Category: Education

For Title IX and Athletics Professionals in Higher Education, One Less Moving Part

Year after year, the issue of sexual misconduct in violation of Title IX on college campuses continues to confront higher education leaders.  The topic is one on which innumerable individuals and special interest groups have strong opinions and agendas.  Athletics, commonly called the “front porch” to universities, can often be at the center of the Title IX storm.  Among other high-profile issues, there have been reports of college athletes transferring to other schools and returning to competition even after being expelled, convicted or otherwise disciplined for sexual misconduct.

In response, in April 2020, the National College Athletic Association (NCAA) expanded its sexual violence policy to require that all incoming, current and transfer college athletes disclose annually to their school whether they have been subject to an investigation, discipline through a Title IX proceeding, or a criminal conviction for sexual, interpersonal or other acts of violence. Failure to accurately and fully disclose, could result in penalties for the athlete, including a loss of athletics eligibility.

It was recently reported that in October 2020 the NCAA quietly made the controversial decision to delay implementation of this policy until the 2022-2023 academic year.

This means that, until the fall of 2022, athletes might not face penalties if they do not disclose past accusations or discipline, and schools will not be required to create processes to track such misconduct.  The NCAA stated that the decision to delay implementation was based on challenges related to the pandemic and the new Title IX federal regulations that went into effect in August 2020.  Layered on top of these justifications is the speculation that President-elect Biden may at some point roll back or amend the new regulations.  Advocates for victims of campus assault have reacted to the NCAA decision with disappointment.

Though all of this, institutions of higher learning must remain steadfast in their concurrent commitments to both an environment free from sexual misconduct, and equitable, reliable processes for all.  While patience can be difficult, there is undoubtedly wisdom in allowing time to build a good process that fulfills these mutually beneficial commitments.  Colleges and universities are well advised to use the time to develop robust and equitable processes surrounding the reporting of misconduct.

©2020 Strassburger McKenna Gutnick & Gefsky

Supreme Court of the United States Upholds DACA (Deferred Action for Childhood Arrivals)

In a 5-4 decision written by Chief Justice John Roberts on Department of Homeland Security et al vs. Regents of the University of California, the Supreme Court held that the DACA rescission was improper under the Administrative Procedures Act.

In the decision, Chief Justice Roberts concludes “that the acting secretary violated the [Administrative Procedure Act]” and thus the decision to end the DACA program must be vacated. Today, over 700,000 foreign nationals have availed themselves of the opportunities provided by DACA.

In his opinion, Chief Justice Roberts writes:

“We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

Chief Justice Roberts was joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh filed opinions that concurred with parts of the dissent and majority.

On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum creating a non-congressionally authorized administration program that allowed certain individuals who entered the United States as children and met various other requirements, namely lacking current lawful immigration status, to request deferred action for an initial period of up to two years, with the ability to renew thereafter, and eligibility for work authorization. This program became known as DACA – Deferred Action for Childhood Arrivals.

The program has faced continuous constitutional scrutiny since its creation, including the Department of Homeland Security’s order that ended the program in 2017. Lower court rulings enabled the DACA program to continue, ultimately leading to suit being brought before the Supreme Court.

The Supreme Court’s decision is not a final resolution on DACA, but instead rules that the Trump Administration’s total recession of DACA was “arbitrary and capricious” and that the administration failed to give adequate justification for ending the program. This decision keeps the DACA program in place.

The full ruling on the case can be found here.

©2020 Greenberg Traurig, LLP. All rights reserved.

You Streamed What? Copyright Infringement Pitfalls During COVID-19

In the sudden transition from in-person to online presentation of content precipitated by the COVID-19 stay-at-home orders, some educators and other presenters have run headlong into the digital world without a thought to the application of copyright law to their online presentations.  Scrambling to provide content, did some consider the sufficiency of their internet bandwidth and the security of their video-conferencing platform while overlooking copyright infringement issues?  Caution.  Those office webinars, college lectures, music lessons, and club meetings can be fraught with legal pitfalls.

Although we are slowly emerging from our bunkers and cautiously lifting our masks while maintaining social distance, some have predicted that online meetings and classes are here to stay—at least in some form.  Thus, these copyright infringement pitfalls merit consideration.  Granted, any attempt to treat this matter comprehensively in a 1500 word article is a fool’s errand.  And when it comes to these highly fact-specific matters, there’s no substitute for an attorney’s legal advice.  But some basic education on copyright law and some understanding of the distinctions between copyright as applied to education versus other areas might assist those unaccustomed to the online stage from stumbling into a battle over copyright infringement.

What is Protected by Copyright?

A copyright is a collection of rights that protect original works of authorship.  These works can include literary, dramatic, musical and artistic works.  A copyright does not protect facts, ideas, systems or methods of operation, although it may protect the way these things are expressed.  In general, a copyright exists from the moment the work is created and fixed in tangible form.  Registering does not create the copyright; but registering the copyright allows the owner to bring a lawsuit to enforce it and bears on the recovery that a copyright owner can obtain in the lawsuit.  Similarly, under the current law, neither the “©” symbol nor any other marking on an original work of authorship creates the copyright; but the copyright symbol or other marking can put the public on notice that the copyright owner claims his copyright.

What is in the Public Domain?

Works in the “public domain” can be copied.  These fall generally into three categories.

  • Works deliberately dedicated to the public without copyright protection.
  • Works for which the copyright has expired.
  • Works for which the copyright was not renewed.

The changes in the copyright legislation over the course of the past 40 years have made the rules about copyright expiration and renewal somewhat complex.  As of 2020, however, works published before January 1, 1925, entered the public domain.

What About Fair Use?

Most educators and presenters have some familiarity with the “fair use doctrine,” a defense to what is indisputably copying of an original work.  While some librarians have signed the “Public Statement:  Fair Use & Emergency Remote Teaching & Research” in which they boldly state that “making materials available and accessible to students in this time of crisis will almost always be a fair use”, as yet no legislature or court has carved out a “COVID-19” addendum or even a “public health emergency” addendum to the fair use doctrine.  Nevertheless, the fair use doctrine can provide a defense to presenters who exercise a modicum of discretion.

In considering an infringer’s reliance on the fair use doctrine as a defense to copyright infringement, courts consider the use made of the work in light of four factors:

1)   the purpose and character of the use, including whether the use is commercial or is for nonprofit educational purposes;

2)   the nature of the copyrighted work;

3)   the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4)   the effect of the use upon the potential market for or value of the copyrighted work.

Consideration of these factors is highly subjective and fact-sensitive.  The first factor, besides asking whether the use is commercial or educational, looks at the purpose of the use.  Educational as opposed to commercial uses are favored.  But contrary to popular belief, educational use alone will not suffice as a defense to copyright infringement.  Generally, whether the use is commercial or educational, there must be something “transformative” about the use.  In other words, is there something new created?  Does the new work offer a new expression, meaning or message?  Is it serving as raw material for a new expression or insight?  In the education context, is the instructor adding something new such as commentary?  Is he tying the work into his own lesson or is he just using the work to replace his lesson?

While the first factor is often considered the “heart” of the fair use analysis, the other factors matter too.  Consider the second factor.  Is the original work creative or just an arrangement of facts?  Fair use has a broader scope where the original work is factual or informational.  Is it published or unpublished?  Greater latitude is afforded the alleged infringer claiming fair use where the work is published.

But even if the work is published, the third factor considers the portion used—in a quantitative as well as a qualitative sense.  Is the portion used a paragraph or several chapters?  The fair use defense will more likely shield copying a small portion of a work than a large section.  Despite efforts by advocates, courts have refused to specifically quantify how much is too much.  Furthermore, if a copier carves out the most memorable portion of the work, the “heart” of the work, no matter how small, fair use will offer no sanctuary—except in parody.  Where the new work is a parody of the original, the court has recognized that it is the heart of the work at which the parody takes aim.

Finally, how does the copied work impact the potential market for the original? If the copied work undermines the current or potential market for the original work, then this will undermine the use of the fair use doctrine as a defense.

In the education context, Congress has carved out some specific ways in which instructors can circumvent infringement.  House Report No. 94-1476, 94th Cong., 2d Sess. (1976) includes the Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions (p.6).  Single copying of a chapter from a book or an article from a periodical, a chart or cartoon for use in teaching or preparing to teach, for example is considered fair use under the guidelines.  Multiple copying for the use of pupils in a class is similarly fair use where the copying meets tests of brevity and spontaneity (as defined in the guidelines), meets the cumulative effect test (as defined in the guidelines), and each copy includes a notice of copyright.  But copying cannot be used to replace anthologies or to replace books intended to be “consumable.”  Specific guidelines apply to music.  While there may be instances in which copying does not fall within the protection of the guidelines but nevertheless is permitted under the fair use criteria, compliance with the guidelines offers a safe harbor for educators.

Outside of this safe harbor, presenters employing copied works must navigate the more uncertain waters of fair use and consider other ways to avoid infringement.  But be forewarned that mere acknowledgement of the source material, while perhaps one factor to be considered in a fair use determination, will not absolve a copier for infringement.  Likewise, a disclaimer—effectively a “No Infringement Intended” notice—won’t work.

How Does the TEACH Act Apply in the Online Classroom?

Addressing more specifically the online environment for education, the Technology, Education, and Copyright Harmonization Act of 2002, better known as the TEACH Act, addresses digital teaching materials used in both the classroom and in distance learning settings in 17 USC § 110(2).  This exempts from infringement certain performances and displays of works in an online classroom transmission under certain conditions.

What can be transmitted?

  • Performance of a nondramatic literary or musical work.
  • Performance of reasonable and limited portions of any other work.
  • Display of a work in an amount comparable to what would typically be displayed in the course of a live classroom session.

Under what conditions?

  • The transmission is under the actual supervision of an instructor.
  • The transmission is part of the instructional activities of the institution.
  • The work is related to the teaching content of the transmission.
  • The transmission is made solely for and is limited to the students officially enrolled in the course (as much as is technologically feasible).

What is not authorized?

  • Use of pirated copies.
  • Use of works normally marketed primarily for performance or display as part of online instructional activities.
  • Conversion of print versions of works to digital formats unless there is no digital version available, and even then, conversion is limited to the portions authorized by the size restrictions in the Act.

In order for an instructor to rely on the provisions of the Act, the institution must comply with certain requirements regarding policies and education of faculty and students and application of technological measures to reasonably prevent retention of the works by recipients of the transmission or further dissemination.  Posting class lectures that include copyrighted works on YouTube won’t qualify.

What about showing films?  In the face-to-face environment of a brick and mortar classroom, showing an entire film, video or TV program for educational purposes is allowed (17 U.S.C. § 110(1)), but not when the classroom goes virtual.  Showing portions of a film in an online classroom, may be considered fair use depending on how much of the film is shown and for what purpose.  If fair use does not apply and if the film is not in the public domain, however, students should view the film through a licensed streaming film provider.

What About Licenses and Releases?

Obtaining an author’s permission to use his work obviates the need to engage in the fair use or other analyses described above.  Whether the permission takes the form of a license (permission to use the work) or a release (promise not to sue for unauthorized use), however, many licenses and releases are limited to in-person presentation or distribution and do not extend to online presentation or distribution.  Presenters must carefully consider the scope of permission granted by a license or permission.

In the COVID-19 world, some publishers are offering educators temporary expanded permissions.  The key words here are “educators” and “temporary.”  These permissions do not extend to non-educators, and they are provisional.  Once the days of stay-at-home orders end, educators cannot assume that they can use the same works in the same way online.  In addition, the use of these expanded permissions comes with strings attached.  There are certain requirements that the publishers impose on the user.

Some creators offer their work through Creative Commons licenses.  These give creators standardized ways to grant the public permission to use their work.  Again, however, a user of a work offered under a Creative Commons license should carefully consider the scope of the permission granted.  Not all Creative Commons licenses allow the same types of use.

Obtaining permission to use works may seem daunting, but there are various organizations available online that streamline the process.  The Copyright Alliance offers a list of resources to assist those seeking licenses for works such as literary publications, music, photographs, software and motion pictures.

Conclusion

When it comes to copyright and online meetings, many well-meaning and well-educated people don’t know what they don’t know—until they do.  Unfortunately, that epiphany sometimes comes in the form of a takedown notice or a demand letter.  Thus, presenters would be well advised to evaluate their use of another’s work before posting, streaming, sharing or tweeting.

Copyright 2020 Summa PLLC All Rights Reserved

Secretary DeVos Rejects Calls for Waivers – School Districts Must Comply with IDEA and Section 504

In the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Congress – among other things – directed U.S. Secretary of Education Betsy DeVos to report regarding waivers of children’s rights under the IDEA and Section 504 of the Rehabilitation Act. On April 27, DeVos announced she would not recommend that Congress pass any additional waivers concerning the requirements in those acts.

According to the announcement (available here), the secretary determined there is no reason a student’s access to FAPE cannot continue online, through distance education, or other alternatives. She did request that Congress consider additional flexibilities on administrative requirements under the Perkins Act, the Rehabilitation Act of 1973, and the IDEA (the full report containing the list of waivers is available here).

The importance of this announcement is that schools must continue to provide a FAPE to students in the least restrictive environment even during the current pandemic. Also, without a wholescale waiver, schools should anticipate continuing to hold timely IEP and 504 Team meetings and as stated by the secretary, provide for students’ needs online, through distance education, or other alternative means.

© 2020 Dinsmore & Shohl LLP. All rights reserved.

For more education news, see the National Law Review Public Education and Services law section.

The NCAA will Temporarily Allow Student-Athletes to Raise Money for COVID-19 – Here’s How They Can Protect Themselves

The NCAA will allow college student-athletes to raise money for COVID-19 related causes after some controversy over a fundraiser arranged by Clemson quarterback Trevor Lawrence. Lawrence and his girlfriend started a GoFundMe to raise money for food for those struggling during the pandemic. According to ESPN, Clemson compliance officials asked Lawrence to stop the fundraiser, believing it was violating NCAA policy around an athlete profiting from the use of their name, image and likeness. However, the NCAA released a statement that they would allow Lawrence and other student athletes to raise money related to the COVID-19 pandemic.

These types of issues may soon be a thing of the past. This month, the NCAA’s Federal and State Legislation Working Group is expected to report their recommendations on how to allow athletes to profit for the use of their name, image and likeness.

This month, the NCAA Board of Governors is receiving updated recommendations from their Federal and State Legislation Working Group after they ruled in Oct. 2019 that they would allow student athletes the opportunity to profit for the use of their name, image and likeness. The three divisions of the NCAA are analyzing their rules, which they must complete by January 2021.

While we wait for details, there are important topics college student-athletes should begin to understand. One critical legal issue that college student-athletes need to consider is the importance of protecting their potential intellectual property early in their athletic career. Oftentimes, college student-athletes wait to focus on their image and intellectual property until they have declared their entrance into a professional league’s draft. It is during this time period when athletes begin thinking about entering into licensing deals, developing their brand, and preparing trademarks for the commercialization of their brand and image. With the pending changes to the NCAA rules, this timeline moves up and college student-athletes and their families need to start focusing on the following intellectual property issues.

Brand and Image

Given the new stance taken by the NCAA, the development, management and protection of an athlete’s brand will be more important than ever before. With the explosion of social media over the last decade, athletes are more aware of the brand they present to the world; however, the question these athletes need to analyze is: how do they want the public to view them? The outcome of this analysis will help them understand what types of marketing and endorsement deals should they enter into and for how long.

Understanding some of the typical provisions of an endorsement deal are critical for the protection of an athlete’s brand. Does the agreement establish category exclusivity? How long is the term? What is required of the athlete? How does a particular sponsorship or endorsement deal align, or not align, with their college’s sponsorship deals? If a conflict exists, how is it addressed? All of these questions should be addressed in the written marketing agreement. Further, an athlete should to seek advice on ensuring that these provisions are addressed, and addressed in a way that protects the athlete.

Another question that athletes will have to address is whether they are being fairly compensated for the use of their name, image and likeness. Ultimately, the market will determine what it is willing to pay a college student athlete. The metrics for making this decision already exist through looking at social media followers, name recognition, etc. The more of a celebrity an athlete is, the more they will be able to demand in endorsement deal compensation.

Trademarks

Another aspect of the name, image and likeness discussion that will impact college student-athletes is the need to protect their intellectual property. As athletes build their brand, trademark protection might become a necessity. A trademark can range from a players own name, nickname, brand name or logo, or even slogan or phrase that they have used (e.g. NBA’s Kawhi Leonard applying for the trademark “What It Do Baby” after gaining serious popularity in memes and social media postings following the 2019 NBA Finals). A trademark filing will be important, for those student-athletes who have a name, attribute or phrase that they want to commercialize (e.g. NBA’s Anthony Davis’ registered trademark for “Fear The Brow” playing on the nickname of his eyebrows).

When a student-athlete protects his or her brand by filing for a trademark registration, it allows the athlete to stop anyone else from using their intellectual property without their permission. Additionally, thinking about a potential company that wants to use a student-athlete as an endorser, the company will need to ensure it has an appropriate license to use that student-athlete’s intellectual property in its marketing and promotions. In order to protect itself, such a company will likely require that the athlete has protected their own intellectual property.

Domain Names

One additional area of intellectual property protection that college student-athletes (even high school athletes) should understand is domain name registration. An athlete can reserve their own domain name for a minimal amount, typically $15 – $40 per year. However, if they wait too long, they may find the domain name was reserved by someone else.

Some athletes have had the domain name for their own name reserved by someone else and when trying to secure that name, the original owner tries to sell it to the athlete for sometimes tens of thousands of dollars. In 2009, Chris Bosh brought a lawsuit and won in federal court against an organization that had reserved www.ChrisBosh.com and many other athlete domain names.

The Anti-cybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), creates a cause of action for someone registering or using a domain name confusingly similar to a trademark or personal name. The law was established to try and stop “cyber squatters” who register domain names solely with the intention of selling the domain name to the person whose name it references at a profit.

While the law provides this protection, an athlete has to determine whether filing a lawsuit is worth the time and expense to get the domain name back. Oftentimes an athlete will simply use an alternate domain name, an uncommon top-level domain or create their own top-level domain. The lesson here is that athletes, at all levels, should register their name as their domain name in order to avoid these challenges.

Conclusion

While athletes like Trevor Lawrence have the temporary approval to fundraise during the COVID-19 crisis, profiting or from their name, image and likeness will become a reality for all student athletes over the next year. Athletes must protect themselves and ensure they take the appropriate precautions to protect their intellectual property.

© 2020 Porter Wright Morris & Arthur LLP All Rights Reserved.

Class Actions Follow Universities’ Moves to Online Learning

After switching to online learning in response to the COVID-19 pandemic and sending students home, colleges and universities are beginning to face class action lawsuits seeking refunds of tuition, housing costs, meal plans, and fees. One such lawsuit is Church v. Purdue University, No. 4:20-CV-0025, in the U.S. District Court for the Northern District of Indiana.

The lawsuit asserts contract and unjust enrichment claims for three general classes, seeking partial reimbursement for: (1) tuition; (2) housing; and (3) meals and fees. Among the many important issues will be whether the damages are so individualized that they are not susceptible to class-wide proof. If so, they would predominate over common, class-wide issues and prevent class certification. The Church complaint, for example, acknowledges that the diminished value may vary for each student. It alleges that academic performance drops from online learning and the adverse effects hit lower ranked students progressively more harshly. Also, the named plaintiff is an engineering senior who is missing out on his senior project of building an airplane. Many other students will have similar stories, but they each will be unique. These and other problems will be a struggle for plaintiffs as they seek to find a class-wide damages model for some or all of the sub-classes they seek to represent.

These suits also may entail issues arising from recent federal legislation enacted to combat the economic fallout from COVID-19, as well as issues regarding financial aid.

These damage issues will be hotly litigated as these cases face motions to dismiss and oppositions to class certification.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

For more litigation resulting from COVID-19, see the National Law Review Coronavirus News page.

Boy Scouts File for Bankruptcy Amidst Wave of Sexual Abuse Charges

In the face of approximately 300 sexual abuse lawsuits from former Boy Scouts, the Boy Scouts of America has filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code. The Boy Scouts of America is the nation’s largest scouting organization and one of the largest youth organizations. Because Chapter 11 allows an organization to continue operations, scouting programs are expected to proceed at this time.

Officials with the organization said in a statement on Tuesday, February 19, “Our plan is to use this Chapter 11 process to create a Trust that would provide equitable compensation to these individuals.”

The national landscape has shifted significantly in recent years as large, influential organizations like the Catholic Church and USA Gymnastics have become the subject of sexual abuse scandals. One of the most important ways laws have changed has been the extension of the statute of limitations. Many states, including New Jersey and Pennsylvania, have chosen to grant sexual abuse victims longer timeframes to seek damages in sexual abuse and assault cases.

COPYRIGHT © 2020, STARK & STARK

See the National Law Review Bankruptcy & Restructuring Law section for more information.

An Overview of STEM OPT Employer Site Visits

Employers who have employed F-1 students in the Science, Technology, Engineering, and Mathematics (STEM) category of the Optional Practical Training (OPT) program can expect site visits by the Student and Exchange Visitor Program (SEVP). The March 2016 STEM OPT rule allows the United States Department of Homeland Security (DHS) to conduct site visits of employers that train STEM OPT students.

Conducting Site Visits

The site visits are aimed to ensure that STEM OPT students are in compliance with the OPT program rules. Employers must engage the students in a structured, work-based learning experience consistent with the practical training and other information provided in Form I-983 – Training Plan for STEM OPT students. Employers will receive prior notification of such visit and the DHS will then assess if the program mentoring is working for both the student and employer.

The DHS is looking to verify if the employer has enough supervisory personnel to effectively maintain the program. The DHS might first request information through phone or email and conduct a site visit right after giving notice or do so later.  The DHS may ask employers to provide evidence that they use to assess the wages of similarly situated U.S. workers. The DHS will maintain all the information that is obtained during a site visit.

Consequences of Site Visits

The DHS’s Immigration and Customs Enforcement (ICE) will be overseeing employer location site visits. The DHS may refer matters to the U.S. Department of Labor or any other appropriate federal agency if the site visit warrants such referral.

If the DHS determines that an employee or student needs to update or clarify any information, the DHS will send a request in writing to the employer on how they should provide that necessary information.

Preparation for Students and School Officials

Students and Designated School Officials (DSO) must be prepared in anticipation of these upcoming site visits. Students must update their information in the SEVP portal or report updates to their school officials to make sure that their employer information and home addresses are up-to-date. Students must also be careful to update the address and name of the employer’s location where they are working. DSOs should also be prepared to provide the student’s up-to-date Form I-983 if requested.

Preparation for Employers

Now will be a good time for the employers to ensure that Form I-983 is updated and to ensure that the student’s training complies with the training plan. Also, to designate a company representative and train them on how to handle any such site visits by ICE. Employers must also maintain audit files containing all relevant STEM OPT form copies and supporting documents.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on DHS STEM OPT visits, see the National Law Review Immigration law sections.

High School Female Athletes Fail to Score on Class Certification

The U.S. District Court for the District of Hawaii recently denied female student-athletes’ motion for class certification under Title IX even though it rejected the defendants’ attacks on mootness and standing as well as Rule 23(a)’s requirements for commonality, typicality, and adequacy. Instead, the court found that the proposed class failed to satisfy the numerosity requirement that joinder would be impracticable.

The underlying case centered on Title IX allegations by female athletes at James Campbell High against defendants Hawaii State Department of Education and the Oahu Interscholastic Association. The athletes claimed that the defendants violated Title IX by failing to take remedial actions to meet Title IX’s anti-discrimination provisions and failed to provide Campbell female athletes with equivalent, athletic-participation opportunities. The athletes’ motion proposed the following class: “All present and future James Campbell High School female students and potential students who participate, seek to participate, and/or were deterred from participating in athletics at Campbell.” The plaintiffs alleged that the defendants’ records showed 366 Campbell female student-athletes in the 2018–2019 school year alone.

The court first addressed the issue of mootness after the defendants argued that two of the named plaintiffs had already graduated. The court found, however, that those athletes’ claims fit under the “inherently transitory” exception to mootness, given the necessarily finite duration of a high school student’s time as a student-athlete and the potential for repetition of the claims from similarly situated students.

The court next addressed the defendants’ argument that the named plaintiff — a ninth-grade water polo player — did not have standing because the water polo season had not yet begun at the time the motion was filed, and thus she had yet to experience the alleged discriminatory conduct. The court found that the defendants’ argument was erroneously narrow-focused and that the ninth-grade athletes had allegedly experienced discriminatory events generally suffered by the female student-athlete populations, which would apply even if a particular student’s athletic season had not yet started. Specifically, those student-athletes are forced to make plans around a discriminatory sports schedule or are exposed to a lack of publicity for female athletics programs, which are the types of harm that Title IX was implemented to prevent and remedy.

The court then turned its focus to Rule 23(a)’s requirements. While the court found that the athletes satisfied the commonality, typicality, and adequacy requirements, the court’s decision ultimately depended on the athletes’ inability to satisfy the numerosity requirement. Although the defendants did not appear to challenge numerosity, including that the class exceeded 300 members, the court found that the athletes had failed to demonstrate that joinder was impracticable and that the future members of the proposed class were reasonably identifiable. The court observed that the proposed class members were limited to the female population from a single high school and were geographically tied to one area of Hawaii and identifiable through school and athletic records. Thus, the court held that joinder of the current students within the class in a single lawsuit was not impracticable. The court also found that, with regard to the future and potential students, those subgroups were not reasonably identifiable and, thus, would not be considered in any numerosity determination.

As uncommon as it may be for a class of more than 300 members to fail the numerosity requirement of Rule 23(a), any case can offer distinct circumstances that allow a court to reject an otherwise presumed, accepted argument. The unique geographic facts here were sufficient for this court to reject certification. Ultimately, the facts always matter.

A.B. v. Haw. State Dep’t of Educ., Civ. No. 1:18-cv-00477 (D. Haw. Dec. 31, 2019).

©2011-2020 Carlton Fields, P.A.

For more on Title IX issues, see the National Law Review Public Education & Services section.

What Do Colleges and Universities Need to Know About the Executive Order and Title VI?

On Dec. 11, 2019 President Trump issued an Executive Order (EO) stating that, “It shall be the policy of the executive branch to enforce Title VI [of the Civil Rights Act of 1964] against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.”

This has created a good bit of confusion, with media outlets reporting that the EO “redefines” Judaism as a nationality or ethnicity. Not so. So what does the EO do? What, if anything, is new about it? And how will it affect U.S. colleges and universities that receive federal funding?

Title VI prohibits discrimination on the basis of race, color and national origin in programs and activities that receive federal funding. Applying Title VI to Jewish students is not new. National origin discrimination has been interpreted for years to include discrimination against those who have shared ancestry or ethnicity, to protect religious groups such as Jews, Sikhs and Muslims.

What is new is that the EO directs executive branch agencies and departments charged with enforcing Title VI to consider the International Holocaust Remembrance Alliance’s (IHRA) definition of anti-Semitism when investigating allegations of anti-Jewish discrimination (i.e., when they review an Office of Civil Rights (OCR) complaint).

The IHRA definition, which has been adopted by the U.S. State Department, provides that:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities[.]

The definition includes a list of non-exhaustive examples of anti-Semitism, which the EO also directs agencies to consider. For example: “[m]aking mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective—such as . . . the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.”

Examples also include discrimination against Jewish individuals who support Israel, e.g., “[a]ccusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations” or “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor[.]”

In other words, discriminatory conduct directed at Jewish students who support Israel may constitute anti-Semitism.

Some argue the EO conflicts with the First Amendment, although the EO expressly states that agencies “shall not diminish or infringe upon any right protected under Federal law or under the First Amendment.” Simply put, neither Title VI nor the EO limits speech (or even hate speech); it limits conduct. The perpetrator’s speech may be used as evidence of discriminatory intent.

Universities and colleges will need to carefully consider the impact of the EO in reviewing student complaints.

© 2020 BARNES & THORNBURG LLP

For more on Title VI, see the National Law Review Civil Rights type-of-law section.