Legal Updates Archive

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First Amendment and Ten Commandments: The Ministerial Exception

April 14, 2015

The ministerial exception is a doctrine of constitutional law that provides religious employers, including certain colleges and universities, with a complete defense to many employment-related causes of action.

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Forewarned is Forearmed: Frequent Issues in College and University Audits

August 21, 2013

Compliance with federal tax laws may require universities to take another look at their unrelated business taxable income and executive compensation based on an IRS audit of thirty-four schools and an accompanying report issued in April 2013.

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Fisher v. University of Texas: Keeping the "Strict" in "Strict Scrutiny"

July 2, 2013

On June 24, 2013, the United States Supreme Court issued its much-anticipated decision on the constitutionality of university race-conscious admissions programs.

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The Revised FERPA Regulations and Increased Access to Personally Identifiable Information

April 5, 2013

Since 2012, amended regulations under the Family Educational Rights and Privacy Act allow greater access to student education records by government agencies, so universities should consult with legal counsel and have a written agreement regarding privacy expectations before sharing student data.

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Status of Federal Regulations of State Authorization

March 29, 2013

Although distance education programs are temporarily free from federal mandates regarding state authorization, postsecondary schools must be authorized to offer education in their home state and be subject to a sufficient student complaint process by July 1, 2013, or they risk losing Title IV funding eligibility.

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Who Can Obtain Acess to Research Data?

February 27, 2013

When faced with a request for underlying research data, academic researchers may have a right to withhold the information, particularly if the research is unpublished, the research is not federally sponsored, and research subjects have been promised confidentiality.

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Student Conduct Issues During Study Abroad Programming

January 15, 2013

Before sending students to foreign locations, it is a good practice for private institutions to reaffirm the university’s code of conduct and clarify its application in international settings so students know what to expect should discipline become necessary.

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Endowment Investing in Private Equity Funds: Losing Money in the Fine Print

November 29, 2012

Managers of college and university endowments may avoid unnecessary fees and expenses associated with a private equity fund investment by carefully reviewing and understanding the distribution, allocation, liquidation, and “clawback” provisions contained in a fund’s partnership agreements.

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Holiday and Religious Displays on Campus: Threading the First Amendment Needle

November 15, 2012

Although the U.S. Constitution protects the free exercise of religion by faculty, staff, and students, public colleges and universities could run afoul of the Establishment clause when holiday decorations go up on campus.

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Boots on the Ground: Opening an Office in a Foreign Country

August 1, 2012

A college or university wanting to open an office abroad should first consult with general counsel to develop a strategic plan, obtain necessary approvals, research foreign laws, engage local counsel, and determine any registration requirements.

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Federal Enforcement of Drug-Free Schools Regulations Likely to Increase

July 3, 2012

A report issued March 14, 2012, may lead the Department of Education to crack down on universities without a program to prevent drug and alcohol use on campus, which program requires both distribution of written information and biennial reviews.

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The Revised ADA Title II and Title III Regulations (Part 2): Impact on Ticket Sales and Effective Communication Requirements at Athletic Events

June 22, 2012

Universities should assess their accessibility seating and ticket sales practices for athletic events to ensure compliance with revised ADA regulations, effective March 2011, which require accessible seats to be sold under the same terms as other seats.

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The Revised ADA Title II and Title III Regulations (Part 1): Impact on Campus Athletic Facilities

June 21, 2012

Under new regulations to the Americans with Disabilities Act, enforced as of March 2012, university arenas, stadiums, and recreational facilities must meet heightened standards for accessible design, which standards apply to existing facilities, new construction, and remodels.

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Paramour Favoritism in the College Workplace

May 30, 2012

Even if Title VII doesn’t impose liability for paramour favoritism, universities should consider adopting a clear policy that addresses commitment to a discrimination-free workplace and states the university’s position on romantic relationships.

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Business vs. “Nobody’s Business”: Searches Of Employer-Issued Technology And The University Employee’s Expectation Of Privacy

May 23, 2012

Given the widespread use of laptops, smart phones, and mobile devices for personal and workplace communications, university employers should understand relevant privacy laws and adopt and enforce appropriate policies that permit workplace management and supervision.

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The Leahy-Smith America Invents Act

May 15, 2012

The Leahy-Smith America Invents Act, signed into law on September 16, 2011, mandates major reforms to the United States patent system that impact how and when universities and their technology transfer offices file patent applications.

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Federal Disability Laws: Do They Translate to Study Abroad Programs?

April 26, 2012

Even if federal disability laws do not apply to study abroad programs, universities should clearly state essential program requirements and involve the accessibility office with respect to any disability-related inquiries and reasonable accommodations.

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Update on Accommodating Service and Assistance Animals on Campus: Making Heads or Tails of Federal Disability Laws

March 16, 2012

Recent litigation and government enforcement actions highlight the uncertainty among universities, students, and government agencies regarding the use of animals on campus as an accommodation for students with disabilities.

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The Clery Act and Overseas/Distance Study: New Developments and Compliance Guidance

February 29, 2012

The Department of Education’s updated handbook gives guidance on classifying, counting, and reporting crimes that occur abroad or at distant domestic properties.

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OCR’s “Dear Colleague” Letter on Title IX and Sexual Violence—Training Obligations

January 17, 2012

The April 4, 2011, “Dear Colleague” letter is the first substantive guidance in a decade regarding sexual harassment under Title IX. This Note focuses on training requirements and suggests how best to provide training.

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OCR’s “Dear Colleague” Letter on Title IX and Sexual Violence—First Steps for Compliance

January 11, 2012

The April 4, 2011, “Dear Colleague” letter is the first substantive guidance in a decade regarding sexual harassment under Title IX. This Note addresses Title IX coordinators and grievance procedures.

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Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

January 11, 2012

The Supreme Court recognized the “ministerial exception” and held that the Establishment and Free Exercise Clauses of the First Amendment bar a minister’s employment discrimination suit against her religious employer.

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Fostering Diversity in the Campus Counsel’s Office

November 8, 2011

University general counsel that wish to foster office diversity should engage in outreach and recruitment efforts and follow up with retention and support.

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New Title II Regulations Regarding Direct Threat

November 1, 2011

The new DOJ regulations omit any reference to direct threats to self. University policies should focus on conduct, not disability, and ensure individualized assessments.

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U.S. Department of Education Program Integrity Rules—Part III

August 9, 2011

The Program Integrity Rules impose eligibility requirements on higher education institutions to qualify to participate in federal student financial aid programs. Part III discusses new regulations relating to gainful employment programs.

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Student Bankruptcy and the Permissibility of Traditional Campus Collection Measures

July 14, 2011

Universities must follow bankruptcy law requirements, which trump standard collection practices, when student debtors file for bankruptcy.

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U.S. Department of Education Program Integrity Rules—Part II

June 24, 2011

The Program Integrity Rules impose eligibility requirements on higher education institutions to qualify to participate in federal student financial aid programs. Part II discusses new regulations relating to credit hour definitions and disclosure and reporting obligations.

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U.S. Department of Education Program Integrity Rules—Part I

June 23, 2011

The Program Integrity Rules impose eligibility requirements on higher education institutions to qualify to participate in federal student financial aid programs. Part I discusses new regulations relating to state authorization, incentive payments, and misrepresentation.

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The 2011 Clery Handbook: New Developments and Important Changes

June 10, 2011

The Department of Education has issued an updated handbook to help colleges and universities properly report their campus safety and security in compliance with the Clery Act.

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Internship and Externship Programs Under the Fair Labor Standards Act

May 24, 2011

The Department of Labor’s fact sheet gives guidance on whether internship programs create an employment relationship and are therefore governed by the Fair Labor Standards Act.

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Health Care Reform and Its Effect on Student Health Services

May 13, 2011

A proposed rule relating to the Patient Protection and Affordable Care Act addresses the coverage and costs of university-sponsored student health plans.

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Wikileaks: Treasure Trove or Minefield?

April 19, 2011

The Wikileaks disclosure of confidential defense documents and diplomatic cables raises legal questions for institutions, faculty, and students who want to use that information.

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Accommodating Service and Assistance Animals on Campus: Making Heads or Tails of the ADA, FHA, and Section 504

April 14, 2011

The Americans with Disabilities Act of 1990, the Fair Housing Act, and other laws regulate the use of service and assistance animals in student housing and on campus.

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From Tinker to Twitter: Managing Student Speech on Social Media

March 16, 2011

Universities should adapt existing policies and think through a variety of issues as they address students online.

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Genes at Work - Nothing to Be Casual About

March 9, 2011

The EEOC recently released its final regulations implementing the Genetic Information Nondiscrimination Act of 2008 and providing guidance for university employers.

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Export Compliance During the VISA Application Process: the New I-129 Form and Its Implications for Higher Education

March 9, 2011

Colleges and universities now must certify compliance with deemed export licensing requirements during the visa application process for certain nonimmigrant workers.

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New FLSA Amendment Requires Breaks for Nursing Mothers

January 20, 2011

The Fair Labor Standards Act has been amended to require that covered employers provide locations and reasonable breaks for nursing mothers to express breast milk.

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Medical Marijuana on Campus – Yes, It Is Still Illegal

December 22, 2010

Despite state laws to the contrary, federal law still prohibits the production, possession, and use of marijuana—even for medicinal purposes.

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Health Care Reform and College and University Employee Health Care Plans: The Initial Impact

October 26, 2010

The Patient Protection and Affordable Care Act imposes new requirements on self-insured and fully insured group health plans sponsored by public and private colleges and universities.

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Safety, Missing Students and Fire Reporting Requirements of the Higher Education Opportunity Act

August 25, 2010

The Higher Education Opportunity Act of 2008 and its accompanying regulations establish new requirements for colleges in the areas of personal safety and crime reporting, fire safety and reporting, and missing students.

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Peer-to-Peer File Sharing Requirements of the Higher Education Opportunity Act

July 22, 2010

The Higher Education Opportunity Act creates new copyright law requirements for colleges and universities reagrding peer-to-peer file sharing.

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The Title IX Implications of Eliminating an Intercollegiate Sports Team

June 22, 2010

Eliminating an intercollegiate sports team carries significant legal ramifications, particularly under Title IX.

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The False Claims Act: Recent Amendments and Their Implications for Higher Education

April 16, 2010

The False Claims Act permits private individuals, acting as whistleblowers on behalf of the federal government, to sue colleges and universities that submit false or fraudulent claims for payment to the United States.

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Furloughs: The New Normal

March 23, 2010

Many colleges and universities have resorted to using layoffs and furloughs "temporary leaves without pay or associated work duties for a designated period of time" to manage urgent or immediate cost reduction needs during the current economic crisis.

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E-Verify Compliance for College and University Federal Contractors

January 20, 2010

The Department of Homeland Security issued final regulations requiring federal contractors to enroll in and use the E-Verify system to check the employment authorization of all new hires and all existing employees assigned to covered federal contracts.

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Cloud Contracting: Outsourcing email@youruniversity.edu

December 16, 2009

Several well-known companies have begun to provide e-mail to campus-based users with a youruniversity.edu address by contract, which raises many complex legal and technical issues.

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Spending from Underwater Endowment Funds in Times of Economic Distress

December 8, 2009

The Uniform Prudent Management of Institutional Funds Act provides much greater flexibility than its predecessor for institutions that wish (or need) to continue to spend from underwater endowment funds.

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Foreign Faculty in H-1B Status: Understanding the Basics

November 10, 2009

H-1B status is the most commonly used type of nonimmigrant status for foreign nationals hired to fill faculty positions at colleges and universities.

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Human Stem Cell Research: 2009 NIH Guidelines

October 30, 2009

The National Institutes of Health issued final Guidelines for Human Stem Cell Research that implement Executive Order 13505 as it relates to NIH-funded research.

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International Academic Travel and U.S. Export Controls

August 28, 2009

Many academic travelers, both students and professors alike, are unaware of U.S. export laws, and their failure to comply may result in expensive fines or time in jail.

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HITECH Act: New Law Requires Significant Investment in Health Information Privacy and Security

July 17, 2009

The Health Information Technology for Economic and Clinical Health Act imposes new federal security breach notice requirements and adds numerous new privacy and data security restrictions for covered entities and their business associates.

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FERPA and Campus Safety

June 19, 2009

The Family Educational Rights and Privacy Act does not prohibit appropriate and desirable cautionary communications intended to protect student, campus, or public safety.

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Shifting the Playing Field: The ADA Amendments Act of 2008

June 2, 2009

The 2008 Amendments to the Americans with Disabilities Act revise the Act's standards and expand the number of persons protected under the Act.

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Avoiding Property Loss Claims by Exiting Faculty

May 8, 2009

Colleges and universities should consider taking practical and legal preventative measures to minimize potential claims by departing faculty members for lost or damaged property.

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The Google Settlement and Higher Education: Imminent Deadlines

April 17, 2009

Authors, publishers, and Google announced a proposed settlement regarding Google's alleged copyright infringement in its Library Project.

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Whose Room Is It Anyway? Lawful Entry and Search of Student Dormitory Rooms

January 21, 2009

In some circumstances, colleges and university employees can lawfully enter and search a student's room.

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Liability for Sexual Assault by College Athletes under Title IX

November 7, 2008

Recent court decisions have allowed lawsuits seeking to hold institutions liable under Title IX for peer sexual assault to go to trial.

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Uniform Prudent Management of Institutional Funds Act

September 24, 2008

UPMIFA governs management and investment of institutional funds, including endowment funds.

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The Higher Education Opportunity Act I: New Reporting and Disclosure Requirements for Colleges and Universities

September 16, 2008

The Higher Education Opportunity Act imposes new reporting and disclosure requirements in many areas, including drug and alcohol abuse prevention, consumer information, textbook information, and general institutional information.

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The Higher Education Opportunity Act II: New Reporting and Disclosure Requirements for Colleges and Universities

September 16, 2008

The Higher Education Opportunity Act imposes new reporting and disclosure requirements relating to student lending.

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Retirement Plans: Compliance with New 403(b) Regulations

May 1, 2008

The IRS has issued comprehensive regulations governing 403(b) retirement plans. The most important implication is that responsibility for compliance will now be focused on the employer and not on the individual employee possessing the plan.

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Preparing for E-Discovery

February 22, 2008

Electronically stored information is now fair game for litigation discovery requests. Preparing for e-discovery requires coordination among various offices on the university campus, including counsel's office, the IT department, and faculty and staff members.

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Department of Homeland Security Chemical Facility Anti-Terrorism Standards (CFATS)

January 18, 2008

If a university possesses any of 325 Chemicals of Interest identified by the Department of Homeland Security, it must complete a consequence assessment questionnaire or face stiff penalties.

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FERPA and Campus Safety

August 6, 2007

Concerns about the ability to communicate critical information in an emergency are, in large part, the result of misunderstandings about FERPA.

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The HIPAA Security Rule: Safeguarding Electronic Protected Health Information

June 13, 2007

Prior to using or disclosing health information, colleges and universities need to assess whether and what aspects of their institutions are covered by the HIPAA Security Rule.

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OFCCP Internet Applicant Data Collection and Recordkeeping Rule

February 6, 2007

This rule establishes when federal contractors must solicit race, ethnicity, and gender data, and under what circumstances they must maintain records for individuals who express interest in positions via the Internet and other electronic means.

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The Pension Protection Act of 2006: Charitable Giving and Reform Measures Impacting Colleges and Universities

December 19, 2006

This legislation directly impacts colleges and universities in two principal respects: it provides charitable giving incentives and it implements a number of significant changes designed to effectuate charitable reform.

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The Constitutionality and Current Status of the Solomon Amendment

August 31, 2006

In March 2006, the U.S. Supreme Court ruled in Rumsfeld v. Forum for Academic and Institutional Rights that the Solomon Amendment is constitutional.

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Non-Solicitation Rules and Union Organizing under the National Labor Relations Act

June 22, 2006

Despite the national decline in union membership, labor organizations remain very active in higher education.

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Campus Computer Security Breaches: Compliance with State Notification Statutes

May 10, 2006

One-half of all reported security breaches since February 2005 have occurred at colleges and universities, implicating security breach notification laws.

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Student Criminal Background Checks

March 10, 2006

Determining whether to conduct student criminal background checks requires discussions and decisions on institutional, legal, and policy concerns.

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Gender Identity and Expression Issues at Colleges and Universities

June 2, 2005

Some universities have addressed gender identity issues through various policies. This article discusses these developments, identifies issues likely to arise on campus, and provides resources for counsel regarding this area of law.

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Changes to the Alien Worker Labor Certification Process

March 24, 2005

The Department of Labor has changed the way employers hire foreign employees. Universities must be aware of the new procedures, which change the way a labor certification application is initiated, filed, and adjudicated.

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College and University Employee References

January 21, 2005

Employment references present risks that educational institutions must address in order to limit institutional liability and still permit reasonably candid references.

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Race-Conscious Financial Aid after the University of Michigan Decisions

June 9, 2004

The University of Michigan cases affect university decisions on race-conscious and race-exclusive financial aid and scholarship programs.

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Copyright, Peer-To-Peer File Sharing and DMCA Subpoenas

November 6, 2003

Colleges and universities are being asked by the recording industry to identify students engaged in file sharing on educational networks and should be aware of their rights and responsibilities in this regard.

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U.S. Supreme Court Decision in University of Michigan Admissions Cases

July 2, 2003

The Supreme Court's decision in Grutter v. Bollinger held that consideration of race as a positive factor in the admissions process is permissible. Moreover, the decision is applicable to both public and private institutions.

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FTC's Gramm-Leach Bliley Act Safeguards Rule: Guidelines for Compliance

May 16, 2003

The Safeguards Rule requires colleges and universities, as financial institutions, to develop, implement, and maintain a comprehensive information security program.

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New Regulations on Possession, Use, and Transfer of Biological Agents and Toxins

January 21, 2003

Regulations issued in December 2002 pursuant to recent federal legislation impose comprehensive new requirements for continuing to work with biohazardous materials.

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The Technology, Education, and Harmonization Act (TEACH Act) of 2002

January 10, 2003

The TEACH Act gives instructors at nonprofit educational institutions enhanced capability to employ most third-party copyrighted works in electronic courseware without the need to secure permission from copyright owners.

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Sarbanes-Oxley, Corporate Responsibility and Colleges and Universities

January 10, 2003

This act was enacted in response to the corporate accounting scandals of 2002. Although the act was intended for publicly traded companies and public accounting firms, the principles underlying the act apply to universities as well.