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

As the academic year winds down and schools look toward summer projects and planning, our Education Practice Group has selected topics for this newsletter that highlight the ever-changing legal landscape for educational institutions in our footprint and beyond, including:

In addition, this publication features a special article about the nuances of defamation litigation in an era when content is king.

With the U.S. Department of Education’s Title IX regulations set to be released next month, May promises to be pivotal month for educational institutions across the country. We will be monitoring this change and keep you informed through e-blast and webinar offerings.

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 Alexander L. Turner

Data privacy professionals have characterized the data privacy risks associated with ChatGPT as a “nightmare.” In order to function, open artificial intelligence programs (“OpenAI”) like ChatGPT require huge amounts of data in order to learn and evolve. Where do the programmers get that data? From you and me without our knowledge or permission. Developers of ChatGPT used 300 billion words systematically collected from the internet, including from books, websites, articles, and online posts, in order to create the algorithm behind ChatGPT. As you use ChatGPT, it also saves your questions and uses that information to learn and evolve. The problem is, in collecting the data that formed ChatGPT, personal information necessarily was collected without permission or compensation. Even though this personal information may be publicly available, it may breach what is called contextual integrity, which dictates that individuals’ information is not revealed outside of the context in which it was originally created. There is also no way for an individual to determine whether ChatGPT holds the individual’s personal information as part of its algorithm.

Click here to read the entire article.

Why this is important: On March 11, 2023, the West Virginia State Legislature enacted the Student Journalist Press Freedom Protection Act (the “Act”), Senate Bill 121. The Act requires “public high schools, colleges, and universities [to] allow for the free expression of student journalists in school sponsored media.” Moreover, the Act protects “instructors and administration who defend their students’ freedom of expression” and “allow[s] for civil actions in the event that a student journalist’s rights are violated.” The Act applies to all students attending a public or state high school, college, or university, and specifically excludes students attending private high schools, colleges, or universities. The purpose of the Act is to promote the freedom of expression through public school-sponsored media, and to encourage the “development of informed and civic-minded citizens” through contributions to student press.

The Act does not protect any expression that violates state or federal law, including expression that is an invasion of privacy, defamatory, obscene, or “expressly incites students to engage in the commission of an unlawful act, a violation of a lawful school policy, or is likely to cause the material and substantial disruption of the operation of the school.”

Public colleges and universities in West Virginia must adopt a written policy that permits the exercise of the right of student journalists to freedom of speech and the press in school-sponsored media. This policy must include a provision that allows for the timely appeal of school administration decisions regarding protected conduct. Students or their advisors that believe a violation of the Act has occurred must exhaust school administrative review procedures prior to instituting any legal proceedings for declaratory relief.

The Act becomes effective on June 9, 2023, making West Virginia the 17th state to enact similar legislation regarding a student journalist’s right to freedom of expression and press. As a result, it is crucial for public colleges and universities in West Virginia to begin implementing policies and procedures in accordance with the Act prior to its effective date to limit potential liability, including liability as a result of proceedings for injunctive or declaratory relief and reasonable attorneys’ fees. --- Kelsie A. Wiltse

Rodney Keister was challenging the University of Alabama’s grounds use policy, which requires individuals to obtain a permit before speaking publicly on campus. In his arguments, Keister asserted that the space he was using to preach and distribute religious literature is a “traditional public forum” protected by the First Amendment. The 11th Circuit Court of Appeals, however, determined that the space was a “limited public forum” and is not awarded the same constitutional protections.

While the Supreme Court’s denial to hear this case may mark the end of the road for Keister, this case adds to the ongoing discussions and changing views about free speech on college campuses at the same time that many are calling for increased restrictions, such as certain content controls and trigger warnings. Universities dealing with these challenging issues should take some respite in knowing that this recent ruling supports their ability to maintain policies about the limited use of their public spaces in some circumstances, but should also be reminded that the central tenet in the application of forum analysis is content-neutrality. When it comes to on-campus speech, universities may have the ability to determine “when,” “where,” and, possibly, “who,” but they cannot say “what.” University policy makers should be keenly aware of this fact as they move forward in the heated debates happening in their halls, quads, and street corners.

Click here to read the entire article.

Why this is important: Effective April 3, 2023, Ohio’s HB 353, known as the "Testing Your Faith Act," requires each state institution of higher education to adopt a policy providing students with certain religious accommodations. Specifically, the law requires that state institutions adopt a policy permitting a maximum number of absences each semester to allow a student to take holidays for reasons of or to participate in faith, religious, or spiritual based belief systems. So long as the student’s sincerely held religious belief or practice severely affects that student’s ability to take an examination or meet an academic requirement, and the student provides the required notice to the instructor, accommodations are to be made. Requests are to be maintained as confidential and the student’s sincerity is not permitted to be questioned. Instructors are further required to include in each course syllabus a statement regarding the institution’s policy that is adopted. In addition, covered institutions must post certain information in conformity with HB 353 in a prominent location on their website. With the Testing Your Faith Act already in effect, Ohio institutions should ensure that their policies and procedures are updated to comply with these requirements and that faculty and staff are trained to administer these religious accommodations as the law requires. --- Lisa M. Hawrot

Why this is important: Virginia Governor Glenn Youngkin recently signed a bipartisan bill related to human trafficking into law. The new law requires public colleges and universities to incorporate human trafficking awareness and prevention training into their freshman year orientation programs. Each institution’s governing board is to develop and implement policies to be provided to and completed by all first-year students as a part of the institution's first-year orientation program. Although the programming is to be approached from a trauma-informed prospective, which may require institutions to hire outside vendors for services, there are no specific rules and regulations as to the content of the programming. This will allow each institution to tailor the programming to their specific student population. While private institutions are not required to comply, they are being encouraged to do so by the State Council of Higher Education for Virginia. This law demonstrates that states are becoming more aware of the need to educate individuals on how to recognize, report, and prevent human trafficking. --- Lisa M. Hawrot

By Lee D. Denton

On April 18, 2023, Fox News agreed to pay Dominion Voting Systems a staggering $787.5 million to settle a defamation lawsuit. Particularly startling about the settlement is that Dominion was valued at around $51 million as recently as 2018, meaning that the settlement resulted in a payout up to fifteen times Dominion’s value. Dominion filed the lawsuit in response to publicly broadcast statements by Fox News and its guests after the 2020 election. Dominion alleged that the statements were not only false, but that Fox News knew that the statements were false and repeatedly broadcast them anyway.

But what about the freedom of speech and freedom of the press? The First Amendment of the United States Constitution generally protects against infringements on the freedom of speech and of the press. However, the protection provided by the First Amendment has limits. For example, although the First Amendment generally protects statements of opinion, a person cannot state facts about another person or business that the person knows are false. Doing so risks liability for defamation.

Defamatory statements can severely damage a business’s reputation. Dominion’s complaint alleged that Dominion would lose more than $600 million in profits between 2021 and 2029 as a result of Fox News’s statements, and had already lost millions of dollars of enterprise value at the time Dominion filed its complaint. But, Fox News’s size and the public attention dedicated to Fox News’s statements and the 2020 election generally render Dominion’s dispute with Fox News an outlier. For most businesses, a more common form of defamation will be contained in an Instagram post by a disgruntled customer or former employee, a Twitter tirade by someone who disagreed with a return policy, or some other type of social media post. With so much of the population having easy access to an audience for their frustrations, businesses without an active social media presence should consider establishing a process to periodically monitor social media posts for potentially defamatory statements. At a minimum, those businesses may be able to respond to the posts and mitigate any potentially harmful statements before they gain momentum. At the worst, businesses can identify users who make particularly harmful statements and take legal action to force them to put their money where their mouth is.

Click here to read the entire article.

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.