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

As breaking news today, in a historic decision that will have significant consequences for colleges and universities across the nation, the United States Supreme Court has invalidated race-conscious admissions programs at Harvard University and the University of North Carolina. We share more about this 6-3 decision in our first article below. 

Other trending topics covered in this publication include: 

• Artificial intelligence and Department of Education recommendations; 
• What to expect for the restart of student loan payments; 
• Florida Bill 266 and its ripple effect in other states; 
• Next steps in college athlete compensation;
• School safety and rethinking the use of SROs; 
• Multidistrict litigation targeting social media and its effects on mental health; and 
• Use of facial recognition systems in West Virginia schools.

During the summer months, our firm is pleased to host a talented group of law students, who get the opportunity to 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 will be contributing to our summer publications and sharing their unique perspectives as both students and future legal practitioners. Please join us in welcoming Hikmat Al-Chami, Nick Muto, Elijah Stephens, and Arianna Webb to The Academic Advisor team for this special summer edition. 

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

"In one of its most closely watched cases this year, the court ruled along ideological lines that the way the schools approached race violated the equal protection clause of the 14th Amendment."

Why this is important: Relying on Supreme Court precedent dating back to 2003, Harvard and the University of North Carolina (“UNC") acknowledged their consideration of race as one of many factors used for admissions decisions. In a 5-4 decision issued two decades ago, the Supreme Court held in Grutter v. Bollinger that the Equal Protection Clause did not prohibit the University of Michigan Law School (“Law School”) from using race in admissions decisions to further the educational benefits that derive from a diverse student body. Reasoning that the Law School conducted an individualized review of each applicant and no admissions decision was based solely on race, the Supreme Court of 2003 refused to find that such use of racial preferences violated the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964 (“Title VI”). As this article highlights, however, the Supreme Court has changed considerably since 2003, and from this shift emerged certain Justices’ skepticism about affirmative action. In its ruling today, the Supreme Court has held that race-conscious admissions programs at Harvard and UNC are unlawful under the Equal Protection Clause. 

The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the Unites States…; nor deny to any person within its jurisdiction the equal protection of the laws.” Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving [f]ederal financial assistance.” In Gratz v. Bollinger, a decision finding that the use of racial preferences in undergraduate admissions without consideration of non-racial factors violated the Equal Protection Clause, the Supreme Court previously explained that “discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” The Equal Protection Clause and Title VI are in essence “coextensive” per Gratz.  

In the opinion issued today and written by Chief Justice Roberts, the Supreme Court found that "[b]oth [the Harvard and UNC] programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” In her dissent, Justice Sotomayor retorted that “[i]n so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter." In the end, Justice Roberts concluded that “[t]he student must be treated based on his or her experiences as an individual – not on the basis of race” or else an institution violates the Equal Protection Clause (and also Title VI per the concurrence written by Justice Gorsuch and joined by Justice Thomas in sync with Gratz). The Biden administration has responded with this Fact Sheet.  

As a result, virtually every private and public college in the United States that utilizes race-conscious admissions must now identify other mechanisms for achieving diversity in education. --- Erin Jones Adams

“New policy report, part of Biden-Harris Administration's ongoing work to advance comprehensive approach to AI, summarizes the opportunities and risks for AI in teaching, learning, and assessment.”

Why this is important: For decades, technology in the classroom has been the source of innovation, confusion, and at times, derision. With the recent popularity of language learning (“LL”) and artificial intelligence (“AI”) models such as ChatGPT, educational institutions have struggled to form cohesive guidelines on their use in classrooms. For instance, just this past month, national news reported on a college professor almost failing an entire class over accusations of ChatGPT use on their final papers. Opponents of the use of AI in classrooms highlight its impact in promoting bias, racial inequity, and generally poorer performance in classes. Proponents argue that the use of AI levels the playing field by providing easier advantage in overcoming obstacles in achieving equity in educational resources. As an example, the University in Georgia successfully implemented AI into their online messaging board in an effort to unburden teaching assistants from responding to high volume student inquiries. 

Attempting to address these areas of concern, the United States Department of Education Office of Educational Technology (“OET”) recently published “Artificial Intelligence and the Future of Teaching and Learning: Insight and Recommendations[,]” a report that summarizes AI-related opportunities and risks based on public input. The report proposes a national policy response in the form of an AI Bill of Rights, and highlights key concerns that the public and the government have when dealing with AI and LL models. Such areas include ethics in the use of AI for college-based decisions, such as admission, interventionist policies for potentially lower-performing students, and/or flagging students who have or may have cheated. Such possibilities highlight the potential furtherance of an “algorithmic bias” against already marginalized communities. As a result, the report explains how the use of AI in an educational setting would need to pass regulatory policies mandating the use of diverse data sets to combat such bias in AI algorithms. 

These challenges played out at the University of Guelph in 2020, when a petition against the use of LockDown Browser, a platform known for its sensitive algorithm that flags students suspected of cheating, received 4,700 signatures from students who argued that its use unfairly discriminated against them. Specifically, students and data scientists argued that its algorithm was unable to distinguish the faces of students of color and unjustly flagged them, with the common theory being that the software failed to provide diverse data sets in creating their algorithm. Consequently, the University of Guelph no longer uses LockDown Browser. 

In its report, OET highlights that any cohesive state or national policy response is still within the early stages as the government grapples with the speed in which AI is developing and finding its way into classrooms. Particularly, the report flags that an AI Bill of Rights will likely affect data privacy laws such as the Family Educational Rights & Privacy Act (“FERPA”), the Children’s Internet Privacy Act (“CIPA”), and the Children’s Online Privacy Protection Act (“COPPA”). According to OET, AI regulation also will likely impact laws such as the Individuals with Disabilities Education Act (“IDEA”). 

The bottom line: AI is moving fast and demanding significant changes at a pace that may soon require a national policy response. Ultimately, leveraging AI technology in the education sector with appropriate guidelines and guardrails will necessitate further action – whether that action is taken by local educator-regulatory boards, state government, or the United States Department of Education. --- Hikmat N. Al-Chami, 2023 Summer Associate

“The Supreme Court could announce its decision on the Biden administration’s sweeping student loan forgiveness plan any day.”

Why this is important: President Trump initially enacted the student loan payment pause three years ago due to the COVID-19 pandemic. The debt ceiling bill included language that prevents President Biden from extending the current student loan pause again unless there is a new national emergency. As a result, student loan payments will begin again for 40 million borrowers starting on August 29, 2023. 

Despite the accrual of interest restarting as of August 29, 2023, payments will not be due immediately because billing statements from the Department of Education will need time to be printed and distributed to borrowers. Borrowers will then have to be afforded a reasonable amount of time to make their first payments in three years. Additionally, the Biden administration is looking at other flexible ways to soften the blow of restarted repayments, including a grace period where late payments will not be penalized.

There are actions borrowers can take now to prepare for the end of the student loan payment pause. They include reconnecting with the loan servicer, especially if the servicer has changed since the last time a borrower made a payment. If repayment is still financially difficult, then a borrower could investigate an affordable repayment option such as income-based repayment plans. This option not only lowers the monthly loan payment (and under some plans slashes them in half), there also may no longer be the huge tax bomb at the end of the repayment period. Finally, if repayment is not possible due to a borrower’s current financial situation, the borrower may be able to request an economic hardship, unemployment deferment, or forbearance. 

Interestingly, borrowers who were in default when the student loan payment pause began have more options than those who were regularly paying their student loans. That is because the debt ceiling bill does not address their situation. Collection actions on defaulted student loans also were paused during the last three years. While collection actions will resume with the lifting of the student loan payment pause, those in default will have additional time to become current before the resumed collection actions begin under the Biden administration’s Fresh Start program. This program is designed to provide borrowers who are in default a path to bring their loan payments up-to-date. The program will run for one year after the payment pause ends, during which time collection actions will remain suspended. --- Alexander L. Turner

“Florida public colleges are now banned from offering general ed classes that ‘distort significant events’ or ‘teach identity politics.’”

Why this is important: Florida Senate Bill 266 (“Bill 266”), which was signed into law in May, requires Florida’s higher education institutions to make significant changes to their curriculum and operations. Specifically, the bill prohibits any public college or university from spending funds on activities or programs that “promote or engage in political or social activism” as defined by the State Board of Education. The bill also restricts what instructors can say or teach in the classroom by prohibiting curriculum that teaches “identity politics or is based on theories that systemic racism, sexism, oppression and privilege are inherent in the institutions of the United States.” Perhaps at odds with this prohibition, Bill 266 also seeks to protect “viewpoint diversity” on college campuses by providing training related to civic education, open inquiry, and civil discourse.

Due to the broad manner in which Bill 266 was drafted, there may be vast differences in the way that educators and enforcers interpret the bill. Bill 266 empowers the Florida public university system Board of Governors (the “Board”) to enforce the law by ensuring curriculum “is aligned with the mission of the state.” In particular, the Board will review and note any curriculum that violates the bill or is “based on theories that systemic racism, sexism, oppression and privilege are inherent in the institutions of the United States and were created to maintain social, political and economic inequities.” 

Before Bill 266, Florida’s Individual Freedom Act, commonly referred to as the “Stop Woke Act,” was initially aimed at limiting speech about identity politics and diversity, equity, and inclusion initiatives in K-12 schools, higher education, and the workplace. This bill was later narrowed to apply only to K-12 schools. In turn, Bill 266 attempts to accomplish what the Stop Woke Act could not by reaching higher education. As a result, Bill 266 will likely be enforced in a manner similar to the Stop Woke Act – by withholding funds and making budget cuts at institutions that fail to comply. 

If enforced as written, the implications of Bill 266 would include restrictions on diversity, equity, and inclusion initiatives and training for faculty, staff, and students; the elimination of courses like race and gender studies; and possibly even the omission of certain portions of American history, among others, when educating students. For example, whether a United States history course could teach about segregation under Jim Crow laws, the Trail of Tears, or suffragists’ fight for the Nineteenth Amendment without violating Bill 266 and risking the loss of institutional funding is uncertain given the prohibition against any curriculum suggesting “systemic racism, sexism, oppression and privilege are inherent in the institutions of the United States.” 

The constitutionality of the Stop Woke Act is an issue currently pending before the 11th Circuit Court of Appeals. Bill 266 will likely face similar challenges. Ultimately, with more than 60 years of case law (dating back to the Red Scare) supporting the position that academic freedom in college classrooms is protected by the First Amendment, the Supreme Court has made it clear that higher education classrooms are allowed to discuss and debate ideas. It is unlikely that Bill 266 could withstand such scrutiny. 

In the meantime, other states’ legislators are writing similar bills and using Bill 266 as a test case for determining whether they too can regulate what college students learn and how colleges and universities provide that education. --- Arianna P. Webb, 2023 Summer Associate

“Minutes before commissioner Greg Sankey took to the podium to announce the conference’s plan to remain at eight conference games for the 2024 football season, the California State Assembly passed a bill that would require its NCAA Division I schools—there are 26 of them—to share revenue with athletes.”

Why this is important: The Future of College Athletics summit, recently held in D.C. and hosted by the University of Arizona, brought together a diverse group of stakeholders, including university officials, NCAA leaders, student athletes, coaches, and others. The focus was to discuss the critical issues surrounding revenue-sharing with college athletes. The conference comes at a time where there are no national standards for the compensation of student athletes participating in some of the most lucrative sport leagues in the world.

As the leaders stressed, the lack of federal legislation on the issue is creating a patchwork of differing state laws that affect the fairness and consistency of college athletics. The floodgates opened in 2021 when the Supreme Court ruled unanimously in NCAA v. Alston that the NCAA could not legally prohibit any education-related payments to students. The ruling gave momentum to an already growing state-by-state effort to pass name, image, and likeness (“NIL”) legislation, securing a student athlete’s right to engage in commercial activities such as appearing in ads, promoting ads on their social accounts, selling merchandise, making paid appearances, and selling autographs, among other similar acts. However, Alston did not strike down the NCAA’s rules against direct payments to players and quid pro quo for athletic performance.

With the passage of several state NIL-related laws and the new effort in California to require some form of direct payments to athletes, most hope that Congress will act in some way to create a national standard for student-athlete compensation that strikes a balance between academic integrity, fair pay, and antitrust principles. Advocates of revenue-sharing argue that the NCAA is violating federal antitrust law and is exploiting student athletes for huge gains. On the other hand, opponents defending the status-quo argue in return that payments to athletes will degrade the academic integrity of the scholarship programs and fly in the face of amateurism. 

Many other concerns remain, such as the effect on women’s leagues and other athletic programs that historically generate less revenue. Title IX to the Higher Education Act prohibits discrimination on the basis of sex for programs receiving federal financial assistance and will have a large impact on the division of revenue between male and female athletes. The California bill is currently under review in the state Senate, where proposed amendments may include a pooled fund to be distributed evenly among male and female athletes, assurance that non-revenue programs are retained, and a prohibition on cutting individual scholarships.

All in all, it appears the United States is approaching a watershed moment in college athletics and Congress, long willing to turn its head to issues, may be forced to act. Moreover, there will likely be more seminal cases reaching the Supreme Court in the coming years to ultimately decide how much control the NCAA can assert over its players. Those universities and colleges participating in NCAA athletics should remain astutely aware of the ongoing changes so they are best able to implement compliant policies ahead of the curve. --- Shane P. Riley

“In light of recent school shootings, multiple districts nationwide are reconsidering decisions to sever or scale back ties with local police forces for school resource officers.”

Why this is important: School Resources Officers (“SRO”) often have been considered an integral part of schools’ campus safety measures. Ideally, SRO programs provide an opportunity for schools to introduce officers to students in a less hostile environment, encourage reports of suspicious activity, and increase receptiveness to safety-related instruction. In recent years, however, school districts have been rethinking their use of SROs and trying to determine the optimal level of SROs’ presence on campus in order to address safety threats while also avoiding the potentially negative consequences described in this article. 

Beginning in or around 2020, school systems began scaling back on the use of SROs. As highlighted by this article, the abrupt change resulted from school districts’ suspension of SRO partnerships in the wake of protests over police brutality and specifically toward Black Americans. In response, some school districts decided to limit SRO interactions on campus while others went so far as to ban SROs from school grounds. With United States schools having experienced 178 shootings on campus this year alone as of June 8, 2023, schools are rethinking this approach in order to find the right balance. 

As shared by this article, findings from sources like the Annenberg Institute at Brown University suggest the presence of SROs does not prevent school shootings and yields more suspensions, expulsions, arrests, and police referrals for Black students. As a result, some schools have begun to explore new means for allowing SROs’ presence on campus while also preventing the unfavorable treatment that the Annenberg Institute warns against. These new measures have included a change in uniform to a “soft design” that makes it easier for students to approach and interact with SROs. Other schools have negated SROs’ arrest powers on campus and further employed an “on-call” SROs model, which allows schools to utilize SROs only when their presence is needed rather than SROs occupying school buildings full-time.

This article highlights that a one-size-fits-all model may not be necessary or the best approach. Instead, school districts can consider various options for their use and deployment of SROs to support campus safety, de-escalation and crime deterrence. Every campus is different and schools should adopt measures that best respond to needs of their student body and campus community. --- Elijah J. Stephens, 2023 Summer Associate

“Districts are joining a complaint against Meta, Snapchat, TikTok and YouTube, but some doubt the firms can be blamed for teen mental health struggles.”

Why this is important: Since its inception, the popularity of social media has only continued to grow. The predominate users of social media are teenagers. Recently, numerous school districts have sued social media companies, alleging the platforms are addictive, having an adverse impact on schools, and damaging students’ mental health. For economies of scale, many of these individual lawsuits were recently consolidated into one multidistrict litigation known as the “Social Media Adolescent Addiction / Personal Injury Products Liability Litigation.” The four defendants include Meta, Snapchat, TikTok, and YouTube. At the heart of this litigation is the algorithm that social media design features use to generate content users will enjoy. The lawsuit alleges the algorithm is exploitive in that it “manipulate[s] dopamine delivery to intensify use” and ultimately has an addictive effect on teens. 

As highlighted by this article, skeptics of schools’ participation in the litigation suggest their involvement merely opens the door for legal action against schools. In particular, parents may argue that school districts are not doing enough improve students’ mental health. Moreover, it may be difficult for the schools to show that these companies are the only factor contributing to the decline in students’ mental health. In actuality, many different factors affect teenagers’ mental health, including family issues, school environment, societal pressures, and world events. 

This suit is comparable to the significant legal action taken against vaping and tobacco companies and most recently Juul. Lawyers representing hundreds of school districts won a billion-dollar settlement against Juul. Although many considered this litigation an uphill battle like the multidistrict case targeting social media companies, their apps could face the same consequences, particularly as more school districts join in the fight. A “win” for the plaintiffs could prompt greater regulation in the social media space by requiring social media companies to utilize features that block or limit content and force parental consent for users under the age of 18. Given what social media companies stand to lose – users, funds, and even their operations – it is no surprise that a few platforms have already made statements that their social media features filter out negative and harmful content. 

Ultimately, social media platforms will have no choice but to change if this suit is and others like it are successful. The finish line is not yet in sight for educational institutions, parents, experts, and regulators that continue to push social media companies to develop the tools, features, and policies that are needed to protect teens. --- Nick Muto, 2023 Summer Associate

“Four West Virginia county school districts have installed or are in the process of installing new facial recognition technology.”

Why this is important: The use of facial recognition technology in education is not a new concept. Since the pandemic and the use of remote learning, and more importantly testing, the use of facial recognition in education has increased exponentially. Four school districts in West Virginia are implementing the use of facial recognition as an extra layer of security for their schools. The systems will have the faces of staff, students, and regular visitors uploaded to the system. The systems can also have a database of known sex offenders or anyone known to be a threat to the school uploaded to the system. These systems will allow school administrations to be immediately notified who is approaching the outside of the school. The cost-effective part of this type of system is that it integrates into the school’s already existing security cameras. This is all part of Governor Justice’s statewide school safety program that was implemented earlier this year. The goal of the program is to utilize $2 million to ensure prompt law enforcement response in the event of an emergency. --- Alexander L. Turner