On Friday, October 8, 2021, the U.S. Department of Education wrapped up its first week-long session of the (virtual) Affordability and Student Loan Negotiated Rulemaking. The Department’s agenda (see here) kicked off with a discussion of each of the twelve issue papers, some with proposed regulatory language, provided to the committee prior to the beginning of the sessions. Continue reading “U.S. Department of Education Negotiated Rulemaking – Session One Recap”
On October 4, 2021, the Department announced their intention to conduct negotiated rulemaking on the 90/10 rule pursuant to the provisions in Section 2013 of the American Rescue Plan Act of 2021 (“ARPA”). The Department also announced two public hearings for interested parties to provide comment.
Section 2013 of the American Rescue Plan Act of 2021 (ARP) amended HEA section 487(a)(24) to require that a proprietary institution derive at least 10 percent of its revenues from sources that are not Federal education assistance funds. Federal education assistance funds are “Federal funds that are disbursed or delivered to or on behalf of a student to be used to attend such institution.” Section 2013(c)(2) of the ARP provides that regulations developed and published on 90/10 by the Department will not be effective until on or after January 1, 2023.
The notice further indicates that the Department intends to develop proposed regulations affecting institutional and programmatic eligibility, including the 90/10 rule. This language leaves open the possibility that the committee may consider additional regulatory changes. The scheduled public hearings, however, are limited to comments on 90/10. They will announce the topics and schedule of committee meetings in a subsequent Federal Register notice. Continue reading “U.S. Department of Education Announces 90/10 Rulemaking”
On July 28, 2021, a federal district court in Massachusetts issued a decision in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021). This case was brought by organizations and individuals challenging the 2020 amendments to the Title IX regulations.
Most of the amendments plaintiffs challenged were upheld by the Court. However, the Court determined that one part of 34 C.F.R. § 106.45(b)(6)(i) (live hearing requirement at postsecondary institutions) was arbitrary and capricious. Therefore, the Court vacated the part of the provision that prohibits a decision-maker from relying on statements not subject to cross-examination at the live hearing.
On August 24, 2021, the Department issued guidance stating that it would immediately cease enforcement of 34 C.F.R. § 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination. The Department’s non-enforcement position allows for decision-makers at postsecondary institutions to now consider statements made by the parties and witnesses during the investigation regardless of whether they submit to cross-examination at the live hearing. Institutions may now consider emails or text exchanges between the parties leading up to the alleged sexual harassment and statements about the alleged sexual harassment that satisfy the regulation’s relevance rules without submitting to cross-examination. A decision-maker at a postsecondary institution may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if those documents contain statements of a party or witness who is not cross-examined at the live hearing.
The Department’s resources will be updated to reflect the Court’s decision.
On September 7, 2017, in remarks about the previous administration’s approach to Title IX, former U.S. Secretary of Education, Betsy DeVos announced that “the era of rule by letter” was over. On Monday, Secretary Cardona’s Department announced that the culmination of that DeVos deregulatory effort would be rescinded. Continue reading “USDE: The Era of “Rule by Letter” is…Back?”
On August 12, the Supreme Court of the United States denied eight students’ request to block Indiana University’s requirement that students be vaccinated against the coronavirus. Justice Amy Coney Barrett rejected the request without comment, without seeking a response from the state and without referring the request to the full court for a vote. Justice Barrett’s denial indicates the court’s belief that the students’ challenge was not a particularly close case.
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On August 6, 2021, the U.S. Department of Education (USDE) announced that it would be establishing a negotiated rulemaking committee, entitled the “Affordability and Student Loans Committee,” that will, starting in October, meet to begin rewriting certain Title IV-related regulations. The announcement also included a schedule for the virtual negotiation sessions and instructions on how to submit nominations for committee, subcommittee, and advisor spots. The full announcement, officially published on August 10, can be found here.
On June 30, 2021, the U.S. Department of Education (USDE) published a list of six proposed priorities regarding discretionary grant programs for Secretary Cardona and the Biden Administration’s education agenda. While the priorities mostly cover K-12 issues and a policy response to COVID-19, one particular entry (Priority #5) may provide insight into the Department’s thinking regarding the upcoming regulatory agenda, which is set to kick off later this month.
On July 20, 2021, the Department of Education (through the Office of Civil Rights “OCR”), unveiled new guidance to help schools understand their obligations under the Betsy DeVos-era Title IX rule. The rule, which went into effect on August 14, 2020, is currently undergoing a comprehensive review based on the Executive Order issued by President Biden on April 6, 2021.
The 67-page Q&A is divided into 17 sections and provides guidance on a variety of topics covered by the 2020 Title IX amendments, focusing on language within the preamble. The guidance also includes an appendix with sample language schools can utilize (but are not required to) in creating a Title IX policy. Continue reading “New Title IX Guidance Released”
A webinar replay of “Everything Schools Need to Know About Protecting Records in the Cloud and Negotiating Technology Agreements” is now available.
Duane Morris’ Education Industry Group has been ranked in The Legal 500 US 2021 guide.
An excerpt from the publication:
Duane Morris LLP’s education practice brings together a multidisciplinary team skilled across litigation, real estate, and employment law, and has a very strong reputation, “rooted in understanding the needs of in-house counsel.”
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- “The Duane Morris team affords us a truly bipartisan approach to our efforts. They are well read and able to breakdown key points of legislation that would have effects on our membership while offering well thought out strategies to embrace or fight against.”
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