December 27, 2022

Welcome to our 7th and final edition of The Academic Advisor for 2022 - our e-newsletter focused on education law insights. 

In this issue, we discuss the academic strike occurring at the University of California and how to avoid similar challenges; legislative efforts to bolster Title IX protections; the latest on student loan debt and college affordability considerations; three key safeguards against cyberattacks; and important campus safety measures for violent incident preparedness and threat management. 

As we look ahead to 2023, we would love to hear what you think about this publication. Are we addressing topics you find interesting and helpful? Are there other areas of education law and compliance that we could address to help your school and support the services you provide? Is the monthly schedule and format accessible and reader-friendly? We would greatly value your input as we continue to enhance The Academic Advisor and ensure it meets your needs. Please email us your thoughts.

We wish you and your institutions a happy new year!  

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
“The University of California is trying to divide and conquer the 48,000 workers on strike by acceding to the demands of some groups but not others.”

Why this is important: The California academic strike is significant for numerous reasons, two of which should be on the radar of every college in the country. You cannot turn on the TV or open a web browser without running into a story about union organizing efforts or union strikes. The Minnesota nurses; teachers in Columbus, Ohio; workers at John Deere; and staff at American University and many other companies have been in the news for strike activity. Unions have enjoyed increasing support over the last several years and have won what were once unthinkable elections at companies like Starbucks, Trader Joe’s, Google, REI, Chipotle, Amazon and others. According to a Cornell University study, union election petitions increased 58 percent in the first three quarters of fiscal year 2022 (over 2021). Public support of unions is the highest it has been since 1965 (71 percent approval rating per Gallup). Succinctly, 2022/2023 America is a target rich environment for unions.

Colleges and universities across the country should be mindful of the California strike for two reasons. First, the unions appear to be digging in order to receive generationally-high, if not unprecedented, wage increases. Their stated desire is to bring higher education wages into line with non-education wages, a monumental shift in higher education. If achieved, such a landmark result would undoubtedly send seismic tremors throughout higher education. Institutions with labor unions will have an uphill battle in future negotiations over wages and benefits. Institutions without labor unions should be concerned about (and take steps to avoid) becoming unionized. Second, this strike is the largest strike in the history of higher education (the unions represent 48,000 academic workers at the University of California). It has been wildly disruptive. Nonetheless, there has been no measurable opposition from faculty members or students, despite the tumult. 

This should drive home the point that if college employees seek to unionize, the administration will be effectively on its own to respond to such union organizing efforts. Accordingly, in order to make union organizing by employees unnecessary, colleges and universities should make sure they compensate all academic workers fairly and provide a work environment where such workers are able to thrive and have a high quality of job satisfaction. --- Kevin L. Carr
“Sens. Bob Casey (D-Pa.) and Mazie Hirono (D-Hawaii) will introduce new anti-harassment legislation that aims to strengthen Title IX protections for student survivors of sexual assault or harassment.”

Why this is important: With the Biden administration’s proposed Title IX regulations expected to be finalized in the upcoming year, legislation strengthening the protections provided by the new regulations will be an important topic for schools to understand. The proposed bill, which is set to be introduced by senators from Pennsylvania and Hawaii (and co-sponsored by at least two more state senators), will not only provide more protection against sexual assault and harassment, but also sex-based discrimination based on sexual orientation and gender identity. The proposed bill, titled the Students’ Access to Freedom and Educational Rights (“SAFER”) Act, seeks to amend Title IX to lower the standard required to prove that a plaintiff was subjected to sex discrimination and/or sex-based harassment. 

As a result, educational institutions will need to be proactive in their implementation of effective Title IX programs that protect campus members, meet the requirements of new legislation, and reduce the possibility of exposure to civil lawsuits. To prepare for changes proposed under the new Title IX regulations and the bill discussed in this article, we encourage institutions that are subject to Title IX (including all recipients of federal funding in educational programs and activities) to contact their counsel to ensure all Title IX personnel and support staff are fully informed and ready to take responsive action.
“The advocacy groups allege Frisco Independent School District discriminated against transgender, nonbinary, gender diverse and intersex students when its school board voted to restrict access to bathrooms, locker rooms and shower rooms that align with a student’s biological sex.”

Why this is important: Two school districts in Texas are already facing lawsuits after they adopted policies that the American Civil Liberties Union alleges violate Title IX due to anti-LGBTQ+ principles. Specifically, the two policies restrict access to bathrooms and shower rooms to students’ biological sex, and preclude the school library from retaining materials portraying “gender fluidity.” 

With these controversial issues at the forefront of human rights discussions, educational institutions and their staff should be thoroughly educated on the protections provided by Title IX, including those provided in the newly proposed Title IX regulations that are set to be finalized in 2023. The proposed regulations significantly change the current Title IX framework to, among other things, include protections against discrimination based on sexual orientation, gender identity, and sex characteristics. Having a robust understanding of Title IX in its current state, and how the regulations will change to strengthen protections for LGBTQ+ students, is essential for schools’ avoidance of establishing policies that undermine the purpose of the Title IX laws, which could in turn lead to significant legal challenges and related costs. --- Megan W. Mullins
“Here’s what 6 borrowers think will solve the crisis as Biden’s forgiveness plan stalls.”

Why this is important: Over the last 30 years, the national student loan balance has grown to more than $1.7 trillion owed by approximately 48 million borrowers, which overshadows both auto loan and credit card debt in the U.S. While there are many root causes and potential solutions, this article focuses on borrowers’ responses to the debt crisis as President Biden’s loan forgiveness plan faces a challenge before the Supreme Court.

Despite the outcome of the case, borrowers nearly unanimously agree that the loan forgiveness program is a band-aid rather than a cure. More will need to be done to curb the overall costs of higher education in the U.S. and create a more affordable and accessible system. Some borrowers have noted the high interest rates attached to federal student loans as an area of potential reform. Due to pandemic era freezes, interest rates on federal student loans are currently set at 0 percent and some feel this should be made permanent. This would save borrowers $1.5 billion per month in the aggregate and lawmakers on both sides of the aisle have proposed no-interest solutions that could be feasible. Lowering or eliminating the interest on student loans would allow borrowers to pay off their loans quicker and feel more progress as they make payments rather than feel stuck under a debt load that only seems to grow with time.

Other borrowers interviewed focused on expanding existing programs, such as the Public Service Loan Forgiveness program, to be more inclusive. The current program allows forgiveness for borrowers employed full-time by a nonprofit organization or government entity while making 120 payments (10 years-worth, if consecutive) on federal direct loans that are under an income-driven repayment plan. A one-time waiver period that recently closed on October 31, 2022, allowed credit for past full or partial payments on loans that were not direct loans.

Another idea is to allow the discharge of student loans in the event of bankruptcy. Presently, it is extremely difficult, if not impossible, for someone to have their student loan debt discharged in normal bankruptcy proceedings. Current rules require borrowers to prove that the debt poses an “undue hardship” to be discharged in bankruptcy, yet Congress has been ambiguous about what that means. The result is an uncertain process which more often than not keeps the debt attached to the debtor. The Biden administration recently announced new guidelines that will allow agencies to recommend discharging a student borrower’s debt if warranted. Proponents of the guidelines claim the new process will be far clearer and lead to more debt relief for student borrowers facing financial hardship.

In February, the Supreme Court will begin hearing oral arguments in the case filed by six GOP-led states to block Biden’s loan forgiveness plan and many pundits feel it is likely they will strike it down. Regardless of the Court’s ruling, borrowers and policy experts alike are looking for more action to help solve the student debt crisis and it appears only Congress has the power to make a substantial impact. With new leadership in the House coming in January, lawmakers’ ability to work together on this issue is yet to be known. --- Shane P. Riley
“These institutions are also easy targets because of who they serve.”

Why this is important: “Easy targets.” That’s how this article describes universities and colleges as targets of cyberattacks. The reasons are many: they use legacy hardware and infrastructure, weak passwords, shared USB drives, email attachments, and the rise in remote learning as a result of the pandemic. As a result, some of the most well-known institutions have been victims of cyberattacks: Cornell University, New York University, University of California at Berkeley, and Howard University. Some lesser-known institutions likewise have been attacked and often suffer devastating consequences. The 157-year-old HBC Lincoln College in Illinois suffered a cyberattack earlier this year that left employees locked out of their access for months. As a result, and with a low enrollment project, the college closed its doors. 

This article discusses three suggestions universities and colleges can implement to make themselves harder targets for attackers. First, adopt a zero-trust philosophy. This approach assumes that a network is vulnerable to attack and will be compromised. It focuses on access control enforcement, and assumes all access requests are hostile. Second, maintain proper cyber hygiene. This suggestion includes auditing and updating hardware and software as well as basic concepts like not reusing passwords. Third, segment the network. This point emphasizes that splitting the network into smaller sections contains a threat when one segment is compromised. 

The above suggestions are a good place to start for universities and colleges when thinking about how to steel themselves for the inevitable attack. As the article points out, an attack will happen. It’s a question of when, not if. --- Nicholas P. Mooney II
“Security risk management professionals share lessons learned from working with higher education institutions to establish comprehensive threat and risk management plans.”

Why this is important: While threat preparedness is always on every institution’s priority list, the place it occupies on the list varies over time. Unfortunately, it often takes a publicized horrific event to push it up the list. Threat management is dynamic. The means in which students interact change. The profiles of dangerous individuals evolve over time. The means by which threats can be identified in advance are not static. Succinctly, developing a threat preparedness plan is the first step, one that every institution of higher learning should have long ago taken. The best and most prepared institutions view their plan as a living document and develop a regular cadence for evaluating and improving that plan. This author advises that every college and university evaluate their plan on at least an annual basis. That evaluation should be documented and effective training should be provided each year on emergency preparedness/threat prevention (with changes highlighted). --- Kevin L. Carr
“Tuition and fees at four-year public colleges in the last decade have soared 10 percent — and 19 percent at private schools — leaving students and families wondering how much higher prices can go.”

Why this is important: While recent actions by the Biden administration have focused on relief for current student loan debtholders, little action has been taken to address the ballooning overall cost of higher education across the United States. Parents remain largely convinced that a college education will aid their children in finding jobs post-graduation, but few feel they have enough money to pay the costs. On the other hand, both private and public institutions of higher education are struggling to keep operational costs and market tuition rates down. The result is a system of high rates and fees offset by attractive sounding scholarships intended to make students and families feel they are getting a good deal. The reality is that overall enrollment across the country is down and many families feel priced out of the schools providing the highest value degrees. Policy experts see the decline of public investment in higher education as the root of the problem in most states. It appears that stop-gap measures such as one-time loan forgiveness programs, while not without their merits, will not be enough to make a college education and the economic benefits of a degree more accessible to the average student. --- Shane P. Riley
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