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  • Date:

    American Federation of Teachers et al v. Bessent (S.D. Md. Feb. 24, 2025)

    Order granting in-part and denying in-part Motion for Temporary Restraining Order. On February 10, 2025, three non-profit and labor organizations and six current or retired Federal workers filed suit against the U.S. Department of the Treasury and its Secretary, and U.S. Office of Personnel Management and its Acting Director, and the U.S. Department of Education and its Acting Secretary. Plaintiffs alleged that defendants willfully and intentionally permitted their personal information to be accessed by Department of Government Efficiency (“DOGE”) affiliates outside of the U.S. government without legal justification and in violation of the Administrative Procedure Act. Plaintiffs sought to enjoin such access. The court found that DOGE had been granted access to “plaintiffs’ most sensitive data—Social Security numbers, dates of birth, home addresses, income and assets, citizenship status, and disability status” and would be irreparably harmed absent an interim remedy, and therefore, enjoined the U.S. Department of Education and the Office of Personnel Management, their respective Acting Secretary and Director, “and their officers, agents, servants, employees, and attorneys … from disclosing the personally identifiable information of the plaintiffs and the members of the plaintiff organizations to any DOGE affiliates … until March 10, 2025[,] at 8 a.m.” However, it denied the request to enjoin the Treasury and Secretary Bessent, reasoning that Plaintiffs had already received the requested relief through the grant of a preliminary injunction in New York v. Trump, 1:25-cv-01144 (S.D.N.Y. Feb. 21, 2025) (Vargas, J.), and thus would not be irreparably harmed by denial of the same in this matter.  

    Topics:

    Privacy & Transparency

  • Date:

    Removing Barriers to American Leadership in Artificial Intelligence – The White House (Jan. 23, 2025)

    Executive Order: Removing Barriers to American Leadership in Artificial Intelligence. This Executive Order revokes Executive Order 14110: Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. The Order charges the Assistant to the President for Science and Technology (APST) the Special Advisor for AI and Crypto, and the Assistant to the President for National Security Affairs (APNSA), in coordination with the Assistant to the President for Economic Policy, the Assistant to the President for Domestic Policy, and the Director of the Office of Management and Budget (OMB Director) with developing an action plan to sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security within 180 days of the Order.  

    Topics:

    Cybersecurity | Data Privacy | Distance Learning | Privacy & Transparency | Technology

  • Date:

    Office of Educational Technology Brief on Navigating Artificial Intelligence in Postsecondary Education: Building Capacity for the Road Ahead (Jan. 14, 2025)

    Brief from the U.S. Department of Education, Office of Educational Technology titled “Navigating Artificial Intelligence in Postsecondary Education: Building Capacity for the Road Ahead.” The Brief is aimed to support institutional leaders who oversee the implementation of Artificial Intelligence (AI) across multiple areas of their institution. The Brief is divided between (1) providing recommendations, as well as guiding questions for institutional leaders related to AI; and (2) evidence-based insights on AI integration in learning environments, career readiness, admissions, enrollment, student advising and support, digital infrastructure, and faculty developments.  

    Topics:

    Cybersecurity | Data Privacy | Privacy & Transparency | Technology

  • Date:

    Vanderbilt Univ. v. Nat’l Labor Relations Bd. (M.D. Tenn. Dec. 12, 2024)

    Memorandum Opinion and Order granting Plaintiff’s Motion for Preliminary Injunction in part, granting Defendant’s Motion to Dissolve in part, and denying Defendant’s Motion to Suspend and Motion to Reconsider. Plaintiff, Vanderbilt University, brought claims against the National Labor Relations Board (NLRB) as well as the Board’s director and regional director challenging the applications of the NLRB’s new regulations. A graduate student organizing campaign commenced at the University, where the group filed a petition with the NLRB seeking to represent 2,200 graduate students. NLRB regulations required the University to submit a position statement that included a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit. It also asserted that insofar as the position statement omitted any of the required information, the University would be precluded from raising any issue, offering any evidence, cross-examining witnesses, or presenting any argument relating to the omitted information at the hearing. The University contends it could not provide the required information to the NLRB unless students consented in writing, or, if a FERPA exception applied, and therefore the University sought an injunction so it would not be forced to disclose protected student information. In its motion for preliminary relief, the University asked the court to require the NLRB to adopt FERPA-compliance procedures and to preserve the University’s right to fully defend and participate in the Board’s proceedings regarding the election petition. In this case of first impression, the court granted the University’s request for preliminary relief regarding the conflicting regulations, but only insofar as NLRB compliance might violate the APA or FERPA and denied the motion in all other respect, reasoning that the University adequately alleged a real, immediate, and direct risk of violating FERPA, “as it will be forced to decide whether to violate FERPA or the [r]egulations once an election is ordered and [plaintiff] is ordered to disclose FERPA-protected student information in a voter list.” Finally, the court granted the NLRB’s motion to dissolve to the extent the University seeks direct review of the Board’s preclusion decision and enforcement of the subpoena, and denied the motion as moot in all other respects, as well as denying the NLRB’s motions to suspend and to reconsider as moot.  

    Topics:

    Family Educational Rights and Privacy Act (FERPA) | Privacy & Transparency

  • Date:

    Better Gov’t Ass’n v. City Colleges of Chi., (Ill. App. Sep. 19, 2024)

    Opinion reversing in part the Circuit Court’s grant of Summary Judgment, and remanding. Plaintiff, the Better Government Association, a non-profit news organization in Chicago, submitted a request pursuant to the Freedom of Information Act (FOIA) for City Colleges of Chicago’s records related to graduation rate. Plaintiff claimed the Colleges willfully violated FOIA by refusing to produce the requested records, which the College withheld or redacted based on its assertion that the records are exempt from disclosure under Section 7(1)(a) of FOIA and protected by FERPA. The Circuit granted judgment in favor of plaintiffs reasoning that the records were not exempt from FOIA as FERPA did not “specifically prohibit” their release. The Illinois Court of Appeals reversed, finding that the Colleges were prohibited by FERPA from releasing students’ personal identifiable information (PII) without consent, and that doing so could imperil their federal funding. The Court thus held that the decision was in error insofar as it found that FOIA compelled the Colleges to produce unredacted records in violation of FERPA. Therefore, the Court reversed and remanded with instructions for the lower court to conduct an in camera review of the materials to ensure that redactions removed all protected PII.   

    Topics:

    Family Educational Rights and Privacy Act (FERPA) | Freedom of Information & Public Record Laws | Privacy & Transparency

  • Date:

    Vernon v. The Trs. of Gaston Coll. (N.C. Super. Ct. Aug. 21, 2024)

    Order and Opinion granting in part and denying in part Defendant’s Motions to Dismiss in three related cases. Plaintiffs, students at Gaston College in 2023, separately initiated a trio of putative class action cases against the College to recover based on its alleged failure to safeguard confidential personal information due to a data breach. In February 2023, the College reported a data breach that potentially compromised plaintiffs’ private information. Plaintiffs brought claims of (1) breach of contract; (2) breach of implied contract; and (3) unjust enrichment. The Court granted the College’s motions to dismiss claims for unjust enrichment as barred by sovereign immunity, but declined to dismiss plaintiffs’ breach of contract claims, finding a contract between the parties since plaintiffs paid the College in exchange for services, which allegedly included a promise to secure, safeguard, and not disclose plaintiffs’ personal identifying or private information. 

    Topics:

    Data Privacy | Privacy & Transparency

  • Date:

    NLRB GC Memo re: Clarifying Disclosure Obligations under the NLRA and FERPA (Aug. 6, 2024)

    National Labor Relations Board (NLRB) General Counsel (GC) Memo re: Clarifying Universities’ and Colleges’ Disclosure Obligations under the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA). The memo notes that private colleges and universities may have obligations under the NLRA to provide a collective-bargaining representative with information about student-workers, which is otherwise protected under FERPA. The memo provides guidance on the process by which institutions should respond to information requests, including to determine whether requested information is covered by FERPA, the duty to “offer a reasonable accommodation in a timely manner and bargain in good faith with the union toward a resolution of the matter,” and to abide by any agreements reached regarding furnishing records. The memo also counsels that institutions covered by FERPA might also include a FERPA consent form “in paperwork to be completed by a student-employee upon onboarding of employment,” and provides a suggested FERPA Template Consent Form.   

    Topics:

    Collective Bargaining | Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees | Family Educational Rights and Privacy Act (FERPA) | Privacy & Transparency

  • Date:

    HIPAA Privacy Rule to Support Reproductive Health Care Privacy (Apr. 26, 2024)

    U.S. Department of Health and Human Services (HHS), Office for Civil Rights Final HIPAA Privacy Rule to Support Reproductive Health Care Privacy. In the preamble to the final rule, the Department notes that the Supreme Court’s decision in “Dodds v. Jackson Women’s Health Organization “altered the legal and healthcare landscape” in ways that may “cause harm to the interests that HIPAA seeks to protect, including the trust of individuals in health care providers and the health care system.” The new final rule adds new prohibitions on the use or disclosure of protected health information (PHI) related to reproductive health and adds a requirement that covered entities obtain a signed attestation from persons requesting such PHI that it will not be for a prohibited purpose. HHS also released a Fact Sheet on the new Final Rule. The Final Rule will be effective on June 25, 2024.  

    Topics:

    Health Insurance Portability and Accountability Act (HIPAA) | Privacy & Transparency

  • Date:

    Boje v. Mercyhurst Univ. (W.D. Pa. Mar. 6, 2024)

    Memorandum Opinion granting Defendant’s Motion to Dismiss. Plaintiff, a former student at Mercyhurst University, on behalf of himself and a putative class, brought negligence and related state-law claims against the University after he received notice in late 2022 that his personally identifiable information was compromised in a data breach earlier that year and was offered twelve months of credit monitoring protection. In granting the University’s motion to dismiss, the court held that plaintiff lacked standing, finding that without an allegation that he had suffered actual identity theft or facts suggesting that misuse was imminent (such as publication of his data on the Dark Web) plaintiff failed to allege injury in fact. The court then remanded the matter to the state court.

    Topics:

    Data Privacy | Litigation, Mediation & Arbitration | Privacy & Transparency | Tort Litigation

  • Date:

    Daywalker v. UTMB at Galveston (5th Cir. Jan. 9, 2024)

    Opinion affirming summary judgment in favor of the Defendant. Plaintiff, a former resident at the University of Texas Medical Branch (UTMB), brought sex and race discrimination claims and an FMLA retaliation claim against UTMB after she was placed on a remediation program for “lapses in professional behavior” in clinical documentation and timeliness and told she would need to repeat her third year when she returned from a four-month FMLA leave of absence. In affirming summary judgment in favor of UTMB on her failure-to-promote claim, the Fifth Circuit found that (1) plaintiff’s one asserted comparator had no issues with accuracy or timeliness and was not similarly situated and (2) she was unable to overcome the documented concerns of numerous faculty members to establish pretext. It further held that the “handful” of offensive statements, which she alleged were made “over the span of a few years” were insufficient to raise a question of hostile work environment or constructive discharge. In affirming summary judgment on her FMLA retaliation claim, the court found that she was unable to establish causation because the decision that she should repeat her third year was taken between when she requested a “leave of absence” and when her counsel requested that leave be converted to protected FMLA leave. The court also held that the magistrate judge did not err during discovery in ordering the redaction of identifying information from potential comparator evidence because medical residents are also students for the purposes of FERPA.

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity | Family Educational Rights and Privacy Act (FERPA) | Privacy & Transparency | Race and National Origin Discrimination | Retaliation | Sex Discrimination | Sex Discrimination in Employment

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