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Welcome
Welcome to the first issue of The Academic Advisor for 2024.
In this edition, we examine the following topics of import for schools, institutions of higher education, and other education-focused organizations:
- State legislatures and the education focus for 2024,
- Artificial intelligence (AI) in schools and new North Carolina guidance,
- Corporal punishment and public schools,
- Off-campus conduct and liability in higher education,
- Lawsuits impacting higher education in 2024,
- Federal regulations and policy developments to consider in 2024,
- The “AI Literacy Act” Bill and school funding for training, and
- Name, image, and likeness disclosure and transparency rules.
For a deeper dive into AI and particularly its relationship with copyright law and policy, Spilman attorney Shane Riley recently hosted a webinar titled AI & Copyright Law: Understanding the Next Chapter. Whether your institution has copyrights that may be infringed by AI or you are navigating new AI tools that potentially impact the rights of others, an understanding of how copyright policy is being formed in the AI space is vital. To access this discussion of the current impact of generative AI on U.S. copyright law and policy, including recent guidance from the U.S. Copyright Office, lawsuits making headlines, and where we might go from here, you can view the webinar recording here.
If you have any questions about these topics or need legal support on education matters, please let us know. 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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State Legislators’ Focus on Education in 2024 | |
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By Erin Jones Adams
Educational institutions are no stranger to the limelight, particularly when it comes to politics and the priorities of state lawmakers. As shown by the following overview of pending bills and legislation, education will continue to be a hot topic for state lawmakers in 2024.
Click here to read the entire article.
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“NCDPI is the fourth state education department in the nation to issue guidance to its schools on the use of this cutting-edge technology.”
Why this is important: As of January 16, 2024, the North Carolina Department of Public Instruction became the fourth state education department to issue guidance to schools regarding the use of generative artificial intelligence (AI) in public schools. The North Carolina Generative AI Implementation Recommendations and Considerations for PK-13 Public Schools guidebook directs that AI literacy should be responsibly incorporated into all grade levels and curriculum areas by treating AI as a tool to aid in learning. Using the acronym E.V.E.R.Y., which stands for Evaluate, Verify, Edit, Revise, and You, the guidebook gives instruction on “How to Use AI Responsibly EVERY Time” and to prepare students for the workforce.
In addition to providing a roadmap for schools’ implementation of AI guidelines, strategies for rethinking plagiarism and cheating in the context of AI, and recommendations for purchasing and using AI technologies, the guidebook includes important reminders about schools’ obligations to ensure any AI technologies they adopt also comply with the following federal laws:
- Family Educational Rights and Privacy Act (FERPA): As a result of FERPA, AI systems must protect the privacy of student education records and comply with parental consent requirements, and schools must maintain direct control of the data;
- Children’s Online Privacy Protection Act (COPPA): Due to COPPA, AI tools collecting personal information and user data on children under 13 years of age must require parental consent;
- Individuals with Disabilities Act (IDEA): To comply with the IDEA, AI tools cannot be implemented in a manner that denies disabled students equal access to educational opportunities, but can be used to help meet students’ individual needs;
- Children’s Internet Protection Act (CIPA): For schools that are subject to CIPA based on their receipt of federal funds for Internet access or internal connections, AI content filters must align with CIPA protections against harmful content; and
- Section 504: Similar to the IDEA, compliance with Section 504 requires that any digital content and technologies, such as AI, are accessible to students with disabilities.
For educational institutions that are attempting to incorporate AI into their curricula and understand the risks and benefits, the guidebook serves as a useful tool for jumpstarting the dialogue, identifying key considerations, planning next steps, and implementation. --- Erin Jones Adams
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“The 5th Circuit is an outlier compared to nine other appellate courts that allow corporal discipline by school employees to be tried under federal law.”
Why this is important: The constitutionality of corporal punishment in schools was upheld by the U.S. Supreme Court in 1977 in the case of Ingraham v. Wright. Since then, nine federal appellate courts have determined that excessive corporal punishment by public school employees can be tried under federal law. However, the U.S. Supreme Court recently declined, without comment, to hear a case arising from the 5th Circuit Court of Appeals questioning whether parents could sue schools under the U.S. Constitution, in addition to any state remedies.
The 5th Circuit case, S.B. v. Jefferson Parish School Board, involved an 11-year-old Louisiana student with nonverbal autism. Her parents alleged she was slapped on the wrists in three separate incidents. The 5th Circuit decided they could not sue her public school in federal court for violating her civil rights as long as the state provided a remedy. Since the U.S. Supreme Court declined to hear the case, this 5th Circuit decision stands.
Educators are facing increases in challenging behaviors from students. From a practical standpoint, the question becomes how to address these behaviors. Corporal punishment? Detention? Suspension? Evidence-based approaches? What if the student has special needs? What if student behaviors place that student, other students, or staff in harms’ way? Last March, Miguel Cardona, U.S. Education Secretary, wrote a letter to states and districts for schools to treat students with “dignity and respect” and that indicated spanking, hitting, or paddling should be replaced by evidenced-based approaches to addressing the student’s behaviors. In August, the American Academy of Pediatrics called for an end to corporal punishment. As of March 2023, 27 states and the District of Columbia banned corporal punishment and 23 states permitted it. As of August 2023, Louisiana banned it, unless parents provide written permission. In Kentucky, although the state permits it, all school districts have banned it through school board policy.
Although the current U.S. Supreme Court appears more receptive than past courts to revisit certain constitutional issues, it declined to hear multiple education-related cases on the first day of its 2023 term on topics varying from charter organizations to accommodations for an elementary school dean. On the other hand, it did hear the case of Perez v. Sturgis Public Schools. In that case, it was held that individuals who have entered into a settlement resolving their Individuals with Disabilities Act (IDEA) claims can also pursue monetary damages against the school district under the Americans with Disabilities Act without first exhausting the IDEA administrative process.
While the specific issues in the S.B. case will not be addressed by the U.S. Supreme Court, issues regarding federal civil suits that can proceed still have a big question outstanding. Should those cases proceed under the 4th or 14th Amendments? Only time will tell if, and how, the Supreme Court answers that question. --- Lisa M. Hawrot
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“Four justices said WSU couldn’t predict or control the perpetrator’s actions despite knowing of past assault allegations made against him.”
Why this is important: In a recent court ruling, Washington State University (WSU) has been deemed not liable in an off-campus rape case, sparking discussions about university responsibility and the legal implications surrounding such incidents. The decision, made by four justices, underscores the challenges faced by educational institutions in predicting and controlling the actions of individuals outside campus grounds, even when past assault allegations have been brought to their attention.
The case in question involved an off-campus rape where the victim alleged that WSU should be held responsible for the incident. The university, however, successfully defended itself by arguing it could not have predicted or controlled the actions of the perpetrator, despite being aware of past assault allegations against him. This ruling sheds light on the complex legal landscape surrounding the liability of universities in cases of off-campus misconduct.
The court's decision to absolve WSU of liability hinged on the argument that the university, like any other entity, cannot be expected to foresee and prevent criminal actions that occur beyond its jurisdiction. The justices emphasized that while the university was aware of previous assault allegations against the perpetrator, it did not have the ability to control his actions off-campus. This legal standpoint raises questions about the extent to which educational institutions can be held accountable for the behavior of their students or staff outside the confines of the campus.
Universities across the country grapple with the challenge of addressing off-campus misconduct by their members. The WSU case highlights the difficulty educational institutions face in extending their reach beyond campus boundaries and intervening in situations that occur in private spaces. The court's decision underscores the importance of distinguishing between on-campus and off-campus incidents and the legal limitations on a university's duty to prevent and respond to such off-campus events.
While the court ruled in favor of WSU, the case brings attention to the broader issue of student safety and the responsibility of universities to create a secure environment for their community members. This incident serves as a reminder that universities must continuously work towards fostering awareness and educating students about personal safety, consent, and reporting mechanisms. It also prompts discussions about whether universities should take additional steps to address off-campus incidents and support survivors. --- Kevin L. Carr
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“Courts are considering challenges to race-conscious admissions at military academies, key higher education regulations and the DACA program.”
Why this is important: Higher education faced significant legal challenges in 2023, marked by the landmark U.S. Supreme Court ruling against race-conscious admissions. As we step into 2024, the legal landscape remains turbulent, with several lawsuits poised to impact colleges and universities across the country.
Students for Fair Admissions v. U.S. Military Academy at West Point:
Following their success in challenging race-conscious admissions practices in universities, Students for Fair Admissions (SFFA) has shifted its focus to military academies. The U.S. Supreme Court exempted military academies from its decision last June, acknowledging their "potentially distinct interests." SFFA has since sued the U.S. Military Academy at West Point, arguing it has no justification for using race-based admissions, now deemed unconstitutional for other colleges. The legal battle is ongoing, with SFFA also targeting the U.S. Naval Academy over similar admissions practices.
Federal Trade Commission v. Grand Canyon Education:
In December, the Federal Trade Commission (FTC) filed a lawsuit against Grand Canyon University and its educational services provider that delivers marketing, recruitment and student counseling services, alleging the school deceived students about the cost of its doctoral programs and misrepresented itself as a non-profit institution. The legal scrutiny intensifies the university's challenges, as it faces a significant fine from the U.S. Department of Education relating to similar allegations about its doctoral programs and an ongoing legal battle with the Education Department about its treatment as a for-profit institution for Title IV federal financial aid purposes.
Career Colleges and Schools of Texas v. U.S. Department of Education:
Representing for-profit institutions in the state, Career Colleges and Schools of Texas brought a lawsuit that temporarily blocked the Biden administration's new borrower defense rules. The group argues the administration aims for mass loan forgiveness while making colleges bear the cost. Disputes over the Education Department's authority to seek recoupment from colleges for discharged loans further complicate the legal battle, highlighting the ongoing struggle between for-profit institutions and regulatory changes.
American Association of Cosmetology Schools v. U.S. Department of Education:
The American Association of Cosmetology Schools initiated a lawsuit against the Education Department over its new gainful employment rule. Set to take effect in July, the rule requires career education programs to demonstrate graduates' ability to repay loans and earn more than those with only a high school degree. The Association contends the rule uses flawed metrics, particularly for tipped workers like beauticians, potentially leading to unfair penalties for cosmetology schools.
State of Texas v. USA:
In a pivotal October ruling, a federal judge declared Deferred Action for Childhood Arrivals (DACA) unlawful, triggering an appeal from the Biden administration. At this time, the federal government is able to process renewals, but cannot accept new applications. Meanwhile, the fate of the DACA program, shielding undocumented immigrants from deportation, hangs in the balance. With the U.S. Supreme Court's involvement likely, this lawsuit echoes previous legal battles over DACA's existence and highlights the ongoing uncertainty surrounding immigration policies affecting students and aspiring professionals.
These lawsuits reflect the complex intersection of education, law, and policy, underscoring the ongoing challenges faced by colleges and universities as they navigate an ever-changing legal environment. --- Erin Jones Adams
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“Speakers at the Council of Independent Colleges’ Presidents Institute highlighted changes to overtime rules, Title IX and the FAFSA.”
Why this is important: In 2024, various regulatory changes and policy developments at the federal level stand to consume considerable time and effort, and schools should plan accordingly.
Scheduled for publication in March, new Title IX regulations that address the process for adjudicating sex-based misconduct and preventing blanket bans on transgender students’ participation in sports teams are first on the agenda. By way of reminder, some of the proposed changes to the 2020 Title IX regulations include:
- Expanding the forms of sex discrimination covered by Title IX;
- Softening the standard required to establish a claim for sex-based hostile environment harassment from behavior that is “so severe, pervasive, and objectively offensive that it effectively denies a personal equal access” to an education program or activity to behavior that is “sufficiently severe or pervasive” that it “denies or limits” the ability to “participate in or benefit from” such program or activity;
- Requiring that institutions address off-campus conduct when a respondent is engaged in conduct under the disciplinary authority of such institutions;
- Requiring that recipients respond to sex-based misconduct occurring in their educational programs and activities regardless of whether or not such institutions have “actual knowledge” of the alleged behavior;
- Allowing for informal resolution in the absence of a formal complaint;
- Eliminating live hearing and cross-examination requirements; and
- Adding new notice requirements for pregnant and parenting students.
The summary of changes previously released by the U.S. Department of Education (ED) is available here for reference. To the extent the March timeline is delayed by ED, it is nonetheless recommended that schools plan for an August compliance deadline. Title IX updates will necessitate changes to Title IX policies and procedures and training for Title IX Coordinators, investigators, hearing and appeal officers, advisors, and others involved in schools’ Title IX grievance processes.
Other changes planned or underway include updates to the Free Application for Federal Student Aid (FAFSA) released in December and the U.S. Department of Labor's (DOL) regulatory proposal to increase the salary threshold for exemption from overtime eligibility under the Fair Labor Standards Act (FLSA) from around $35,000 to roughly $55,000, potentially affecting college staff positions. With respect to the FAFSA, the rollout has been criticized for providing colleges with less time to review applications and offer financial aid packages. Meanwhile, institutions should plan ahead for a scenario in which DOL updates to the FLSA guarantee overtime pay for salaried workers earning less than $1,059 per week. Despite exemptions available for instructors and some coaches, such a change would undoubtedly affect staff working in the areas of admissions and technology, among others. In any event, educational institutions should not forget that the duties test still applies. Thus, only those persons who meet the duties criteria for exemption from overtime under the FLSA, as well as any new salary threshold that the DOL establishes, should be treated as exempt.
If you have questions about these developments or need support with policy and procedural changes, training, and compliance, Spilman attorneys stand ready to help your institution meet these obligations.--- Erin Jones Adams
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“The proposed legislation would open grant eligibility for colleges, K-12 schools, nonprofits and libraries to support AI literacy.”
Why this is important: On December 15, 2023, a bipartisan pair of lawmakers—Reps. Lisa Blunt Rochester, D-Del., and Larry Bucshon, R-Ind.—proposed the Artificial Intelligence Literacy Act of 2023 (AI Literacy Act), targeting colleges and universities, K-12 schools, nonprofits, and libraries for the purpose of promoting and aiding in artificial intelligence (AI) literacy. With Congress finding that AI literacy will become as important as digital literacy is today, the AI Literacy Act would amend the Digital Equity Act of 2021 (Digital Equity Act).
Originally introduced in April 2019, the Digital Equity Act required the National Telecommunications and Information Administration (NTIA) to establish grant programs for advancing digital equity through measuring and addressing broadband needs in rural communities, promoting digital inclusion activities and digital skills training, and furthering the capacity for state-led efforts to upturn residential adoption of broadband and online accessibility. In amending the Digital Equity Act, the AI Literacy Act would summate AI literacy to the existing training opportunities offered and open grant eligibility to academic and workplace groups. For example, the Digital Equity Competitive Grant Program, originally established under the Digital Equity Act, would facilitate the attendance of teachers at professional development courses, workshops, and conferences related to AI education.
Despite polarized opinions about AI use, the AI Literacy Act aims to bridge the gap in AI literacy among Americans of all ages and occupations. Congress believes the offered technical training and comprehensive education can result in more informed developers and consumers of AI technologies and assist in mitigating potential risks and biases associated with the use of AI. Furthermore, as stated in the bill, “[a]s of 2018, the United States AI workforce stood at about 14,000,000 workers, or about 9 percent of total employment. From 2019 to 2029, demand for AI occupations is projected to grow twice as fast as for all occupations in the United States.” Thus, it makes sense that such a bill would be introduced now.
As the bill has drawn bipartisan support and support from leading workforce development groups and major education associations, it will be fascinating to see the effect of this bill a decade from now if it becomes law. --- Malcolm E. Lewis
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“The Division I Council unanimously adopted a proposal to address student-athlete protections related to name, image and likeness effective Aug. 1.”
Why this is important: In a groundbreaking move, the Division I Council has unanimously approved a proposal aimed at enhancing student-athlete protections concerning name, image, and likeness (NIL) rights. The decision, set to take effect on August 1, marks a significant step towards ensuring fairness and transparency in the world of college sports. This article explores the importance of these new rules and the potential impact they could have on the lives of student-athletes.
One of the primary motivations behind the approval of these NIL disclosure and transparency rules is to establish a more equitable playing field for student-athletes. Historically, these individuals have dedicated immense time and effort to their respective sports, yet they were unable to capitalize on their own NIL rights. With the new rules in place, student-athletes will have the opportunity to benefit financially from their image and likeness, aligning college sports more closely with the principles of fairness and justice. By allowing student-athletes to control and profit from their own NIL rights, the Division I Council is empowering these individuals to make the most of their collegiate athletic careers. This empowerment extends beyond the playing field, providing student-athletes with valuable skills and experiences that can serve them well in future endeavors. The ability to enter into endorsement deals, partnerships, and other opportunities can be a transformative experience for student-athletes, shaping their personal and professional development.
The approved rules not only grant NIL rights to student-athletes, but also emphasize transparency in NIL deals. Institutions and student-athletes will be required to disclose details of these agreements, ensuring the process is fair, ethical, and free from any potential exploitation. This transparency is crucial for maintaining the integrity of college sports and fostering trust between athletes, institutions, and the public. The implementation of NIL disclosure and transparency rules is likely to have a profound impact on the recruitment landscape in college sports. Student-athletes may factor in an institution's commitment to NIL rights when making decisions about where to play. Moreover, this change could level the playing field among colleges, creating a more competitive environment where institutions are not only evaluated based on their athletic programs but also on their support for student-athlete rights.
While the approval of these rules is a positive development, challenges and considerations remain. Striking the right balance between the commercial aspects of NIL deals and the essence of amateurism in college sports will be an ongoing challenge. Monitoring and enforcing the rules to prevent potential abuses and ensuring that student-athletes are not taken advantage of will be crucial for the success of this new framework.--- Kevin L. Carr
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