreement regarding new sexual misconduct legislation. It may be recalled that several months ago, the Governor’s office proposed and publicly promoted a sexual misconduct bill, many provisions of which we analyzed here. The new bill addresses several questions and concerns raised by the previous bill’s text and makes improvements in certain areas. However, the latest bill contains several major mandates that were not in the previous version. The full text of the new bill is available here. Over the coming weeks, Bond will be discussing the bill’s provisions in detail on our Higher Education Law Report blog. This Client Alert is intended to notify you of the likely adoption of this legislation, and to highlight certain of the bill’s provisions that will require the most significant changes in institutions’ policies and practices if the bill passes in its current form (as is expected).

• Every institution in New York State must use a single verbatim definition of consent, adopt a prescribed Bill of Rights, and adopt specific language providing amnesty for alcohol and drug use violations committed by Reporting Parties or Bystanders. The bill contains many other provisions concerning the information that must be shared with the community, including information that must be provided to a Reporting Party at the first instance of his/her disclosure about an incident of sexual assault, domestic violence, dating violence or stalking.
• If the Respondent is a student, the bill would require that the institution issue a No Contact Order requiring the Respondent to leave any public place upon observing the Reporting Party. Presumably, the Reporting Party’s wishes could trump this requirement, but this is not entirely clear. The bill goes on to require that every institution must have a procedure to allow either party to review the need for and terms of a No Contact Order. For many institutions, this will be an entirely new process that must be created.
• In circumstances where an institution provides interim measures or accommodations to a student in connection with a report of sexual assault, domestic violence, dating violence or stalking, the bill would require the institution to have a procedure to allow both the recipient of the interim measures or accommodations, as well as the other party (if directly affected by them), to review the need for and terms of the interim measures or accommodations. For many institutions, this will be an entirely new process that must be created.
• Institutions would be required to provide written notice to students, in advance of "any meeting" they are required or eligible to attend in connection with the disciplinary process, describing the rule(s) and/or law(s) they are accused of violating and in what manner, as well as potential sanctions that may be applied. The bill appears to require this notice not only in advance of adjudicatory hearings, but also prior to investigative interviews.
• In a judicial proceeding, the bill provides that the parties have the right to exclude their prior sexual history other than with other party. A common provision in policies is the exclusion of prior sexual history, but usually with the caveat that a party could make a showing that prior sexual history has some unique, strong relevance. The bill apparently would not allow any discretion based on the facts and issues of a particular case, and, therefore, policies allowing for the introduction of this evidence upon a special showing of relevance would be non-compliant.
• The written determination following a disciplinary hearing must include not only the rationale for the decision regarding responsibility and the sanction, if any, but also "findings of fact". The requirement that "findings of fact" (and presumably all findings of fact) be reduced to writing will make the drafting of decisions onerous and potentially fraught, as any failure to include a finding may make a decision vulnerable on internal appeal or in external litigation.
• The decision of an officer or panel concerning responsibility for a violation of sexual assault, domestic violence, dating violence or stalking must be subject to at least one level of appeal, and the appeal must be decided by a "panel". The bill does not state how many individuals must comprise the panel or specify its composition. For institutions with a single appeal officer, this will require a major policy restructure that may be difficult to staff, particularly at smaller institutions.
• The bill mandates that institutions mark the transcripts of students who are found responsible for a "crime of violence" (including but not limited to sexual violence) within the definition of the Clery Act and either suspended or expelled. The bill specifies the precise words that must be used: "suspended after a finding of responsibility for a code of conduct violation" or "expelled after a finding of responsibility for a code of conduct violation". If a student withdraws during the pendency of allegations, this also must be noted on the transcript with the words: "withdrew with conduct charges pending".
• An institution must train all new incoming first year students and all transfer students. The training must cover sexual assault, domestic violence, dating violence and stalking, as well as the institution’s policies, bystander intervention, and risk assessment, among other subjects. The bill requires that each student complete the training during the "onboarding" process. The bill goes on to state that an institution is required to ensure that every student organization leader and officer must complete the training as a condition to recognition of the organization, and that every student athlete must complete the training as a condition to participation in intercollegiate athletic competition.
• Institutions will be required to report annually to the New York State Department of Education information about how complaints were handled. The information to be disclosed includes, among other items of information, the number of reports of sexual assault, domestic violence, dating violence and stalking; the number of cases processed through to a finding; the number of cases in which respondents were found responsible or not responsible; and the sanctions imposed on the respondent in each case where responsibility was found.
• Institutions will be required to conduct a climate assessment no less frequently than every other year. The survey is to probe campus awareness concerning nine topics, including campus policies; how and where to make a report; the prevalence of incidents of sexual assault, domestic violence, dating violence and stalking; bystander attitudes; and experiences with reporting and institutional processes.

To be clear, the above are only some of the pending bill’s requirements, but they are the provisions most likely to require substantial change to policy and procedure, and, therefore that administrators will want to be thinking about immediately. Institutions will be required to be in compliance with virtually all of the bill’s provisions within 90 days of passage. The bill provides that compliance will be enforced through random audits conducted by the Department beginning in September 2016. If you would like to discuss the bill and its anticipated impact on your institution, please contact a member of our Title IX Practice Team.

The Higher Education Practice Group of Bond, Schoeneck & King, a member of the Employment Law Alliance, is pleased to invite you to attend a free 60-minute webinar, “’Privatized’ Student Housing on Campus”, on Wednesday, June 10. It has become increasingly common for colleges and universities to partner with private parties and other entities to develop, construct, and operate student housing. Such privatization can provide significant financial and other advantages, but it also can present unique legal and business considerations.  In this webinar, Paul W. Reichel, a member of Bond's Higher Education Practice group, along with other guest speakers, will provide insight and guidance on topics including: • Alternative structures • Protecting the school’s interests • Foundation-owned projects • Credit impacts Click here to register, and then click the "register" link to the right of the title. Please be sure to confirm the corresponding start time in your local time zone.    

On April 24, the Department of Education’s Office for Civil Rights (“OCR”) issued new materials on Title IX. The materials include a Dear Colleague Letter to educational institutions, a letter to Title IX Coordinators and a Title IX resource guide. While the new documents are almost entirely a restatement of OCR’s previous pronouncements, there are a few noteworthy points. In the new materials, OCR focuses on the role of the Title IX Coordinator within an institution. Given the extent to which the materials reiterate OCR’s previous guidance and Q&A, it is unclear why OCR felt it necessary to create and release these new documents. One suspects that the attention is designed to increase the cultural authority of the Title IX Coordinator by stressing to the highest levels of institutional leadership the essential role that Coordinators play in Title IX compliance. OCR warns that many of the most egregious and harmful Title IX violations it has identified occurred when an institution failed to designate a Title IX Coordinator or failed to properly train and give an appropriate level of authority to its Coordinator. The new materials stress the following:  Designation of a Title IX Coordinator Pursuant to the Title IX regulations, institutions must at all times have one or more employee(s) designated to coordinate their efforts to comply with and carry out its responsibilities under Title IX. When selecting a coordinator, OCR instructs institutions to consider the following: Independence – OCR reiterates its position that the Coordinator’s role should be independent of any other duties to avoid any potential conflicts of interest. However, in the new materials, OCR goes one step farther and recommends that the Coordinator should report directly to the president.  OCR bases this recommendation on its concern that the Coordinator have both the independence and institutional authority to carry out Title IX compliance functions. Full-Time Coordinator- OCR stresses its previously stated position that employing a full time Title IX Coordinator, while not required, minimizes the risk of conflicts and provides more time to allow the Coordinator to perform all of the role’s responsibilities. OCR’s push toward a single, solely focused Title IX Coordinator evidences not only OCR’s continued laser focus on Title IX but also its lack of appreciation that Title IX is merely one of a thousand concerns for institutions and that not every institution, particularly the smaller or less well funded ones, can afford this luxury. Multiple Coordinators- OCR suggests that larger institutions may find it best practice to designate multiple Title IX Coordinators who work throughout different areas of the institution. According to OCR, institutions already implementing this practice have reported more effective training of the school community due to greater opportunities for students and staff to become familiar with the Title IX Coordinators. If an institution opts for multiple Coordinators, OCR requires that one be designated Lead Coordinator and that the areas of responsibility of each be clear to the community.  Responsibilities & Authority of a Title IX Coordinator  As the Title IX Coordinator’s primary responsibility is to coordinate the institution’s compliance, OCR reminds institutions that the Coordinator must receive notice of all reports and complaints raising Title IX issues. In these documents, OCR stresses that Coordinators’ responsibilities also include monitoring outcomes, identifying and addressing patterns, and assessing effects on the campus climate, and OCR mentions the campus climate survey that it recommends, but not does require, institutions to undertake. OCR also expressly states that institutions are prohibited from retaliating against Coordinators for carrying out their duties even when they point out areas of Title IX noncompliance. Interestingly, OCR states in the new Dear Colleague Letter that Title IX does not prohibit Title IX Coordinators from determining “the outcome of Title IX complaints” or “the actions the school will take in response to such complaints”.  Indeed, OCR expressly states in these new materials that the Coordinator may play that role, provided that there are no conflicts of interest.  It is not entirely clear what to make of these statements.  OCR does not define what it means by the "outcome of Title IX complaints" or the "actions" in response to a complaint, but these terms seem to include institutional disciplinary responses.  It is reassuring to know that OCR appears to endorse Coordinators taking a greater determining role in the outcome of individual complaints, but this sentiment is confusing because contradicts other of OCR’s statements. It will be recalled that OCR’s view is that a Dean of Students and a member of a disciplinary board may have a conflict of interest in serving as Title IX Coordinator. OCR has not explained why those positions may create a conflict of interest, but the source of the conflict has been assumed to be the involvement in the disciplinary decision making process. It would seem odd if OCR views as a conflict a Title IX Coordinator being part of a disciplinary board but would have no problem with the Title IX Coordinator making the disciplinary decision himself or herself. Further clarification on this point will be needed. Support for Title IX Coordinators  The materials advise that institutions should make Coordinators visible to the campus community. OCR states that it views broad visibility of the Coordinator as evidence of the institution’s commitment to Title IX compliance. OCR’s regulations require that the institution must include its Title IX nondiscrimination notice in bulletins, announcements, applications, applications, catalogs and other publications, as well as ensuring that the Coordinator’s contact information is widely disseminated. In the new materials, OCR also endorses creating a general email address (such as TitleIXCoordinator@school.edu) and including only that general email address and position title in published materials. This is to address the problem created when published materials include an individual’s name, email and other contact information and the person leaves the position or the institution altogether. However, OCR is clear that, while the hardcopy publications may use only this general information, the institution’s website must be kept current to identify the Title IX Coordinator by name and with personalized contact information. OCR also suggests that institutions create a Title IX webpage linked to their main website to provide additional information on policies and procedures for filing Title IX complaints and any resources available to students or employees. In these new materials, OCR mentions social media, saying that, if an institution uses social media to communicate with the community, it should include the Title IX Coordinator’s contact information on social media as well. It is not clear how an institution would do this on many social media platforms, and the fact that OCR would suggest this is yet another indication of the time and attention OCR expects -- reasonably or unreasonably -- that institutions will pay to this one issue: Title IX.