Welcome to our third edition of The Academic Advisor for 2023 – our e-newsletter focused on education law insights.

As an event sponsor, we invite you to join us at the 2023 DRI Employment and Labor Law Seminar being held May 3–5, 2023 in New Orleans, Louisiana. Known as one of the best employment law seminars in the nation, DRI brings together leading management-side employment and labor attorneys, in-house counsel, human resources professionals, and EPLI representatives from throughout the U.S. and Canada. As educational institutions are no stranger to employment law challenges, this conference presents a unique opportunity for school and college administrators who oversee human resources. Intensely practical and accompanied by helpful written materials, this seminar is indispensable for experienced practitioners as well as those who are just getting started in labor and employment law. If you would like to learn more or register, please click here.

In this edition, we discuss a variety of topics that are impacting institutions of higher education, including:

As always, please let us know if there are special subject areas you would like us to cover.

We hope you enjoy this issue, and thank you for reading.

Erin Jones Adams, Counsel, 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

By Nicholas P. Mooney II

On March 1, 2023, the U.S. Department of Education (“DOE”) released guidance related to the instances in which it will require assumption of personal liability for an institution’s continued participation in Title IV programs. Last year, the DOE announced updated signature requirements for institutions’ Program Participation Agreements (“PPA”). Institutions entering into PPAs already agree to comply with regulatory requirements related to financial responsibility. The updated signature requirements were encompassed in Electronic Announcement General-22-16 and provided the DOE “may in certain cases require signatures from corporation or other entities that have, or could have, a direct or indirect effect on an institution’s financial responsibility.” The DOE believes that several entities with certain characteristics have or could have that direct or indirect effect.

Click here to read the entire article.

Why this is important: The passage of the campus carry gun bill in West Virginia means that starting in July 2024, individuals with a valid concealed carry permit will be allowed to carry a concealed weapon on college and university campuses in the state. This law has significant implications for public safety and the Second Amendment rights of gun owners. Proponents of the bill argue that it will increase campus safety by allowing responsible individuals to carry firearms for self-defense. They also argue that the law upholds Second Amendment rights and allows law-abiding citizens to exercise their right to bear arms. Opponents of the bill, on the other hand, argue that allowing guns on college and university campuses could create a dangerous environment and increase the risk of gun violence. They also argue that the law could have a chilling effect on free speech and academic freedom, as students and faculty may feel intimidated or silenced by the presence of guns. Overall, the passage of the campus carry gun bill in West Virginia is a significant development in the ongoing debate over gun rights and public safety. It remains to be seen how the law will be implemented and what its impact will be on college and university communities in the state. --- Kevin L. Carr

Why this is important: Gov. Shapiro’s budget calls for maintaining the current system of funding higher education in Pennsylvania by increasing the overall budget by $60 million while federal aid stemming from the COVID-19 pandemic fades away. This figure comes in under what was requested by both the state and Commonwealth Systems of Higher Education as higher education costs in the state continue to soar. Shapiro is also requesting a comprehensive plan from his Secretary of Education for a better way to fund higher education that focuses on competitiveness and workforce development. While hopes are high that a plan can be presented to the General Assembly sometime next year, past efforts have not delivered the system overhaul that is often called for. Education watchers across the state will be tuned in to see if the Shapiro administration can overcome the hurdle and present workable solutions. --- Shane P. Riley

Why this is important: Despite being an incredibly diverse state, Florida’s governor has made it a tenet of his political platform to undo diversity initiatives. One of his articulated priorities is making diversity statements illegal and legislation accomplishing this priority has already appeared in a pending bill. Other legislation has also been filed that would bar schools from allocating monies to certain diversity initiatives, pushing degrees that lead to high-wage jobs, and holding activities that promote DEI. Given that most schools employ individuals whose job it is to lead diversity, equity, and inclusion, higher education institutions must stay abreast of this rapidly changing area of the law in Florida. --- Kevin L. Carr

Why this is important: Improving safety on an open campus is important for colleges in the United States for several reasons:

(1) Student safety: The safety of students is of utmost importance for any educational institution. Open campuses with multiple entry points are more susceptible to security breaches, making students more vulnerable to crimes such as theft, assault, and harassment.

(2) Reputation: A college's reputation is closely tied to the safety and security of its campus. A high-profile incident, especially one that could have been prevented, can damage a college's reputation and make it less attractive to potential students, faculty, and staff.

(3) Legal liability: Colleges have a duty to provide a safe learning environment for their students. If a college fails to take reasonable measures to ensure the safety of its students, it could be held liable for any injuries or damages that result from a security breach.

(4) Recruitment and retention: Students and their families are increasingly concerned about safety on college campuses. If a college has a reputation for being unsafe, it may have difficulty recruiting and retaining students, especially those from out of state.

(5) Campus culture: An unsafe campus can also negatively impact campus culture and the student experience. Students may feel less engaged and less likely to participate in campus activities if they perceive the campus as unsafe.

Overall, improving safety on an open campus is essential for protecting the well-being of students and faculty, maintaining a positive reputation, and ensuring legal compliance. --- Kevin L. Carr

Why this is important: The legal fight over President Biden’s student loan forgiveness program is in full-swing as hours of arguments have been presented to the Court in proceedings that will likely stretch until the end of the summer session. The plan calls for up to $20,000 of loan forgiveness per borrower for the lowest income borrowers and is being challenged by six states and two individual borrowers. The states allege that the plan will financially harm their tax revenue and the individuals contend that they cannot receive the full benefits under the programs due to unjust circumstances. The Biden administration’s response has been to challenge the standing of both groups.

In the case of the states, U.S. Solicitor General Elizabeth Prelogar is arguing that the states are not the correct parties to bring suit when the loan servicers are the ones that would take the revenue hit. The crucial example is MOHELA, the Higher Education Loan Authority of the State of Missouri, which has ties to the State of Missouri, but acts with much independence and has assets shielded from state control. This has left the justices asking why the states must bring suit when other entities with a more direct right to sue are out there.

In the cases of the individuals, it is unclear how either would be better off if their challenges were successful. Both allege that they should be eligible for more relief than they would be entitled to under the program, but a successful challenge in front of the Court would result in no relief at all. The justices have called this out as illogical and irrational, which undermines the individuals’ standing.

While the Biden administration appears prepared to defend its program under multiple theories, it is betting that the issue of standing will be more compelling to the conservative majority, who seem poised to side with the states when it comes to Biden’s authority to forgive student debt without an act of Congress. The Court has recently been leaning into the “major questions doctrine,” which argues that Congress must explicitly authorize policies that have significant political or economic ramifications. Here, the HEROES Act of 2003 is cited by the administration as its authority to grant broad student loan relief in the form of debt cancellation. This, however, is not explicitly named as a power in the Act and may not survive the application of the major questions doctrine.

With arguments heating up and the summer fast approaching, the fight over Biden’s loan forgiveness program should be front and center until a decision is reached. --- Shane P. Riley

If there are particular issues that you would like to hear about, please let us know. We have a deep bench of attorneys willing to weigh in on the issues that impact your educational institution. 

If you have any education law questions, please feel free to contact us.