Legal Updates Archive
The Clery Act and Overseas/Distance Study: New Developments and Compliance Guidance
September 26, 2016
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.
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.
On June 24, 2013, the United States Supreme Court issued its much-anticipated decision on the constitutionality of university race-conscious admissions programs.
The Impact of the May 2013 Montana "Blueprint" on the Sexual Harassment-Related Obligations
June 14, 2013
Following a yearlong investigation of the University of Montana, on May 9, 2013, the U.S. Department of Education and the U.S. Department of Justice issued a joint letter that seeks to broaden the definition of sexual harassment and raises questions about compliance with Title IX.
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.
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.
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research data, academic researchers may have a right to withhold the information, particularly if the research is unpublished, the research is not federally sponsored, and research subjects have been promised confidentiality.
Before sending students to foreign locations, it is a good practice for private institutions to reaffirm the universityâ€™s code of conduct and clarify its application in international settings so students know what to expect should discipline become necessary.
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 â€œclawbackâ€ provisions contained in a fundâ€™s partnership agreements.
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.
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.
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.
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.
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.
Even if Title VII doesnâ€™t impose liability for paramour favoritism, universities should consider adopting a clear policy that addresses commitment to a discrimination-free workplace and states the universityâ€™s position on romantic relationships.
Business vs. â€œNobodyâ€™s Businessâ€: Searches Of Employer-Issued Technology And The University Employeeâ€™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.
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.
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.
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.
The Clery Act and Overseas/Distance Study: New Developments and Compliance Guidance
February 29, 2012
The Department of Educationâ€™s updated handbook gives guidance on classifying, counting, and reporting crimes that occur abroad or at distant domestic properties.
OCRâ€™s â€œDear Colleagueâ€ Letter on Title IX and Sexual Violenceâ€”Training Obligations
January 17, 2012
The April 4, 2011, â€œDear Colleagueâ€ 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.
OCRâ€™s â€œDear Colleagueâ€ Letter on Title IX and Sexual Violenceâ€”First Steps for Compliance
January 11, 2012
The April 4, 2011, â€œDear Colleagueâ€ letter is the first substantive guidance in a decade regarding sexual harassment under Title IX. This Note addresses Title IX coordinators and grievance procedures.
The Supreme Court recognized the â€œministerial exceptionâ€ and held that the Establishment and Free Exercise Clauses of the First Amendment bar a ministerâ€™s employment discrimination suit against her religious employer.
University general counsel that wish to foster office diversity should engage in outreach and recruitment efforts and follow up with retention and support.
The new DOJ regulations omit any reference to direct threats to self. University policies should focus on conduct, not disability, and ensure individualized assessments.
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.
Universities must follow bankruptcy law requirements, which trump standard collection practices, when student debtors file for bankruptcy.
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.
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.
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.
The Department of Laborâ€™s fact sheet gives guidance on whether internship programs create an employment relationship and are therefore governed by the Fair Labor Standards Act.
A proposed rule relating to the Patient Protection and Affordable Care Act addresses the coverage and costs of university-sponsored student health plans.
The Wikileaks disclosure of confidential defense documents and diplomatic cables raises legal questions for institutions, faculty, and students who want to use that information.
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.
Universities should adapt existing policies and think through a variety of issues as they address students online.
The EEOC recently released its final regulations implementing the Genetic Information Nondiscrimination Act of 2008 and providing guidance for university employers.
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.
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.
Despite state laws to the contrary, federal law still prohibits the production, possession, and use of marijuanaâ€”even for medicinal purposes.
Academic program closures impact faculty, staff, and students and raise serious risk management, reputational, and legal issues for institutions.
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.
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.
Chinese law allows foreign universities to provide educational programs in China, but significantly limits their autonomy by requiring that they partner with Chinese institutions.
The Higher Education Opportunity Act creates new copyright law requirements for colleges and universities reagrding peer-to-peer file sharing.
Eliminating an intercollegiate sports team carries significant legal ramifications, particularly under Title IX.
Undocumented students who want to obtain a college education face obstacles relating to admission, tuition, and financial aid.
Telecommuting "working for an employer from home or a remote location" is a growing business practice that raises legal and policy issues for employers that choose to implement a comprehensive telecommuting program.
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.
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.
Colleges and universities should clearly communicate their public health and emergency management plans regarding an influenza pandemic, and they must also comply with the many employment, labor, health, and safety laws covering to their employees and students.
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.
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.
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.
H-1B status is the most commonly used type of nonimmigrant status for foreign nationals hired to fill faculty positions at colleges and universities.
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.
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.
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.
The Family Educational Rights and Privacy Act does not prohibit appropriate and desirable cautionary communications intended to protect student, campus, or public safety.
The 2008 Amendments to the Americans with Disabilities Act revise the Act's standards and expand the number of persons protected under the Act.
Colleges and universities should consider taking practical and legal preventative measures to minimize potential claims by departing faculty members for lost or damaged property.
Authors, publishers, and Google announced a proposed settlement regarding Google's alleged copyright infringement in its Library Project.
Staff Layoffs and Reductions in Force: Organizing the Process and Managing the Legal Risk
February 3, 2009
Many colleges and universities facing financial uncertainty are considering cost-cutting measures such as layoffs, furloughs, hiring freezes, and negotiated retirements.
In some circumstances, colleges and university employees can lawfully enter and search a student's room.
Recent court decisions have allowed lawsuits seeking to hold institutions liable under Title IX for peer sexual assault to go to trial.
UPMIFA governs management and investment of institutional funds, including endowment funds.
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.
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.
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.
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.
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.
Concerns about the ability to communicate critical information in an emergency are, in large part, the result of misunderstandings about FERPA.
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.
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.
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.
In March 2006, the U.S. Supreme Court ruled in Rumsfeld v. Forum for Academic and Institutional Rights that the Solomon Amendment is constitutional.
Despite the national decline in union membership, labor organizations remain very active in higher education.
One-half of all reported security breaches since February 2005 have occurred at colleges and universities, implicating security breach notification laws.
Determining whether to conduct student criminal background checks requires discussions and decisions on institutional, legal, and policy concerns.
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.
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.
Employment references present risks that educational institutions must address in order to limit institutional liability and still permit reasonably candid references.
The University of Michigan cases affect university decisions on race-conscious and race-exclusive financial aid and scholarship programs.
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.
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.
The Safeguards Rule requires colleges and universities, as financial institutions, to develop, implement, and maintain a comprehensive information security program.
Regulations issued in December 2002 pursuant to recent federal legislation impose comprehensive new requirements for continuing to work with biohazardous materials.
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.
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.