UpdateED

On October 28, 2022, the U.S. Department of Education (Department) published the Final Rule (FR) that makes significant and wide-ranging changes to the 90/10 Rule and the change in ownership and control (CIO) regulations. In the accompanying Fact Sheet, the Department stated that the FR will “promote accountability…and strengthen protections for veterans, service members, students, and borrowers.”

The FR amends Title IV Revenue and Non-Federal Education Assistance Funds regulations to implement the statutory change in the American Rescue Plan Act of 2021 (ARP) and amends which non-Federal funds can be counted when determining compliance with the 90/10 rule. The FR also amends regulations to clarify the process for consideration of changes in ownership and control (CIO).

Below is a high-level summary of the major revisions to the 90/10 and CIO regulations. Continue reading “USDE Publishes Final Rule on 90/10 Rule and Change in Ownership Regulations”

On June 23, 2022, the 50^th Anniversary of the Title IX statute, the U.S. Department of Education released the Notice of Proposed Rulemaking (“NPRM”) for the Title IX rule. The proposed rule is expected to be published in the Federal Register on June 27, 2022. Following publication, interested parties will have 60 days to submit public comment. 

First, the Department proposed to amend Title IX regulations to:
• Require recipients to adopt grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination and take other necessary steps to provide an educational environment free from sex discrimination;
• Clarify the Department’s view of the scope of Title IX’s prohibition on sex discrimination, including related to a hostile environment under the recipient’s education program or activity, as well as discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and
• Clarify a recipient’s obligations to students and employees who are pregnant or experiencing pregnancy-related conditions.

With regard to sex-based harassment, the proposed regulations would:
• Define sex-based harassment to include but not be limited to sexual harassment;
• Provide and clarify, as appropriate, definitions of various terms related to a recipient’s obligations to address sex discrimination, including sex-based harassment;
• Clarify how a recipient is required to take action to end any sex discrimination that has occurred in its education program or activity, prevent its recurrence, and remedy its effects; and
• Clarify a recipient’s obligations related to the grievance procedures and other necessary steps when it receives a complaint of sex discrimination. 

With regard to discrimination against individuals who are pregnant or parenting, the proposed regulations would:
• Define the term “pregnancy or related conditions” and the term “parental status,” and prohibit discrimination against students and applicants for admission or employment on the basis of current, potential, or past pregnancy or related conditions; and
• Clarify a recipient’s obligations to students and employees who are pregnant or experiencing related conditions. 

In addition, the proposed regulations would:
• Articulate the Department’s understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity;
• Clarify and streamline administrative requirements with respect to designating a Title IX Coordinator, disseminating a nondiscrimination notice, adopting grievance procedures, and recordkeeping;
• Specify that a recipient must train a range of relevant persons on the recipient’s obligations under Title IX;
• Clarify that, unless otherwise provided by Title IX or the regulations, a recipient must not carry out any otherwise permissible different treatment or separation on the basis of sex in a way that would cause more than de minimis harm, including by adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with their gender identity; and
• Clarify a recipient’s obligation to address retaliation.

Duane Morris is in the process of reviewing the proposed rule in detail and will prepare bullet points and a full summary in the coming days.

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.

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.”

Testimonials

• • • • “This practice group is rooted in understanding the needs of in-house counsel and providing recommendation and advice in which operational impact is considered.”
      • “Tony Guida is exceptional at connecting people and issues and staffing matters with key talent, while considering the client need. He is well respected in the field and has served in a variety of capacities in-house prior to move to partner. His appreciation of board expectations, operational needs legal and regulatory concerns leads to unmatched service.”
      • “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.”
        

For more information, please visit the firm website.