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Welcome
Welcome to the sixth issue of The Academic Advisor – our e-newsletter focused on education law insights.
For this mid-summer edition, we take a deeper look at the newest developments regarding the 2024 amendments to Title IX regulations and how recent court rulings affect our readers. As of August 1, 2024, educational institutions across the country will face yet another unprecedented situation when schools, universities, and other Title IX-covered organizations in at least 10 states maintain the status quo under existing policies and grievance procedures while the remainder comply with the Final Rule.
Other topics covered in this edition include an overview of Pennsylvania lawmakers’ bill to overhaul higher education; North Carolina Board of Education steps to ban public school athletes from profiting off their name, image, and likeness (NIL); how ethical hackers can enhance schools’ cybersecurity; the latest efforts to delay reporting requirements under the Gainful Employment and Financial Value Transparency regulations; the employment-related implications of NIL at the collegiate level and House committee steps to stop it; Federal Student Aid Office plans to undergo a full-scale review; and Office of Civil Rights’ challenges with processing complaints.
During the summer months, our firm hosts a talented group of law students, who research and write, shadow our attorneys, and learn about the practice of law in a firm setting. As young professionals still deeply involved in higher education, our Summer Associates are contributing to our summer publications and sharing their perspectives as both students and future legal practitioners. We welcome Taiesha Morgan, Ethan Norris, and Gabriel Papadopoulos to The Academic Advisor team for this summer edition.
We wish you a happy and safe July 4th holiday. As always, thank you for reading.
Erin Jones Adams, Member, Co-Chair of the Education Practice Group, and Co-Editor of The Academic Advisor
and
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
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“A preliminary injunction has been granted in a lawsuit that West Virginia is a part of against the Biden Administration’s recent Title IX rewrite which expanded the definitions of sex-based discrimination to include gender identity.”
Why this is important: Since the U.S. Department of Education (ED) released its amended Title IX regulations on April 19, 2024 (Final Rule), numerous school boards, the attorneys general for 26 states (Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming), and other interested parties have initiated nine separate lawsuits seeking to block enforcement of the Final Rule. Significantly, two of these actions have recently gained traction before the U.S. District Court for the Western District of Louisiana and the U.S. District Court for the Eastern District of Kentucky, resulting in a stay of the Final Rule that impacts the obligations of schools, universities, and other Title IX-covered entities in the affected states.
On June 13, 2024, Judge Terry A. Doughty of the Western District of Louisiana granted a preliminary injunction stopping enforcement of the Final Rule in Louisiana, Mississippi, Montana, and Idaho. In so ruling, the court found that the plaintiffs were likely to succeed on the merits of their claims that the Final Rule is contrary to the Administrative Procedures Act (APA), violates the Free Speech Clause of the First Amendment, violates the Exercise Clause of the First Amendment, violates the Spending Clause, and is arbitrary and capricious under the APA. In particular, the court ruled that ED had exceeded its authority and acted counter to the original purpose of Title IX by allowing “sex discrimination” covered by Title IX to encompass anything more than discrimination on the basis of biological sex, taking direct aim at the expansion of sex discrimination under the Final Rule to include discrimination based on gender identity, sex stereotypes, sexual orientation, or sex characteristics. The court also ruled that the new “harassment standard” under the Final Rule, which establishes a claim of sex-based harassment when the conduct is so “severe or pervasive” that it “limits” participation in a program or activity, is contrary to Title IX. Ruling that the plaintiffs had made “compelling arguments” this standard violates free speech under the First Amendment, the court was persuaded that the Final Rule would compel staff and students to use pronouns consistent with individuals’ gender identities even when contrary to “grammar rules, reality, or political ideologies.”
Less than one week later, on July 17, 2024, Chief Judge Danny C. Reeves of the Eastern District of Kentucky similarly enjoined and restrained ED from implementing, enacting, or enforcing the Final Rule in Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia in a 93-page order stating that ED had attempted to “dramatically alter the purpose and meaning of Title IX through rulemaking.” Like the order issued by Judge Doughty, the ruling by Judge Reeves stated that the Final Rule “would turn Title IX on its head by defining ‘sex’ to include ‘gender identity’” and likely require educators “to use students’ preferred pronouns regardless of whether doing so conflicts with the educator[s’] religious or moral beliefs.”
Notably, both courts took issue with ED relying, in part, on Bostock v. Clayton County, Georgia, the 2020 United States Supreme Court decision ruling that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of gender identity or sexual orientation, for its expansion of Title IX to provide similar protections. Both injunctions also block enforcement of the Final Rule in its entirety rather than any particular provision of the Final Rule. Despite significant allowances for schools to alter their Title IX grievance procedures under the Final Rule, namely the elimination of mandatory live hearings with cross examination, neither court addressed the matter. Signaling the protracted legal battle in store, on June 24, 2024, ED filed its notice of appeal concerning the preliminary injunction issued by the Western District of Louisiana.
To complicate matters, on June 28, 2024, the United States Supreme Court overturned longstanding precedent known as the “Chevron Deference” in Loper Bright Enterprises v. Raimondo, ruling that courts reviewing the actions of federal agencies must exercise “independent judgment” and may not “defer to an agency interpretation of the law simply because a statute is ambiguous. Though Loper did not concern education or ED, the decision will impair the authority of agencies like ED to engage in rulemaking and interpret the laws that they are obligated to regulate. Case in point, in the pending lawsuit initiated by Arkansas and other plaintiff states in the U.S. District Court for the Eastern District of Missouri challenging the Final Rule, the court has already ordered briefing by the parties regarding the impact of Loper on the plaintiffs’ motion for preliminary injunction to halt enforcement of the Final Rule. Loper will make enforcement of the Final Rule more difficult for ED.
Educational institutions, Title IX administrators, and compliance officers are again caught in the cross-hairs of this political debate. While the majority of Title IX-covered entities must comply with the Final Rule by the approaching August 1, 2024 deadline, including required policy and training updates, those situated in the enjoined states should continue to comply with and not eliminate due process required under existing Title IX regulations, consult their legal counsel regarding additional obligations, and be prepared to issue policy updates promptly in the event that the injunctions are overturned. The preliminary injunctions are not final rulings on the merits of the pending cases, but rather temporary orders pending such decisions; and it could be a year or more before these cases are fully and finally resolved. If you have any questions or concerns about Title IX compliance under these varying frameworks, please reach out to your Spilman attorney for further support. --- Erin Jones Adams
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“Costa is sponsoring legislation to create a State Board of Higher Education that would coordinate activities and resources among the different higher education institutions from: state-related to state system to community colleges to private colleges.”
Why this is important: Pennsylvania state Senator Jay Costa (D-Allegheny) faced challenges transferring credits from community college to certain four-year institutions, which influenced his decision to attend Indiana University of Pennsylvania over other Pennsylvania universities. He is now sponsoring legislation to create a State Board of Higher Education to coordinate activities and resources among Pennsylvania's various higher education institutions, including community colleges, state-related and state system schools, and private colleges. The board would include the Pennsylvania Secretaries of Education and Labor, two senators, two representatives, and nine gubernatorial appointees, with balanced political representation and subcommittees for specific trades.
The board's responsibilities would include recommending curricula and tuition policies and easing the process of resource allocation for schools. Additionally, the legislation proposes increasing state grants by $1,000 for median-income students to support college costs. This initiative aims to expand educational opportunities and address the 12.4 percent enrollment decline in Pennsylvania universities since 2017.
Governor Shapiro's budget proposal suggested uniting community colleges with the Pennsylvania State System of Higher Education, but Senator Costa's bill does not include this provision, appealing to some Republicans like Senate Education Chair Senator David Argall. However, Republican Education Chair Representative Jesse Topper opposes the bill, citing concerns about unnecessary bureaucracy. Instead, Republicans support the "Grow PA" education reform plan, which focuses on funding for students entering high-demand fields such as agriculture, energy, and technology.
All in all, there appears to be support for some higher education reform in Pennsylvania on both sides of the aisle, but the exact method and function of that reform has yet to materialize. --- Shane P. Riley
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“The decision by the state board leaves North Carolina in a minority of states that ban high school athletes from profiting off their name, image, and likeness.”
Why this is important: In June 2024, the North Carolina State Board of Education (Board) issued a policy banning public high school athletes from profiting from their name, image, and likeness (NIL) in order to maintain the amateur nature of interscholastic athletics. The policy followed an approved overhaul of Title 16, Chapter 6E of the North Carolina Administrative Code (NCAC) by the Board through the temporary rulemaking process on the subject of school athletics in response to Session Law 2023-133 (S.L. 2023-133). Enacted by the North Carolina General Assembly in 2023, S.L. 2023-133 required the Board to adopt rules on student amateur status requirements, including students’ NIL, governing high school interscholastic athletic activities conducted by public school units. In banning public school students’ rights to benefit from their NIL, North Carolina joined a minority of like-minded states.
The Board policy, which is modeled after new 16 NCAC 06E .0208 and took effect July 1, 2024, in time for commencement of the 2024-2025 academic year, provides that no student participating in interscholastic athletics can enter into an agreement to use their NIL for public appearances or commercials, autograph signings, camps and clinics, product or service endorsements, the sale of non-fungible tokens known as “NFTs,” or promotional activities, including in-person events and social media advertisements. NIL is defined broadly to include the use of a student’s name, image, or likeness for commercial purposes and in exchange for compensation such as cash, in-kind gifts, and other tangible benefits to the student.
The policy follows the May 2023 counter-position taken by the North Carolina High School Athletic Association, the governing body of public high school sports in North Carolina, which members of the State Legislature promptly contested. This contest instigated the enactment of S.L. 2023-133, placing authority to develop amateur rules for public school athletes with the Board. In enacting the policy, the Board also departed from a policy approved by the North Carolina Independent Schools Athletic Association earlier this year, which allows students at North Carolina private schools to profit from their NIL. As a result, opponents of the Board policy contend that North Carolina public school students will be at a disadvantage in comparison to their private school counterparts.
Ultimately, given the significance of NIL benefits, North Carolina schools should expect that students and sponsors will continue looking for ways to capitalize on amateur athletes’ NIL, whether that means exploring opportunities at private schools, on travel teams, or through other avenues. --- Erin Jones Adams
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“Getting a professional penetration test can expose network vulnerabilities in K–12.”
Why this is important: The fact that schools and universities continue to be top flight targets of cyber criminals is not surprising. The student and employee data that educational institutions maintain for operational and compliance purposes is highly valuable, voluminous, and vulnerable. As covered in earlier editions of The Academic Advisor and DeCoded, our e-newsletter focused on technology law, there are specific steps that schools can take to prevent this harm and mitigate its effects. This article focuses on the benefits of one such measure – penetration testing – and specifically its use in the primary and secondary school settings, though this form of detection can benefit any educational institution.
Pen testers, also referred to as ethical hackers, design simulations and plans to examine existing cyber security infrastructure for weaknesses through both internal and external hacking. These engineers test network defenses for missing patches, misconfigurations, tool deployment flaws, and breaks in firewalls. As this article highlights and information technology teams know all too well, people are often the weakest link in maintaining data security. With particular focus on the workforce inside an educational institution, pen testers look for administrator credentials on the web and even use the social engineering tools that cybercriminals employ such as phishing to identify vulnerabilities and recommend concrete actions for preventing unauthorized access to schools’ networks. While penetration testing is a beneficial exercise, it is not necessarily a one and done approach. Schools benefit from annual testing to the extent that their budgets allow.
The bottom line: Cyber security vigilance is must for any school, but do not be overwhelmed into inaction by the threats to data security and perceived costs of protecting your institution. The first step is to have a culture that prioritizes cybersecurity and data privacy at all levels of the organization. Administration, faculty, and staff need to be invested in protecting institutional data, and strong leadership in cybersecurity and data privacy from the top is essential for success. Next steps include installing any neglected software patches to close known software vulnerabilities, and providing data privacy and cyber security training for all personnel to ward against phishing and other forms of cyber manipulation and attacks. A tool like penetration testing can support this process, particularly when an institution lacks the internal expertise to effectively audit its systems. In addition, annual (or more frequent) data security meetings with department heads, legal counsel, and your information technology team are critical to provide a coordinated approach, to help identify potential weaknesses, to audit data locations and categories of data to be retained and discarded subject to retention policies, and to review and update your institutional cybersecurity and data privacy plan and data breach response plan in accordance with applicable regulations. Preparedness now will help save your school in the future. --- Erin Jones Adams
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“The National Association of Student Financial Aid Administrators, which represents roughly 29,000 financial aid professionals at nearly 3,000 institutions of higher education, sent a letter to the House and Senate committees with oversight of the Education Department asking for an extension of the gainful employment and financial value transparency reporting requirements until July 2025.”
Why this is important: In September 2023, the Biden administration released regulations regarding Gainful Employment and Financial Value Transparency (GE/FVT) for higher education institutions. These regulations are designed to facilitate the collection and dissemination of information on the financial costs and outcomes for students in both career training and degree awarding programs. Currently, institutions of higher education are required to report financial data on costs to students, as well as how much students make following graduation, by October 1, 2024. The Department of Education will then use this data to create a report on the financial risks associated with higher educational programs by July 2026.
However, in a recent letter, the National Association of Student Financial Aid Administrators (NASFAA), which represents thousands of financial aid professionals, has asked Congress to extend the deadline to submit this data to July 2025. This is the fifth such letter that NASFAA has sent requesting the GE/FVT reporting requirements be delayed. The NASFAA letter states that financial aid workers are already facing significant challenges relating to the new Free Application for Financial Student Aid (FAFSA) and the annual Fiscal Operations Report and Application to Participate (FISAP). Issues and delays with FAFSA have led to both an increase in the amount of work financial aid professionals must do, as well as a compression of the timeframe those professionals have to complete that work, while the FISAP is due concurrently with GE/FVT reporting. As a result, NASFAA contends that complying with the GE/FVT reporting deadline will be to the detriment of other priorities such as dealing with FAFSA.
NASFAA asserts that providing institutions more time to report GE/FVT data does not mean that the U.S. Department of Education has to delay publishing the GE/FVT data to the public. This is important because the GE/FVT data will help students understand the implications of choosing different institutions of higher education. Since 1980, the cost of attending a four-year college has increased by over 180 percent according to Forbes. This has led to an increase in student debt. In 2008, student loan debt in the U.S. was just over $619 billion, but this has increased more than 285 percent to $1.77 trillion in 2023 according to USA Today. The GE/FVT data will enable students and parents to analyze the likelihood that they will be able to pay off the student loans and compare programs to make the best choice for them financially.
With the cost of receiving higher education and amount of student loan debt rising, students and families benefit from access to accurate information about how much debt students are likely to assume and how much money they are likely to make after graduation. The GE/FVT regulations seek to make this data available, but if higher education institutions have to choose between GE/FVT reporting and dealing with the effects of the new FAFSA rollout, student financial aid may be impacted. --- Ethan S. Norris
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“The Committee on Education and the Workforce’s action marks the first time in college sports officials’ recent era of Congressional lobbying efforts that a bill has even received a committee vote.”
Why this is important: For better or worse, NCAA NIL (name, image, and likeness) rules turned college athletics upside down in 2021. NIL rules allow student-athletes to profit from their personal brand by signing autographs, selling merchandise, serving as brand ambassadors, and engaging in similar activities. Now that college athletes can receive compensation in this context, the fight is over whether or not they should also be considered employees.
On June 13, 2024, the U.S. House Committee on Education and the Workforce approved a Republican-backed bill blocking college athletes from being deemed employees that was voted among straight party lines. This is a significant breakthrough for NCAA lobbyists, but the bill will be heavily scrutinized if it continues to progress. One criticism Democratic senators have is that the bill is too narrow and more comprehensive legislation is needed to tackle arising issues in college sports. Bipartisan efforts in the Senate to draft all-encompassing legislation have proved fruitless thus far, but it seems certain that Congress will be involved in the matter going forward.
Whether the bill progresses will potentially decide several groundbreaking cases. Currently in front of the NLRB are several cases that would determine the employment status of college athletes such as the Dartmouth Men’s Basketball Team, which voted to unionize earlier this year. The U.S. Circuit Court of Appeals for the Third Circuit also has a case pending that could classify college athletes as employees and require universities to pay them minimum wage or more. Student-athletes prevailing in these cases would undoubtedly have serious implications for the NCAA and athletic programs around the country, but proponents of the idea believe it is long overdue that athletes share in the revenue they help to generate. --- Gabriel P. Papadopoulos
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“U.S. Education Secretary Miguel Cardona announced the in-depth evaluation as colleges and students reach the end of a tumultuous financial aid cycle.”
Why this is important: In 2020, Congress ordered the Federal Student Aid Office (FSA) to simplify Free Application for Federal Student Aid (FAFSA) forms for an easier application experience. The new application form did not roll out until late December 2023, which was three months later than the normal release date. Advocates expressed concerns that the form failed to adjust for inflation and contained formula miscalculations and tax data errors causing additional delays. Students and their families experienced technical errors while completing the new form. This ultimately delayed higher education systems receiving the forms.
FASFA forms are used by the FSA, colleges, and states to collect data and determine the amount of financial aid that will be dispersed. Although some of the issues were fixed, the late FASFA forms caused some schools to push back commitment deadlines and some states to completely waive the requirement of filling out the form.
After facing backlash from the federal legislature and House lawmakers concerning the new FASFA rollout, U.S. Education Secretary Miguel Cardona announced that the FSA will begin restructuring. This comes at the same time as leadership changes occur, namely FSA Chief Operating Officer Rich Cordray was expected to formally step down from his role as of the end of June.
Secretary Cardona also hopes to increase accountability and transparency within the FSA. With the aim of modernizing and improving the FSA, a full-scale review is slated to occur. Though there is no timeline for the review, it will reportedly assess the current and historical organization of the FSA and its management, staffing, workflow structures, business processes, operations, contracts, and acquisition procedures. Input will also be sought from the Office of the Inspector General and Congress. --- Taiesha K. Morgan
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“For months, the Biden administration has been pleading with congressional Republicans to direct more money to the Education Department's Office for Civil Rights.”
Why this is important: Since the start of the Israel-Hamas war in October 2024, college campuses have seen a large increase in antisemitic and anti-Muslim incidents. While accounts of protests and discrimination on college campuses have dominated the headlines, one question typically arises: what is the U.S. Department of Education (ED) doing to combat these incidents?
The Office for Civil Rights (OCR) is an adjudicative arm of ED that receives and processes discrimination complaints. OCR handles complaints involving primary, secondary, and postsecondary institutions that receive federal funding. From Title VI claims to ADA violations, OCR is responsible for enforcing a multitude of laws within schools across the country.
In 2023, OCR received 19,201 complaints, a two percent increase from the previous year’s record high of 18,804. However, as this article highlights, OCR currently lacks the resources to properly and promptly address these complaints. OCR was flat-funded for the 2024 fiscal year. Additionally, while the number of complaints has consistently increased since 2009, the number of full-time staffers has drastically dropped during that span. Though some congressional lawmakers have called to abolish ED altogether, civil rights groups contend that OCR needs more money and resources.
The Biden administration has requested roughly $22 million in extra funding for OCR in 2025. This increase would support nearly 90 additional full-time staffers to investigate discrimination complaints. While the number of antisemitic and anti-Muslim complaints within schools continues to rise, other complaints have also seen an uptick. Recent reports show that disability-related complaints have increased from 6,467 to 6,749 within the past year. Denise Marshall, a disability rights advocate and CEO of the Council of Parent Attorneys and Advocates featured in this article, attributes the rise in complaints to states disregarding their responsibility to ensure school districts comply with the laws.
A looming problem for OCR is the potential increase of Title IX claims. With amended Title IX regulations that expand the forms of sex-based harassment and discrimination covered by Title IX set to take effect August 1, 2024, it is anticipated these changes will result in additional complaints to OCR. Ultimately, with the evolving regulatory landscape and overall increase in complaints, OCR will have a lot to handle within its underfunded department if the additional financial support is not approved. --- Isaiah C. Robinson
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