New California Bill Requires Schools to Provide Intimate Partner and Dating Violence Outreach Programming at Student Orientation

On July 12, 2019, California Governor, Gavin Newsom, signed AB 381 into law, amending Section 67386 of the Education Code. Effective January 1, 2020, the bill conditions the receipt of state funds for student financial assistant on postsecondary institutions (as well as community colleges and the CSU/UC systems) providing outreach programming regarding intimate partner and dating violence as part of every incoming student orientation.

Prior to the passage of AB 381, California colleges were already required to implement comprehensive policies regarding sexual violence, domestic violence, dating violence and stalking. However, AB 381 specifically addresses what must be included in a college’s outreach programming and also requires that the programming be provided to all incoming students (including graduate, transfer and international students). Colleges must inform students of: Continue reading “New California Bill Requires Schools to Provide Intimate Partner and Dating Violence Outreach Programming at Student Orientation”

U.S. Department of Education Publishes State Authorization Rule

On November 1, 2019, the U.S. Department of Education published the Final Regulations for accreditation and state authorization. This notice focuses on the updates to State Authorization of Distance and Correspondence Education. The effective date will be July 1, 2020, with early implementation allowed at the discretion of each institution or agency for sections § 600.2, § 600.9, § 668.43 and § 668.50 (described herein). The rule is the product of consensus negotiated rulemaking. The regulations address the role of reciprocity agreements, update the language regarding student location, clarify required state authorizations for distance education programs, and revise consumer disclosure requirements. Continue reading “U.S. Department of Education Publishes State Authorization Rule”

First Circuit Rejects Professor’s First Amendment Challenge to Maine Law Governing University Collective Bargaining

by John M. Simpson.

On October 4, 2019 the U.S. Court of Appeals for the First Circuit affirmed the judgment of a district court dismissing an action brought by an economics professor at the University of Maine at Machias seeking to invalidate, on First Amendment grounds, a Maine statute that governs the collective bargaining process between the University of Maine system and its faculty.  Reisman v. Associated Faculties of the Univ. of Maine, No. 18-2201 (1st Cir. Oct. 4, 2019).    Continue reading “First Circuit Rejects Professor’s First Amendment Challenge to Maine Law Governing University Collective Bargaining”

Avoiding Land Mines: Do Your Homework on that New Campus or Instructional Location

Authors: Julie Mebane, Partner (Real Estate) and Katherine Brodie, Partner (Higher Education)

Nothing is more unwelcome than a big surprise after your institution has invested hours and dollars in a new instructional location. Up front due diligence is essential, and it needs to identify issues that may impair your ability to operate at a new location or expose the institution to significant liabilities. Be sure to consider the following and utilize counsel well versed in college and university property acquisitions and applicable regulations to examine any problems you may encounter:

  • What is the zoning of the property? Is there a zoning report that can be reviewed (if not, consider ordering one)? Does the property have the number of parking spaces required by law or local ordinances?
  • Are there any CC&Rs (covenants, conditions and restrictions) recorded against the property? Get and review copies to make sure they don’t prohibit any intended uses.
  • Is there a conditional use permit (CUP) or planned development permit affecting the property? If so, review this for any use restrictions.
  • What is the current condition of the property and the physical plant? Check for current building permits, and consider getting a professional inspection report on the building’s systems.
  • Does the current owner have a title policy covering the property? Important information about the location and its history can be gained from this document.
  • Does the owner have a Phase 1 environmental assessment regarding any hazardous materials at the location? Request and review this for possible issues, and keep it as a baseline in case of future problems.
  • Are there any litigation or condemnation actions that have been filed relating to the property? These can be red flags for any future owner or occupant.
  • Is the property in a designated flood zone, near an earthquake fault line, or otherwise located in an area exposed to natural disasters? Natural hazard disclosure reports can be obtained without much expense.
  • Was the property previously used by an institution participating in U.S. Department of Education Title IV federal student aid programs and did that institution close with unpaid liabilities owed to the Department? If so, moving into that space by lease or purchase could expose your institution to assumption of the unpaid liabilities of the previous owner.
  • Do you know your state, accreditor and Department of Education reporting obligations? These agencies must generally be notified of any change of location or any new space where more than 50% of an eduational program will be offered, or the institution risks liability for all Title IV funds disbursed to students at the new location and potentially other regulatory sanctions.

Most of these questions can be answered with the help of a forthcoming landlord when negotiating a new lease and with the assistance of experienced counsel. If the property is being purchased, the seller is likely required by law to make certain representations and warranties and to disclose property-related information and materials during the buyer’s due diligence period.

So don’t be surprised – get the information you need before you commit to a new campus or instructional location.


D.C. Circuit Revives False Claims Act Retaliation Case Against University

By John M. Simpson.

On September 20, 2019, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court judgment that had dismissed a retaliation case brought by a university veterinarian who was allegedly terminated for making internal and external complaints about the conditions in which laboratory animals were being maintained. Singletary v. Howard University, No. 18-7158 (D.C. Cir. Sept. 20, 2019). The appellate panel deciding the case split on the question of whether plaintiff was engaged in protected activity or was simply doing her job. Continue reading “D.C. Circuit Revives False Claims Act Retaliation Case Against University”

Gainful Employment- October 1 Data Reporting Deadline for 2018-2019

On July 1, 2019, the U.S. Department of Education published a final rule rescinding the Department’s gainful employment (GE) regulations (2014 Rule) in the Federal Register. Institutions were given the option to early implement the rescission of the GE rule. Institutions that did not early implement the rule are still required to comply with the 2014 rule until the rescission becomes effective on July 1, 2020, and are expected to report GE data for the 2018–19 Award Year to National Student Loan Data System (NSLDS) by October 1, 2019. Compliance with the GE rule would be monitored via annual Title IV compliance audits and Title IV program reviews.

Detailed information about the use of NSLDS for reporting GE data is provided in the NSLDS Gainful Employment User Guide, available on the NSLDS User Documentation page of the Information for Financial Aid Professionals (IFAP) website, as well as from the “Resources” section of the Gainful Employment Information Page.

U.S. Department of Education Issues Final Borrowers Defense to Repayment Regulation

This afternoon the U.S. Department of Education posted the pre-publication notice of the Final Borrowers Defense to Repayment regulation which rewrites the regulations promulgated under the Borrower Defense to Repayment provision of the Higher Education Act (HEA). A summary of the rule can be found here. The official version will be published in the Federal Register. Continue reading “U.S. Department of Education Issues Final Borrowers Defense to Repayment Regulation”

Clery Act Compliance: October 1 Deadline for Colleges and Universities to Complete and Distribute Annual Security Report Is Fast Approaching

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, or Clery Act, 20 U.S.C. § 1092(f) (34 C.F.R. § 668.46), requires all schools, colleges and universities that participate in federal student financial aid programs to:

  1. Maintain and disclose to the public statistics, policies and programs about certain crimes occurring on and/or near a campus; and
  2. Have in place and be able to demonstrate implementation of specific campus safety policies, including those related to crimes of sexual violence.

Educational institutions must provide and distribute this information in a Clery Act Annual Security Report (ASR) by October 1, 2019. The U.S. Department of Education guidance specifies that this is a firm deadline; there is no grace period and no exemptions exist.

View the full Alert on the Duane Morris LLP website.

Webinar: How the CCPA Impacts the Higher Education Industry

The California Consumer Privacy Act of 2018 Webinar Series will be hosting its third installment, “How the CCPA Impacts the Higher Education Industry,” to be held on September 5, 2019. The webinar will be presented by Duane Morris attorneys Brandi A. Taylor and Michelle Hon Donovan.

Brandi Taylor
Brandi A. Taylor
Photo of attorney Michelle Hon Donovan
Michelle Hon Donovan

This session provides an overview of the new law and how it applies to schools and companies in the education sector. Nonprofit educational institutions are exempt from the new law. However, it will apply to any for-profit education institutions, service providers and technology companies that collect any information on California residents and meet any of the following criteria:

  • Have an annual gross revenue of $25 million or more;
  • Collect, sell or share for commercial purposes the personal information of at least 50,000 consumers, households or devices annually; or
  • Derive at least 50 percent of annual revenue from selling consumers’ personal information.

To register for this webinar, please visit the Duane Morris website.

U.S. Department of Education Rejects California’s Student Complaint Process But Provides Path to Compliance

Late on Friday, August 2, 2019, the U.S. Department of Education sent a letter to the California Department of Consumer Affairs that rejected California’s proposed complaint process for Californians attending online programs offered by out-of-state public and nonprofit institutions, but provided a clear path to compliance and a promise not to disrupt federal student aid, assuming California takes the steps outlined in the letter. We previously summarized aspects of the 2016 State Authorization Rule in our July 23, 2019, and July 26, 2019, Alerts.

Here are four key takeaways from the Department’s letter.

1. Federal student aid to Californians will not be disrupted IF California takes the steps outlined in the letter to meet the 2016 State Authorization requirements.

The Department’s August 2 letter “assumes” California will do three things: (1) modify its plan to refer student complaints to a California state agency for adjudication, (2) require a California state agency to oversee the investigation of the student complaints and resolve them, according to applicable California state law, and (3) receive complaints regarding issues starting from at least May 26, 2019, the date that the 2016 regulations went into effect.

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