College & University Blog

Keeton v. Anderson-Wiley, et al.

Complete text (28 pages) of decision by U.S. District Court (S.D. Georgia) denying preliminary injunction requested by graduate counseling student who refused to complete remediation plan required by counseling program faculty. The court holds that plaintiff did not demonstrate a likelihood of success on the merits on her claim that the remediation plan, which required plaintiff by various means to address issues of multicultural competence concerning gay, lesbian, bisexual and transgendered individuals, violated the free speech and establishment clauses of the First Amendment.

Tehan v. Sacred Heart University, (C.A.2 (N.Y.))

The Second Circuit has held, in an unreported opinion, that changes in a former university employee’s working conditions were not adverse employment actions for purposes of a gender discrimination claim under Title VII, absent evidence that the changes were more disruptive than a mere inconvenience or an alteration of job responsibilities. As such, the employee’s Title VII gender discrimination claims were properly dismissed on the university’s motion for summary judgment.

Schengrund v. Pennsylvania State University, (M.D.Pa)

Under the Lilly Ledbetter Fair Pay Act (FPA), if female college of medicine (COM) professors at a Pennsylvania university demonstrated that their wages were the result of a discriminatory decision to pay them less money than their male coworkers, they could recover for each and every paycheck received from the present dating back to 300 days prior to filing of their action with the Equal Employment Opportunity Commission (EEOC). They did not need to show that the discriminatory decision to pay them less occurred within that period. Additionally, they could recover back pay for up to two years prior to the earliest pay check received within that period.

The plans of two West Coast universities to conduct genetic testing of their students have been met with both intrigue and condemnation. Exploring the differences between the UC Berkeley and Stanford models for DNA test helps to explain the broad range of responses to the idea, and to provide guidance for colleges and universities considering similar programs.

UC Berkeley was the first to emerge with a student DNA testing program; an endeavor they hoped would generate discussion on-campus. The school sent each incoming freshman and transfer student a DNA testing kit with their orientation packets, asking students to submit DNA samples for an orientation program on personalized medicine. Berkeley will examine students’ genes for metabolism of alcohol, folate and lactose.

Stanford’s program is part of a summer session course on personal genomics. The class is only open to medical and graduate students, and allows them to sequence their genotypes and study the results. Students can choose to submit their own results for incorporation into the class curriculum, or study publicly available genetic data. The Stanford program requires a $99 fee for personal genetic analysis, a fraction of the normal cost, but the school contends that the price will encourage students to consider the risks involved more seriously.

In addition to an array of ethical issues raised by the programs – Is it really voluntary? Are students in a position to provide informed consent? What can schools do with this information? How do you prepare students to interpret the results? – colleges and universities should also consider the possible legal implications of developing their own student DNA testing initiatives.

1. Protecting student privacy: While HIPAA, data protection laws and emerging safeguards against genetic discrimination provide guidelines for maintaining confidential student information, special precautions may be necessary to protect such sensitive information. Schools must decide with care who will have access to results and how they will store data.
2. Avoiding liability: DNA analysis is a constantly-evolving field. Interpretation techniques and their results will inevitably change over time. Administrators must take caution to protect themselves from the negative effects of any incorrect outcomes and student responses to their results.

Berkeley’s program provides a clear illustration of the double-edged sword of diagnostic, as opposed to purely pedagogical, DNA testing: Student A tests positive for the gene indicating low alcohol tolerance, chooses to drink anyway, and dies of alcohol poisoning. The school may end up with a lawsuit alleging they knew the student was at risk and should have intervened with protective measures. Student B tests negative for the gene, chooses to drink freely and brazenly, and dies of alcohol poisoning. The school may face a claim that the student was influenced by a genetic test giving false security about his ability to consume and metabolize alcohol.

Prior to moving forward with a student DNA testing program, college and university administrators should seek legal counsel and substantial input from bioethicists in the academic community. Having full information about responsibilities and liabilities up front will help to protect institutions, and their students, from unnecessary risks.

A federal judge in Connecticut recently ruled in favor of several members of the Quinnipiac University women’s volleyball team and their coach, stating that the university violated Title IX by replacing the volleyball team with a competitive cheerleading squad. Judge Underhill ruled that as it currently exists “[competitive cheerleading] is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students.”

The judge cited a letter from the U.S. Education Department’s Office for Civil Rights while established standards to qualify as a sport for Title IX purposes. The chief objective of the activity proffered as a sport must be competition. Additionally, it should be regulated under the umbrella of a governing organization and have a set season, practices, and coaches. The OCR essentially requires that a sport’s organization and structure resemble the other varsity sports at the institution. Judge Underhill found that the lack of off-campus recruiting, the inconsistent competition schedule and scoring methods, and the fact that the team competed against non-varsity athletes, including high school “all star” teams, distinguished the cheerleading squad from the other varsity teams in operation.

Sabinson v. Trustees of Dartmouth College, (N.H.)

Under New Hampshire law, a college dean’s reassignment of a theater professor’s advanced acting classes and her directorship of the main stage production was not a “major change” within the meaning of the Agreement Concerning Tenure and Responsibility of Faculty Members, providing that disciplinary action against a faculty member for unsatisfactory service requires adequate cause and such action may include termination or any other major changes in the conditions of employment, and thus, the college was not required to follow the procedures set forth in the Agreement. The professor had neither been terminated nor placed on involuntary leave, but, rather, had been assigned to teach writing courses, and this reassignment was not a “major change.”

Korte v. Curators of University of Missouri (Mo.App. W.D.)

The University of Missouri, which expelled a medical student for violating the University’s Honor Code, did not deny the student due process. The student, who misappropriated funds totaling $3,500 from a class checking account, argued that the University failed to abide by its own rules and regulations. The Court, however, found no such violations and held that the student was afforded due process, since the University provided notice of the charges and multiple opportunities for the student to be heard.

Phat Van Le v. University Of Medicine & Dentistry of N.J., (C.A.3 (N.J.))

Disciplinary proceedings resulting in student’s dismissal from dental school afforded the student due process, despite his claim that he was not advised that evidence would be presented against him regarding other incidents of academic dishonesty. He was aware of rumors regarding other incidents of cheating. Moreover, he was afforded a hearing before a panel of students and faculty, the right to present witnesses and evidence, the right to cross examine witnesses, a lay adviser in the room, an attorney outside the hearing room, two levels of appeal, and the opportunity to submit further evidence after the hearing.

Emmons v. City University of New York,  (E.D.N.Y.)

An instructor failed to establish that she had a “disability” under the Americans with Disabilities Act (ADA) or the Rehabilitation Act, precluding her discrimination claims against a university’s research foundation and several of its employees. The instructor did not allege any substantial physical limitations and was cleared to return to work only two months after her car accident. Further, she contradicted herself by arguing that the defendants regarded her as disabled and that the defendants doubted that her injuries were more than minor.

The Higher Education Opportunity Act (HEOA), enacted in August 2008, placed new obligations on colleges and universities in several domains, including copyright protection.  O The regulations went into effect on July 1, 2010. 

The Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA),  may push for aggressive  compliance, based on their understandably strong desire to combat illegal peer-to-peer file sharing.   The statute and regulations  provide each college and university with a substantial degree of discretion in fashioning its response. 

Overview of the New Requirements

 The HEOA and regulations require colleges and universities (1) to notify students annually about institutional policies and potential liability for copyright infringement, including peer-to-peer file sharing, and (2) to develop and certify plans for combating the unauthorized distribution of copyrighted material, including through the use of “a variety of technology-based deterrents.”

• Annual Notice to Students

To remain “eligible institutions” for student loan and assistance programs under the Higher Education Act, colleges and universities are now required to provide an annual notice to students that describes institutional policies and sanctions related to copyright infringement.  The disclosure must include the following:

• a statement that informs students that unauthorized distribution of copyrighted material, including unauthorized peer-to-peer file sharing, may subject the students to criminal and civil penalties.
• a summary of the penalties for violation of federal copyright laws.
• a description of the institution’s policies, including disciplinary actions, with respect to unauthorized peer-to-peer file-sharing.

Colleges and universities will have to examine and, in some cases, revamp their existing notices, in order to comply with the regulations.  The notices may be sent by mail or email, and may be included as part of larger sets of rules and regulations that are sent to students.

• Combating Illegal Peer-to-Peer File Sharing

The HEOA and regulations require each institution to certify that:

• it has developed  and implemented written plans “to effectively combat the unauthorized distribution of copyrighted material by users of the institution’s network, including through the use of a variety of technology-based deterrents,” and that
• it will, “to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer or other designated officer of the institution.”

In its comments on its new regulations, the Department of Education indicates that the required technology-based component may include such technologies as bandwidth shaping, traffic monitoring to identify the largest bandwidth users, a vigorous program of responding to Digital Millennium Copyright Act (DMCA) notices from copyright owners, and a variety of commercial products designed to block or reduce illegal file-sharing.   The regulations make clear that although the institution must periodically review its plans to combat unauthorized distribution of copyrighted material by users of the institution’s network, “no particular technology measures are favored or required for inclusion.”  Moreover, the regulations acknowledge the institution’s need to ensure that any such plans do not “unduly interfere with educational and research use of the network.”

The regulations also give the institution considerable discretion in the way it responds to the HEOA mandate to provide legal alternatives to illegal downloading “to the extent practicable.”  The institution is required to review periodically such “legal alternatives” and to make information about such alternatives available to students.  But the actual offering of any such legal alternatives remains to be “determined by the institution.”  It is clear that HEOA does not require colleges and universities to offer students free music or videos through legal channels.

In the 5-to-4 ruling it handed down on Monday, the Supreme Court rejected arguments by the Christian Legal Society that the University of California’s Hastings College of Law had violated the First Amendment rights of students wishing to establish a campus chapter by requiring their proposed group to admit homosexual students as a condition for receiving the school’s official recognition and financial support.  Hastings argued that state universities have an obligation to adhere to strict anti-bias rules. The Christian Legal Society (“CLS”) – with backing from numerous religious groups – argued that forcing it to comply with anti-bias rules amounts to infringing on its First Amendment right to freedom of religion.  Ruling against the CLS, the Court found that the law school’s policy was “a reasonable, viewpoint-neutral condition on access” that did not raise First Amendment issues in the way the Christian Legal Society argued.  The ruling, however, focused only on an “accept-all-comers” policy requiring any student group seeking official recognition to be open to anyone who wishes to join.  Many universities have a different type of anti-bias policy, allowing student groups to have requirements for membership and leadership as long as those requirements are not discriminatory.  CLS had argued that such nondiscrimination policies preclude students from organizing groups based on religious beliefs, infringing on their First Amendment rights of free expression and association.  Hastings asserted that the CLS was denied recognition based on its “accept-all-comers” policy, and not on any nondiscrimination policy.  The “viewpoint-neutrality” of the “accept-all-comers” policy swayed the Court’s opinion, with only Justice Stevens arguing in a concurring opinion (not joined by anyone else) that even the broader non-discrimination policy was constitutional.

In the first years of the second decade of the twenty-first century, colleges and universities face grave financial challenges. Endowments, which seemed certain to grow in perpetuity, are declining. The promise that state government will heavily subsidize the tuition of every student has been broken. Click here to read more

As endowments decline and college and university budgets are stretched thinner and thinner, many institutions have cut, or at least considered cutting a sports team to balance the budget.  Aside from upsetting student-athletes and alumni with deep pockets and fond memories of their days on the football team, the elimination of an intercollegiate sports team has significant legal ramifications.

 Under Title IX, an institution must do one of three things to comply with Title IX in the context of athletics participation:

 (1)     each sex’s representation in varsity athletics must be substantially proportionate to its full-time undergraduate representation in the student body (if a university is 55% female, women must represent approximately 55% of the athletes at the school);

 (2)     if an institution has not achieved substantial proportionality, it may demonstrate compliance by showing that it has a continuing history of expanding opportunities for the underrepresented sex (consistently adding or intending to add new teams for the underrepresented sex); or

 (3)     an institution may demonstrate that it is currently meeting all “interests and abilities of the institution’s students who are members of the underrepresented sex—including students who are admitted to the institution though not yet enrolled.”  (United States Department of Education, Office for Civil Rights, Intercollegiate Athletics Policy Clarification:  The Three-Part Test—Part Three (April 20, 2010)(“2010 Clarification”)).  To determine “interests and abilities” of the underrepresented sex, the institution must examine surveys of the student body regarding the underrepresented sex’s interest in certain sports, the number of requests by students to add a particular sport, and participation rates by the underrepresented sex in intramural sports, high school sports, and community sports leagues in the area.

 If an institution is able to achieve substantial proportionality, it is expected to maintain that proportionality, or to at least not take affirmative steps that would alter the proportionality in the wrong direction.  Likewise, if an institution falls short of substantial proportionality, it must continue to take steps to increase participation of the underrepresented sex.  If an institution determines that the “interests and abilities” of its underrepresented students increases at any point in time, it must then take steps to meet those interests and abilities and achieve substantial proportionality.  When considering whether or not to eliminate a sports team, all of these factors must be considered in order for the institution to remain compliant with Title IX.  The elimination of just one team, especially typically larger teams such as football, can make a big difference in proportionality. 

 If an institution seeks to eliminate a team for the overrepresented sex, the effect of the decision would be to bring the institution closer to substantial proportionality.  If substantial proportionality is not achieved, however, the elimination of opportunity for the overrepresented sex does not hold the same weight, compliance-wise, as does the creation of more opportunity for the underrepresented sex.  Accordingly, the institution would have to continue efforts to create teams for the underrepresented sex until substantial proportionality is met.

 It a team for the underrepresented sex is on the chopping block, it is impossible for the institution to satisfy either the second or third prong of the compliance test.  Part two requires the institution to expand opportunities for the underrepresented sex, not eliminate them.  Part three mandates that the opportunities match the interests and abilities of the underrepresented sex – eliminating a team necessarily undercuts that goal.  Thus, if an institution seeks to eliminate a costly sports teams for an underrepresented sex, it should plan on replacing it with a team that provides greater opportunity for participation for that sex.

 While it may be financially necessary to cut teams, institutions must remain cognizant of their legal obligations under Title IX.  Being found non-compliant with Title IX and then being forced to work harder to become compliant could very well end up costing the school much more than fielding any given team in the first place.

A federal judge in New York ruled that Hofstra student-employees sufficiently demonstrated a factual nexus between the named plaintiffs to an FLSA suit and the proposed putative class members to support a determination that they were subject to Hofstra University’s common policy of classifying undergraduate and graduate assistants as exempt or otherwise excluded from provisions of the Fair Labor Standards Act (FLSA).  Hofstra’s policy resulted in the practice of permitting subminimum wage labor and/or unpaid overtime compensation to student-employees in violation of the FLSA.

Shortly after his inauguration, President Obama signed the American Recovery and Reinvestment Act, known colloquially as “the Stimulus Bill.” This bill targeted nearly $800 billion in funds to stimulate the U.S. economy in hopes of staving off a deepening of the recession. As of March 26, 2010, nearly $308 billion had been paid out in entitlements, tax benefits, contracts, grants and loans.  The Stimulus bill included billions of dollars directed towards construction projects, especially for infrastructure, environmental projects, and energy-efficient improvements.   However, there are strict conditions tied to the use of these funds as well as reporting requirements. The wide reach of these stimulus funds makes it critical for those who normally do not work with the federal government to know the basics and ensure that they comply with the requirements of the Recovery Act. Below is a brief discussion of some of the conditions with the greatest impact on the construction industry.

            One requirement of the Recovery Act is that materials used in constructing or repairing public buildings or works with stimulus funds must be produced in the United States. Specifically, this provision, codified in Section 1605 of the Act, requires that any steel, iron, or manufactured goods be produced in the United States. Limited exceptions do exist where the requirements would not work in the public interest, where the relevant materials are not available in the U.S. in sufficient quantities or quality, or where using American-produced materials would increase the cost of the project by more than 25 percent.

            The Recovery Act also imposes new requirements in the areas of reporting, oversight, and whistleblowing. An organization or governmental entity receiving stimulus funds must make quarterly reports detailing the project, how the funds were used, and related subcontracts, among other requirements. The Recovery Act created federal Inspector General positions to oversee projects related to the Act. It also created a Recovery Accountability and Transparency Board intended to prevent fraud and waste, and provides broad enforcement powers. Additionally, any employee of an entity receiving Recovery Act funds cannot be discriminated against for the good faith reporting of certain evidence, including evidence of illegality, waste, or fraud.  Obviously, since these projects are meant to be transparent, any investigations under the Act may subject contractors and subcontractors to some level of negative public scrutiny.  As of March 1, 2010, the Board reported 11,807 “errors/anomalies” in reports, with 401 completed investigations, with 43 accepted for prosecution.

            The Recovery Act provides many new opportunities to those in the construction field. For more information, you can access the Recovery Act website here, and the most recent guidance from the Office of Management and Budget is available here.

Department of Education Letter on HEOA Requirements re P2P File Sharing

Complete text of letter issued June 4 by the U.S. Department of Education. The letter describes the requirements set forth in the Higher Education Opportunity Act of 2008 and the Department’s implementing regulations concerning institutional obligations to combat the unauthorized distribution of copyrighted material via illegal downloading or peer-to-peer file sharing. The letter covers required institutional plans, offering legal alternatives to illegal downloading, and required consumer information and distribution. The letter also includes a model summary of Federal civil and criminal copyright penalties that institutions can use to meet the requirement that institutions include such a summary in the information provided upon request to prospective or enrolled students.

From Minding the Campus:

 “It’s a well-known fact that there’s a severe gender imbalance in undergraduate college populations: about 57 percent of undergrads these days are female and only 43 percent male, the culmination of a trend over the past few decades in which significantly fewer young men than young women either graduate from high school or enroll in college. It’s also a well-known fact—at least among college admissions officers—that many private institutions have tried to close the gender gap by quietly relaxing admissions standards for male applicants, essentially practicing affirmative action for young men. What they’re doing is perfectly legal, even under Title IX, the 1972 federal law that bans sex discrimination by institutions of higher learning receiving federal funds. Title IX contains an exemption that specifically allows private colleges that aren’t professional or technical institutions to prefer one sex over the other in undergraduate admissions”

 The full article is linked here.

Nini v. Mercer County Community College, (N.J.) 

A community college’s refusal to renew the contract of an employee over 70 years of age, on the basis of age, was a prohibited discriminatory act under the Law Against Discrimination. The nonrenewal of the existing employee’s contract fell outside the “over-seventy” exception contained in the Law.

Shelton v. Trustees of Columbia University, (C.A.2 (N.Y.))

A university’s legitimate reason for a black student’s expulsion, based on plagiarism, was not pretext for race discrimination or retaliatory dismissal under Title IX. There was no dispute that the student committed plagiarism and that the plagiarism charge was referred to a disciplinary committee by a professor not accused of discrimination or retaliation. Moreoever, plagiarism, pursuant to published guidelines, could result in expulsion. Finally, in accordance with published guidelines, a four-member disciplinary committee and then a full six-member committee both voted to expel student. Those accused of discrimination and/or retaliation did not vote or voted for a lesser punishment.

Federal Trade Commission (FTC) announced another delay in enforcement of the Commission’s Identity Theft Red Flags Rule.  The latest announcement delays enforcement until December 31, 2010 while Congress considers legislation that would affect the scope of entities covered by the Rule.