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  • Date:

    ACE Amicus Brief in Zhang v. Emory Univ. (Feb. 22, 2024)

    Amicus Brief from the American Council on Education (ACE) and 16 other higher education associations in Zhang v. Emory University. Plaintiffs-Appellants, the parents of a 17-year-old student at Emory University who died by suicide, brought negligence claims against the University alleging that it knew or should have known that their son was at risk of suicide. After permitting limited plausibility discovery, the district court granted the University’s motion to dismiss, finding conclusory an allegation that an instructor knew that the student appeared to be suicidal prior to when he passed away. Through this amicus brief, the associations ask the Eleventh Circuit to affirm dismissal and decline to find that a university may be liable “on a negligence-based theory for a student’s suicide where there are no well-pled facts showing that the university had any knowledge that the student was considering suicide or self-harm.” The brief argues that to impose such a duty would be both inconsistent with the expectation held even by students who matriculate before the age of 18 that they be treated as autonomous adults with protected privacy interests and would otherwise hinder the higher education community’s progress in removing stigma associated with seeking mental health care.

    Topics:

    Campus Police, Safety, & Crisis Management | Disability Discrimination | Discrimination, Accommodation, & Diversity | Distressed & Suicidal Students | Litigation, Mediation & Arbitration | Students | Tort Litigation

  • Date:

    U.S. Dep.’t of Education Notice of Information Collection under the CARES Act (Feb. 20, 2024)

    U.S. Department of Education Notice of New Information Collection on Foreign Institution Reporting Requirements Under the CARES Act. The CARES Act permitted foreign institutions to provide part of eligible programs via distance education and to enter into written agreements with institutions of higher education in the United States to take courses from that institution. It required participating foreign institutions to report to the Secretary their use of either activity no later than 30 days after the start of the courses. That information collection was discontinued at the end of the formal COVID-19 national emergency. “However, due to other global situations [ED is] now requesting a new information collection to allow for the on-going use of the CARES Act waiver.” Comments are due on or before March 21, 2024.   

    Topics:

    Accreditation, Authorizations, & Higher Education Act | Higher Education Act (HEA)

  • Date:

    U.S. Dep.’t of Education Notice of Information Collection on Gainful Employment/Financial Value Transparency Reporting Requirements (Feb. 21, 2024)

    U.S. Department of Education Notice of New Information Collection Request on Gainful Employment/Financial Value Transparency Reporting Requirements. The Department’s new Final Rule on Financial Value Transparency requires institutions “to report on the students who enroll in, complete, or withdraw from a gainful employment (GE) program or an eligible non-GE program in specified award years.” The Department estimates that the total number of annual burden hours will be 2,665,823. Comments are due on or before April 22, 2024. 

    Topics:

    Accreditation, Authorizations, & Higher Education Act | Financial Aid, Scholarships, & Student Loans | Students

  • Date:

    Greig v. Tex. A&M Univ. Texarkana (E.D. Tex. Jan. 26, 2024)

    Report and Recommendation to deny Defendant’s Motion to Dismiss. Plaintiff, a former Assistant Vice President of Student Affairs at Texas A&M University Texarkana, proceeding pro se, brought a discrimination claim against the University after a new supervisor reduced his job responsibilities, gave him a “not meeting expectations” performance evaluation for the first time in his career, and told him to resign or face termination. Plaintiff alleged that this turn followed significant campus backlash to his decision not to discipline a student who was accused of using a racially offensive word months earlier during a trip to a mall with a fellow student with whom she had a history of interpersonal conflict. In recommending that his claim be permitted to proceed, the magistrate judge found that plaintiff had sufficiently alleged “two times when either a supervisor or a faculty member suggested [he] should be replaced by a person of color or could not relate to students of color.” 

    Topics:

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

  • Date:

    Bullock v. The Univ. of Tex. at Arlington (5th Cir. Feb. 15, 2024)

    Opinion reversing dismissal and remanding for further proceedings. Plaintiff, a student at the University of Texas at Arlington who suffers from major depressive disorder and post-traumatic stress disorder, brought a disability discrimination claim under the Rehabilitation Act against the University after a professor declined to apply her approved accommodations retroactively when her accommodation letter was initially sent to the incorrect email address, alleging that this resulted in lower grades for the semester, including one failing grade. Plaintiff originally filed her claim in state court, which dismissed for lack of jurisdiction, and the state appellate court affirmed. The federal district court dismissed the claim as time-barred, reasoning that the federal claim was filed more than 60 days after the state trial court dismissed the claim. In reversing and remanding, the Fifth Circuit found that the district court erred in starting the 60-day clock on the date of the trial court’s dismissal rather than 60 days after entry of the state appellate court’s judgement when its plenary power to alter its judgment expired and its judgment became final.   

    Topics:

    Disability Discrimination | Discrimination, Accommodation, & Diversity

  • Date:

    Monroe v. Fort Valley State Univ. (11th Cir. Feb. 15, 2024)

    Opinion affirming dismissal. Plaintiff, a former director of the Head Start program at Fort Valley State University, brought False Claims Act retaliation claims against the University after she was terminated five months into her tenure for taking actions without properly vetting them with senior leadership. In affirming dismissal of the claims, the Eleventh Circuit, aligning with the other circuits to have addressed the issue, found that Congress did not abrogate sovereign immunity in the FCA’s anti-retaliation provisions and held that the Regents of the University System of Georgia function as an arm of the state in its administration of the Head Start program.   

    Topics:

    Discrimination, Accommodation, & Diversity | False Claims Act (FCA) | Research | Retaliation

  • Date:

    Children’s Health Def. Inc. v. Rutgers, The State Univ. of N.J. (3rd Cir. Feb. 15, 2024)

    Opinion affirming dismissal. Appellants, thirteen students at Rutgers University during Spring 2021, brought statutory and constitutional challenges to the University’s announced COVID-19 vaccine policy requiring that unvaccinated students either take all their classes online or mask and test weekly. In affirming dismissal, the Third Circuit held that the policy was not preempted by the federal Emergency Use Authorization Act because it preserved the students’ right to refuse the vaccine. Turning to their substantive due process claim, the court found no fundamental right to refuse a vaccination and held that the policy was rationally related to the University’s interest in maintaining a healthy student body. It similarly held that their equal protection claim failed because the University had a rational basis for treating vaccinated and unvaccinated students differently.   

    Topics:

    Campus Police, Safety, & Crisis Management | Constitutional Issues | Coronavirus | Due Process | Equal Protection

  • Date:

    Ng v. Fairleigh Dickinson Univ. (N.J. Super. App. Div. Feb. 16, 2024)

    Opinion affirming summary judgment in favor of the University. Plaintiff, a former tenured professor at Fairleigh Dickinson University, alleged that the University did not follow the procedures in its faculty handbook when it terminated him after it gave him multiple opportunities to correct unprofessional behavior that was documented in 46 student complaints between 2009 and 2017. In affirming summary judgment in favor of the University, the Appellate Division found that the Law Division did not err in applying an administrative agency arbitrary, capricious, and unreasonable standard of review, noting the deference New Jersey courts accord to the internal procedures and decisions of universities. It further found sufficient credible evidence in the record to support the University’s decision and declined to substitute its judgment for that of the University’s Board.   

    Topics:

    Faculty & Staff | Tenure

  • Date:

    Coalition for TJ v. Fairfax County School Board (U.S. Feb. 20, 2024)

    Order denying petition for certiorari. The Coalition for TJ, an advocacy organization comprised of Fairfax County public school parents, brought an equal protection claim against the Fairfax County School Board, challenging an admissions policy it adopted for the Thomas Jefferson High School for Science & Technology. The new admissions process dropped a $100 application fee and standardized testing requirement, allocated a number of seats to each participating middle school, and evaluated each application holistically according to race-blind criteria, including grade point average, a “portrait sheet” describing the applicant’s skills, a problem-solving essay, and four “Experience Factors” (viz., special education status, free or reduced-price meal eligibility, English-language learner status, and attendance at a historically underrepresented public middle school). The new process resulted in more than 1,000 additional applications. The number of admissions offers extended to Black applicants increased from “too small for reporting” (10 or fewer) to 7.9% of the incoming class, while the number extended to Asian American applicants decreased from 65-75% over the previous five application cycles to 48.59%. The district court found that the policy failed strict scrutiny. Finding no basis for holding the facially neutral policy disparately impacted Asian American students or was otherwise established with discriminatory intent, the Fourth Circuit held that the policy survives rational basis review and reversed and remanded for entry of summary judgment in favor of the Board. The Supreme Court denied certiorari although Justice Alito filed a dissent, in which Justice Thomas joined.   

    Topics:

    Admissions | Students

  • Date:

    NACUBO On Your Side (Feb. 12, 2024)

    Summary from the National Association of College & University Business Officers on legislative and regulatory actions that occurred from February 6-12, 2024. This summary highlights the recent decision by Region 01 of the National Labor Relations Board (NLRB) that Dartmouth College’s men’s basketball team are employees eligible to unionize; the Department of Education’s allocation of $50 million to provide direct funding for technical and other tools in FAFSA assistance to help institutions process student records and deliver financial aid packages; and the latest update to the National College Attainment Network’s (NCAN) FAFSA tracker showing that only 16.3% of the high school class of 2024 has submitted a FAFSA, a 56.6% decrease compared to the 2023 academic year. 

    Topics:

    Accreditation, Authorizations, & Higher Education Act

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