Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

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
Rivadeneira v. The Univ. of S. Fla. Bd. of Trs. (Fla. App. Oct. 25, 2023)
Order reversing and remanding dismissal, and certifying a question to the Florida Supreme Court. Plaintiff, a student at the University of South Florida, on behalf of himself and a putative class, brought contract claims against the University after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. The trial court dismissed the claims on the ground of sovereign immunity. In reversing, the Florida Court of Appeals held that whether the parties’ contract included a promise to provide on-campus services and the University’s assertion of sovereign immunity are more appropriately resolved at the summary judgment stage. The appeals court also certified to the Florida Supreme Court the question, “Should a motion to dismiss a breach of contract claim against a state university alleging the university’s failure to provide its students with access to on-campus services and facilities be granted based on sovereign immunity if the complaint alleged a contract between the parties but the attached documents alleged to comprise that contract do not specifically obligate the university to provide the on-campus services and facilities that the state university allegedly failed to provide?”
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus
Date:
10/27/2023
Medina v. Univ. of Utah (10th Cir. Oct. 19, 2023)
Order and Judgment affirming dismissal. Plaintiff, the director of BioKids, the University of Utah School of Biological Sciences (SBS) childcare center, brought procedural due process, contract, and state-law retaliation claims against the SBS Director and the University after her employment was (1) terminated through a Reduction in Force (RIF) when the School transferred management of BioKids to the University’s Center for Child & Family Resources as operational needs changed during the coronavirus pandemic, and then (2) reinstated when the arrangement expired. In affirming summary judgment in favor of the University, the Tenth Circuit held that plaintiff waived her procedural due process claim by not exercising her appeal rights under the University’s RIF policy. Her breach of contract claim failed because the RIF policy under which she was terminated was itself a part of her employment contract with the University. Her state-law retaliation claim failed because (1) rather than expressing concern that a planned expansion in BioKids’ capacity would violate state licensing requirements she succeeded in securing a variance from the Utah Department of Health to maintain the center’s compliance, and (2) she pointed to no evidence suggesting that she made a good faith report to the University that she anticipated any regulatory violation.
Topics:
Constitutional Issues | Contracts | Due Process | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff
Date:
10/27/2023
NLRB Final Rule on Standard for Determining Joint Employer Status (Oct. 27, 2023)
National Labor Relations Board (NLRB) Final Rule on the Standard for Determining Joint Employer Status. Under the new standard, an entity may be considered a joint employer if each entity has an employment relationship with the employee and if the entities share or codetermine one or more of the employee’s essential terms and conditions of employment, defined as “(1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to safety and health of employees.” The NLRB also released a Fact Sheet on the Final Rule. The Final Rule becomes effective on December 26, 2023.
Topics:
Collective Bargaining | Faculty & Staff
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
DHS NPRM on H-1B Requirements and F-1 Flexibility (Oct. 23, 2023)
U.S. Department of Homeland Security Notice of Proposed Rulemaking (NPRM) Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers. The proposed regulations would “streamline requirements for the H-1B program by: (1) revising the regulatory definition and criteria for a ‘specialty occupation’; (2) clarifying that ‘normally’ does not mean ‘always’ within the criteria for a specialty occupation; and (3) clarifying that a position may allow a range of degrees, although there must be a direct relationship between the required degree field(s) and the duties of the position.” The regulations would also “change the definition of ‘nonprofit research organization’ and ‘governmental research organization’ by replacing ‘primarily engaged’ and ‘primary mission’ to ‘fundamental activity’ to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity … to meet the definition of a nonprofit research entity.” They would also provide greater flexibility with automatic extension for F-1 visa holders who seek to change their status to H-1B.
Topics:
Faculty & Staff | Immigration | International Students
Date:
10/27/2023
OCR Resolution Agreement with Taft College re: response to discrimination based on gender identity (Oct. 19, 2023)
Resolution Agreement between the U.S. Department of Education, Office of Civil Rights (OCR) and Taft College resolving an investigation into the University’s response to allegations college employees harassed a student who is transgender through sex stereotyping and misgendering. Through the resolution agreement, the College committed to revising its Title IX policies and procedures; providing written guidance and training to its Title IX Coordinators, administrators, and staff; additional reporting and monitoring; and providing reimbursement to the student for expenses related to counseling and therapy. A related Resolution Letter summarized the findings of OCR’s investigation.
Topics:
Discrimination, Accommodation, & Diversity | Gender Identity & Sexual Orientation Discrimination
Date:
10/27/2023
NACUBO On Your Side (Oct. 23, 2023)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from October 17-23, 2023. This summary highlights a letter from 17 lawmakers to the Departments of Education and Agriculture requesting clarification of flexibilities for and increased access to the Supplemental Nutrition Assistance Program (SNAP) for college students, since the pandemic-era waiver expired on July 1; the announcement by the IRS of a special process for employers to withdraw claims for the Employer Retention Credit (ERC) if they are concerned about the accuracy of their claims; a new application process for the Low-Income Communities Bonus Credit Program to increase certain investment tax credits for projects located in qualifying areas; and advocacy from the American Council on Education (ACE) and NACUBO requesting that the Department of Labor (DOL) extend the comment period by 60 days on its proposed increase of the salary threshold for overtime pay.
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
10/27/2023
ACE Letter to the Middle States Commission re: proposed third-party services (TPS) policy (Oct. 20, 2023)
Letter from the American Council on Education (ACE) and five other higher education associations to the Middle States Commission on Higher Education (MSCHE) regarding its recent proposed policy on third-party servicers. Noting the recent interest by the Department of Education in increasing oversight of third-party servicers, the associations urge the MSCHE to limit the scope of its definition of third-party providers in its proposed policy. The associations also urge the MSCHE to pause its efforts until after ED addresses TPS regulation through negotiated rulemaking.
Topics:
Accreditation, Authorizations, & Higher Education Act
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

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