Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
4/26/2024
ACE Issue Brief on the Respecting the First Amendment on Campus Act (Apr. 18, 2024)
Issue Brief from the American Council on Education (ACE) on the Respecting the First Amendment on Campus Act. The brief identifies key concerns with the “Respecting the First Amendment on Campus Act” (H.R. 7683) introduced on March 5, 2024. Those concerns include increased litigation resulting from the Act’s proposed private right of action and waiver of public institutions’ sovereign immunity rights based on receipt of Title IV funding; the potential loss of Title IV aid resulting from noncompliance with even minor reporting or disclosure requirements; administrative and safety concerns related to the designation of all publicly accessible areas at public institutions as “traditional public forums;” safety concerns related to proposed limits to assess security fees for campus events involving controversial speakers; a prohibition on “all-comers” policies for religious student organizations; constraints on recruitment and academic pursuits entailed in the proposed prohibition on “political litmus tests;” and potential equal protection and Title IX concerns related to the proposed prohibition on actions to “limit or deny” students’ ability to form or participate in single-sex social organizations. ACE also released a Bill Summary detailing the Act’s provisions.
Topics:
Constitutional Issues | First Amendment & Free Speech
Date:
4/19/2024
NACUBO On Your Side (Apr. 15, 2024)
Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from April 9-15, 2024. This summary highlights the Biden Administration’s recently announced plans to provide financial relief to student loan borrowers by eliminating accrued interest, cancelling student debt for some borrowers, and providing at least $5,000 in debt relief to others; the U.S. Department of Education’s recently released data showing that, as of March 29, FAFSA completions among high school seniors were down 40% and that only 27% of the class of 2024 has completed a FAFSA; the finalization of Uniform Grants Guidance by the Office of Management and Budget; the nationwide injunction recently issued by the Fifth Circuit against the Biden Administration’s 2022 borrower defense rule; the elimination by the Financial Accounting Standards Board of reference to Concept Statements in its Accounting Standards Codification; and the National Association of Intercollegiate Athletics (NAIA) recently issued policy permitting only athletes whose “biological sex is female” and who have not “begun masculinizing hormone therapy” to participate fully in NAIA-sponsored female sports.
Topics:
Accreditation, Authorizations, & Higher Education Act
Date:
4/19/2024
U.S. Dep’t of Education DCL on Program Length Restrictions for GE Programs (Apr. 15, 2024)
U.S. Department of Education Dear Colleague Letter (DCL) on Implementation of Program Length Restrictions for Gainful Employment (GE) Programs. The DCL highlights a recent regulatory change ending the “150 percent rule” and limiting “the number of hours in a GE program to the greater of the minimum number of clock hours, credit hours, or the equivalent required for training in a recognized occupation for which the program prepares the student, as established by the state in which the institution is located or, in some cases, another state.” Some GE programs will also no longer qualify for Federal Pell Grant program eligibility. The DCL provides guidance on the implementation of these new limitations.
Topics:
Accreditation, Authorizations, & Higher Education Act | Higher Education Act (HEA)
Date:
4/19/2024
U.S. Dep’t of Education NPRM on Student Debt Relief (Apr. 17, 2024)
U.S. Department of Education Notice of Proposed Rulemaking (NPRM) on Student Debt Relief. The NPRM, “in accordance with the Secretary’s authority to waive repayment of a loan provided by the HEA,” proposes “to provide debt relief targeted to address certain specific circumstances as part of a comprehensive effort to address the burden of Federal student loan debt.” Those circumstances include “growth in a borrower’s loan balance beyond what was owed upon entering repayment, the amount of time since the loan first entered repayment, whether the borrower meets certain criteria for loan forgiveness or discharge under existing authority, and whether a loan was obtained to attend an institution or program that was subject to secretarial actions, that closed prior to secretarial actions, or was associated with closed Gainful Employment programs with high debt-to-earning rates or low medium earnings.” Comments are due on or before May 17, 2024.
Topics:
Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Higher Education Act (HEA) | Students
Date:
4/19/2024
Settlement Agreement between DOJ and The Washington Univ. (Apr. 16, 2024)
Settlement Agreement between the U.S. Department of Justice, Civil Rights Division, Immigrant and Employee Rights (IER) Section and The Washington University. The Agreement resolves IER’s investigation of its reasonable cause belief that individuals at The Washington University School of Medicine allegedly discriminated against an individual granted asylum status by questioning him about his immigration status, work authorization documentation, and right to work after he had satisfied Form I-9 requirements, and then retaliated against him by terminating his employment after he complained of the treatment. The Agreement, which is effective for two years, provides that the University will pay civil penalties and backpay to the complainant, revise its employment policies, train all I-9 personnel on unfair immigration-related employment practices, and be subject to reporting and monitoring for the term of the agreement.
Topics:
Employment of Foreign Nationals | Faculty & Staff
Date:
4/19/2024
EEOC Final Rule on Pregnant Workers Fairness Act (Apr. 19, 2024)
U.S. Equal Employment Opportunity Commission (EEOC) Final Rule and Interpretive Guidance on Implementation of the Pregnant Workers Fairness Act (PWFA). The regulations provide for the implementation by the EEOC of the PWFA’s requirements that covered entities “provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship to the operation of the business of the covered entity.” The publication contains interpretive guidance, including many examples illustrating situations under major provisions of the PWFA, that will also guide the agency in its enforcement of the PWFA. The Final Rule and interpretive guidance will become effective on June 18, 2024.
Topics:
Discrimination, Accommodation, & Diversity | Pregnancy Discrimination | Sex Discrimination
Date:
4/19/2024
U.S. Dep’t of Education Final Rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (Apr. 19, 2024)
U.S. Department of Education, Office for Civil Rights (OCR) Final Rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance. Among other purposes, the Department issued these regulations “to provide greater clarity regarding the definition of ‘sex-based harassment;’ the scope of sex discrimination, including recipients’ obligations not to discriminate based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; and recipients’ obligations to provide an educational environment free from discrimination on the basis of sex.” The Department also issued a Fact Sheet, Summary of Major Provisions, and Resource for Drafting Nondiscrimination Policies, Notices of Nondiscrimination, and Grievance Procedures. The Final Rule is scheduled for publication in the Federal Register on April 29, 2024, and becomes effective August 1, 2024.
Topics:
Discrimination, Accommodation, & Diversity | Employee Sexual Misconduct | Sex Discrimination | Students | Title IX & Student Sexual Misconduct
Date:
4/19/2024
Corrigan v. Bos. Univ. (1st Cir. Apr. 12, 2024)
Opinion affirming dismissal. Plaintiff, a former graduate student at Boston University, brought a disability discrimination claim against the University after she was suspended in Fall 2021 for noncompliance with the University’s mandatory COVID-19 testing protocol, which was supported by the University’s establishment of an on-campus PCR testing laboratory. Plaintiff asserted that she should be exempted due to a chronic medical condition. In October 2022, the District Court dismissed her claim as moot because the University had ended its mandatory testing program due to the then-decline of the pandemic. In affirming dismissal, the First Circuit found that there was little likelihood that the challenged conduct would repeat itself, noting no clear error in the findings that (1) the University had dismantled the infrastructure of its testing program, (2) the University ended its testing program voluntarily and was unlikely to start a similar program that would affect the plaintiff, and (3) there was no imminent and substantial risk that the alleged harm was capable of repetition.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Discrimination, Accommodation, & Diversity
Date:
4/19/2024
Tarquinio v. Johns Hopkins Univ. Applied Physics Lab. (D. Md. Apr. 11, 2024)
Memorandum Opinion granting Defendant’s Motion for Summary Judgment. Plaintiff, a former engineer at the Johns Hopkins University Applied Physics Lab (APL), brought failure to accommodate, employment discrimination, and prohibited examination and inquiry claims against APL after it terminated her for noncompliance with its COVID-19 vaccination and testing requirements. Plaintiff requested an exemption to the vaccination requirement, asserting an “immune dysregulation” and “excessive immune activation” related to “years of chronic Lyme Disease,” and to the testing requirement, asserting that the requirement was unreasonable. She refused repeated requests to provide recent medical documentation or to sign a medical release form to enable APL’s medical officer to consult with her medical provider. In granting summary judgment in APL’s favor on her failure to accommodate claim, the court found that it was plaintiff who refused to engage in an interactive process to find a reasonable accommodation. It also found that her termination was due to her refusal to comply with APL’s vaccination policy rather than discrimination based on her asserted disability. Finally, it dismissed her examination or inquiry claim, finding that APL’s inquiry related only to plaintiff’s request for a medical accommodation.
Topics:
Campus Police, Safety, & Crisis Management | Coronavirus | Disability Discrimination | Discrimination, Accommodation, & Diversity
Date:
4/19/2024
Settlement Agreement between Speech First, Inc. and Okla. State Univ. (Apr. 15, 2024)
Settlement Agreement between Speech First, Inc. and Oklahoma State University. Speech First, a nationwide free speech watchdog group, sued Oklahoma State University alleging that the University’s harassment policy, computer use policy (with respect to transmission of political campaign messages), and the University’s Bias Incident Response Team chilled protected speech. Through the Agreement, the University agreed to maintain changes it had made to its harassment and computer use policies and to disband its Bias Incident Response Team. The Agreement also provides that Speech First will not challenge the University’s definition of sexual harassment in its Title IX policy so long as it mirrors “the governing definition promulgated by the United States Department of Education via notice-and-comment rulemaking under Title IX or the Violence Against Women Act.”
Topics:
Constitutional Issues | First Amendment & Free Speech

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