Higher Education Report

Higher Education Report

U.S. Department of Education Withdraws 2011 “Dear Colleague Letter” and 2014 Q&A on Sexual Misconduct; New Guidance Document Issued

Posted in Higher Education, Title IX

In a move that was foreshadowed by statements from the new administration, by letter dated September 22, 2017, the U.S. Education Department, Office for Civil Rights (“OCR”) announced the withdrawal of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence. OCR will no longer rely on these documents in the enforcement of Title IX cases.  As reasons for this action, the Education Department cited concerns that the 2011 and 2014 guidance documents led to “deprivation of rights” for students and that the Department had not followed a formal public notice and comment process before issuing the 2011 and 2014 guidance documents.

New September 2017 Question & Answer Document Issued

In place of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence, the Department issued a new question and answer document – the September 2017 Q&A on Campus Sexual Misconduct  – to guide institutions while the Department conducts an official rulemaking process to promulgate new Title IX regulations. This new Q&A relies in large part on the 2001 Revised Sexual Harassment Guidance and the January 25, 2006 Dear Colleague Letter on Sexual Harassment. Continue Reading

U.S. Department of Education to Rescind Subregulatory Guidance on Sexual Violence and Issue New Regulations

Posted in Higher Education

In remarks today, United States Secretary of Education Betsy DeVos announced that the Department of Education plans to initiate a public comment period to begin the process of adopting new regulations on campus sexual violence and harassment prevention and response. The new regulations would supplant existing Department subregulatory guidance (most notably the April 4, 2011 “Dear Colleague Letter” and the 2014 “Questions and Answers on Title IX and Sexual Violence” issued by the Office for Civil Rights).  The timing of the Department’s rescission of the existing guidance is not entirely clear.  Initially it appeared that, contrary to expectations in some quarters, the existing guidance would remain in effect pending completion of the rulemaking process (and that institutions could and should continue to follow it in the interim). However, following Secretary DeVos’s remarks, the Department indicated that it would issue  new “information” about how institutions should comply with their Title IX obligations pending completion of the rulemaking process.

The content and significance of any regulations that might ultimately be issued is, of course, difficult to predict and will depend at least in part on the nature of public comments that the Department receives. However, based upon recent statements by Secretary DeVos and Acting Assistant Secretary for Civil Rights Candice Jackson, institutions can likely expect any new regulations to address, among other things, the rights of students accused under campus disciplinary processes (potentially in a manner akin to some of the respondents’ rights provisions of New York State’s so-called “Enough is Enough” legislation of 2015).

The new regulations will add to the existing patchwork quilt of legal and regulatory requirements to which institutions are subject in this area. Notably, certain federal requirements with respect to campus sexual violence policies and procedures (e.g., the requirement that students be permitted the assistance of an “advisor of choice” in connection with campus disciplinary proceedings) arise not from the Department’s subregulatory guidance, but from the 2014 Violence Against Women Act (VAWA) amendments to the Clery Act.  These requirements would be unaffected by any regulations the Department may adopt.  In addition, institutions in states such as New York, California and Illinois will also need to assess and resolve potential conflicts between the federal regulations and state law sexual violence statutes.

Needless to say, today’s announcement makes the future course of sexual violence prevention and response on college and university campuses an unpredictable proposition. One thing is certain, however: institutions can expect, yet again, the need to review and revise their policies and procedures as they have done so many times before based on a seemingly never-ending succession of legislative and regulatory pronouncements.

Trump Administration’s Rescission of DACA to Affect Faculty, Students and Staff at Colleges and Universities

Posted in DACA, Higher Education, Student Affairs

On September 5, 2017, Attorney General Jeff Sessions announced the Trump administration’s formal plan to end the Deferred Action for Childhood Arrivals (“DACA”) program. The rescission of DACA and the benefits afforded by the program will affect individuals employed by and enrolled in colleges and universities across the country.

DACA, implemented in 2012 through an executive order by former President Barack Obama, allows illegal immigrants who entered the U.S. as minors to receive a renewable two-year period of deferred action. In addition, DACA recipients are eligible to receive an employment authorization document (“EAD”), which allows them to work legally in the U.S., and advance parole, which allows them to re-enter the U.S. following a trip abroad.  Currently, about 800,000 individuals are participating in the DACA program.  The Trump administration’s decision to phase out the DACA program will end the work authorization and advance parole of DACA beneficiaries and potentially open the doors for their deportation.

The DACA program is scheduled to end in six months, on March 5, 2018. As of September 5, 2017, the Department of Homeland Security (“DHS”) no longer accepts new EAD or advance parole applications from DACA beneficiaries.  In addition, any pending advance parole applications are going to be closed by DHS and returned to the respective DACA applicants.  Individuals whose EADs expire prior to March 5, 2018 may apply for a two-year renewal, but their applications must be received by the DHS on or before October 5, 2017.

Institutions’ human resources offices may wish to identify those individuals who are employed pursuant to DACA by reviewing the I-9 forms and copies of the I-9 documents (if any) already on file. DACA beneficiaries will have EADs with a “C33” category and will remain employment authorized until the expiration date on their EADs. The employment authorization of these individuals must be reverified by completing Section 3 of Form I-9 no later than the expiration dates on the EADs.  Individuals who are unable to provide evidence of their continued employment authorization can no longer be employed at the college or university.  With respect to those DACA employees whose EADs expire prior to March 5, 2018, colleges and universities may choose to provide a gentle reminder that renewal applications for a two-year extension must be filed and received by the DHS on or before October 5, 2017.

With respect to DACA students, faculty or staff who were planning to study abroad or attend a conference or other event outside the U.S., colleges and universities may choose to advise these individuals to change their plans and remain in the U.S., even if they have advance parole that has not yet expired since USCIS retains the authority to revoke or terminate an advance parole document at any time.

As expected, the Trump administration’s decision to phase out the DACA program is already facing challenges in courts. On September 6, fifteen states and the District of Columbia filed a lawsuit in the federal court for the Eastern District of New York opposing DACA’s termination.  There also is the possibility that Congress will pass a bill to either reinstate the DACA program or replace it with a similar program. We will provide you with updates regarding the status of the DACA program as they become available.

“Extreme Vetting” Comes to Fruition as USCIS Plans to Interview Employment-Based Permanent Residence Applicants

Posted in Immigration

Last week, a spokesperson for the U.S. Citizenship and Immigration Services (USCIS) confirmed that in-person interviews will now be required for employment-based nonimmigrant visa holders (e.g., H-1B, O-1, etc.) applying to adjust their status to permanent residents (“green card” holders).  Information currently available from the USCIS indicates that this interview requirement is expected to take effect on October 1, 2017.  This mandate appears to be a result of the Trump administration’s plan to apply “extreme vetting” to immigrants and visitors traveling to the U.S.

Traditionally, employment-based adjustment of status applicants have not been interviewed as part of the process, unless deemed necessary by the government. The interview mandate will most likely lengthen the processing times for green card applications as approximately 130,000 employment-based applications are filed annually with the USCIS.  Currently, the USCIS is taking more than 6 months to process employment-based green card applications at its various service centers throughout the United States.

There is no word on where the USCIS intends to conduct interviews pursuant to this mandate. We will provide updates as additional information becomes available.

New York Institutions: An Introduction to Paid Family Leave

Posted in Paid Family Leave

On July 19, 2017, the New York State Workers’ Compensation Board (WCB) published its final regulations implementing the New York Paid Family Leave Law (PFL). For those that may be less familiar with the particulars of this new law, beginning on January 1, 2018, virtually every private employer in New York State will be obligated to provide eligible employees with paid leave for certain qualifying family circumstances:

(1) for the birth, adoption, or placement of a new child;
(2) to care for a family member with a serious health condition; or
(3) for a qualifying exigency arising from a family member’s military service.

PFL will be phased-in over the next four years and can be funded through employee payroll deductions. In 2018, for example, eligible employees will be entitled to take up to 8 weeks of paid leave for a qualifying reason.  Significantly, and unlike federal Family and Medical Leave and state disability benefits, PFL is not intended to cover an employee’s own serious health condition.  Instead, PFL is intended to complement New York’s existing state disability insurance program.  Some additional PFL fundamentals can be found on Bond’s Labor & Employment Law Blog – “New York Labor and Employment Law Report” at http://www.nylaborandemploymentlawreport.com/.

Our focus today is on several frequently asked questions regarding PFL that we have received from our higher education clients.

Question:  Are private colleges and universities covered by PFL?

Answer:  Yes.  Private colleges and universities are deemed to be covered employers under PFL. However, as not-for-profit organizations, they may have some employees who are not covered by PFL.  Specifically, employees engaged in a “professional” or teaching capacity for nonprofit educational institutions are excluded from the definition of “employee” under the law.  Institutions can extend coverage to these exempt classes of individuals if they choose to do so, but this is not required.

Question:  Are public institutions covered by PFL?

AnswerNo, to the extent that such institutions fall within the definition of a “public employer”, which includes the state, a political subdivision of the state, a public authority, or any other governmental agency or instrumentality.

Question:  Can public institutions voluntarily choose to provide benefits under the PFL law?

Answer:  Yes.  Public employers are permitted to opt-in to PFL. The process for opting-in is slightly different for unionized and non-unionized employers.  If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ advance notice of its decision to opt-in to not only the WCB, but to all employees who will be required to make PFL contributions. In order for a public employer to cover/opt-in its unionized employees, the public employer must engage in collective bargaining and reach consensus / agreement with the applicable union.  Once an agreement is reached, the employer must notify the WCB that an agreement has been reached and provide certain information to the WCB.

Question:  Are higher education institutions who currently provide voluntary state disability insurance coverage (DBL) to their employees also required to provide PFL?

Answer:  No.  However, if these institutions currently provide voluntary DBL coverage to their employees, they must notify both the employees and the WCB whether they will also provide voluntarily PFL coverage. Notification must be made by no later than December 1, 2017.

Question:  Are student employees entitled to PFL?

Answer:  Yes, provided they satisfy the requisite eligibility criteria. Student employees are treated in the same manner as any other employee.  If the student employee is regularly scheduled to work at least 20 hours per week, he/she is eligible to take PFL after he/she has been employed for 26 weeks.  If the student employee is regularly scheduled to work less than 20 hours per week, he/she is eligible to take PFL after working 175 days.

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For more information and continued updates on PFL, please visit the New York Labor and Employment Law Report at http://www.nylaborandemploymentlawreport.com/.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.

Department of Justice Reportedly to Target Race-Conscious Admissions Policies

Posted in Higher Education

According to published reports, the Trump administration appears poised to direct the Department of Justice to begin investigating, and potentially litigating against, institutions over what it characterizes as “intentional race-based discrimination in college and university admissions.” This initiative, first reported by the New York Times, is purportedly reflected in an internal DoJ communication obtained by the Times seeking Department staff attorneys to volunteer to work on the investigations and/or litigation.  At this point, it is not clear whether institutions will be targeted on a random basis or (perhaps more likely) based on complaints received by the Department.

This initiative, of course, comes in the aftermath of the Supreme Court’s rulings with respect to the University of Texas’s affirmative action admissions programs in the Fisher decisions.  Those decisions recognized the creation of a diverse student body as a compelling educational interest, but also emphasized that an institution must not make race the defining feature of a candidate’s application for admission, and must be able to demonstrate that it has seriously considered race-neutral alternatives and that no workable race-neutral alternatives would produce the educational benefits of diversity “about as well and at tolerable administrative expense.” Although this may not require institutions to implement race-neutral alternatives and demonstrate their failure, as we have previously advised, institutions should ensure that they are able to document evaluation of such alternatives in order to defend challenges to their admissions programs.  The apparent advent of the reported Department of Justice initiative may quickly render this consideration more important than ever, and the prospect of challenges more than theoretical.

Structuring Voluntary Resignation Incentive Options For Tenured Faculty Members

Posted in Higher Education

Many universities and colleges across the country have been struggling with the issue of how best to incentivize certain tenured faculty members to resign and relinquish their tenure. If a university or college decides to offer a voluntary resignation incentive option to some or all of its tenured faculty members, steps it should take when deciding how to structure and implement that option include the following:

  • design decisions will need to be made in order to select the voluntary resignation incentive option that will best meet the needs of the university or college;
  • the voluntary resignation incentive option that will be offered should be structured in a manner that will satisfy the applicable legal requirements, including employee benefit, tax, and employment law requirements; and
  • several administrative steps should be taken in order to properly implement the voluntary resignation incentive option.

Continue Reading

Travel Ban Tweaked Again: U.S. District Court for the District of Hawaii Expands Definition of Close Familial Relationship to Include Grandparents and Others

Posted in Higher Education, Travel Ban

As a result of an order issued by the U.S. District Court for the District of Hawaii last night, foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen are now considered exempt from President Trump’s travel ban if they are coming to the U.S. to visit with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins. In addition, the court held that the travel ban cannot be enforced against refugees from the six countries who have formal assurance from a resettlement agency in the U.S. for placement.

The District of Hawaii’s order greatly expands the number of people who are exempt from the travel ban which, as we reported earlier, was partially reinstated by the U.S. Supreme Court in a per curiam decision issued at the close of its term late last month.  Previously, under the Supreme Court’s decision and implementing FAQs issued by the U.S. Departments of Homeland Security and State, foreign nationals from the six banned countries could only travel to the U.S. to visit with parents, spouses, siblings, fiancés, children, sons-in-law and daughters-in-law.

We will continue to report on any additional developments as they unfold.

Further Breaking News for New York State Institutions: State Provides Clarification on Article 129-B Audit

Posted in Higher Education

On Friday, July 7, 2017, the Office of Campus Safety clarified its Notice of Audit, specifically stating that it is “not requesting submission of personally identifiable information of any individual” and emphasizing that colleges and universities should “not submit individual case records” in response to the audit.  The original Notice of Audit, dated June 26, 2017, and the July 7, 2017 email clarification can both be found here.

Although the most recent clarification mentions only requests 9 and 10, we have been advising our clients that responses to requests 4a and 6a may also be provided in summary form in light of the Office of Campus Safety’s notice that it is not requesting personally identifiable information.

We advise campuses to submit summary information wherever possible so as to avoid any inadvertent disclosure of personally identifiable information. For responses to requests 4a and 6a, however, if campuses find it easier to redact documents rather than develop a spreadsheet for the summary information, those documents should be carefully reviewed so that any information that might identify individuals, including dormitory names and room numbers, is omitted.

For our earlier analysis of the Notice of Audit, please see our postings here and here.

If you have questions please contact a member of our Higher Education Group.

 

Breaking News for New York Institutions: State to Narrow Scope of Article 129-B Audit

Posted in Higher Education

In light of the serious concerns institutions and advocates have expressed about FERPA and other privacy laws, we have recently been informed that the Office of Campus Safety will likely revise its Notice of Audit, dated June 26, 2017. More information about these concerns is covered in our earlier posting, which can be found here.

We understand that the Office of Campus Safety intends to revise requests 9 and 10 so that the information requested will be limited to summary information, rather than requests for individual case files containing student data. It is possible that there may be further revisions to other requests within the Notice of Audit that ask for specific information about students, such as requests 4 and 6.

We expect that the Office of Campus Safety will communicate with presidents of colleges and universities within the next few days on these issues.

In the meantime, if institutions have not done so already, we advise you to request an extension of time to respond to the Notice of Audit. We further recommend that institutions not submit documents containing personally identifiable information, either directly or indirectly, about students.

If you have questions please contact a member of our Higher Education Group.