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  • Date:

    U.S. Dep.’t of Education Income Driven Repayment Rule Announcement (Jan. 16, 2024)

    U.S. Department of Education announcement of early implementation for the Improving Income Driven Repayment for the William D. Ford Federal Direct Loan Program and the Federal Family Education Loan (FFEL) Program. The Secretary designated for early implementation a provision of the previously promulgated regulations related to income-driven repayment pertaining to borrowers whose original principal balance under the Revised Pay as you Earn (REPAYE) plan was $12,000 or less and who had satisfied certain monthly payment or equivalent requirements. The Department will implement this provision on January 21, 2024.   

    Topics:

    Financial Aid, Scholarships, & Student Loans | Students

  • Date:

    NACUBO Comment Letter to the FTC on NPRM on Unfair and Deceptive Fees (Jan. 8, 2024)

    Comment Letter from the National Association of College and University Business Officers (NACUBO) and the American Council on Education (ACE) to the Federal Trade Commission (FTC) on its Proposed Trade Regulation Rule on Unfair and Deceptive Fees. The Letter expressed concern that the proposed regulations would increase administrative burdens by duplicating regulations already present in the higher education sector from the Higher Education Act, the FAFSA Simplification Act, and related sources. It suggested revisions and proposed collaborative discussions to minimize unnecessary overlap.   

    Topics:

    Taxes & Finances

  • Date:

    Reid v. James Madison Univ. (4th Cir. Jan. 9, 2024)

    Opinion reversing dismissal and remanding for further proceedings. Plaintiff, a former speech instructor and debate team coach at James Madison University, brought Title IX discrimination and due process claims against the University and multiple officials after an investigation found her responsible for having a nonconsensual relationship with a student, alleging various procedural departures from the University’s Title IX policies and procedures. The district court granted summary judgment to the University, finding plaintiff’s claims time-barred because she sued more than two years after her Dean found her responsible for the violation. In reversing and remanding for further proceedings, the Fourth Circuit held for the first time that a Title IX employment discrimination claim becomes complete and present and, thus, that the claim accrues when the University makes clear that a determination of a policy violation is its official position. It then found that information accompanying the Dean’s determination letter also provided her with a deadline for filing an appeal with the Provost and that the University did not otherwise make clear that the Dean’s decision was its official position. Accordingly, it held that plaintiff’s claim accrued only when the Provost upheld the determination of responsibility.

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | Due Process | Employee Sexual Misconduct | Sex Discrimination

  • 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

  • Date:

    Ashford v. Univ. of Mich. (6th Cir. Jan. 9, 2024)

    Opinion affirming denial of summary judgment. Plaintiff, an officer in the University of Michigan-Deaborn police department, brought First Amendment retaliation claims against the University, the Police Chief, and a University Vice Chancellor after he was suspended without pay for ten days for speaking with a newspaper reporter about what he felt was mishandling of a student’s sexual assault allegation against a professor. In affirming denial of summary judgment, the Sixth Circuit held that expungement of plaintiff’s disciplinary records is prospective relief not barred by sovereign immunity. In holding that plaintiff’s comments to the reporter were protected speech, the court found that they were not made pursuant to his ordinary duties, noting that he was hired as a general police officer, and was employed neither as a specialist in sex crimes nor as a liaison to media or the outside community. It further held that plaintiff’s right to speak on matters of public concern outside his ordinary duties was clearly established and that therefore, the University Police Chief and Vice Chancellor are not entitled to the protections of qualified immunity.  

    Topics:

    Constitutional Issues | First Amendment & Free Speech

  • Date:

    Johnson v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll. (5th Cir. Jan. 8, 2024)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former administrative coordinator in the Division of Animal Care at Louisiana State University, brought discrimination and retaliation claims against the University, alleging that (1) one of the University’s veterinarians made various inappropriate comments leading up to an incident in which he slapped her on the buttocks and (2) the University retaliated against her after she reported this harassment by temporarily assigning her to office in a storage room. In affirming summary judgment in favor of the University with respect to the incident itself, the Fifth Circuit found that the University took prompt remedial action by separating the two, directing the veterinarian to have no contact with plaintiff, and opening an investigation eleven days later. The court also affirmed the finding that there was insufficient evidence the University had notice of on-going harassing behavior to sustain pre-incident harassment claims, noting that (1) when an intern reported feeling uncomfortable as a result of the veterinarian’s questions, the behavior stopped once the University moved the intern to a new location and (2) a faculty member who was aware of the veterinarian’s inappropriate comments was not plaintiff’s supervisor and did not have disciplinary authority over the veterinarian. Finally, the court affirmed dismissal of the retaliation claim, absent evidence that pretext animated the University’s decision to separate plaintiff from the veterinarian by relocating her office to the storage room. 

    Topics:

    Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    New York Legal Assistance Group v. Cardona (2nd Cir. Jan. 5, 2024)

    Summary Order remanding for further proceedings. Plaintiff-Appellant, the New York Legal Assistance Group (NYLAG), challenged the Department of Education’s 2019 Final Rule on borrower defense to repayment, asserting that the regulations violate the Administrative Procedure Act (APA) procedurally and substantively. The district court granted summary judgment in favor of the Department on the overall Rule. Notwithstanding, the court granted limited summary judgment in favor of NYLAG on the Rule’s three-year statute of limitations, finding that procedurally it was not a logical outgrowth of the notice, which preceded it. In remanding for further proceedings, the Second Circuit found that the district court failed to properly consider whether the limitations provision was severable from the Rule as a whole and the likely disruptions associated with vacatur of only that provision.  

    Topics:

    Financial Aid, Scholarships, & Student Loans | Students

  • Date:

    Barlow v. State (Wash. Jan. 4, 2024)

    Opinion answering certified questions. Plaintiff, a student at Washington State University’s Pullman campus, brought a pre-assault Title IX and state-law negligence claims against the University after it found a student responsible for sexual misconduct and then allowed him to transfer to the Pullman campus, where he sexually assaulted plaintiff at his off-campus apartment. The Ninth Circuit affirmed summary judgment in favor of the University on plaintiff’s Title IX claim and certified to the Washington Supreme Court the questions: (1) “Does Washington law recognize a special relationship between a university and its students giving rise to a duty to use reasonable care to protect students from foreseeable injury at the hands of other students?” and (2) “If the answer to question 1 is yes, what is the measure and scope of that duty?” The court held that a university has a duty of reasonable care to its students, as a business operator or possessor of land has, as found in Restatement (Second) of Torts § 344, to members of the public who are there for related purposes. It then held that “the measure and scope of the duty is based on a student’s enrollment and presence on campus or participation in university controlled activities.” The court also noted that adoption of a code of conduct that addresses off-campus behavior “does not create control of students’ behavior in a preventative way.”  

    Topics:

    Litigation, Mediation & Arbitration | Students | Title IX & Student Sexual Misconduct | Tort Litigation

  • Date:

    U.S. Dep.’t of Labor Final Rule on Employee and Independent Contractor Classification (Jan. 10, 2024)

    U.S. Department of Labor Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act. The “final rule returns to a totality-of-the-circumstances analysis of the economic reality test in which the factors do not have a predetermined weight and are considered in view of the economic reality of the whole activity.” The rule identifies six non-exclusive factors to be considered: (1) the opportunity for profit or loss depending on managerial skill, (2) investments by the worker and the potential employer, (3) the degree of permanence of the work relationships, (4) the nature and degree of the employer’s control, (5) the extent to which the work performed is an integral part of the employer’s business, and (6) the extent and nature of the worker’s skill and initiative. The Final Rule becomes effective on March 11, 2024.   

    Topics:

    Faculty & Staff | Fair Labor Standards Act (FLSA) & Categorization of Employees

  • Date:

    GASB Statement on Certain Risk Disclosures (Jan. 8, 2024)

    Governmental Accounting Standards Board (GASB) Statement No. 102 on Certain Risk Disclosures. This Statement will require government entities to disclose in financial statements concentrations or constraints that may limit their ability to acquire resources or control spending, along with assessments of their vulnerability to a substantial impact and the likelihood that events associated with the concentration or constraints have occurred, begun to occur, or are more likely to occur within 12 months of the financial statement. The requirements of the Statement are effective for fiscal years beginning after June 15, 2024, and earlier application is encouraged.  

    Topics:

    Compliance & Risk Management | Compliance Programs, Policies & Procedures | Risk Management

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