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

As summer winds down and schools prepare for a new academic year, we encourage you to consider how the following topics covered in this newsletter may impact final updates to campus policies and procedures in preparation for fall term: 

• The new Pregnancy Fairness Act and full scope of pregnancy-related protections; 
• Revised recommendations for concussion diagnosis, management, and prevention;
• Double down by the Department of Education on Title IX LGBTQ+ protections; 
• How Supreme Court directives on affirmative action impact legacy applicant admissions;
• Configuring artificial intelligence for classroom use;
• Important takeaways and costs to create school district safety departments;
• Ransomware and mitigating the threat to students’ private files; and
• The latest on the student loan debt relief plan.

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 unique perspectives as both students and future legal practitioners. Please join us in welcoming Tessa Driver, Sarah W. King, Rena Song, and Jamie L. Martines to The Academic Advisor team for this final summer edition. 

In addition, we are pleased to announce the opening of our new office in Jacksonville, Florida. With Kevin Carr, our longstanding firm partner and co-chair of our Education Law Practice Group and Labor & Employment Law Practice Group, at the helm, our new office is poised to meet the needs of our growing client base in the southeastern United States. To learn more about the new Jacksonville office, please visit our website.  

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

By Lisa M. Hawrot

On June 27, 2023, the Pregnant Workers Fairness Act went into effect. This new law requires covered employers to provide “reasonable accommodations” for the known limitations of a worker relating to pregnancy, childbirth, or related medical conditions, unless the accommodation would cause the employer “undue hardship.”  

What does this mean and how will the new law be enforced?

Click here to read the entire article.

“Researchers and investigators have been collaborating for five years toward the final consensus statement and 10 accompanying subspecialty articles.”

Why this is important: An international group of experts, the Concussion in Sport Group (“CISG”), has released a new consensus statement on concussion in sport. The consensus statement provides evidence and revised recommendations on concussion recognition, rehabilitation, and prevention.

A sport-related concussion is defined as “a traumatic brain injury caused by a direct blow to the head, neck or body resulting in an impulsive force being transmitted to the brain that occurs in sports and exercise related activities.” The new consensus statement identifies policies that mitigate the risk and burden of injury and encourages policy-makers and health care professionals to implement prevention strategies in their respective environments. New prevention strategies include implementation of body checking policies in youth sports, the use of personal protective equipment such as mouth guards, and neuromuscular training programs conducted before practice. The CISG has released updated assessment tools, the SCAT6 and Child SCAT6, that have shown to be the most effective means of discriminating between concussed and non-concussed athletes within 72 hours of play and up to one week after injury. Additionally, the CISG identifies the CRT6 as a concussion recognition tool that should be used by all adults supervising child and adolescent sport. If a sport-related concussion is suspected, the impacted individual should be removed from play and evaluated for signs and symptoms of concussions. Individuals exhibiting signs of concussion should not return to play.

One of the biggest changes to concussion treatment guidelines is the management of concussion in the initial 24-48 hours after injury. In the past, it was recommended that concussed athletes have absolute rest after injury. Evidence now shows that absolute rest does not significantly reduce symptoms or accelerate recovery. The CISG now recommends light-intensity physical activity, that does not exacerbate symptoms, during the initial 24-48-hour period after injury. The consensus statement also recommends a multi-step process of progress overseen by a health care provider before returning to sport. New return-to-learn recommendations include individualized accommodations to allow concussed students to increase tolerance to cognitive work. 

All 50 states have passed legislation regarding sport-related concussion. The policies vary widely and updates are occasionally made to reflect updates in sport-related concussion protocol. School personnel should review the new sport-related concussion consensus statement and their state and local concussion policies to ensure they are aware of the current concussion guidelines. Liability also varies widely across states. While not all student-athlete concussion lawsuits are successful, it is important for institutions and educators to be proactive in preventing and managing concussions. Finally, the NCAA will be meeting to review the consensus statement and consider updates to relevant membership resources. Institutions affiliated with the NCAA should keep an eye out for updates to ensure compliance with any new concussion protocol. --- Tessa Driver, 2023 Summer Associate

“The OCR’s decision to double down on Title IX LGBTQ+ protections comes while its two proposed rules related to Title IX LGBTQ+ protections remain pending, with their final release expected in October.”

Why this is important: The U.S. Department of Education’s Office for Civil Rights (“OCR”) recently found that a Wisconsin school district violated a nonbinary student’s Title IX rights when it did not properly address peer-to-peer sex and gender harassment and when teachers used pronouns that were not preferred by the student. To address the issue, the district modified the student’s class schedule, in addition to switching the student to online classes. OCR ultimately found that the school did not properly address the issue, failed to properly train its teachers, and denied the student equal access to its educational programs.

In June 2022, the U.S. Department of Education (“DOE”) released proposed changes to Title IX regulations that address issues raised by OCR in the underlying matter. With the new Title IX regulations, which are currently scheduled for publication in October 2023, the Department of Education aims to strengthen protections for LGBTQ+ students who face discrimination based on sexual orientation or gender identity.

Until the new Title IX regulations take effect, for a student to establish a claim of discrimination based on peer-to-peer harassment under Title IX, the student plaintiff must show: (1) the peer-to-peer harassment was on the basis of sex; (2) the defendant school, school district, or school board had actual notice of the harassment; (3) the harassment at issue was so severe, pervasive, and objectively offensive that it effectively barred the student access to an educational opportunity or benefit; and (4) the defendant school, school district, or school board acted with deliberate indifference to the harassment. Under the proposed Title IX regulations, a student plaintiff need only demonstrate harassment that is “sufficiently severe or pervasive…based on the totality of the circumstances and evaluated subjectively and objectively.” 

While schools await publication of the new Title IX regulations and their effective date, all schools covered by Title IX must continue to comply with the existing Title IX regulations. It is likely that schools will need to follow current Title IX regulations for the 2023–2024 school year. In the meantime, schools should continue to offer protections to their LGBTQ+ students consistent with what they believe is in the best interest of students. Schools that seek to limit access to facilities and educational or extracurricular opportunities based on students' sex assigned at birth will face difficulty complying with case law, Title IX precedent, and the recent DOE guidance, which provide that LGBTQ+ students must be assured that they “are able to learn and thrive in a safe environment” and cannot be subjected to discrimination. Additionally, in order for schools to avoid litigation, staff should continue to be trained on rigorously documenting and taking appropriate action in response to peer-to-peer harassment and any gender or sex-based discrimination complaints. Staff should be trained on the new Title IX regulations as soon as they are finalized later this year. --- Sarah W. King, 2023 Summer Associate

“Today, more Americans disagree with legacy admissions.”

Why this is important: Although the Supreme Court recently found affirmative action policies to be unconstitutional, debates regarding the far-reaching implications of this decision and its impact on race in admissions have not ceased. As highlighted by this article, the affirmative action decision has sparked more discussion around the constitutionality of legacy admissions. 

As a result of the Supreme Court's decision, institutions can no longer consider applicants’ race in an effort to boost diverse admissions and enrollment at American campuses. Since the recent ruling, Lawyers for Civil Rights has filed a complaint against Harvard pertaining to its legacy admission process. The civil rights group claims that legacy applicants are six times more likely to be admitted to the college. Additionally, the Associated Press found that as much as 10 to 20 percent of incoming classes are composed of legacy students. In contrast to affirmative action’s race-conscious policies, the legacy advantage is not explicitly race-based. However, this latest lawsuit against Harvard contends that the legacy advantage creates indirect racial implications, benefiting mostly wealthy, white applicants. The civil rights group contends that the end of legacy admissions would mean underrepresented minorities have a better chance of admission and institutions can maintain diversity. 

While some institutions are already ceasing their use of the legacy boost, all institutions may have to end legacy admissions if Harvard cannot show a compelling governmental interest in maintaining the program. Similar to affirmative action policies, legacy admission also may be deemed unconstitutional. In response, schools should take stock of their legacy admission programs and begin to consider how such programs may need to change or be eliminated should the Harvard case dictate such result. --- Rena Song, 2023 Summer Associate

“Some innovative teachers see generative AI as a tool to produce lesson prompts, help students avoid future digital divides, and more.”

Why this is important: With the rise of artificial intelligence (“AI”) and the popularity of new online tools like ChatGPT, professionals of all industries are grappling with how to best use, or not use, AI in the work that they do, while managing the concern that these tools could eventually replace them altogether. One area particularly affected is education: Are students cheating if they use AI? Will AI degrade the value of an education? Can AI eventually replace a teacher? Rather than dwell on these negatives, this article discusses some ways that teachers are adapting to AI without compromising their standards.

First, Danny Liu of the University of Sydney in Australia is helping to educate educators on what generative AI tools are and how to use them. Liu stresses the importance of a well thought out and well written prompt to produce the best results. If teachers learn to craft specific prompts, the AI is likely to return something useful in the classroom. A part of this education effort is also to remove some of the initial fear-based stigma around the use of AI. It was once thought that having access to the internet during the school day would give students too much opportunity to cheat, but teachers have largely adapted and have made use of the internet an integral part of their curricula. The same could be true of AI.

In California, Peter Paccone is following this initiative by integrating ChatGPT into his work and allowing his students to use it. Paccone may use it to help create tests, write prompts, and form study guides. The students may use it to generate some results that contribute to a broader classroom discussion. As Paccone sees it, even if they are using AI, they are thinking and participating, which is the point of the exercise. Other teachers are using AI to generate summaries of presentations, fill-in-the-blank exercises, and other classroom materials to save time without losing value.

Of course, there are concerns about academic integrity when using tools that are so skilled at mimicking natural human language. That is why some teachers are requiring short and varied writing samples from their students at the beginning of the semester so they can get a sense of their voice and are better able to point out language that may have been generated by AI.

Lastly, educators embracing AI are acknowledging that students must have access to these tools during their education or they could fall behind in a world that is rapidly adapting to them. Just as a divide formed when some students had home computers and internet access while others did not, some students who are banned from using AI could enter a job market one day that expects a proficient understanding of how to use them. In this respect, it is an educational imperative to adapt to the use of AI and find ways to integrate the tools into school work rather than restrict or outright ban its use. This takeaway, it seems, is what all sectors and industries are dealing with right now – adapt or be left behind. --- Shane P. Riley

“The idea to create a safety department came about because the local law enforcement agency assigned to protect the district was having difficulty recruiting school resource officers, and the school board wanted more safety and security personnel on its K-12 campuses.”

Why this is important: Over the past decade, elementary and secondary schools across the country have been increasing security staff. Of the 98,469 public schools nationwide, 65 percent had one or more security staff during the 2019-2020 school year, according to data available from the National Center for Education Statistics. That is up from 42 percent 10 years before. About half of public schools nationwide reported having sworn law enforcement officers routinely carrying a firearm.

Interest in further expanding school security forces intensified following the 2018 school shooting at a high school in Parkland, Florida and the 2022 shooting at an elementary school in Uvalde, Texas. Now, school officials who have already added to their security teams are urging their peers to proceed carefully and deliberately to ensure staff have the necessary training, and comply with recently updated state regulations.

One example comes from Tennessee, where the Hamilton County School District, which serves more than 44,000 students, has assembled a team of 51 security officers since 2019. The district started the program after the local sheriff’s department struggled to recruit school resource officers, or SROs. 

SROs are employed by a municipal law enforcement agency and assigned to a school building. Some districts, like Hamilton County, also hire armed security officers who are employed by the district. The responsibilities and legal authority of SROs and security officers – including the ability to issue citations, arrest, or conduct searches – varies from state to state, according to a 50-state analysis conducted by the Education Commission of the States.

As this article explains, James Corbin, student safety and security coordinator for Hamilton County schools, shared words of caution when speaking with Campus Safety Magazine in July. He encouraged school administrators not only to make sure their security teams comply with state licensing requirements and regulations, such as those for armed security officers, but also to give them the time and training to learn how to work with students in a school environment. This includes training that goes beyond active shooter drills to also include verbal de-escalation tactics and counseling work, he said. The Hamilton program costs the district about $1.8 million per year. 

State legislatures have stepped in to financially support and enact laws to oversee such efforts. According to the National Conference of State Legislatures, 608 of the more than 2,000 bills related to school safety that have been introduced nationwide from 2018 to 2022 were specific to law enforcement or school resource officers. 

In Pennsylvania, for example, recent legislation not only made tens of millions of dollars available to school districts that wanted to hire more security staff, but also updated training requirements. Similarly, in Virginia, where the governor in May announced a new grant program aimed at improving school safety in high-need schools, the Legislature has enacted more than two dozen bills since 2018 related to training, qualification, and responsibilities of school security staff. --- Jamie L. Martines , 2023 Summer Associate

“They describe student sexual assaults, psychiatric hospitalizations, abusive parents, truancy — even suicide attempts.”

Why this is important: In a previous edition of The Academic Advisor, we discussed the increase in cyberattacks, especially ransomware attacks, on school districts and other educational institutions’ computer networks. Educational institutions are often targeted because educational records include a lot of personal information, and because schools have lagged behind other industries in implementing adequate cybersecurity protections due to the lack of funds. Student records contain personal information, including information about health and psychiatric care, Social Security numbers, home addresses, sexual assaults, and other highly sensitive data. It is not just student records that can be exposed as the result of a breach, but also employees’ records and personal information. School district technology budgets are often allocated for teaching tools and not data security.

Recently, Minneapolis Public Schools (“MPS”) experienced a ransomware attack on its computer network. The MPS followed federal guidelines when it refused to pay the $1 million ransom. In response to this refusal to pay the ransom, the cybercriminals released 300,000 files containing the personal information of tens of thousands of students online. Despite promises by the MPS to be transparent regarding the breach, it has not notified the victims of the breach whether their personal information was stolen as a result of the breach. The disclosure of students’ sensitive information on the Internet for all to see for perpetuity caused many students to be retraumatized.

What can families do in response to a data breach where their child attends school? The answer is not much. The Family Educational Rights and Privacy Act of 1974 (“FERPA”) bars the disclosure of a student’s personal information without authorization from the student’s guardian or the student depending on the age and educational status of the student. However, FERPA does not provide a private cause of action in the event that a student's records are breached. The only recourse students or their guardians have in the event of a violation of FERPA is to report the incident to the U.S. Department of Education for it to investigate the violation. Moreover, there is no federal law that requires school districts to notify students that their records were compromised by a data breach or ransomware attack. This does not let school districts or other educational institutions off the hook in the event of a data breach. Even though FERPA does not provide a cause of action for the improper disclosure of student records, school districts and other educational institutions can still be found liable for negligence if they did not take reasonable steps to safeguard their computer networks. There is also the risk of regulatory action by the U.S. Department of Education if the breach is reported pursuant to FERPA. Additionally, in the absence of a federal data breach notification law, schools and educational institutions need to be sure that they comply with state data breach notification laws or risk being subject to litigation by not only students and/or their guardians, but by also state attorneys general. If your school district or educational institution needs help creating policies and procedures to prevent a data breach, or if you need to respond to a data breach, please contact a member of our Education Practice Group or Cybersecurity and Data Privacy Practice Group for support. --- Alexander L. Turner

“After the Supreme Court ruling striking down President Joe Biden’s plan for broad student loan debt cancellation, borrowers and advocates are eagerly awaiting more details about Biden’s next plan to provide relief.”

Why this is important: In late June, the Supreme Court decided in Biden v. Nebraska that the Biden administration was outside of its authority when it announced a plan to cancel up to $400 billion in student loans. The plan would have permanently cancelled up to $10,000 in student loan debt per borrower within income limits, or up to $20,000 for those qualifying for Pell Grants. As a longstanding campaign pledge for Biden-Harris, the administration is now examining alternative routes to permanent debt cancellation for the nation’s roughly 43 million federal student loan borrowers.

The initial attempt to cancel student loan debt was sought under authority granted by the HEROES Act of 2003 to the Department of Education to “waive or modify any statutory or regulatory provision” to protect borrowers during a national emergency. This authority was used by the Trump administration to pause all student loan payments and interest accrual during the coronavirus pandemic, which was continued by the Biden administration.

With the path through the HEROES Act now closed, the administration is mounting a new plan for broad debt relief under the Higher Education Act (the “HEA”). The Secretary of Education has the authority under the HEA to “compromise, waive, or release any right, title, claim, lien, or demand” against student borrowers. Other than an understanding that this will be the basis of the new plan, little else has been released regarding the administration’s specific reasoning to support its legal authority, the amount per borrow it intends to cancel, or the income limitations associated with cancellation.

What is known is that the process under the HEA will not be quick. The Department of Education will have to undergo a rulemaking process that involves forming a committee and seeking public comments. Only then can the department issue a final rule regarding debt cancellation, which can then be open to challenge in the courts, just as the plan under the HEROES Act was scrutinized.

While this is playing out, student loan repayments are set to resume in October and the administration is focused near-term on its new programs and policies affecting repayment. Most notably, there will be an “on-ramp” period during which borrowers who miss their payments will not be reported to credit agencies or placed in default. Also, a new repayment plan has been announced, Saving on a Valuable Education or “SAVE,” which raises the income floor for monthly payment calculations and caps monthly payments at five percent of income above that floor. SAVE also stops interest from accruing above what is paid each month and allows for loan forgiveness on undergraduate loans after 20 years of repayment (25 years for graduate loans). Some borrowers with low loan balances will additionally qualify for a shortened forgiveness period of 10 years.

All in all, advocates and adversaries alike should see a rush of activity and public debate surrounding student loan debt over the coming year as student loan payments restart and the 2024 presidential election ramps up. --- Shane P. Riley