Foreign Gifts: New Online Portal Emphasizes DeVos “No Excuses” Approach to Reporting

On June 22, 2020, the U.S. Department of Education published an electronic announcement reminding institutions of higher education of their mandatory reporting obligations under Section 117 of the Higher Education Act (“Section 117”) (20 U.S.C. § 1011f) and launched a new reporting portal to streamline the mandatory reporting process: https://partners.ed.gov/ForeignGifts.

Secretary DeVos has explained that foreign gift reporting under Section 117 is essential to the “transparency and accountability” necessary to “protect academic freedom and our country’s national security and economic future.”

The Department has at least ten ongoing investigations of major universities underway regarding Section 117 compliance, and more are expected.  With this clear signal from the Department that this is a significant enforcement priority, colleges and universities should evaluate their past and current disclosures, past and current interpretation of Section 117 requirements, and make determinations about the extent of any additional reporting required or recommended.

Section 117 requires institutions of higher education to disclose to the U.S. Department of Education information about ownership and control by foreign sources, contracts with foreign sources, and gifts from foreign sources.  The reporting obligation applies to any institution, public or private, or, if a multi-campus institution, any single campus of such institution, in any State, that is legally authorized within such State to provide a program of education beyond secondary school, that provides a program for which the institution awards a bachelor’s degree (or provides not less than a two-year program which is acceptable for full credit toward such a degree) or more advanced degrees, and is accredited by a nationally recognized accrediting agency or association and to which institution Federal financial assistance is extended (directly or indirectly through another entity or person), or which institution receives support from the extension of Federal financial assistance to any of the institution’s subunits.

Institutions that are owned or controlled by a foreign source must file two disclosure reports per year—one no later than January 31 and the other no later than July 31. All other institutions that receive a gift from or enter into a contract with a foreign source, the value of which is $250,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign source within a calendar year, must file a disclosure report no later than January 31 or July 31, whichever is sooner.

The announcement makes clear that foreign gift reporting is considered by the Department to be an “information collection” process subject to 18 U.S.C. § 1001, which provides that whoever knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, may be subject to fines and imprisonment.

The Department also states that if an institution fails to report as required, the Secretary may request that the Department of Justice initiate a civil action in federal district court.

The Electronic Announcement is available at: https://ifap.ed.gov/electronic-announcements/062220ReminderRprtOwnerContrlContrctsGiftsForeignSrc

 

Universities Weigh Impact of Latest Travel Ban on Certain Chinese Grad Students and Post Docs

The White House has issued a new travel ban blocking Chinese nationals associated with entities that are part of China’s “military-civil fusion” strategy from obtaining graduate level Student (F) or Exchange Visitor (J) visas. The ban went into effect on June 1 and has no end date.  The ban specifically references those visa applicants who are currently outside the United States, but does not exclude the possibility that the estimated 3000 Chinese nationals, already studying in the U.S. who meet the criteria of the executive order, could have their existing visas revoked. Continue reading “Universities Weigh Impact of Latest Travel Ban on Certain Chinese Grad Students and Post Docs”

Ninth Circuit Rules that California Private Postsecondary Education Act Burdens Free Speech

by John M. Simpson.

A panel of the U.S. Court of Appeals for the Ninth Circuit recently held that a postsecondary education plaintiff stated a claim that his rights under the First Amendment had been violated by the California Private Postsecondary Education Act of 2009 (PPEA), Cal. Educ. Code § 94800 et seq.  Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, ___ F.3d ___, No. 18-15840 (9th Cir. June 10, 2020).  The case was remanded for further proceedings in the district court. Continue reading “Ninth Circuit Rules that California Private Postsecondary Education Act Burdens Free Speech”

Education Institutions Prepare for Department’s Final Rule on State Authorizations, Consumer Disclosures

On November 1, 2019, the U.S. Department of Education published a final rule regarding state authorization. The new rule is effective July 1, 2020. This Alert highlights required changes for state authorization and consumer disclosures, some of which apply to institutions offering on-ground programs.

To read the full text of this Duane Morris Alert, please visit the firm website.

Department of Education Publishes Title IX Final Rule

On May 19, 2020, the U.S. Department of Education issued its final rule on Title IX of the Education Amendments of 1972 regulations. These are the first comprehensive regulations issued under Title IX since 1975. The final rule, which applies to school districts, colleges and universities, including all institutions of higher education receiving Title IV funding, contains a number of significant changes, such as: a definition for sexual harassment, publication of Title IX materials, triggers for an institution’s legal obligation to respond and investigate, and a requirement that institutions conduct courtroomlike hearings.

To read the full text of this Duane Morris Alert, please visit the firm website.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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