Colleges Fear COVID-19 Spread, Class Actions Over Tuition When Welcoming Back Students

Colleges and universities across the country are beginning to figure out what the fall semester for students will look like. In-house counsel at the schools that have chosen to bring students back to campus full-time need to worry about furthering the spread of the new coronavirus and class action litigation over refunds for tuition, housing and service fees.

It is too early to tell how courts will rule on these kinds of lawsuits, Ed Cramp, a partner at Duane Morris in San Diego said. From his perspective, how education is delivered to a student is not something guaranteed by the university. However, the suits asking for a refund of fees for services not used could be problematic.

“The issue for the institutions is that many of them just don’t have the money. It is not a matter of, ‘Let me just write you a check,’” Cramp said.

To read the full text of this article in Corporate Counsel magazine quoting Duane Morris partner Ed Cramp, please visit law.com (subscription required).

U.S. Department of Education Extends Clery Act Annual Security Reporting to December 31

In a welcome bit of regulatory relief at time when institutions of higher education are working to comply with a new Title IX rule by August 14, 2020, the Department announced on July 10 that it is extending the date for institutions to distribute their Annual Security Report (ASR) and Annual Fire Safety Report (AFSR) to required recipients to December 31, 2020 (from October 1). The Department does encourage institutions to distribute their reports on the normal schedule if possible.

In addition, the electronic annual crime and fire statistics survey will now be open now from November 18, 2020 through January 14, 2021 for transmission of data to the Department.

The Department states in its July 10 announcement that it “encourages schools to take appropriate steps to ensure the health and safety of their students and employees, to continue to act in accordance with their campus safety policies and procedures, and to advise the campus community about changing conditions that may affect their safety or any major changes to safety policies or practices.” Institutions continuing or returning to partial or full on ground operations should keep in mind that they are still obligated to comply with their published campus safety policies and procedures, including with regard to emergency notifications and crime statistics collection and reporting. Any changes to published procedures should be communicated to the campus community.

https://ifap.ed.gov/electronic-announcements/040320UPDATEDGuidanceInterruptStudyRelCOVID19

 

International Students Banned from 100% Remote University Programs ICE Decides

On July 6, 2020 the  Student and Exchange Visitor Program (SEVP), a branch of the Immigration and Customs Enforcement (ICE) agency, charged with regulating universities that admit foreign students,  provided long awaited guidance for the fall 2020 semester. In an unexpected about face from guidance issued in March 2020 at the height of the COVID-19 response effort by higher education,  SEVP has determined that foreign students on F-1 visas cannot attend universities that will be 100% remote during the  fall 2020 semester. Continue reading International Students Banned from 100% Remote University Programs ICE Decides

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

Paternalistic Employers, Beware: EEOC Addresses Employer Concerns for Workplace Safety via Mandated Accommodations

On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) released additional Q&As in “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” clarifying and expanding upon guidance covered in our previous Alert.

As businesses reopen during the COVID-19 pandemic, employers continue to grapple with how to safely return employees to the workforce, particularly those employees with certain underlying conditions identified by the CDC, as well as pregnant employees and those over the age of 65. Continue reading Paternalistic Employers, Beware: EEOC Addresses Employer Concerns for Workplace Safety via Mandated Accommodations

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.

U.S. Department of Education Releases Additional CARES Act and COVID-19 Guidance

On March 15, 2020, the U.S. Department of Education published additional guidance for postsecondary institutions extending and clarifying regulatory flexibilities contained in the CARES Act and related to COVID-19.

Key components of the guidance include:

  • Extension of the time frame for authorization by the Department of temporary distance education approval for previously on-ground programs to include payment periods that overlap March 5, 2020, or that begin on or between March 5, 2020, and December 31, 2020.
  • Waiver of the Department’s requirement that an institution offering at least 50% of a program by distance education to be accredited for distance education by an accrediting agency that has distance education in the scope of its recognition. The waiver is effective for payment periods that begin on or before December 31, 2020.
  • Six month extension of the Title IV financial statement and compliance audit deadlines.

The guidance also includes important new information concerning:

  • Accreditation site visit extension flexibilities and requirements.
  • Extension by six months of the “materially complete application” requirements following a Title IV change of ownership and control to allow additional time for the institution to remain TItle IV certified while secure state and accreditor approvals as well as the audited same day balance sheet.
  • Waiver of MCAT score requirement for foreign graduate medical school admissions for students admitted to medical school during an admissions year in which the MCAT was unavailable to students for some period of time during that year due to COVID-19 related interruptions.
  • Additional flexibilities concerning verification of high school (or equivalent) completion status that applies until December 31, 2020, for both the 2019-2020 and 2020-2021 award years.
  • Treatment of the PPP loan forgiveness amount in calculating the institution’s composite score.
  • Treatment of student workers when determining the number of employees for PPP loan eligibility.
  • Tax treatment of HEERF and emergency financial aid grants to students.
  • Clarifications  regarding Campus-Based Waivers/Reallocation and FSEOG Emergency Aid Grants.
  • Clarifications regarding Leaves of Absence (LOA) flexibilities.
  • Return of Title IV Funds (R2T4) guidance and processing detail.
  • Clarifications regarding Satisfactory Academic Progress (SAP) flexibilities.
  • Clarifications regarding Teacher Education Assistance for College and Higher Education (TEACH) Grant Program flexibilities.

Institutions should carefully analyze the full guidance document and related Q&A , available here: https://ifap.ed.gov/electronic-announcements/051520UPDATEDGuidanceInterruptStudyRelCOVID19May2020