Higher Education Report

Higher Education Report

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.

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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.

 

 

 

 

N.Y. Education Law Article 129-B Notice of Audit Issued to New York Colleges and Universities

Posted in Higher Education, Sexual Assault, Sexual Violence, Student Affairs, Title IX

Many institutions are reporting receipt of a letter dated June 26, 2017 from the New York Office of Campus Safety with an attached Notice of Audit (“Notice”) pursuant to New York Education Law Article 129-B (N.Y. Educ. Law §§ 6439–6449). The Notice seeks data submissions relating to the provision of Article 129-B and it includes 23 separate requests for information and documentation.  The response to the Notice must be postmarked no later than July 7, 2017.

This audit comes at a time when key institutional personnel, including student affairs professionals, are away from the office on vacation and some institutions are closed. In addition, the short turnaround requested (fewer than 10 calendar days over a major holiday weekend) gives very little time to gather the responsive materials, let alone review and redact them if necessary. The time period is far less than what is required to respond to a discovery demand under the New York Civil Practice Law and Rules.

We believe that it is unclear whether FERPA permits the release of personally identifiable student information to the New York Office of Campus Safety, which is an office of the New York Division of Criminal Justice Services and not an office of an education agency.

The Audit Request

The statute at § 6449 provides only for the collection of aggregate data, consistent with the statute’s emphasis on confidentiality and respect for the privacy of those involved in the process. Section 6449(3) emphasizes that, even when collecting aggregate information “the department shall not release the information, as provided for in this section, if it would compromise the confidentiality of reporting individuals or any other party….”

Eleven of the 13 requests in the Notice contain statutory references to the applicable section of Article 129-B as authority for the requested data. Two of the requests, numbers 9 and 10, contain no reference to the statute and there does not appear to be any specific section of the statute that supports the sensitive nature of the data sought in requests 9 and 10. Additionally, request number 4 seeks copies of all “no contact orders” issued by the institution, although there does not appear to be a statutory basis for such a request. Number 6(a) seeks data on all students subject to interim suspension, although that request also appears to be beyond the scope of the referenced statutory section.

Compliance Next Steps

Notwithstanding the unrealistic time frame to respond to the audit requests and credible questions about the statutory basis for specific requests, institutions must begin to prepare a response. 

Request an Extension

We encourage institutions that do not anticipate that they will be able to comply with the aforementioned deadline to contact Deputy Director Stacey Hamilton by telephone to request an extension and follow up with a written request and/or confirmation.

Prepare Materials for Submission 

Institutions should plan to submit easily accessible data such as policies, blank forms, website material by July 7, 2017, or the extended deadline, and include a cover letter indicating that, where applicable, additional materials will follow as soon as possible. In that cover letter, the institution may articulate the factors, if applicable, that make it difficult to respond within the narrow time frame allotted. One of those factors may be that the materials have to be carefully reviewed in order to redact confidential information in accordance with the privacy considerations emphasized in Article 129-B and other privacy laws.

We suggest that with regard to request numbers 1, 2, 3, 5, 6(b), 7, 8, 11, 12 and 13, institutions collect the documents and data developed over the past academic year (Fall 2016 to Spring 2017). Note that for request number 12 regarding campus climate assessments, institutions should exercise care when preparing a response to prevent the identification of any particular student.

Concerns with Respect to Disclosure

Request number 4 asks for information and documents regarding each request for a “no contact order” received by the institution. Institutions may decide to provide a copy of the institution’s template “no contact order” language, rather than specific orders, together with data on the number of orders issued and the number of orders that were changed. Although the New York State Office of Campus Safety appears to be seeking copies of specific “no contact orders” that include the names of the students, it is unclear that they have the right to this personally identifiable information under FERPA.

Similar consideration applies to request number 6(a). It may be acceptable in the initial response to provide aggregate data on interim suspensions and not data that could identify a specific student. In light of the statute’s emphasis on confidentiality and privacy, and the fact that the statute refers to aggregate data, the Office of Campus Safety may not have the authority to receive personally identifiable information.

A separate issue is the scope of request numbers 9 and 10, which seek an academic year’s worth of records relating to all reports of incidents covered by Article 129-B and all records involving misconduct hearings covered by Article 129-B. These requests are overly broad, are seriously inconsistent with the statute’s emphasis on confidentiality and privacy, and are not in accord with the statute’s authorization to collect aggregate data. Institutions should be consistent in the documentation provided for each case and should make sure information does not contain personally identifiable information about students while this issue remains unresolved.

In a letter to the Office of Campus Safety dated June 29, 2017, the Commission on Independent Colleges & Universities in New York (CICU) has raised the question of redacting personal information pertaining to students.

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

The United States Supreme Court Temporarily Approves Part of Trump’s Travel Ban

Posted in Uncategorized

On June 26, 2017, the final day of its judicial term before summer recess, the United States Supreme Court addressed the Trump Administration’s hotly contested travel ban. The Supreme Court issued a per curiam decision on June 26, 2017 allowing the federal government to implement a portion of the travel ban set forth in Executive Order 13780 (Protect­ing the Nation From Foreign Terrorist Entry Into the United States), which was signed on March 6, 2017.  Recall, EO 13780 called for the suspension on the admission of all refugees for 120 days and also sought to impose a 90-day “temporary pause” on the admission of foreign nationals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen.

The Supreme Court’s June 26th decision marks the latest move in the game of legal ping pong regarding the Trump Administration’s stated efforts to protect Americans and safeguard the nation’s security interests.  The Supreme Court will fully consider the legal arguments at stake when the fall session begins in October 2017.  For now, the Supreme Court’s decision will allow the Trump Administration to exclude foreign nationals from each of the six countries of concern, provided they have no “credible claim of a bona fide relationship with a person or entity in the United States”.  Stated differently, if a foreign national can establish the existence of a “close familial relationship” with someone already in the United States or a formal, documented relationship with an American entity, the travel ban will not apply.  It is expected that enforcement of this limited travel ban will begin on June 29, 2017, just as the nation’s peak summer travel season gets underway.

Not surprisingly, the Supreme Court’s decision leaves a number of unanswered questions regarding the meaning of the “bona fide relationshipstandard.  In an effort to shed some light on this issue, the Supreme Court provided several examples of the circumstances that would satisfy the “bona fide relationship” standard:

  • Individuals seeking to come to the United States to live or visit a family member (i.e., spouse, mother-in-law), though it remains to be seen just how far the federal government will go to recognize a “close” familial relationships (e.g., cousins, aunts, uncles, nieces, nephews, etc.);
  • Students who have been admitted to an educational institution in the United States;
  • Foreign nationals who have been extended, and have accepted, an offer of employment with a corporate entity in the United States;
  • Foreign nationals who have been invited to temporarily address an American audience as lecturers; and
  • Refugees who have family connections in the United States or who have connections with refugee resettlement agencies.

While the examples provided by the Supreme Court are helpful to a certain degree, they do not address all scenarios that may arise for foreign nationals seeking to enter into the United States in the immediate future. Nevertheless, it appears that individuals who currently hold valid immigrant and/or non-immigrant visas will not be subject to the travel ban.

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In response to the Supreme Court’s decision, the Department of Homeland Security issued a statement on June 27, 2017 noting that DHS’ implementation of EO 13780 will be “done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry”.

We will continue to apprise clients regarding any developments as they unfold.

New York Institutions: Annual Certificates of Compliance With Education Law Articles 129-A and 129-B Due at NYSED by July 1

Posted in Higher Education

NYSED ImageIt’s that time of year again! Just a friendly reminder that New York colleges and universities must file their Article 129-A and Article 129-B of the Education Law Certification of Compliance with the New York State Education Department (NYSED) on or before July 1, 2017.  By signing and submitting the Certification of Compliance with NYSED, each institution confirms that it is in compliance with Article 129-A of the Education Law, which relates to the regulation of conduct on campuses and other college property used for educational purposes, and Article 129-B, which relates to the implementation by colleges and universities of sexual assault, dating violence and stalking prevention and response policies and procedures.  Unlike last year, institutions do not have to submit their related policies and procedures to NYSED with their Certifications of Compliance.

To file the Certification of Compliance with NYSED, institutions must use the electronic filing system established by NYSED. The Certification of Compliance form, instructions on submitting the same to NYSED and a link to the filing system can be found at  http://www.highered.nysed.gov/ocue/Article129ABcert.html.

Please note that the annual aggregate data reports mandated by §6449 of the Education Law are not required to be submitted to NYSED at this time.  According to NYSED, information about how and when to submit the aggregate data reports will be provided to institutions as soon as it is available.

If you have any questions or need assistance with meeting the fast approaching July 1 deadline, do not hesitate to contact us.

Federal Appeals Court Rules That Transgender Student Can Use Restroom of Choice

Posted in Higher Education, Transgender

TransgenderPerhaps lost in the media stories about the so-called “bathroom wars” is the emotional toll that they have taken on individuals whose lives are directly impacted by the controversy. While both sides have fiercely advocated the social and emotional import at the core of the dispute, courts have struggled to find a uniform answer to: “What is the law here?”

The federal guidance document that was the subject of a Fourth Circuit ruling has been rescinded by the Trump administration and the court’s decision itself vacated by the Supreme Court and remanded back to the Fourth Circuit.   Some states, like New York, have filled in the gap with legislation that requires public school districts to allow transgender students to use the bathroom corresponding to their gender identity.  But, what about states that don’t have such a law? 

Yesterday, in Whitaker v. Kenosha Unified School District No. 1 Bd. of Educ. (7th Cir. May 30, 2017), the Seventh Circuit answered that question.  In what could be a landmark ruling, the Court held that under Title IX and the Equal Protection Clause of the Constitution, a transgender high school student could not be barred from choosing to use the bathroom that corresponded with the student’s gender identity.  Prior to this ruling no court had directly held that Title IX offered specific protection to transgender students on the grounds of “sex stereotyping” and “gender noncomformance,” terms that are more frequently seen in employment cases under Title VII.

The Whitaker court addressed the Title IX issue head on, holding: “By definition, a transgender individual does not conform to the sex‐based stereotypes of the sex that he or she was assigned at birth.” In affirming the district court’s grant of a preliminary injunction in favor of the student, the Court clearly expressed its edict:

…[The student] can demonstrate a likelihood of success on the merits of his claim because he has alleged that the School District has denied him access to the boys’ restroom because he is transgender. A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.

The school district argued that its decision to deny the student access was reasonable in light of the privacy rights of other students.   That argument, which has been a focal point of grassroots discussions and legal briefs, was given short shrift by the Seventh Circuit:

A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions. Or for that matter, any other student who uses the bathroom at the same time. Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall.

At some point the Supreme Court will take on this issue. Until then, even in states where there are controlling statutes, school districts and postsecondary institutions should carefully review with counsel the implications of the Whitaker decision.  Some state laws, like the Dignity Act in New York, do not provide a private right of action that allows students to sue the school institution for money damages.  In contrast, under the Whitaker decision, if followed by other courts, there could now be federal claims for damages.

 

New York Institutions: Governor Reportedly to Order Comprehensive “Enough is Enough” Compliance Audit

Posted in Higher Education, Student Affairs, Title IX

universityApparently prompted by allegations from students and advocates, New York Governor Andrew Cuomo is reportedly directing an audit, to be conducted by representatives from the New York State Department of Education, Department of Health, Office of Victim Services and State Police, of institutions’ compliance with Education Law Article 129-B, the so-called “Enough is Enough” campus sexual violence legislation.

According to published reports, between now and September 1, the audit would review institutional policies and websites to determine compliance with, among other things, the statutory requirements for adoption of policies and disclosures to students.  A second phase would then examine institutions’ handling of individual cases.

The precise details of these reviews are as yet unknown, but the second phase has the potential to equal or exceed, in scope and depth, reviews conducted by the Office for Civil Rights of the United States Department of Education under Title IX. OCR reviews are, of course, typically prompted by individual complaints.  By contrast, the Governor’s audit program, if it proceeds as reported, would apparently target all colleges and universities in New York State, essentially subjecting them to a similar process even in the absence of particular concerns or complaints.

Pursuant to Education Law Section 6440(3), the Education Department had previously indicated its intent to conduct “random audits, at any time after September 1, 2016” to monitor compliance with the statutory requirements.  This initiative, however, appears to be more comprehensive in terms of its coverage of institutions throughout the State, seemingly in conflict with the statutory dictate that audits be conducted “by random selection.”

Needless to say, the roll-out and implementation of this initiative bear watching.