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  • Date:

    NACUBO On Your Side (Sep. 30, 2024)

    Summary from the National Association of College and University Business Officers on legislative and regulatory actions that occurred from September 24-30. This summary highlights the short-term funding package Congress passed to fund the federal government through mid-December; the recent report from the Government Accountability Office (GAO) on the Department of Education’s struggles with 2024-2025 FAFSA; and a FAFSA update letter released by Secretary of Education Miguel Cardona acknowledging the numerous failures and the ED’s effort to improve user experience.  

    Topics:

    Accreditation, Authorizations, & Higher Education Act

  • Date:

    GAO Report on the Free Application for Federal Student Aid (FAFSA) (Sep. 24, 2024)

    U.S. Government Accountability Office (GAO) Report entitled “Preliminary Results Show Strong Leadership Needed to Address Serious Student Aid System Weaknesses.” Responding to a Congressional request, the GAO reviewed (1) delays in delivering on FAFSA Processing Systems (FPS); (2) defects identified before and after FPS deployment; (3) the extent to which disciplined systems acquisition practices were used to manage FPS requirements, conduct systems testing, and carry out independent acquisition reviews; and (4) the extent to which the Department and the Office of Federal Student Aid (FSA) IT leadership provided oversight of FPS development. GAO made six recommendations to the Department, including adhering to agency policy in managing requirements and testing, developing policy for independent acquisition reviews, and most notably hiring a permanent departmental Chief Information Officer. 

    Topics:

    Financial Aid, Scholarships, & Student Loans | Students

  • Date:

    House v. NCAA (N.D. Cal. Sep. 26, 2024)

    Supplemental submission pertaining to settlement agreement. Following the concern of the Court regarding the definition of “a valid business purpose” and the potential consequences of eliminating pay-for-play payments, the Court instructed the parties to file supplemental material addressing the issues raised by the Court. In the newly submitted materials, the term “boosters” is limited to a narrower group of entities and individuals closely affiliated with schools (“Associated Entities or Individual”) in contrast with the prior Name Image and Likeness (NIL) Rules where “boosters” more broadly encompassed all third-party NIL deals. Additionally, under the supplemental settlement proposal any limitations on payments are subject to neutral arbitration review thus limiting the NCAA’s role in review of the payments.  

    Topics:

    Athletics & Sports

  • Date:

    Fox v. Fort Hays State Univ. (D. Kan. Sep. 24, 2024)

    Memorandum and Order denying Defendant’s Motion to Dismiss. Plaintiff, an employee at Fort Hays State University brought claims of race discrimination under Title VII, § 1983, and § 1981 against the University. Plaintiff, who is Black, was employed at the University’s campus in China when he applied to transfer to a position on the main campus in Kansas. According to plaintiff, he was the “perfect fit” for the position, but did not receive an interview. Therefore, after the University hired a White male for the role, plaintiff brought claims alleging a race-based failure to promote and asserted that faculty members of color were overrepresented in international appointments and had been similarly denied opportunities for lateral transfer to the University’s main, domestic campus. The Court permitted plaintiff’s claims to proceed, finding that plaintiff adequately alleged he (1) is a member of a protected class due to his race; (2) applied for a position to which he was qualified; and (3) was rejected from that position in favor of a candidate of a different race. While acknowledging the broad and general nature of plaintiff’s claims, the court found that they were sufficient to state a plausible claim at this early stage but expressly noted that plaintiff must now adduce facts establishing his own credentials equaled or exceeded that of the successful candidate.  

    Topics:

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

  • Date:

    Brunson v. Benedict Coll. (D. S.C. Sep. 24, 2024)

    Opinion and Order granting in part and denying in part Defendants’ Motion for Summary Judgment. Plaintiff, a former faculty member at Benedict College who is African American, brought Title VII and §1981 retaliation claims, as well as state law claims for breach of contract, wrongful termination, and defamation against the College. Following student complaints regarding plaintiff’s course instruction, including that the instruction relied almost exclusively on peer teaching, plaintiff was placed on a Performance Improvement Plan (PIP) and eventually terminated. Plaintiff avers that his placement on a PIP, termination, and other negative actions by supervisory personnel within the College were motivated by his complaints regarding purportedly problematic treatment by his White supervisor. Plaintiff’s allegations of retaliatory actions beyond his termination included alleged harassment, disrespect, supervisor demands for daily emails, refusal to fund any activity or effort associated with plaintiff’s requests for teaching materials, choir needs, and attendance at conferences, as well as “baiting his students to make false accusations against [plaintiff],” and denying his requests for leave of absence. Since the Court found that the College did not address these allegations insofar as they formed the basis for pro se plaintiff’s §1981 retaliation claim “on acts in addition to his termination,” the Court partially sustained plaintiff’s objection to the magistrate judge’s recommendation and permitted this narrow claim to proceed, but granted summary judgment in favor of the College on all other claims.  

    Topics:

    Discrimination, Accommodation, & Diversity | Race and National Origin Discrimination | Retaliation

  • 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:

    Dixon v. Lincoln Univ. (E.D. Pa. Sep. 11, 2024)

    Memorandum denying Defendant’s Motion to Dismiss. Plaintiff, a former student at Lincoln University during Spring 2020, on behalf of herself and a putative class, brought contract and unjust enrichment claims against the University related to tuition and fees after it ceased in-person instruction and closed campus facilities due to the coronavirus pandemic. Relying on the Third Circuit’s holding in Hickey v. University of Pittsburgh, the court wrote that “claims related to the retention of tuition and fees during the COVID-19 pandemic are properly construed as contract claims, not educational malpractice claims.” The court reasoned that the University’s defense of impracticability and impossibility “at most excuse[] performance, but [they do] not entitle the party who had been obliged to perform to retain the benefit provided by the other party” (internal quote omitted), and that the latter defense was also not necessarily applicable to the entire Spring semester since “[i]t is a factual question beyond the scope of a motion to dismiss whether at some point in this period the school could have reopened but wrongfully declined to do so.” Finally, the court found that discovery was necessary prior to disposition of the claim for unjust enrichment.  

    Topics:

    Campus Police, Safety, & Crisis Management | Coronavirus

  • Date:

    Office for Civil Rights Releases New Resources on Students with Disabilities (Sep. 24, 2024)

    U.S. Department of Education, Office of Civil Rights (OCR) issued four new resource documents regarding the rights of students with anxiety, depression, bipolar disorder, and eating disorders, and the corresponding responsibilities of institutions to accommodate these potentially disabling conditions under Section 504 of the Rehabilitation Act of 1973.   

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity

  • Date:

    NACUBO On Your Side (Sep. 23, 2024)

    Summary from the National Association of College and University Business Officers on legislative and regulatory actions that occurred from Sep. 10-23, 2024. This summary highlights the recent resources shared by the U.S. Department of Education on Title IX requirements; Treasury guidance on Electric Vehicle Charging Equipment Credits; the Department’s recent decision to delay the reporting deadline for Financial Value Transparency and Gainful Employment; and the recent report from the Association for the Advancement of Sustainability in Higher Education (AASHE) on top performing institutions’ environmental sustainability. 

    Topics:

    Accreditation, Authorizations, & Higher Education Act

  • Date:

    Letter regarding H.R. 3724, the End Woke Higher Education Act (Sep. 17, 2024)

    Letter from the American Council on Education (ACE) and six other organizations to the U.S. House of Representatives concerning H.R. 3724, the End Woke Higher Education Act. The letter referred to prior opposition to the Respecting the First Amendment on Campus Act and requested removal of Title II from H.R. 3724 positing that it would undermine efforts to protect free speech and provide safe learning environments free from discrimination. The letter goes on to explain how Title II would create new counterproductive federal mandates and undermine the very goals it seeks to advance with a rigid, highly prescriptive, and costly regulatory enforcement framework across nearly 1,900 institutions forcing them to develop “objective, content- and view-point neutral and exhaustive standards” in allocating funds to student organizations.

    Topics:

    Accreditation, Authorizations, & Higher Education Act