Federal Government to Issue Additional COVID-19 Guidance for Colleges and Universities

January 22, 2021

By Philip J. Zaccheo

Yesterday, President Biden issued an Executive Order on Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers. Among other things, the executive order instructs the U.S. Department of Education to develop and provide “evidence-based guidance to institutions of higher education on safely re-opening for in person learning,” as well as related advice to institutions on matters including distance and other means of delivering curricular content, and the promotion of mental health and social-emotional well-being. In developing its guidance, the Department is directed to consult with institutional officials, students, educators, unions and families. 

Read More >> Federal Government to Issue Additional COVID-19 Guidance for Colleges and Universities

Court Issues Nationwide Preliminary Injunction Preventing Enforcement of “Divisive Concepts” Executive Order Against Institutions of Higher Education

January 5, 2021

On Dec. 22, 2020, the U.S. District Court for the Northern District of California partially granted a petition for preliminary injunctive relief barring the enforcement of Executive Order 13950, Combatting Race and Sex Stereotyping, (EO or Order) against federal contractors and grantees. The lawsuit, Santa Cruz Lesbian & Gay Community Center, et al. v. Donald J. Trump, Case no. 5:20-cv-07741 (N.D. Ca. Dec. 22, 2020), seeks to permanently enjoin enforcement of the entire Order as unconstitutional on two grounds:

  1. The Order violates the first amendment by unlawfully chilling Plaintiffs’ exercise of constitutionally protected speech based on the content and viewpoint of the speech and 
  2. The Order is unconstitutionally vague because it does not provide adequate notice of the conduct it purports to prohibit.

Read More >> Court Issues Nationwide Preliminary Injunction Preventing Enforcement of “Divisive Concepts” Executive Order Against Institutions of Higher Education

New Guidance from IRS on Treatment of CARES Act Payments to Students

December 17, 2020

By Jane M. Sovern, Gail M. Norris, and Philip J. Zaccheo

On Dec. 14, 2020, the IRS added guidance to its FAQs on the Higher Education Emergency Relief Fund and Emergency Financial Aid Grants under the CARES Act, clarifying that higher education institutions are not required to report these emergency financial aid grants to students on Form 1098-T. 

Read More >> New Guidance from IRS on Treatment of CARES Act Payments to Students

Court Issues Preliminary Injunction Against Institution That Declined to Apply New Title IX Regulations Retroactively 

October 23, 2020

By Christa Richer Cook

On May 6, 2020, the U.S. Department of Education (DOE) issued new Title IX regulations which imposed significant changes in the way in which colleges and universities must investigate and adjudicate sexual assault cases. The revised Title IX regulations have an effective date of August 14, 2020. On August 5, 2020, the DOE’s Office for Civil Rights (OCR) announced that the new regulations do not apply to institutional responses to sexual assaults that allegedly occurred prior to August 14 relying on the preamble to the regulations. Despite OCR’s seemingly clear position on retroactivity, a recent federal court case out of the Northern District of New York raises new questions as to whether and when the new Title IX rules must be applied retroactively to cases preceding their effective date. 

Read More >> Court Issues Preliminary Injunction Against Institution That Declined to Apply New Title IX Regulations Retroactively 

CDC Releases New COVID-19 Guidance for Colleges and Universities with Focus on Testing

October 7, 2020

By Barbara A. Lee

The Centers for Disease Control and Prevention (CDC) issued guidance earlier this year on dealing with the COVID-19 pandemic. That earlier guidance did not recommend testing of students or employees. Many colleges and universities followed that guidance, and when some of them reopened this fall, they saw substantial outbreaks of the disease. The CDC has since then changed its guidance.

Read More >> CDC Releases New COVID-19 Guidance for Colleges and Universities with Focus on Testing

Centers for Disease Control and Prevention Issues Guidance on Student Foreign Travel

October 7, 2020

By Barbara A. Lee

The Centers for Disease Control and Prevention (CDC) has issued guidance for institutions whose students are planning international travel or participation in study abroad programs. 

The Guidance suggests that colleges and universities “consider postponing or canceling student international travel programs” because of the continuing COVID-19 pandemic in a number of international destinations. The Guidance suggests that “students may face unpredictable circumstances, such as travel restrictions, challenges returning home, and challenges accessing health care while abroad.”

Read More >> Centers for Disease Control and Prevention Issues Guidance on Student Foreign Travel

Enough is Enough Data Due October 1

September 17, 2020

By Mallory A. Campbell

The new Title IX rule, which became effective August 14, 2020, has garnered much attention in the higher education community over the summer. Many schools have scrambled to put new policies in place and to adequately resource and train staff for new responsibilities. For New York institutions, it is important to remember that schools also have requirements under the New York’s Enough is Enough law.

Importantly, Enough is Enough (New York Education Law Article 129-B) requires colleges and universities to submit annually aggregate data on reported incidents of sexual violence and their adjudication and handling.

In 2017, the New York State Board of Regents adopted regulations for reporting this information. A link to those regulations is provided below. Reports were due last year for calendar year 2018 so institutions should have familiarity with compiling and filing this Aggregate Data Report.

The October 1, 2020 deadline for calendar year 2019 reports is fast approaching. Any institution of higher education who has not yet submitted its 2019 Aggregate Data Report should attend to finalizing it and submitting the Report by the October 1 deadline. The Report should be submitted electronically.

Helpful links are provided below.

If you have any questions about the information presented here, please contact any attorney in Bond’s Higher Education practice, or the attorney in the firm with whom you are regularly in contact.

Additional COVID-19 Requirements for New York Higher Education Institutions

September 2, 2020

On August 28, 2020, the New York State Department of Health released supplemental guidance for COVID-19 containment at higher education institutions. In addition to complying with the state’s reopening guidance, all higher education institutions in New York state are required to comply with this supplemental guidance. 

The supplemental guidance provides when, and for how long, an institution must restrict in-person learning and on-campus activities as a result of COVID-19 infection rates. The guidance provides the minimum thresholds that institutions must adhere to, but local health departments and institutions may establish stricter thresholds.

Whenever the lesser of 100 individuals or 5% of the total on-campus population at an institution location tests positive for COVID-19 within a 14-day period, the location must immediately, for a period of at least 14 days: 

  • Deliver all classes remotely;
  • Convert campus dining and food services options to takeout/delivery only; and
  • Suspend in-person athletics, extracurricular programs, and non-essential student activities.

However, an institution, in consultation with the local health department, may conduct certain clinical, laboratory or other in-person activity required to obtain or maintain a professional licensure, or research activity which must be conducted in-person, only if public health and safety can be maintained. 

During this two-week period, residential facilities must remain open. Only those students identified as contacts of a positive case are required to quarantine, and only positive cases will be ordered into isolation. If the institution decides to close for the semester or academic year, then the residence halls will be closed. In such instances, institutions may provide limited on-campus housing for students who otherwise lack access to secure housing, if approved by the local health department. 

For purposes of computing the threshold, the total on-campus population includes all students, faculty and staff who are on the campus location. Students, faculty or staff who test positive for COVID-19 prior to arrival on campus, as well as those who test positive while quarantined due to out-of-state travel restrictions prior to participation in on-campus activities are not counted. An institution location refers to a self-contained location or campus of a given institution. 

Even if the institution has fewer than 100 individuals or less than 5% of the total on-campus population who have tested positive for COVID-19 over a 14-day period, local health departments retain the ability to restrict in-person learning as the situation may warrant. Particularly, if the local health department, in consultation with the New York State Department of Health (DOH), finds that at any time a cluster of positive COVID-19 cases exceeds the institution’s ability to contact trace, quarantine or isolate, it can require the institution to transition all in-person learning to remote and limit on-campus activities. 

After 14 days, the local health department will evaluate the institution’s efforts to contain COVID-19 infections. If the local health department, in consultation with the DOH, determines that the institution has effectively contained the spread of COVID-19, then the location will be authorized to reopen for in-person learning. If the institution has not demonstrated it has effectively contained the spread of COVID-19, then the local health department may require a continued suspension of in-person learning. 

If you have any questions about the information presented here, please contact any attorney in Bond’s Higher Education practice or the attorney in the firm with whom you are regularly in contact. 

Two Courts Deny Preliminary Injunction Against the New Title IX Rule. Are These Decisions Harbingers of What’s to Come?

August 24, 2020

By Gail M. Norris

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.

Read More >> Two Courts Deny Preliminary Injunction Against the New Title IX Rule. Are These Decisions Harbingers of What’s to Come?

Barbara Lee Joins Bond, Schoeneck & King’s Higher Education Practice 

August 4, 2020

By Barbara A. Lee

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.

Read More >> Barbara Lee Joins Bond, Schoeneck & King’s Higher Education Practice 

Sixth Circuit Loosens Pleading Standard for Title IX Wrongful Outcome Cases

July 28, 2020

By Howard M. Miller and Monica C. Barrett

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. 

Read More >> Sixth Circuit Loosens Pleading Standard for Title IX Wrongful Outcome Cases