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  • Date:

    NACUBO On Your Side (Jan. 8, 2024)

    Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from December 19, 2023-January 8, 2024. This summary highlights the Consumer Financial Protection Bureau’s (CFPB) annual report on agreements between colleges and universities and banks to provide accounts and credit cards to students and other campus stakeholders; the “soft launch” of the 2024-25 FAFSA and the technical issues that have accompanied it; the reminder from the Department of Education Office of Federal Student Aid about the January 31, 2024 deadline for reporting foreign gifts and contracts under Section 117 of the Higher Education Act; NACUBO’s updated Financial Accounting and Reporting Manual (FARM); NACUBO’s comment letter on the Government Accounting Standards Board (GASB) exposure draft, “Disclosure and Classification of Certain Capital Assets,” and the requirement that capital assets held for sale, intangible assets, and lease assets be disclosed separately by major class; and NACUBO’s advocacy along with other higher education associations in a letter to the Department of Homeland Security on its proposed rule “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.”  

    Topics:

    Accreditation, Authorizations, & Higher Education Act

  • Date:

    Students for Fair Admissions, Inc. v. The United States Mil. Acad. at W. Point (S.D. N.Y. Jan. 3, 2024)

    Opinion and Order denying Plaintiff’s Motion for Preliminary Injunction. Plaintiff, Students for Fair Admissions, Inc., brought a Fifth Amendment claim against the United States Military Academy at West Point, the Department of Defense, and multiple officials, alleging that the use of racial classifications in West Point’s admissions process cannot satisfy strict scrutiny as considered and applied in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. In denying a preliminary injunction, the court declined plaintiff’s suggestion that no interest asserted by defendants could be constitutional under Harvard, finding that the “patchwork of information” plaintiff assembled was insufficient to warrant injunctive relief and instead created questions of fact regarding the military’s assertion that consideration of race “(1) fosters cohesion and lethality; (2) aids in recruitment of top talent; (3) increases retention; and (4) bolsters the Army’s legitimacy in the eyes of the nation and the world.” The court likewise held plaintiff had not shown that the alleged harm resulting from the admissions program is a constitutional deprivation. Finally, in finding that plaintiff had not shown that the balance of equities tips in its favor or that preliminary injunction is in the public interest, the court noted that an injunction would disrupt two admissions cycles and possibly require West Point to withdraw offered appointments.   

    Topics:

    Admissions | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Students

  • Date:

    Perkins v. New Eng. Coll. (D. Vt. Jan. 3, 2024)

    Opinion and Order granting Defendants’ Motion to Stay. Plaintiff, a former Chancellor of New England College who was also a member of its Board of Trustees, brought sex discrimination and intentional infliction of emotional distress claims against the College and its President after it terminated her employment the day after her Employment Agreement expired and removed her from its Board prior the end of her three-year term. Defendants moved to stay and to compel arbitration pursuant to the Employment Agreement. In granting the stay and compelling arbitration on plaintiff’s discrimination and IIED claims, the court held that even though her termination took place after the Employment Agreement’s expiration, the facts giving rise to her claims occurred within its duration. Turning to her claims related to her removal from the Board, the court held that although her Board appointment was not governed by the Employment Agreement “the interests of economy for both the Court and the parties will be served by a complete stay.”

    Topics:

    Discrimination, Accommodation, & Diversity | Governance | Governing Boards & Administrators | Litigation, Mediation & Arbitration | Sex Discrimination | Sex Discrimination in Employment

  • Date:

    Warman v. Mount St. Joseph Univ. (S.D. Ohio Jan. 3, 2024)

    Order granting-in-part Defendant’s Motion to Dismiss. Plaintiff, a former nursing student at Mount St. Joseph University who had been diagnosed with multiple disabilities, including depression, anxiety, and brain tumors, brought various civil rights and Fourth Amendment claims under §1983 and disability discrimination claims against the University and multiple officials after he was denied a religious exemption to the University’s COVID-19 vaccination policy. Plaintiff also alleged that campus police had questioned him about his decision not to receive a vaccine. In dismissing plaintiff’s civil rights claims, the court found that the University officials who established the vaccination policy were private persons and employees of a private entity who neither acted in a public function nor exercised state coercive power. It ruled that plaintiff’s Fourth Amendment claim against the campus police officer failed, finding that no seizure took place because a reasonable person in the circumstances alleged would have believed they were free to leave, and that the officers were, accordingly, entitled to qualified immunity. In dismissing his disability discrimination claim, the court noted that though he had submitted medical documentation indicating “a medical need to avoid taking COVID vaccines,” he had not alleged what condition gave rise to this need. The court declined to exercise supplemental jurisdiction over state law claims.   

    Topics:

    Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus | Disability Discrimination | Discrimination, Accommodation, & Diversity | Fourth Amendment & Search and Seizure

  • Date:

    Grisgorescu v. Bd. of Trs. of San Mateo Cnty. Cmty. Coll. Dist. (N.D. Cal. Jan. 2, 2024)

    Order granting-in-part and denying-in-part Defendant’s Motion for Summary Judgment. Plaintiff, a former lab technician and adjunct professor at the College of San Mateo, brought First Amendment retaliation claims against the San Mateo Community College District and its Vice Chancellor for Human Resources (VCHR), who also served as legal counsel for the College, alleging that they harassed and ultimately terminated her in retaliation for her participation in community organizing and litigation opposing the College’s plan to replace a garden with a parking lot. Although plaintiff was ultimately terminated for abusing sick time to teach at another institution, an earlier termination decision based on her mischaracterization of her academic qualifications was reversed on appeal. Plaintiff also asserted that decisions not to permit her to participate in a mentorship program or to substitute for full-time professors were retaliatory harassment. The court granted summary judgment in favor of the VCHR with respect to plaintiff’s ultimate termination, finding that the Board of Trustees, as a state agency, functioned in a sufficiently judicial capacity in her termination appeal hearing to bar her retaliation claim under both claim and issue preclusion. It permitted her claims to proceed, however, with respect to the first termination process and alleged harassment, finding (1) sufficient temporal proximity to the VCHR’s representation of the College and the District in plaintiff’s prior litigation, and (2) his opposition to her protected activity by virtue of that representation.   

    Topics:

    Constitutional Issues | Discrimination, Accommodation, & Diversity | First Amendment & Free Speech | Retaliation

  • Date:

    Iowa Individual Health Benefit Reinsurance Ass’n v. State Univ. of Iowa, et al. (Iowa Dec. 29, 2023)

    Opinion affirming-in-part, reversing-in-part, and remanding. In 1995, Iowa’s Individual Health Insurance Market Reform Act established the Iowa Individual Health Benefit Reinsurance Association (IIHBRA). The Act required that “all persons that provide health benefit plans in the state” be members of IIHBRA and authorized IIHBRA to assess its members, based on information they provided about premiums and losses, in order to equalize its members’ gains and losses. The University of Iowa, Iowa State University, and the University of Northern Iowa, which provided self-funded health benefit plans for their employees, contended they were not members and declined to pay IIHBRA’s assessments. Following a protracted procedural history, a bench trial awarded damages for unpaid assessments to IIHBRA, and the Universities appealed. In affirming the trial court, the Supreme Court of Iowa held that the Universities’ statutory interpretation that limited IIHBRA membership to entities enumerated as examples in the text is unduly restrictive. It further held that because the assessments were primary obligations of the Universities and did not impose suretyship for other entities, the Act did not violate the Iowa Constitution as applied to the Universities. The court affirmed the denial of attorney fees and costs but reversed and remanded with instructions to award 5% late payment fees to IIHBRA.   

    Topics:

    Employee Benefits | Faculty & Staff | Health Care & Insurance

  • Date:

    Students for Fair Admissions, Inc. v. The United States Naval Acad. (D. Md. Dec. 20, 2023)

    Memorandum Opinion denying Plaintiff’s Motion for Preliminary Injunction. Plaintiff, Students for Fair Admissions, Inc., brought a Fifth Amendment challenge against the United States Naval Academy and multiple officials, alleging that the Naval Academy’s race conscious admissions practices cannot survive strict scrutiny. In denying a preliminary injunction, the court held that the Naval Academy is due more deference than a public or private university, citing the explicit caveat for military academies in the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Noting the objectives served by the military’s determination that “a diverse officer corps is critical to cohesion and lethality, to recruitment, to retention, and to the military’s legitimacy in the eyes of the nation and the world” differ from the interest in educational benefits approved in Grutter and rejected in Harvard, the court was unprepared to conclude that the Naval Academy’s use of race was incoherent, that Grutter’s purported 25-year time limit applied, or that the Naval Academy presumed stereotypically that there is “an inherent benefit in race qua race.” The court was also unpersuaded as this stage that the Naval Academy used race or ethnicity as a negative or that it had not sufficiently considered race-neutral alternatives. Given this, the court further found that plaintiff had not established the likelihood of irreparable harm or that the balance of equities or the public interest favored an injunction.   

    Topics:

    Admissions | Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Students

  • Date:

    ACE Comment Letter to DHS on Proposed Rule to Modernize the H-1B and Other Visa Processes (Dec. 22, 2023)

    Comment Letter from the American Council on Education (ACE) and 19 other higher education associations to the Department of Homeland Security (DHS) on its NPRM “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers.” The letter expresses support for multiple provisions of the NPRM, including those that would shift to a beneficiary-centric lottery system in the H-1B registration process, codify the current deference policy that requires consideration of prior determinations when there have been no material changes that would adversely impact an application, provide greater flexibility for graduating students seeking to move from Optional Practical Training into an H-1B position, and eliminating the requirement that applicants provide an itinerary if their work or training will occur in more than one location. The letter expresses concern about a proposed change to the definition and process for determining when a position involves a “specialty occupation,” noting that it would limit the potential pool of applicants for many faculty positions (such as in engineering programs) for which required specialization need not be in a specifically identified subspecialty. 

    Topics:

    Employment of Foreign Nationals | Faculty & Staff | Immigration | International Students

  • Date:

    Isgrig v. Trs. of Ind. Univ. (Ind. App. Dec. 27, 2023)

    Opinion reversing summary judgment in favor of the University and remanding. Plaintiff, a student at Indiana University Bloomington, brought negligence claims against the University after a window in a University building where she was studying for exams in April 2018 fell out of the wall and shattered on her head. The University did not inspect the windows regularly, and the window in question, which had adjustable blinds between two glass panes, was last repaired in March 2017 in response to a work order noting that the blinds would not raise. The trial court granted summary judgment in favor of the University, finding that the doctrine of res ipsa loquitur did not permit an inference of negligence. In reversing and remanding, the Court of Appeals of Indiana found that there were material issues of fact as to whether the University exercised exclusive control over the window even though others might adjust the blinds and whether such adjustments should not cause a window to fall from the wall absent negligence.

    Topics:

    Litigation, Mediation & Arbitration | Tort Litigation

  • Date:

    The State Bd. of Regents of the Nev. Sys. of Higher Educ. On Behalf of the Coll. of S. Nev. v. Second Judicial Dist. Court of the State (Nev. Dec. 22, 2023) (unpub.)

    Order denying petition for a writ of mandamus. Plaintiff, a student at the University of Nevada, Las Vegas (UNLV) during Spring 2020, on behalf of herself and putative tuition and fee classes of all students enrolled in institutions overseen by the Nevada System of Higher Education (NSHE), sued NSHE for its March 2020 directive to institutions to cease in-person instruction, which was made in response to the Governor’s COVID-19 Emergency Directives. The district court denied NSHE’s motion to dismiss plaintiff’s claims against the institutions she had not attended for lack of standing, finding she had sufficiently pled that students at all NSHE institutions had suffered the same injury when it moved to online instruction. In declining to provide writ relief, the Supreme Court of Nevada held that the district court had not clearly erred or manifestly abused its discretion in finding that prior to discovery the “products” of UNLV and the other NSHE institutions were not sufficiently differentiated to deny plaintiff standing to proceed against all the institutions.   

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

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