Tag: higher education

Conviction of Harvard Researcher for Chinese Ties Serves as Caution to Universities

Charles Lieber, former chair of the chemistry and chemical biology department at Harvard University, was convicted on December 21st by a jury on two counts of making false statements to federal authorities, two counts of making a false income tax return, and two counts of failing to file reports of foreign bank and financial accounts with the IRS due to his relationships with China’s Thousand Talents Program (TTP) and the Wuhan University of Technology (WUT). He received cash and living expenses from TTP and more than $1.5 million to establish a WUT research lab. Lieber opened an account at a Chinese bank into which WUT made salary deposits, but he did not report the existence of the account as required by U.S. law.

In a statement released by the U.S. Attorney’s Office for the District of Massachusetts following the verdict, Lieber was said to have assumed the role of “Strategic Scientist” for WUT, a position that he did not disclose, and served as a TTP contractor from at least 2012 through 2015. As the Department of Justice described TTP, “China’s Thousand Talents Plan is one of the most prominent Chinese talent recruitment plans designed to attract, recruit, and cultivate high-level scientific talent in furtherance of China’s scientific development, economic prosperity, and national security.”

Lieber will face maximum jail terms of up to three to five years for each of the counts for which he was convicted, as well as fines of up to $250,000 for each count. Lieber’s sentencing hearing has not yet been scheduled.

Lieber’s activities serve as just the most recent example of unlawful foreign involvement which negatively impacts U.S. higher education institutions and their personnel, research scientists, and affiliated research and fund-raising organizations. While Lieber’s actions appear to have been clearly intentional, government authorities have also voiced concern regarding the potential for inadvertent disclosures of valuable intellectual property to foreign agents by institutional researchers.

Higher education institutions will need to be prepared for enhanced federal scrutiny of their international relationships if the US Innovation and Competition Act (Senate) and the EAGLE Act (House) are adopted by Congress as appears possible next year. As a footnote, Reuters and The Guardian reported in November that China’s embassy in Washington, D.C. sent letters to executives urging them to oppose the Acts.

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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.

What to Expect under Secretary of Education Betsy DeVos

Betsy DeVos secretary of educationAfter an unusually contentious Senate confirmation process, Betsy DeVos was confirmed as U.S. Secretary of Education on February 7, 2017.

DeVos has a record of promoting charter schools and school vouchers at the K-12 level, but little is known about her priorities for higher education. Her prepared comments and responses during her Senate confirmation hearing avoided specifics, promising only to work with lawmakers toward common goals.

Her early priorities with respect to higher education likely will include:

  1. Student debt and the cost of college;
  2. Regulation of for-profit colleges; and
  3. Enforcement of Title IX of the Education Amendments of 1972.

Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. An entity in violation of Title IX may lose some or all of its Title IX funding.

Student Debt and the Cost of College

DeVos’s opening statement at the Senate confirmation hearing addressed concerns about rising amounts of student debt. “There is no magic wand to make the debt go away, but we do need to take action. It would be a mistake to shift that burden to struggling taxpayers without first addressing why tuition has gotten so high,” she said.

The Administration can be expected to propose alternatives to federally funded loan programs. On student debt, President Donald Trump had stated that he would alter the Obama Administration’s income-based repayment plan. Trump’s proposed plan would be funded by reducing federal spending.

For-Profit Colleges

The Obama Administration took significant measures to regulate for-profit colleges and the expenditure of federal monies. For example, the gainful-employment rule penalized higher education institutions that left graduates with a level of debt not commensurate with their earning potential.

Senator Elizabeth Warren pressed DeVos on her plans for combatting fraud and whether she intended to enforce the gainful-employment rule. DeVos responded, “We will certainly review that rule and see that it is actually achieving what the intentions are.”

It is expected the Administration will scale back oversight of for-profit colleges and postsecondary education generally.

Title IX

On her plans for enforcing Title IX, DeVos continued with her noncommittal responses. She said it would be “premature” for her to commit to continuing the Obama Administration’s enforcement of Title IX. DeVos stated only, “If confirmed, I look forward to understanding the past actions and the current situation.” It remains to be seen the extent to which she will withdraw or modify existing guidance. One aspect of the guidance that has received significant criticism in the past, and may be subject to change, is the designation of “preponderance of the evidence” as the standard of proof.

ARTICLE BY Susan D. Friedfel, Monica H. Khetarpal & Benjamin L. Rouder of Jackson Lewis P.C.

Jackson Lewis P.C. © 2017

Post-Election Outlook for Higher Education

higher educationAmerican higher education confronts a starkly different reality today in the aftermath of an election that yielded both a Republican administration and a Congress with Republican majorities in the House and Senate.  While the full impact may take years to assess, a preliminary review suggests some results are likely in the near term, including:

  • Dramatic changes in Department of Education enforcement actions based on departmental guidance;

  • Less government support for public institutions as Republicans seek to constrain both state and federal spending;

  • Less support for the concept of free community college;

  • Substantial changes in the manner in which federal student aid is administered;

  • Added scrutiny of institutions with large endowments;

  • Greater pressure for lower tuition.

In the long term, the federal regulatory environment will stabilize, and institutions can adapt to the new environment in which they will operate.  For now, institutions facing enforcement actions based on departmental guidance should consider the likely impact of the election on enforcement actions based on departmental guidance.  A new set of policy makers will soon be ensconced at the Department of Education, and their priorities can be expected to be quite different.  Those changes in priorities will be quickly reflected in changes in guidance documents, and the revised guidance documents could either be helpful or harmful to institutions currently subject to enforcement actions.

ARTICLE BY James H. Newberry Jr.
© Steptoe & Johnson PLLC. All Rights Reserved.

Emergencies on Campus: Is Your Institution Prepared?

emergency preparedness college campusLast week, El Centro College, a community college located in the heart of Dallas, found itself in the middle of the crossfire during the sniper shooting that killed five police officers and wounded several others.  The event was supposed to be a peaceful protest over recent police shootings in Louisiana and Minnesota. Thanks to a decision by college administrators, El Centro was already on lockdown when the shooting took place as a precautionary measure in anticipation of the protest.  Thus, students and faculty were safely contained during the crossfire.

According to the latest reports from the Chronicle of Higher Education, El Centro dispatched a campus-wide notification approximately forty minutes after the shooting had started, advising students to shelter-in-place. According to the Chronicle, some students are critical of how the college handled the situation, suggesting that the school should have been quicker to dispatch an alert.

To enhance student and staff safety, and to minimize liability risks in these challenging times, colleges and universities should review their policies and procedures on emergency preparedness, including protocols for communicating to faculty, students, and staff members during an emergency.  Further, the Clery Act requires all federally-funded institutions to disseminate timely warnings and emergency notifications.  Additionally, institutions may wish to provide their faculty, students, and staff members with training on emergency situations.

ARTICLE BY Gillian R. Flick & Julie A. Moore of Steptoe & Johnson PLLC

© Steptoe & Johnson PLLC. All Rights Reserved.

Supreme Court to Again Review Higher Education Affirmative Action Case

In a week full of front-page news, the United States Supreme Court has agreed to again review the appropriateness of the University of Texas at Austin’s race-based admissions process in the case of Fisher v. University of Texas at Austin.

The Supreme Court first reviewed the school’s consideration of race as a component of its admission process almost a year ago and remanded the case back to the Fifth Circuit Court of Appeals for reconsideration.  Upon re-review the Fifth Circuit again held the University’s practice of using race a factor in its admissions decisions was constitutional. Fisher filed an appeal arguing the Fifth Circuit did not follow the Supreme Court’s direction when conducting the subsequent review.

While the ultimate outcome of this case will certainly impact affirmative action programs of institutions of higher education, its effects on other types of non-admissions affirmative action programs, such as though enforced by OFCCP, remains unknown.

ARTICLE BY Laura Mitchell of Jackson Lewis P.C.
Jackson Lewis P.C. © 2015

Leaders in Higher Education Call for Immigration Reform

GT Law

As the immigration reform debate endures in the House of Representatives, leaders in higher education are continuing their call for improvements to the nation’s immigration system.

Most recently, presidents of 28 Catholic and Jesuit colleges and universities united in a fast for immigration reform on Ash Wednesday (March 5, 2014). In doing so, they joined the “Fast for Families” movement, which reignited the immigration debate last fall when the movement’s leaders, supported by many members of Congress and The President, fasted for twenty-two days on the National Mall in Washington, D.C. Students have not been far behind in the campaign to reform the nation’s immigration system. In February, one hundred and fifty students from nine Catholic colleges and Universities held a Student Summit on Immigration Reform.

These are just a few of the continuing calls made by members of the higher education community for Congress to pass immigration reform. In late 2013, leaders of more than one hundred colleges and universities across the United States wrote to their Congressional representatives to support the overhaul of the immigration system.

In many ways, our nation’s colleges and universities are on the front lines of our broken immigration system. Roughly a third of their graduate students in STEM fields are foreign nationals – in some states it is well over half. Leaders in higher education see how often our immigration policies prevent the nation from retaining and capitalizing on these talented individuals and create obstacles to growth.

The higher education community is hopeful that its continuing efforts will prompt the Congressional leadership to renew its efforts to pass meaningful immigration reform.

Article by:

Nataliya Rymer

Of:

Greenberg Traurig, LLP