Cases & Developments - National Association of College and University Attorneys

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Date:
11/10/2023
U.S. Dep.’t of Education Guidance on Borrower Defense School Notification Process (Nov. 8, 2023)
U.S. Department of Education, Office of Federal Student Aid Guidance on Borrower Defense School Notification Process Under the 2016 Regulation. The electronic announcement concerns the notices of borrower defense applications from June 23, 2022, to November 15, 2022, ED is sending to schools under the settlement reached in the Sweet v. Cardona litigation, which required that the applications be processed under the 2016 Regulation. The guidance clarifies that under the 2016 Regulation, ED must notify schools of the applications prior to any substantive review. It also notes that if ED decides after its review to approve applications and if it decides to seek recoupment, schools will have the opportunity to contest any recoupment before a hearing officer. The guidance also notes that “ED is attempting to batch applications so schools receive all claims from the June 23 to Nov. 15 period in a single notification.”
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Higher Education Act (HEA) | Students
Date:
11/7/2023
Update: U.S. Dep.’t of Education Final Regulations on Financial Responsibility, Administrative Capability, Certification Procedures, Ability to Benefit (ATB) (Oct. 24, 2023)
U.S. Department of Education, Office of Postsecondary Education Final Regulations on Financial Responsibility, Administrative Capability, Certification Procedures, and Ability to Benefit (ATB). Among key provisions, the new regulations require that institutions provide adequate financial aid counseling and information, including cost of attendance information; new mandatory and discretionary triggers to give the Department with notice when an institution might not be able to be able to meet its financial responsibilities; a requirement that institutions certify that in each State where they enroll students, including through distance programs, that they meet applicable accreditation and licensure requirements and comply with State laws related to closures; a requirement that institutions provide, upon a student’s request, an official transcript reflecting all credit or clock hours for periods in which a student received Title IV funds; and a requirement that institutions provide adequate career services and clinical or externship opportunities. The Department also released a Fact Sheet on the new regulations, which become effective on July 1, 2024. Update: The Department of Education published the final regulations in the Federal Register on October 31, 2023.
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Students
Date:
10/27/2023
Khan v. Yale Univ. (2nd Cir. Oct. 25, 2023)
Opinion affirming-in-part and vacating-in-part dismissal and remanding. In 2015, Jane Doe, a student at Yale University, accused plaintiff, also a student at Yale, of sexual assault. In 2018, after he was found not guilty in a state criminal trial, the University conducted a disciplinary hearing and expelled him for violating its Sexual Misconduct Policy. Plaintiff subsequently sued Doe and Yale for defamation and tortious interference with a contract. The district court dismissed plaintiff’s claims, finding that Doe enjoyed an absolute quasi-judicial immunity for her statements to the 2018 disciplinary hearing and that plaintiff’s claims as to Doe’s 2015 statements were time-barred. After the Connecticut Supreme Court opined in response to questions certified to it that Yale’s disciplinary procedure lacked necessary procedural safeguards—such as an oath requirement, cross-examination, the ability to call witnesses, meaningful assistance of counsel, and an adequate record for appeal—to constitute a quasi-judicial proceeding to support Doe’s assertion of immunity, the Second Circuit vacated dismissal of plaintiff’s claims as to statements made during the 2018 disciplinary hearing that resulted in his expulsion. It affirmed that his claims as to Doe’s 2015 statements were time-barred.
Topics:
Constitutional Issues | Due Process | Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation
Date:
10/27/2023
Florance v. Barnett (7th Cir. Oct. 25, 2023)
Order affirming dismissal. Plaintiff, a former Indiana University School of Medicine student, brought due process claims against multiple University officials related to student loan collections. Plaintiff took a student loan through a program administered by the U.S. Department of Health and Human Services (HHS). Later, the Department of Veterans Affairs (VA), rated him as having a permanent and total disability. As he appeared to be gainfully employed and did not meet the statutory requirements for cancelation, the University declined to recommend cancelation of the loan and initiated collections proceedings against him. After plaintiff disputed HHS’s initial denial of his request for cancelation, HHS canceled his loan, and the University dismissed the collections case. In affirming dismissal of plaintiff’s claims, the Seventh Circuit held that he did not have a protected interest in loan cancellation since under the HHS loan program whether a borrower qualifies for cancelation due to a disability is a discretionary determination left to HHS, not an entitlement determined by the VA’s disability rating.
Topics:
Constitutional Issues | Disability Discrimination | Discrimination, Accommodation, & Diversity | Due Process | Financial Aid, Scholarships, & Student Loans | Students
Date:
10/27/2023
U.S. Dep.’t of Education Final Regulations on Financial Responsibility, Administrative Capability, Certification Procedures, Ability to Benefit (ATB) (Oct. 24, 2023)
U.S. Department of Education, Office of Postsecondary Education Final Regulations on Financial Responsibility, Administrative Capability, Certification Procedures, and Ability to Benefit (ATB). Among key provisions, the new regulations impose new mandatory and discretionary triggers to allow the Department notice when an institution might not be able to be able to meet its financial responsibilities, and also require that institutions (1) provide adequate financial aid counseling and information, including cost of attendance information; (2) certify that they meet applicable accreditation and licensure requirements and comply with State laws related to closures for each State where they enroll students, including through distance programs; (3) provide an official transcript reflecting all credit or clock hours for periods in which the student received Title IV funds, when requested by a student; and (4) provide adequate career services and clinical or externship opportunities. The Department also released a Fact Sheet on the new regulations. The new regulations become effective on July 1, 2024.
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Students
Date:
10/27/2023
ACE Database on Post-SFFA v. Harvard & UNC Decision Resource: Admissions and Beyond (Oct. 16, 2023)
Database from the American Council on Education (ACE) of Post-SFFA v. Harvard & UNC Decision Resources. This new website will house “a variety of external articles, tools, research, analyses, and other materials that may be of interest” as institutions consider their policies, practices, and initiatives following the Supreme Court’s decision.
Topics:
Admissions | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Students
Date:
10/20/2023
The Pa. State Univ. v. Alpha Upsilon of the Fraternity of Beta Theta Pi, Inc., (Pa. Super. Ct. Oct. 18, 2023)
Order affirming judgment in favor of the University. Plaintiff, The Pennsylvania State University, sued Alpha Upsilon Chapter of Beta Theta Pi Fraternity (Fraternity) for specific performance to exercise its right to repurchase a parcel of property after the Fraternity was suspended. In 1894, the University conveyed land to the Fraternity to construct a chapter house for use by active members. In 1928, the University repurchased the first parcel, and conveyed a second parcel for the same purpose via the “1928 Deed.” The 1928 Deed preserved the University’s right to repurchase, should the Fraternity cease to operate a house, occupied by active members. In 2017, after a member died from alcohol-related hazing activity, the Fraternity was suspended by its national organization, and the University required tenets to vacate the chapter house. The University investigated the alleged hazing and then revoked its recognition of the Fraternity for five years. Thereafter, the Fraternity refused to resell the property to the University, which sued. After the University prevailed in the trial court, the Fraternity appealed. The appellate court affirmed, finding that the mere potential of future recolonization and occupancy of the property by an alum’s non-member child did not constitute use under the 1928 Deed, thus triggering the University’s right to purchase the Property.
Topics:
Contracts | Contracts Administration | Hazing | Real Property, Facilities & Construction | Student Organizations | Students
Date:
10/20/2023
Garey v. Anderson, (E.D. Wash. Oct. 18, 2023)
Order granting summary judgment in favor of the University. Plaintiff, a Washington State University (WSU) student, brought Title IX pre-assault and individual private cause of action claims for deliberate indifference and a trio of state law claims against WSU, after she was sexually assaulted in her dormitory by her former partner, Anderson. During their relationship, Anderson assailed plaintiff in his fraternity house blocking her egress from his room, grabbing her arm, throwing a trashcan at her, and pushing her into a metal door. Neither incident was reported. Plaintiff also alleged that Anderson sexually assaulted her, including twice in her dorm room. Plaintiff disclosed both sexual assaults to her counselor and to WSU’s Title IX Office. Anderson – who was previously investigated but found not responsible for another alleged assault – withdrew from WSU, and later pled guilty to domestic violence charges. In granting summary judgment to WSU, the court distinguished Ninth Circuit pre-assault Title IX precedent and found a single prior investigation, which concluded more than a year before plaintiff was assaulted that followed policy and resulted in a finding of non-responsibility against Anderson did not establish deliberate indifference by WSU as to plaintiff. The court also dismissed plaintiff’s individual private cause of action claim for want of deliberate indifference, relying on the fact that WSU officials met with plaintiff right away, were responsive in e-mail correspondence with her, made interim accommodations, increased security patrols near her dorm, and trespassed Anderson from campus all within forty-eight hours of their first meeting with plaintiff. The court applied the Eleventh Amendment to dismiss the three state-law claims.
Topics:
Litigation, Mediation & Arbitration | Student Organizations | Students | Title IX & Student Sexual Misconduct | Tort Litigation
Date:
10/20/2023
ACE Letter to ED re: FAFSA Release Date (Oct. 13, 2023)
Letter from the American Council on Education (ACE) and 11 other higher education associations to the Department of Education requesting a public release date for the new Free Application for Federal Student Aid (FAFSA) form. In requesting a firm release date for the new FAFSA form, ACE noted the need for institutions to plan for a smooth rollout, including through training for staff and outreach to appropriate stakeholders.
Topics:
Financial Aid, Scholarships, & Student Loans | Students
Date:
10/13/2023
Doe v. Rowan Univ. (D. N.J. Oct. 10, 2023)
Opinion denying Plaintiff’s Motion for a Temporary Restraining Order. Plaintiff, a former graduate student at Rowan University, brought Title IX discrimination and retaliation claims against the University and a former professor after she twice failed required qualifying exams and was dismissed from the program. Plaintiff had previously failed a first-year research project and her master’s thesis defense. While the appeal of her dismissal was pending, she filed a Title IX complaint with the University, alleging that the professor, who was also a grader for the qualifying exams, had made unwanted advances two years earlier. In denying plaintiff’s motion for a temporary restraining order, the court found that she was unlikely to succeed on her discrimination claim since the University had her exam blindly re-scored by two new graders after she filed her Title IX complaint. It ruled she was unlikely to succeed on her Title IX retaliation claim due to the weak nexus between her rejection of the alleged advances and the program’s acts of placing her on academic probation and seeking to dismiss her, which both took place more than a year later.
Topics:
Academic Performance and Misconduct | Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Retaliation | Sex Discrimination | Students

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