In One of Its Final Actions, Department of Education Releases Internal Memorandum Analyzing Title IX as it Relates to Sexual Orientation and Gender Identity

On January 8, 2021, the Department of Education (“Department”) publicly released a 13-page internal memorandum from the Department’s Office of the General Counsel to the Department’s Office for Civil Rights that sets forth an analysis of Title IX as it relates to sexual orientation and transgender status.  Specifically, the memo addresses the impact of the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) on Title IX. Bostock held that the definition of “sex” in Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation and gender identity, including transgender status.

The memo’s analysis focuses on 5 questions:

      1. Does the Bostock decision construe Title IX?
      2. Does Bostock affect the meaning of “sex” as that term is used in Title IX?
      3. How should OCR view allegations that a recipient targets individuals for discriminatory treatment on the basis of a person’s transgender status or homosexuality?
      4. After Bostock, how should OCR view allegations of employment discrimination or sexual harassment based on an individual’s transgender status or homosexuality?
      5. How does the Department interpret Title IX and its implementing regulations in light of Bostock with respect to athletics, intimate facilities, religious exemptions, and other sex-segregated programs or activities addressed under Title IX and its regulations?

The memo concludes Continue reading “In One of Its Final Actions, Department of Education Releases Internal Memorandum Analyzing Title IX as it Relates to Sexual Orientation and Gender Identity”

University Hiring Season is Here: Immigration Questions and Strategies

Hiring season is fraught with questions and uncertainties; preparing employment applications;  interviewing, drafting offer letters….. What questions can be asked? What questions should be asked? These concerns are even more pronounced when it comes to immigration status, and immigration sponsorship.  Those tasked with the hiring process often ask,  whether it is legal to ask applicants about their immigration status, how to ask that question,  and even more important,  “Do we have to sponsor for immigration status if the applicant needs it?” Continue reading “University Hiring Season is Here: Immigration Questions and Strategies”

U.S. Department of Education Final Rule on Distance Education and Innovation: What You Need to Know

On September 2, 2020, the U.S. Department of Education (“Department”) published a Final Rule, available at https://ifap.ed.gov/federal-registers/FR090220, on distance education and innovation.  The regulations are effective July 1, 2021; however, institutions are permitted to voluntarily implement any or all provisions as of September 2, the date of publication of the final rule.  The Department states that the rule is intended to “strike a balance” between fostering increased innovation in distance education offerings while protecting students and taxpayers.The rule makes the following regulatory changes:

• Allowing asynchronous delivery of some courses or portions of courses delivered as part of clock hour programs (this significant change was made in response to public comments on the proposed rule);
• Providing flexibility to distance education, competency-based education (CBE), and other types of educational programs that emphasize demonstration of learning rather than seat time when measuring student outcomes;
• Clarifying the distinction between distance education and correspondence courses and more clearly defining the requirements of “regular and substantive interaction” between students and faculty and the permissibility of engaging instructional teams in the delivery of education through distance learning;
• Clarifying the requirements for direct assessment programs, including how to determine equivalent credit hours and how to distribute aid to simplify administration, reduce confusion, and protect taxpayers;
• Limiting the requirement for institutions with strong track records to obtain approval from the Education Secretary for only the first direct assessment program offered by the school at a given credential level;
• Requiring institutions to report to the Education Secretary when adding a second or subsequent direct assessment program or establishing a written arrangement for an institution or organization that is not eligible to participate in the title IV, HEA program to provide more than 25 percent, but no more than 50 percent, of a program;
• Recognizing the value of “subscription-based programs,” and simplifying rules regarding the disbursement of title IV funding to students enrolled in these programs; and
• Requiring prompt action by the Department on applications by institutions to the Education Secretary seeking certification or recertification to participate as an eligible institution in the HEA, title IV program.

The rule also adds a definition of “juvenile justice facility” to ensure that students incarcerated in a juvenile justice facility continue their eligibility for Pell Grants.

Additional regulatory changes include:

• Encouraging employer participation in developing educational programs by clarifying that institutions may modify their curricula based on industry advisory board recommendations without relying on a traditional faculty-led decision-making process;
• Simplifying clock-to-credit hour conversions and clarifying that homework time included in the credit hour definition do not translate to clock hours, including for the purpose of determining whether a program meets the Department’s requirements regarding maximum program length;
• Encouraging institutions to give students equal credit for time spent preparing for and participating in lecture and laboratory courses;
• Clarifying that an institution may demonstrate for purposes of participating in title IV, HEA programs, a reasonable relationship between the length of a program if the number of clock hours does not exceed either 150 percent of the minimum requirement to work in the State in which the institution is located or 100 percent of the minimum hours in an adjacent State;
• Providing that the Education Secretary will rely on the accrediting agency or State authorizing agency to evaluate an institution’s appeal of a final audit or program review determination by the Department that includes a finding about the institution’s classification of a course or program as distance education or the institution’s assignment of credit hours; and
• Encouraging closing institutions to offer quality teach-outs by permitting the application of sanctions to individuals or institutions affiliated with other institutions that closed without executing a viable teach-out plan or agreement. 

The final rule culminated a rulemaking that began nearly two years ago, building on the Trump administration’s Rethink Higher Education agenda that “challenged past practices, assumptions, and expectations about what ‘college’ is, what it should do, and how it should operate.” It remains to be seen whether these regulations would be subject to amendment from a change in Secretary, but we view this set of rules as less controversial than others amended or rescinded by Secretary DeVos (such as Gainful Employment and Borrower Defense to Repayment) and not likely to be a priority for change by a new Administration. Institutions of higher education should familiarize themselves with these rule changes as they develop distance education programs.

2020 ASU GSV Summit Session Replays Available

Duane Morris was a sponsor of the 2020 ASU GSV summit. Several of our attorneys presented at this year’s virtual conference. Below are replays from select sessions.

Ed Tech Policy Session | September 29, 2020

Consumers of education services – students of all ages and the entities that serve them – are hungry for dramatic changes in the education landscape that will deliver increased access, equity, affordability, quality and workforce relevance. Ed Tech has begun to deliver on those needs in extraordinary ways, and the potential is untapped. However, innovation in the market has outpaced how existing regulations and policy govern education as a service. This session will: (1) review friction points our lawyers have observed between Ed Tech models and the current state, federal and accreditor regulatory regimes that apply to educational businesses and educational institutions (and how to spot, anticipate and plan for them), (2) report on recent changes in federal law and policy to promote and foster innovation (including the U.S. Department of Education’s new Distance Education and Innovation Final Rule and increased accreditor flexibilities) and (3) discuss threats and opportunities that may arise from the next Congress and Administration, and how Ed Tech stakeholders can help shape education policy.

Speakers

  • Katherine Brodie, Partner, Duane Morris LLP
  • Kristina Gill, Special Counsel, Duane Morris LLP
  • Nicholas Kent, Senior Education Policy Advisor, Duane Morris LLP

Schools Not Tools | September 30, 2020

EdTech providers increasingly are crossing over from a supporting role to education delivery. Join us to talk about what the regulatory and legal ramifications are to being a school.

Moderator: Tony Guida, Partner, Duane Morris LLP
Speaker: Michelle Donovan, Partner, Duane Morris LLP

Privacy, Data Protection and Intellectual Property Considerations for EdTech Startups | October 8, 2020

This interactive session will cover some of the common legal issues that emerging EdTech companies grapple with in the areas of IP ownership, privacy, and data protection.

Speaker: Michelle Donovan, Partner, Duane Morris LLP

 

Department’s New Final Rule Clarifies Title IX Exemption and Introduces Free Speech Requirements for Grant Recipients 

The Department of Education issued its final rule to implement Executive Order 13864 (Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities). The final rule was announced on September 9, 2020 with an accompanying Fact Sheet, and was formally published on September 23, 2020.  It is scheduled to go into effect on November 23, 2020.

The final rule’s major changes are outlined below, and include a clarification for Title IX as well as new conditions imposed on public and private institutions receiving federal direct grants or subgrants from a state-administered formula program. Continue reading “Department’s New Final Rule Clarifies Title IX Exemption and Introduces Free Speech Requirements for Grant Recipients “

COVID-Related College Tuition Refund Claims Dismissed

Since the global pandemic forced most college campuses to resort to online instruction in March 2020, college students across the country have filed more than 150 lawsuits against their schools seeking refunds of tuition and related fees.

This month, a federal judge in Boston made the first dispositive ruling in such a case against Northeastern University – tossing out most of the claims asserted by the students in a putative class-action matter.  Judge Richard G. Stearns of the District of Massachusetts found in Chong v Northeastern University, 20-10844-RGS, that the contract between the university and its students (the Financial Responsibility Agreement, “FRA”) did not specifically include a right to in-person instruction.  The Judge noted that the FRA ties the payment of tuition to the registration for courses, “not to the receipt of any particular method of course instruction.”

The Judge also dismissed the students’ claims seeking a refund of certain student fees, such as student activity fees, finding that they paid the fees to support certain campus facilities – not necessarily to gain access to them.  Thus, the Court gave no credence to the students’ claims that they should receive a refund of activity fees because the school prevented them from accessing those facilities due to the pandemic.

However, the Court did allow the students’ claims seeking a refund of campus recreation fees to go forward, finding that the students’ payment of those fees may have implicitly created a right to attend home athletic events and use the campus gym and fitness facilities, which ceased on March 12.

Judge Stearns’ ruling may be a sign of things to come for the many similar lawsuits currently pending against colleges and universities throughout the country.  However, as in this case or any breach of contract action, these rulings will likely turn on the specific language of the applicable contract between the institution and the student.

Department of Education releases new Clery Act Appendix; Rescinds 2016 Handbook for Campus Safety and Security Reporting

On October 9, 2020, the Department of Education (the “Department”) posted an Electronic Announcement announcing the rescission of and replacement for the 2016 Handbook for Campus Safety and Security Reporting. Through this announcement, the Department is rescinding the guidance in the 2016 Handbook and replacing it with a Clery Act Appendix to the Federal Student Aid (“FSA”) Handbook. The electronic announcement identifies and explains the significant changes between the 2016 edition and the new Clery-related Appendix. The Department anticipates that this rescission and publication of the new Appendix will help simplify Clery compliance.  Continue reading “Department of Education releases new Clery Act Appendix; Rescinds 2016 Handbook for Campus Safety and Security Reporting”

Proposed Student Visa Rules will Upend Decades of U.S. Policy and Practice

On September 25, Immigration and Customs Enforcement (ICE), the DHS agency with jurisdiction over F-1 foreign student visa holders, published new proposed regulations that would end the long time U.S. practice of issuing “Duration of Status”  to F-1 students. Instead, F-1 visa holders would be limited to 2 or 4 year visa terms depending upon their country of origin, and be required to reapply for F-1 Status through USCIS to obtain extensions, or to leave the United States and apply for an extension .  The proposed regulations were immediately criticized by the higher education community. The rules were called ill-conceived, misguided, unnecessary, and a burden to an industry that has already seen a steady decline in international student admissions. Continue reading “Proposed Student Visa Rules will Upend Decades of U.S. Policy and Practice”

COVID-19 Can Change Everything—If We Let It

According to Dave Clayton, senior vice president of consumer insights at Strada Education Network, hybrid education “was a consistently popular option” throughout a recent survey taken by his organization. It beat out both online and in-person when it came to which option Americans were likely to recommend, as well as which option offered the best preparation for joining the workforce.

Will this change higher education? Of course it will. The market to find students gets more competitive for colleges every year. That trend is predicted to continue long into the future. If today’s junior high schoolers already know that they want “both,” this shift in consumer demand won’t go unnoticed. If college leadership wants the freshman class of 2026 to enroll in their institution, they would be foolish not to adapt.

To read the full text of this article by Duane Morris partner Edward M. Cramp, please visit the University Business website.

Active Ransomware Campaign Targeting Education Institutions

By Michelle Hon Donovan

The Department of Education issued a security alert stating that multiple schools have reported that they have suffered ransomware attacks. Ransomware is a type of malware that uses encryption to block access to a computer system unless a ransom is paid. Ransomware is commonly embedded in email attachments that infect a computer when opened. However, the Department of Education states that phishing attacks have been the primary method used in these reported cases, where the attackers used phishing schemes to gain access to account credentials and then used those credentials to install the ransomware.

The Department of Education recommends that schools implement the following cybersecurity practices to protect against such attacks:

  • Establish a data backup process, ensure the backups are available and accessible, and store the backups offline
  • Implement multi-factor authentication to mitigate account compromises
  • Regularly patch hardware and software
  • Continuously monitor institutional network to detect unauthorized access and malware
  • Create and update your Incident Response Plan
  • Ensure training resources emphasize phishing, as it is frequently the compromising entry point for cyber attacks

The Department also reminds schools that ransomware attacks should be reported immediately to the FSA security team.