Tag: university

Do You Have a College Student? Important Healthcare, Financial, and Educational Documents That They (and You) Need

August is upon us and you may soon be sending children off to college. If your child is age 18 or older, you and your child will need to take some simple steps so that, in the event of an emergency, you will be able to make health care and financial decisions for your child and have access to your child’s medical information and financial accounts. The same is true if you are to have access to your child’s educational records.

Medical Information. Once your child reaches age 18, your child is deemed to be an adult by law and you no longer have a legal right to make health care decisions on behalf of your child or to access your child’s health care information. As a result, if you have an adult child, your child must execute certain legal documents naming you as his or her health care agent and permitting you to access his or her medical information:

  1. Your child must execute a “Health Care Proxy” naming you as his or her agent for health care decisions. In this document, your child authorizes you to make health care decisions on your child’s behalf if he or she becomes unable to make or communicate such decisions him or herself. The child may also share his or her own wishes regarding medical treatment.
  2. Your child must also sign a “HIPAA Authorization Form.” The Health Insurance Portability & Accountability Act of 1996 (generally known as “HIPAA”) protects the privacy of an individual’s medical information, and health care providers may require written consent from a patient to share information with family members, including parents of an adult child. Your child’s college or university may also have policies in place preventing it from sharing medical information without the student’s consent. This form will serve as written permission authorizing those providing health care services to your child to share medical information with you as your child’s health care agent.
  3. In addition, you should be in contact with the health services department of your child’s college or university. The institution may provide its own form for authorizing the release of medical information that can be kept on record with the institution’s health services department.

Financial Accounts. If you are to have the ability to act on behalf of your adult child with respect to financial matters, your child also needs to execute a “Durable Power of Attorney” naming you as your child’s agent with respect to the child’s assets and finances. If your child is attending college away from home, is studying abroad, or undergoes a medical emergency, it may be useful for you to access your child’s accounts on his or her behalf. This allows you to pay bills for a child out of their accounts, make deposits and open or close accounts. In addition, a durable power of attorney allows you to handle other financial tasks for the child, like filing tax returns or renewing a lease.

Educational Records. Finally, the Family Educational Rights and Privacy Act (FERPA) protects the educational records of a child who has turned 18 or is enrolled at a postsecondary institution from access by his or her parents. If the child’s parents claim the child as a dependent on their tax returns, the parents may still access the child’s education records without the child’s consent. However, institutions may be reluctant to allow access to education records for any child over the age of 18 without a “FERPA Waiver” signed by the child, regardless of their status as a dependent. If you would like to have access to your child’s educational records, you should contact the institution to request a FERPA Waiver form.

Article By John H. Ramsey and Kerry L. Spindler of Goulston & Storrs

For more public education and services legal news, click here to visit the National Law Review.

2022 Goulston & Storrs PC.

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.

Colleges, Students Tell DOJ McGraw-Hill/Cengage Merger Would Create a Textbook Duopoly

Two of the three dominant college textbook publishers – McGraw-Hill Education, Inc. and Cengage Learning Holdings II, Inc – have agreed to merge, creating a virtual duopoly in the college textbook market and setting the stage for a potential antitrust fight with the Antitrust Division of the U.S. Department of Justice. McGraw-Hill and Cengage claim the new company will generate global growth, improve margins, and produce efficiencies that will lead to more affordable education materials for students.

But several student and consumer groups disagree, arguing the merger will lead to decreased competition and higher prices for college textbooks. They also claim the post-merger entity will implement digital strategies (e.g., all-access digital subscriptions) that will: (1) force smaller competitors out of the market; (2) eliminate the secondary textbook market, which provides students a lower cost option for purchasing or renting textbooks; and (3) allow the two dominant publishers to collect and monopolize certain types of student data, including data showing students’ learning styles, students’ understanding of core concepts, students’ need additional assistance, and/or students’ risk of dropping out.

The Scholarly Publishing and Academic Resources Coalition (SPARC) has been one of the loudest critics of the merger. On August 14, 2019, SPARC sent a letter to the DOJ urging it to block the merger, arguing that it will “significantly decrease competition in a market already rife with anti-consumer behavior.”

In its section titled “The Textbook Market is Broken,” SPARC explains that college textbooks are sold in a “captive market” because students are forced to purchase the materials selected by their professors. This system “effectively hands the three major companies who currently dominate the market a blank check to develop expensive materials without regarding the preferences, needs, or financial circumstances of students. The textbook industry’s current state of dysfunction results from years of consolidation, unsustainable practices, and lack of price competition.” SPARC points to textbook pricing as an example of this dysfunction, as prices “have increased 184% over the last two decades — three times the rate of inflation.”

In a separate letter sent to the DOJ at the end of July, U.S. PIRG Education and student leaders from colleges across the country raised similar concerns. Specifically, the students explain they have “directly felt the impacts of skyrocketing textbook prices, further exacerbated by Cengage and McGraw-Hill’s efforts to remove cost-cutting options for students by undermining used book markets,” and that “[t]o maintain profit margins, publishers have put out custom or frequent new editions to make it difficult to find a used book for our classes ….” Citing a rather shocking statistic, the students claimed that “65% of students have skipped buying a book at some point in their college career because of cost despite 94% of them knowing it would hurt their grade.”

The students also identified several specific harms caused by “innovative” digital models employed in the textbook industry:

  • The publishers issue expiring access codes to paid online platforms that students must also use to submit homework and test answers, destroying the used book market;
  • Students cannot sell their materials at the end of the course or keep them or future reference, harming students who already cannot afford books;
  • Automatic billing or so-called “inclusive access” means that students are automatically charged for materials, eliminating their ability to price shop; and
  • Based on contracts proposed at some schools, publishers will continue to raise prices at the same rate that has led to the current affordability crisis.

The potential anticompetitive impacts of this merger are obvious and significant. Assuming the relevant market is the U.S. college textbook market, the merger is between two entities that each control more than 20% of an already highly concentrated market. Under relevant case law and the DOJ’s/FTC’s Horizontal Merger Guidelines, the merger presumptively increases market power for the post-merger entity and violates Section 7 of the Clayton Act. Moreover, the merging entities have made clear they intend to develop an all-access digital subscription service that, if adopted en masse, will likely eliminate both smaller competitors and the secondary market for college textbooks. Finally, by creating a virtual duopoly, the merger increases the likelihood of coordination among rivals. Considering these issues, the DOJ must take a very close look at this merger and implement conditions that address these issues if the merger is approved.

© MoginRubin LLP

ARTICLE BY Timothy Z. LaComb of MoginRubin.
Edited by Tom Hagy for MoginRubin LLP

California Senate Bill 206-The Immediate National Impact

While California Governor Gavin Newsom considers placing his signature on Senate Bill 206 and making his state the first state in the country to allow college student-athletes to market and profit from their name, image and likeness without affecting their student-athlete status, the legislation is already having an impact nationally. In response to the unanimous support for Senate Bill 206,

two South Carolina State Legislators intend to make South Carolina the second state to recognize the rights of student-athletes to profit from their name, image and likeness.

South Carolina State Senator Marlon Kimpson and Representative Justin Bamberg have announced that they intend to introduce a bill similar to California SB 206 when the South Carolina General Assembly reconvenes in January. Their proposal would allow the state’s largest schools to pay $5,000 a year in stipends to athletes in profitable sports like football and basketball. It would also allow other student-athletes who would be eligible to receive athletic scholarships benefits, but not the stipend, an opportunity to earn money from potential sponsorships and sales of their personal autograph.

In response to questions about introducing his proposed legislation, Senator Kimpson said, “The legislation passed in California is a sign of the time. The NCAA is not an amateur sports league. This is a multibillion dollar sports empire where everyone involved makes money except the players on the field who earn it.”

In an interesting twist to current law, Senator Kimpson also said his bill would compensate players for their hourly work, allow them to make money from using their likeness to sell merchandise, and establish a fund to assist players who suffer from sports-related injuries later in life.

Despite California’s success is achieving unanimous support from its Legislature for its bill, it is thought that South Carolina Legislators will voice strong opposition to Kimpson and Bamberg’s bill. Prior efforts put forth by South Carolina legislators, including legislation introduced by Senator Kimpson in 2015, to allow student-athletes to receive compensation beyond their athletic scholarships have failed to gain support.

University of South Carolina Athletic Director Ray Tanner has already expressed opposition stating that any such proposal “gives him angst.’ In addition, Clemson Head Football Coach Dabo Swinney, who recently signed a multi-year contract extension making him the highest paid college football in the nation, has already publically stated that if college players are paid, “I’ll go do something else because there’s enough entitlement in this world as it is.”

Despite anticipated opposition, South Carolina Senate Education Committee Chairman Greg Hembree, the head of the committee that will initially consider the bill when it is introduced, said he is open to the idea, comparing the NCAA student-athlete to Olympic participants and their rights to benefit from their name, image and likeness.

Representative Bamberg expressed his feelings as to why he believes the bill is an important measure for South Carolina to consider. “Our job is to take care of our citizens, our schools, our players. If another state wants to continue the proverbial football farm, that’s their problem.” He added,

That extra money — even just a few thousand dollars a semester — could go a long way for underprivileged athletes and their families.

Jackson Lewis P.C. © 2019

ICE May Visit Your Company or University Campus – a Quick Checklist and Guidance

Lately, Immigration and Customs Enforcement (ICE) has been more active in making arrests of undocumented individuals. Statistically, however, the number of arrests are very small and the “bark” is much bigger than the “bite”. Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.

Major Points

  • Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.

  • ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.

  • Anybody arrested by ICE has the right to counsel.

  • ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE enforcement activities focusing on the  personal immigration issues of an individual shall not take place on company property.

  • If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal.

Public versus Private Property

  • Some parts of commercial property would be considered public property (i.e. parking lots shared by multiple employers) .

  • However, back office and areas where customers are not present are considered private property.

Arrest Warrants

  • Warrants come in many varieties.

  • Immigration warrants are civil administrative actions, not criminal.

  • Immigration warrants are signed by ICE Officers, not a Judge.

  • Immigration warrants do not allow ICE to enter private areas without consent.

  • If an ICE agent is seeking entry to a private area, it is the policy of most companies to deny such access. You should ask the ICE agent for a copy of the warrant, their name, and contact your manager.

  • In very rare instances, ICE may invoke “exigent circumstances” and make entry without a warrant.

Your Rights

 Generally speaking if you have a personal encounter with ICE:

  • You should not grant entry to any private areas.

  • You have the right to remain silent.

  • You have the right to ask “Am I free to go?” If they say “yes,” you may walk away.

  • If detained, you have the right to counsel.

  • If you are a foreign national, you have the right to contact your Embassy or Consulate.

  • You do not have to sign any document that you do not understand.

  • If you are stopped for questioning but not arrested, you may refuse a search. But the Officer may pat you down if they suspect you have a weapon.

Non-Immigrants must Carry Evidence of Legal Status

Section 264 (e) of the Immigration and Nationality Act requires every foreign national 18 years of age and over to carry with them and have in their personal possession at all times evidence of their status such as an I-94, work permit, or green card at all times.

ICE and Foreign Students   

  • ICE has jurisdiction over F-1 foreign students and J-1 exchange visitors.

  • ICE will routinely meet with the Designated School Official (DSO) who oversees F-1 and J-1 students on campus.

  • ICE may obtain limited private information about F-1 and J-1 students including their home addresses.

UNIVERSITY AB-21 REQUIREMENTS  

In 2017, the California Legislature passed AB-21 (codified in Education Code Section 66093) requiring Universities to take certain affirmative steps to notify students on at least a quarterly basis of ICE activities on campus. This includes the following:

  1. Quarterly E-Mail Update: E-mail to students, faculty, and all employees advising them about ICE activities and reminding them of their rights and obligations should ICE seek to take enforcement actions on campus against individuals.
  2. The University Intranet should include the following required information for students, faculty, and employees to access:
    • Notify University of ICE Activities:  Encourage those on campus to report an ICE visit.
    • Point of Contact at University for Personal ICE Issues: The University must designate a contact for students, faculty, and staff to contact if they need assistance
    • Emergency Family Contact: Can proactively notify the University in case they need to notify someone that a student, faculty, or staff has been detained by ICE.
    • ICE Detainee Locator: Should you need to find where an individual is being held in ICE custody, you can try the ICE detainee locator here. You will need their 9 digit Alien Registration Number (aka A#) and Country of Birth, or name, country of birth, and date of birth.
    • Legal Assistance: List of organizations that can assist with detention and removal issues.
    • Accommodation for Student Absence due to ICE Matter: Should a current student be unable to attend classes due to an ICE action, the University must take reasonable efforts to accommodate the students, including whenever possible  maintenance of financial aid and a seamless transition back to school.
    • Confidentiality: The University must refrain from disclosing personal immigration information about students, faculty, and staff to the greatest extent possible consistent with state and federal requirements.

GUIDANCE TO EMPLOYERS IF ICE INITIATES AN ICE AUDIT

  • If ICE issues a civil subpoena for an I-9 Notice of Inspection to an employer, the employer should request an extension of time to surrender the I-9’s. Absent an extension, ICE will require that they be ready 3 days later.

  • At a later time (frequently 6 to 12 months later), ICE will give the employer an opportunity to make technical corrections for minor errors on the I-9’s. There will be no monetary fines for technical errors that are corrected.

  • For substantive errors (i.e. the form is not signed or dated by the employee or employer, or failure to itemize the documents that HR looked at the time of hire etc.), ICE will fine – typically $2,000 per I-9 with a substantive error. A missing I-9 is also a substantive error.

  • If ICE determines that some of the employees are not work authorized (and their documents are not genuine), they will issue a Notice of Suspect Documents. The employer must then must meet with each employee on the list, and absent an error or misunderstanding, must timely terminate the employee. If a large number of employees will need to be terminated, the employer can request ICE for additional time to find replacement workers – ICE will sometimes grant an extension to do this.

  • Then ICE will issue a Notice of Intent to Fine for those I-9’s that have substantive violations. If the employer feels that the fines are excessive, they may appeal to the U.S. Department of Justice Office of the Chief Administrative Hearing Officer.

California AB 450 Notice Requirements After an ICE I-9 Audit Begins

  • If your company receives an I-9 Notice of Inspection from ICE, you must post a notice and notify any Union – all within 72 hours. The posting must be in the language that the majority of the workers converse in. If in doubt, post it in both English and Spanish.

  • Fines for violation of the notice requirements can be up to $10,000 per violation.

Here is the required posting notice issued by DLSE:
English version 
Spanish version
FAQ’s from DLSE can be found here.

  • In addition, each time ICE comes back with findings in the form of a Notice of Technical Corrections and also later on with a Notice of Suspect Documents (to terminate certain employees), each affected employee must be notified as well as any Union – all within 72 hours.

  • In addition, the employee has a right to counsel at their own expense when an employer is reviewing their I-9 with them.

ICE IMAGE Program

IMAGE is a voluntary partnership initiative between the federal government and private sector employers. The initiative is designed to foster cooperative relationships and to strengthen overall hiring practices and self-policing of I-9’s.  It can be used as a negotiating tool if a company is audited by ICE.

What does ICE agree to do as part of IMAGE?

  • IMAGE was designed as a partnership initiative between the government and private sector employers. To that end, ICE is committed to working with IMAGE participants in the following ways:

  • ICE will waive potential fines if substantive violations are discovered on fewer than 50 percent of the required Forms I-9.

  • In instances where more than 50 percent of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue fines at the statutory minimum of $216 per violation.

  • ICE will not conduct another Form I-9 inspection of the company for a two-year period.

  • ICE will provide information and training before, during and after inspection.

For more information on Image see here.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

For more information see the National Law Review Immigration Law page.

After Court Decision, Could Title IX Expand to Cover Hazing?

A recent federal court decision in Louisiana suggests that Title IX requires institutions of higher education to treat fraternities and sororities equally. While Title IX generally involves cases of sexual assaults on campus, this new lawsuit argues that fraternity members are more at risk than sorority members of hazing due to unequal protections by colleges.

The lawsuit alleges that Louisiana State University (“LSU”) treats Greek organizations for men and women differently. The Plaintiffs allege that four fraternity pledges have died during hazing incidents at LSU since 1979, whereby hazing of sorority pledges is virtually non-existent due to restrictions and strict oversight provided by LSU. By not offering these same protections to the men involved in Greek organizations, the lawsuit states LSU has violated Title IX.

According to USA Today, Title IX has never been tested in hazing cases. As stated in that story, the lawsuit pushes the boundaries of Title IX enforcement. If successful, the litigation could set a precedent that drastically changes college disciplinary systems nationwide. Colleges and universities would have to ensure that they treat fraternities and sororities similarly when enforcing anti-hazing laws.

This lawsuit could also help shape new legislation. Florida recently enacted legislation that enables prosecutors to bring charges against fraternity and sorority members who weren’t present for hazing activities, but helped plan the events. Similar legislation is likely to be proposed elsewhere.

As the new academic year begins, institutions should take steps to enforce anti-hazing laws uniformly among fraternities and sororities in order to minimize the risk of similar claims based on Title IX.

© Steptoe & Johnson PLLC. All Rights Reserved.
For more university litigation news, please see the National Law Review Public Education & Services type of law page.

State Sovereignty 101: State Universities Not Immune to IPR Proceedings

School may be out for the summer, but public colleges and universities would do well to spend their break shoring up strategies and defenses against potential inter partes review (“IPR”) proceedings. Last week the Federal Circuit ruled that states and state agencies (including state affiliated colleges and universities) may not rely on a sovereign immunity defense in a patent IPR proceeding. This decision means that challenges against University of Minnesota patents will proceed at the Patent Trial and Appeals Board (“PTAB”), and that other state affiliated educational institutions also may be subject to such proceedings.

The June 14 decision could open the floodgates to other IPR challenges against patents held by public colleges, universities, and other state entities. State colleges and universities should plan on adjusting various intellectual property clauses of licenses, sponsored research, and other technology transfer and funding agreements in efforts to mitigate the risks associated with an IPR challenge. These institutions also should carefully evaluate and plan for this risk in any assertion or even licensing efforts where a risk of an IPR may arise. Further, public colleges and universities should develop internal strategic plans to reduce the risk of an IPR occurring and to have various strategic approaches to IPR situations should an IPR challenge, or even a threat of an IPR challenge, occur in the future.

In the dispute, Ericsson challenged multiple patents held by the University of Minnesota relating to wireless technologies. The University of Minnesota also faces separate patent challenges to a computer hardware patent and a university patent related to hepatitis C medication.

The Federal Circuit held that for purposes of IPRs, state sovereign immunity is essentially the same as tribal sovereign immunity held by Native American tribes. In 2018, the Federal Circuit ruled that Saint Regis Mohawk could not employ tribal sovereign immunity in a dispute before the PTAB.

“[An] IPR represents the sovereign’s reconsideration of the initial patent grant, and the differences between state and tribal sovereign immunity do not warrant a different result than Saint Regis. We therefore conclude that state sovereign immunity does not apply to IPR proceedings,” the Court wrote in the June 14 ruling. Regents of the Univ. of Minn. V. LSI Corp., No. 2018-1559, 27 (Fed. Cir. Jun. 14, 2019).

The Federal Circuit also wrote that IPR proceedings differ substantively from typical civil litigation, to which sovereign immunity would normally apply unless waived. Instead, the Court writes that IPR proceedings “are essentially agency reconsideration of a prior patent grant.”

In other words, IPRs are more akin to a government agency enforcement action than a civil suit. The PTAB’s primary focus is determining whether a previous patent grant was made in error, rather than resolving a dispute between two adversarial parties. The PTAB may issue a ruling even if the petitioner or patent owner decides not to participate, unlike in civil litigation.

A petition for certiorari was filed in Saint Regis but was denied by the U.S. Supreme Court, which effectively allowed the Federal Circuit decision to stand. It remains to be seen if the University of Minnesota will appeal this ruling or if certiorari would be granted, but if allowed to stand, it is fair to anticipate a significant increase in patent IPR challenges to public colleges and universities as well as to other state agencies.

Click here to read the full opinion from the US Court of Appeals for the Federal Circuit.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.
Read more about patent inter partes review proceedings on the National Law Review Intellectual Property page.

IRS Notice Offers Good News for State Colleges and Universities (at Least for Now)

In January 2019, the Internal Revenue Service (IRS) issued Notice 2019-09, which provides interim guidance for Section 4960 of the Internal Revenue Code of 1986. As a reminder, Section 4960 imposes an excise tax of 21 percent on compensation paid to a covered employee in excess of $1 million and on any excess parachute payments paid to a covered employee. A “covered employee” is one of the organization’s top-five highest-paid individuals for years beginning after December 31, 2016. An organization must determine its covered employees each year, and once an individual becomes a covered employee, that individual will remain a covered employee for all future years.

Of particular interest to state colleges and universities is the answer to Q–5 of the notice. It provides that the Section 4960 excise tax does not apply to a governmental entity (including a state college or university) that is not tax-exempt under Section 501(a) and does not exclude income under Section 115(l). What does this mean? Basically, if an institution does not rely on either of those statutory exemptions from taxation, the institution will not be subject to the excise tax provisions of Section 4960. This exclusion from Section 4960 means the institution could compensate its athletic coaches (or other covered employees) in excess of the $1 million threshold and not be subject to the 21 percent excise tax.

As we discussed previously, some institutions rely on political subdivision status for tax purposes. Importantly, the notice also provides that any institution relying on its political subdivision status to avoid taxation, as opposed to relying on either of the above-mentioned exemptions, will be subject to the Section 4960 excise tax if the institution is “related” to any entity that does rely on either of the exemptions.

Although the IRS’s guidance is helpful in determining Section 4960’s application to state colleges and universities, it appears not to reflect “Congressional intent.” On January 2, 2019, the Committee on Ways and Means of the U.S. House of Representatives released a draft technical corrections bill that seeks to correct “technical and clerical” issues in the Tax Cuts and Jobs Act of 2017. The corrections bill seeks to clarify Section 4960’s application by stating that any college or university that is an agency or instrumentality of any government or any political subdivision, or that is owned or operated by a government or political subdivision, is subject to Section 4960. Given the current state of affairs in Washington, D.C., we are not confident that the corrections bill’s expanded application to state colleges and universities will ever come to fruition.

 

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

State Legislators React to Proposed Federal Title IX Regulations with State Law Proposals

While college, universities and educational professionals await the Department of Education’s (DOE) proposed new Title IX regulations, which will dictate a revised process by which allegations of sexual misconduct must be handled, the state legislatures in Missouri and Arizona are currently considering legislation that would adopt many of Secretary DeVos’s anticipated regulatory modifications.

The proposed Missouri legislation, contained in Senate Bill 259 offered by Senator Gary Romine and House Bill 573 introduced by Representative Dean Dohrman, would allow students involved in Title IX complaints to appeal findings outside of the university system to the Missouri Administrative Hearing Commission, considered a “neutral and independent hearing officer for the state.”

The key elements of the proposed Missouri bill are:

  • All state universities would be required to expedite hearings for students if the investigation and resolution of the complaint deprives their education.
  • Those accused would be provided with the identities of the parties and known witnesses and would have the opportunity to cross-examine parties and witnesses.
  • Denial of appropriate due process in a Title IX complaint would be considered a “breach of contract between the student and the university,” potentially resulting in a $250,000 fine for the institution.
  • If someone is found to have made a false complaint, the accused has the right to seek actual and punitive damages.

The House version of the bill would also “ensure that all parties use the terms ‘complainant’ and ‘respondent’ and refrain from using the term ‘survivor’ or any other term that presumes guilt before an actual finding of guilt.”

Senator Romine commented on his reason for introducing the proposed legislation by stating, “The problem is that a lot of times the accused does not have a proper recourse through the system, and we want to make sure that if there isn’t a proper recourse, that the institution that’s supposed to be upholding Title IX is held accountable for it.”

Representative Dohrman commented on his reasons for introducing the House bill in a press release, stating “due process is vital in both civil and criminal proceedings and Title IX proceedings are no different. I have filed this bill to… protect all students by making sure both the accuser and the accused are in a just proceeding.”

In addition to the proposed legislation in Missouri, Arizona State Representative Anthony Kern has introduced House Bill 2242, the “Campus Individual Rights Act, which is a similar statutory modification to Title IX for students in Arizona. Senator Kern’s proposed legislation would amend existing state law and would provide that an Arizona community college district or university may not prohibit the following:

  • An accused student and an alleged victim from having a legal representative at  disciplinary proceeding
  • The legal representative for the accused student and the alleged victim from having full participation in the disciplinary proceeding

In addition, the bill requires the parties to the disciplinary proceeding to make a good faith effort to exchange any evidence which either party intends to use in the proceeding, without authorizing either party the right to participate in formal discovery. In addition, Senator Kern’s proposed legislation would prohibit a school employee from acting as an adjudicator, hearing officer or appellate officer if that individual has previously served as:

  • An advocate or counselor for an accused student or alleged victim,
  •  An investigator,
  • An administrator presenting arguments and evidence on behalf of the educational institution, or
  • An advisor to a person described in 1-4 above.
Jackson Lewis P.C. © 2019
Read more Education Legal News on the National Law Review’s Public Education & Services Type of law page.

Fourth Circuit Expands Title IX Liability for Harassment Through Anonymous Online Posts

The Fourth Circuit recently held that universities could be liable for Title IX violations if they fail to adequately respond to harassment that occurs through anonymous-messaging apps.

The case, Feminist Majority Foundation v. Hurley, concerned messages sent through the now-defunct app Yik Yak to the individual plaintiffs, who were students at the University of Mary Washington. Yik Yak was a messaging app that allowed users to anonymously post to discussion threads.

Because of the app’s location feature, which  allowed users to see posts within a 5 mile radius, the Court concluded that the University had substantial control over the context of the harassment because the threatening messages originated on or within the immediate vicinity of campus. Additionally, some of the posts at issue were posted using the University’s wireless network, and thus necessarily originated on campus.

The Court rejected the University’s argument that it was unable to control the harassers because the posts were anonymous. It held that the University could be liable if it never sought to discern whether it could identify the harassers.

The dissent encouraged the University to appeal the decision stating that “the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education . . .  Institutions, like the university, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims. The university should not hesitate to seek further review.”

 

Copyright © 2019 Robinson & Cole LLP. All rights reserved.
This post was written by Kathleen E. Dion of Robinson & Cole LLP.
Read more about college and university legal news on the National Law Review’s Public Education Page.