Duane Morris attorney Jonathan Helwink authored the Inside Higher Ed article “Future of Borrower Defense May Look Different” about how new borrower defense to repayment regulations may bring increased compliance risks to colleges of all types.
Read the full article on the Insider Higher Ed website.
On April 6, 2023, the U.S. Deptartment of Education released a new Notice of Proposed Rulemaking (“NPRM”) on Title IX. This NPRM focuses on the application of Title IX to gender in student sports.
The current Title IX rule (last amended in 2020 under the Trump Administration) does not expressly address the criteria a school should use to determine eligibility to participate on a male or female athletic team. This NPRM proposes to change that and “would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity.” However, in the NPRM, the Department states that it recognizes that in some instances, “particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.” Through the proposed rule, the Department is attempting to provide schools with a “framework for developing eligibility criteria to protect students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.”
Under the proposed framework, a one-size-fits-all policy banning transgender students from participating in athletics consistent with their gender identity is prohibited. The proposed regulation would be in the Title IX regulations at section 106.41(b)(2):
“If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”
This NPRM will be open for public comment for 30 days from publication in the Federal Register and we expect comments to be strongly divided. Once the comment period closes, the Department will review the comments received and will either proceed with the rule as proposed, issue a new modified proposal or withdraw the proposal.
The update also lists immediate changes in the interpretation of DCL 23-03 that the Department wanted to communicate immediately:
Specifically, the Department does not consider contracts involving the following activities to constitute third-party servicer relationships:
See Update on the Department of Education’s Third-Party Servicer Guidance – ED.gov Blog
Institutions of higher education (IHEs) and companies providing services to IHEs (including so-called online program managers or OPMs) should take careful note of two announcements by the U.S. Department of Education that could significantly impact the institution/service provider relationship and the Department’s oversight of that relationship.
First, and most immediately effective, the Department has revised its subregulatory guidance regarding the activities that make an entity providing services to an IHE a “Third Party Servicer” (TPS) for Title IV purposes. In a significant expansion over prior guidance, an OPM providing services to an IHE related to student recruiting and retention, providing software products and services involving Title IV administration activities, or providing educational content and instruction are now defined as a TPS. Being defined as a TPS comes with significant increased risk and compliance obligations by the third party and the institution. There is an open public comment period on this change through March 17, 2023.
Read the full text of this Alert on the Duane Morris website.
Important Update: On February 28, 2023, the Department published an update to Dear Colleague Letter 23-03 that makes clear the guidance does not become effective until September 1, 2023. The reporting deadline for institutions and third-party servicers to report to the Department is also extended until September 1, 2023. Further, the Department extended the comment period through March 30, 2023.
A video replay of the webinar “What Does It All Mean? The U.S. Department of Education’s Regulatory Reach Over Service Providers for Institutions of Higher Education” is available to view.
On January 11, 2023, the Consumer Financial Protection Bureau (“CFPB” or the “Bureau”) announced designs to create a public registry of terms and conditions in form contracts. Under the proposed rule (“Rule”), certain nonbank entities, including nonbank student loan servicers, would be required to register and submit information related to its terms and conditions that purport to waive or limit consumer rights and protections, along with identifying company information. The Bureau has opened up the Rule for a sixty-day comment period (closing on March 13, 2023), after which decisions will be made on its final form. Continue reading “Consumer Financial Protection Bureau Proposes Mandatory Registration of Terms and Conditions: Nonbank Student Loan Servicers Among Those Potentially Impacted”
Student Test Taker Privacy Protection Act (SB-1172), limits the collection of personal data by proctoring services. The pandemic created a surge of online-proctoring services which utilize various types of personal information, such as a driver’s license, other identification and/or biometric data, to verify a student’s identity during a proctored exam. SB-1172 seeks to establish data protections for the online test taker. The Act prohibits a proctoring service from collecting, retaining, using, or disclosing personal information except to the extent necessary to provide the proctoring services.
Most higher education institutions use outside proctoring services (such as Proctorio, ProctorU, Exmanity and ExamSoft) to administer proctored online exams so the institutions would be directly responsible for regulating the information collected. However, higher education institutions should take steps to ensure that the proctoring services utilized adhere to the bill’s restrictions. Current proctoring service contracts should be analyzed and likely amended to at a minimum include that the service provider will not collect, retain, use or disclose student personal information except to the extent necessary to provide the proctoring services.
Overview: Back in September 2021, the National Labor Relations Board general counsel issued GC Memorandum 21-08, formally taking the prosecutorial position that certain college and university athletes are employees entitled to all of the rights guaranteed by the National Labor Relations Act. This would include the right to engage in certain protected concerted activities, such as strikes, and to organize to join a union. For private colleges and universities, formal, legal recognition of student-athletes as “employees” would significantly change the relationship between schools and athletes.
Discussion: Back in September 2021, General Counsel Jennifer Abruzzo of the National Labor Relations Board (the “Board”), who leads the enforcement arm of the Board, issued GC Memorandum 21-08, formally taking the prosecutorial position that certain college and university athletes are employees entitled to all of the rights guaranteed by the National Labor Relations Act (the “Act”). This would include the right to engage in certain protected concerted activities, such as strikes, and to organize to join a union.
This is not the first time a Board general counsel has taken this position; Richard Griffin, appointed by President Barack Obama, issued a similar memorandum in 2017 that was later rescinded by his Republican successor, Peter Robb, appointed by President Donald Trump. Abruzzo, however, has taken this legal analysis a step further, arguing that “misclassifying” collegiate athletes as mere “student-athletes,” and leading athletes to believe that they do not have statutory protections, violates the Act in and of itself.
For private colleges and universities (the Act does not apply to public institutions of higher education), formal, legal recognition of student-athletes as “employees” would significantly change the relationship between schools and athletes. To start, schools would have to guess whether an athlete qualifies as an employee in the first place. Guessing incorrectly could have expensive consequences, as merely mislabeling the student could risk violating the Act and require defending against the ensuing charge.
As employees, athletes would have the right to engage in collective action, which could clash with school codes of conduct or campus rules. And, should student-athletes choose to organize and vote to join a union, the school would be required to engage in good faith collective bargaining over wages, hours and other terms and conditions of the athletes’ “employment.” The implications of such an arrangement could be significant: Would this require negotiations over the costs of meal plans and housing? What about school-sponsored health insurance plans? Would student-athletes gain the right to have union representation in disciplinary proceedings? Classifying a school’s athletes as employees would undoubtedly unleash a Pandora’s box of issues and questions.
Since publishing the memorandum over a year ago, Abruzzo’s office has yet to prosecute a test case that would give the Board (currently a 3-2 Democrat majority) the opportunity to formally adopt the position that certain student-athletes are employees under the Act. However, private colleges and universities should not assume that this agenda item has been forgotten.
There are a couple of pending cases against the National Collegiate Athletic Association alleging that it has misclassified student-athletes. And, on December 15, 2022, Abruzzo announced that her office found merit in at least one pending unfair labor practice charge case, which could result in a formal charge (giving her a pathway to litigate the issue up to the Board). Meanwhile, there are other legal efforts to classify collegiate athletes as employees through legislative or judicial action.
In short, private colleges and universities should stay alert to this classification issue and keep an eye out for signs of union organizing among college athletes, particularly football players at Division I Football Bowl Subdivision private colleges and universities. Though it is impossible to predict how this battle over collegiate athletes will unfold, one thing is certain: It is not going away any time soon.
For More Information
If you have any questions about this Alert, please contact Elizabeth Mincer, Zev Grumet-Morris, Katherine Brodie, or any of the attorneys in our Education Industry Group or the attorney in the firm with whom you are regularly in contact.
A video replay is now available for the webinar “What the Midterm Election Results Mean for Higher Education,” recently presented by Duane Morris’ Education Team.
For more information, please visit the event page.
Last year, the Federal Trade Commission (FTC) amended the Safeguards Rule under the Gramm-Leach-Bliley Act (GLBA). The comprehensive amendment updated data security requirements for financial institutions, including all Title IV institutions of higher education. In response to reports of personnel shortages and supply chain issues, on November 15, 2022, the FTC announced that it has extended the compliance deadline by six months (to June 9, 2023) for provisions of the rule that were originally to become effective on December 9, 2022.
The GLBA is a federal law enforced by the FTC. It governs financial institutions regarding their use and collection of customer personally identifiable information. The specific cybersecurity requirements of the GLBA are set forth in the Safeguards Rule. The U.S. Department of Education―via the Program Participation Agreement, several Dear Colleague Letters, the FSA Handbook and the audit guide―has made it clear that Title IV schools are considered financial institutions and subject to the legal obligations to protect student information required under the GLBA. As such, Title IV schools must meet these strengthened security requirements to better protect consumer (student) financial information.
To view details about what Safeguards Rule provisions are included in the extension, please see our Alert.
These requirements are not policies and procedures that can be implemented overnight. Considering the shortage of qualified personnel to implement information security programs and the various supply chain issues, schools may need every bit of those six months to develop an information security program that meets the rule’s comprehensive requirements. Schools should work with legal counsel and an information security professional to draft or revise a comprehensive cybersecurity program to protect student records and ensure compliance with the updated Safeguards Rule.
