January 17, 2023

Welcome to the second year of The Academic Advisor. The aim of this publication is to help our clients navigate the myriad legal issues and evolving regulatory landscape that affect schools, colleges and universities, and other education providers.

We understand from experience that the work you do is mission-driven, fast-paced, and dynamic. Our Education Practice Group is comprised of attorneys with diverse experiences serving the education sector in roles that include university president, general counsel, administrator, Title IX coordinator, adjunct professor, trustee, board chairperson, and elected county school board president.

The goal of this publication is to examine the legal significance of newsworthy topics and how they impact the work you do. In 2023, we will expand our outreach with webinars that help you navigate shifts in education law and manage related risks.

In this first edition of the New Year, we provide a recap of consequential legal developments in 2022, as well as coverage of higher education lawsuits, campus safety and security measures, top education risks, and regulatory updates to watch for in 2023.

If you have any questions about these topics or subjects that you would like us to cover in The Academic Advisor, please let us know. Additionally, if others within or outside your organization would benefit from receiving this publication, please email us for additions to our mailing list or feel free to forward this publication. For additional information about our Education Practice Group and the services we provide, please visit our website or contact us at eadams@spilmanlaw.com.

Erin Jones Adams, Counsel, Co-Chair of the Education Practice Group, and Co-Editor of The Academic Advisor


Kevin L. Carr, Member, Co-Chair of the Education Practice Group, Co-Chair of the Labor and Employment Practice Group, and Co-Editor of The Academic Advisor
“This past year saw some major education decisions from the U.S. Supreme Court—as well important rulings from lower federal courts in areas such as Title IX, transgender rights, and the idea of a fundamental right to education.”

Why this is important: While looking ahead to 2023, a year-end round up of impactful education law developments reminds us that religious freedom and Title IX were key focus areas in 2022.

As this article shares, 2022 brought renewed protections of religious freedom under the First Amendment in Kennedy v. Bremerton School District, a case decided by the Supreme Court of the United States (“Supreme Court”). Petitioner Kennedy lost his job as a high school football coach after kneeling midfield at the end of three games to pray. Importantly, Kennedy did so at a time when he was not charged with supervising students or engaged in District-paid speech as a coach. Holding that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual against government reprisal for engaging in a personal religious observance, the Supreme Court ruled that the United States Constitution neither mandates nor permits the government to suppress religious expression.

In Caron v. Makin, a second Supreme Court decision concerning the free exercise of religion, the justices decided 6 – 3 that Maine violated the First Amendment by excluding religious schools from a state tuition assistance program. This 2022 decision found that if a state subsidizes private education, it cannot disqualify some private schools solely because they are religious. As highlighted by this article, critics’ concern that the ruling would lead to state aid for religious charter schools is playing out in Oklahoma, where a December 2022 advisory opinion of the Attorney General suggests that a state law prohibiting charter schools from affiliating with religious institutions likely violates the First Amendment.

Separately, 2022 offered proposed updates to Title IX regulations that would significantly impact schools’ grievance procedures. Meanwhile the Supreme Court declined to hear appeals of lower court rulings that expand schools’ liability for sexual harassment under Title IX. Further, as schools await new rules from the United States Department of Education governing transgender students’ involvement in sports, 2022 provided an impactful decision on the subject by the United States Court of Appeals for the Second Circuit. In Soule v. Connecticut Association of Schools, Inc., the Second Circuit effectively upheld an athletic policy that allows transgender students to participate in sports consistent with their gender identity after several female cisgender students challenged the state championship results of transgender competitors.

Looking forward to 2023, we should expect that courts will follow this high-court precedent in protecting the religious freedom of schools’ students, faculty, and staff, and that this year will be another momentous time for changes to Title IX, including publication of the overhauled 2020 regulations and Department of Education guidance on the application of Title IX to transgender athletes. --- Erin Jones Adams
“Rulings are expected in several high-profile cases, including those that could determine the fate of race-conscious admissions and the DACA program.”

Why this is important: Moving ahead to 2023, higher education should not lose sight of pending lawsuits that loom large over the education sector. In February, the Supreme Court will hear two cases that blocked the federal student loan debt forgiveness plan shortly after it was released by the Biden administration. Also slated for Supreme Court decision in 2023 are the Harvard University and University of North Carolina at Chapel Hill cases on race-conscious admissions filed by an anti-affirmative action group. In addition, the Deferred Action for Childhood Arrivals (“DACA”) program again hangs in the balance after a federal appeals court recently affirmed that DACA is illegal, but opted to preserve the program pending review of a Biden administration rule. Finally, borrower defense to repayment, a rule that allows the United States Department of Education to offer relief from federal loans when students are misled by their schools, is the subject of two major cases in 2023. Some colleges must decide whether to appeal a $6 billion settlement agreement between the Department and student borrowers who contend the agency mishandled their borrower defense to repayment claims, and separately DeVry University has filed suit against the Department to stop its recovery of $23 million for student debt discharged through borrower defense claims. --- Erin Jones Adams
“The ruling by Judge Joseph R. Goodwin of Charleston, W. Va., is an about-face from the his 2021 decision blocking the law at a preliminary stage, permitting a then-11-year-old transgender girl to compete in girls’ cross country and track.”

Why this is important: Despite preliminarily blocking of House Bill 3292 (“H.B. 3292”), the West Virginia law precluding transgender students from participating in girls’ sports, Judge Goodwin held in his most recent ruling on the matter that the law does not violate the Equal Protection Clause of the state Constitution because West Virginia “is permitted to legislate sports rules on this basis because sex, and the physical characteristics that flow from it, are substantially related to athletic performance and fairness in sports.” As to Title IX, which prohibits sex-based discrimination in any school or education program that receives federal financial assistance, Judge Goodwin found that because transgender girls “are not excluded from school sports entirely,” and “are permitted to try out for boys’ teams, regardless of how they express their gender,” Title IX, which “authorizes sex separation in sports in the same scenarios outlined in H.B. 3293,” is not violated. This is particularly notable given the Biden administration’s Statement of Interest opposing H.B. 3293, filed on June 17, 2021. This Statement set forth the argument that H.B. 3293 does, in fact, violate Title IX by “effectively prohibiting, solely on the basis of sex, a certain subset of students – girls who are transgender – from participating in athletic programs…” because “forcing transgender girls to participate in boys’ teams also causes discriminatory harm….”

Given its interplay with the upcoming changes to Title IX that will likely take effect for the 2023-2024 school year, this decision by Judge Goodwin holds particular importance. The Biden administration has indicated that the Department of Education will undertake a separate notice of proposed rulemaking to address what criteria, if any, schools should be permitted to use in order to determine whether students are eligible to participate on a male or female sports team. --- Megan W. Mullins
“Two of the largest organizations schools seek guidance from on transgender student rights are providing conflicting information at a time of increased public scrutiny on the subject.”

Why this is important: At a time when the rights of transgender student youth remain at the forefront of debated topics, interpretation of case law and guidance regarding the scope of these rights is highly sought – but it may not be as clear cut as we would hope.

In Pennsylvania, the Education Law Center (“ELC”) and the Pennsylvania School Board Association (“PSBA”) disagree on the extent to which uncertainty remains after two federal court cases considered the issue of bathroom and locker room use. The ELC interpreted the cases as essentially allowing transgender students to use bathrooms and locker rooms that correspond to their gender identity, while the PSBA believes the cases are not so clear. The PSBA has a website on the subject that provides legal updates, but does not give school districts policy recommendations.

With new Title IX regulations on the horizon, which will strengthen protections for LGBTQ+ students, it is important to stay apprised of these issues, though it is likely we will see more conflicting interpretations of how to practically implement new policies and practices. Schools and educational institutions receiving federal financial assistance are encouraged to reach out to counsel to discuss these topics, and to develop a plan, including training of faculty and staff sooner rather than later, that ensures a smooth transition into this important area of new requirements. --- Megan W. Mullins
“The past year brought us no shortage of change, and events that will lead to more and more change.”

Why this is important: There are two cases working their way through the courts that likely will decide whether or not student athletes must be treated as employees of the institution for which they compete.

One case will be decided under the National Labor Relations Act and will determine whether student athletes are employees under that statute. If they are found to be employees, then student athletes may vote to unionize and colleges (or perhaps conferences) will be required to bargain with the representatives of the student athletes over everything from compensation to practice times.

The second case is being litigated under the Fair Labor Standards Act (“FLSA”) and if the court determines that student athletes are employees under that statute, then the FLSA’s provisions (minimum wage, overtime, etc.) will apply to the relationship between colleges and their student athletes. --- Kevin L. Carr
“The Democrat-backed bill, called the Fair Play for Women Act, is being co-sponsored by Sen. Chris Murphy (D-Conn.), and Reps. Alma Adams (D-N.C.), Lori Trahan (D-Mass.) and Suzanne Bonamici (D-Ore.).”

Why this is important: Democrats introduced legislation just before Christmas that authorizes fines for colleges that violate Title IX. The statute, known as the Fair Play for Women Act, would require institutions that systemically violate the gender equity provisions of Title IX to pay fines for such violations. While Title IX already allows the imposition of a remedy disqualifying offending institutions from receiving federal monies, that remedy has never been utilized. Submission of the bill at the end of the session last year, while largely symbolic, sends a clear message that the same legislation will be filed this session. --- Kevin L. Carr
“From compliance mandates and campus culture to cyber security and access control, practitioners and solutions providers give their predictions on where the industry is headed.”

Why this is important: After another violence-ridden year for schools across the country, it is helpful to see that some safety and security experts predict a decrease in school violence in 2023, motivated, in part, by new federal, state, and local funding for the implementation of violence prevention strategies.

In Ohio, for example, as this article highlights, the Attorney General has funded training in security and vulnerability assessments (“SVA”) by law enforcement officers for their local schools. Under the Safety and Violence Educations Students (“SAVE Students”) Act, enacted by the Ohio General Assembly to mandate school security and youth suicide awareness education and training, all school buildings in grades six through 12 must have a threat assessment team (“TAT”). Separately, for qualified schools, Ohio House Bill 110 provides grant funding for security enhancements to prevent and prepare for acts of terrorism while the Ohio School Safety Center provides access to TAT training at no cost.

(Separately, as announced today by the United States Department of Education, recipients of the federal Project School Emergency Response to Violence grants, which include three Historically Black Colleges and Universities that experienced bomb threats last year, plan to the use the funds for new staff to provide Learning, Empowering and Advocating for Diversity Workshops, new security officers, including support for overtime hours and contracted police security detail, new mental health and psychology specialists, and Applied Suicide Intervention Skills Training that addresses trauma reactions such as depression and risk of suicide.)

While factors like location, community demographics, and design of campus facilities and grounds, among others, prevent a one-solution-fits-all model for achieving campus safety and security, this article posits that state or national clearinghouses of qualified vendors to help schools utilize these funds in a responsible and effective manner would be a helpful starting point.

Experts predict that conversations around mental health and its impact on campus safety will continue. While the engagement and retention of qualified mental health professionals remains a critical priority for schools, other departments can contribute to the solution. At Widener University, for example, this article shares how campus safety and police have reframed their approach to include collaboration with student organizations, the use of comfort k9s, and social media to foster community connections and to create a culture of belonging.

In the cybersecurity realm, experts predict that threats to higher education institutions will continue to rise and, in turn, schools must strengthen their defensive position through appropriate staffing, funding, campus training, and measures like enhanced system user authentication. In 2023, identifying the user behind the device will be an increasingly important aspect of enterprise security according to this article.

As your school considers proactive measures it can employ in 2023 to support campus safety and security, please let us know if our education counsel can help you. --- Erin Jones Adams
“College leaders are sharply more concerned about risks from recruitment and hiring than they have been in recent years, according to a new survey.”

Why this is important: Leaders of colleges and universities across the country are polled each year on the top issues they expect to impact their institutions in the following year. In the current poll for 2023, many of the items on the dashboard occupy the same position of concern as in prior years. However, one – recruitment and retention of faculty and staff – has risen significantly.

Higher education is not immune from the hiring and employee retention challenges with which non-educational employers across the nation have wrestled over the past two years. The labor market (and other economic forces) have created a very competitive environment for all employers, and many colleges and universities are now battling to recruit new top talent to keep their current faculty and staff. Colleges and universities will need to employ a mix of wage increases and non-economic retention strategies to compete for human capital in the current environment. --- Kevin L. Carr
“The Education Department’s docket for this year includes amending regulations on accreditation, state authorization, distance education, cash management and third-party servicers.”

Why this is important: On January 4, 2023, the United States Department of Education released its regulatory agenda for the year. The subject areas slated for regulatory amendments, with the Department squarely focused on institutional oversight by states and accreditors, include: 
  1. Federal outreach and student services programs designed to identify and provide services for individuals from disadvantaged backgrounds (known as TRIO Programs), including technical improvements to programmatic eligibility;
  2. Accreditation under the Higher Education Act of 1965, as amended (“HEA”), including Department standards for the recognition of accreditation agencies and accreditation procedures as a component of institutional eligibility for federal financial aid;
  3. State authorization as a component of institutional eligibility under the HEA;
  4. Institutions’ requirements for returning unearned Title IV, HEA program funds; 
  5. Cash management operations to ensure students maintain timely access to student aid disbursed by their institutions of higher education;
  6. Third-party servicers, reporting requirements, financial and other compliance requirements, and past performance requirements for participation in federal financial aid;
  7. Issuing deferments and forbearances under the HEA, particularly in relation to income-driven repayment; and 
  8. The definition of “distance education” under the 34 CFR § 600.2. 

Also anticipated for spring 2023 release are new rules under the Public Service Loan Forgiveness Act and the overhaul of current Title IX regulations expected to be published in May 2023. Still outstanding are proposed rules by the Department on transgender students’ involvement in sports (meanwhile the National College Athletic Association announced plans last week to extend implementation of Phase 2 of its Transgender Student-Athletes Participation Policy to the 2024-2025 school year). 

As colleges and universities gear up for the second semester, stay tuned for the ways these regulatory changes may impact the delivery of financial aid, affiliations with third party servicers, distance education programs, and accreditation standards for participation in Title IV funding. --- Erin Jones Adams
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