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Welcome
Welcome to our first issue of The Academic Advisor for 2025. If you are new to the publication, The Academic Advisor provides regular education law insights on topics of import for schools, colleges, and other education-focused institutions, with particular focus on new and evolving areas of the law. If you are a returning reader, welcome back and thank you for your continued interest in this publication.
As recent news highlights, sweeping changes are afoot in the education space. Propelled by the recent shift in presidential administrations, these changes have been particularly impactful for Title IX. In this edition, we provide a Title IX roundup that highlights how the law and its enforcement have evolved over the past year and ultimately returned us back to compliance with the 2020 Title IX regulations.
As today is the deadline for objections to the proposed House v. NCAA settlement involving student-athletes’ eligibility to be compensated for use of their name, image, and likeness, we also cover the effects of recent Title IX guidance issued by the U.S. Department of Education (ED) on these plans. In this issue, we additionally examine how a second Trump term may affect ED and his new executive orders; the use of electronic device policies in K-12 settings; artificial intelligence trends in education technology to watch in 2025; new litigation affecting West Virginia school grants; and the impact of Ohio House Bill 8 (Parents’ Bill of Rights).
As we lean in to the new year, please let us know if there are any topics of interest that you would like The Academic Advisor to cover. Your input and engagement are invaluable to us.
As always, thank you for reading.
Erin Jones Adams, Member, Co-Chair of the Education Practice Group, and Co-Editor of The Academic Advisor
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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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For institutions following the bouncing ball, Title IX has been a source of near constant change over the past year. Starting in April 2024, the U.S. Department of Education (ED) issued the much-anticipated 2024 Title IX regulations, which quickly became the subject of various lawsuits to enjoin their enforcement; and as of their effective date in August 2024, the 2024 Title IX regulations were stayed in 26 states across the country. In December 2024, ED withdrew its Notice of Proposed Rulemaking regarding sex-related eligibility criteria for male and female athletic teams, ending plans for a long-promised regulatory standard under Title IX that would govern schools’ use of sex-based criteria to limit or deny students’ eligibility to participate on athletic teams consistent with their gender identity. Then on January 9, as previously reported in an Academic Advisor news alert, the Eastern District of Kentucky issued an order vacating the 2024 Title IX regulations nationwide, which effectively reinstated the 2020 Title IX regulations. Thereafter, in guidance issued by the ED Office for Civil Rights on January 15 titled Online or Digital Sexual Harassment under the 2020 Title IX Regulations: A Resource for Students, Families, and Educators, ED confirmed that the 2024 Title IX regulations were not effective in any jurisdiction. Most recently, pursuant to a Fact Sheet issued on January 16, ED also confirmed its position that Title IX applies to compensation for student-athletes’ name, image, and likeness as a form of financial assistance and, in turn, subjected these funds to the same substantially proportionate standard among male and female athletes that applies to scholarships, grants, and other athletic aid.
To say that these shifts in Title IX have been challenging for educational institutions is an understatement; and as has become the norm, campus administrators, compliance officers, and Title IX officials have been caught in the crosshairs of needing to ensure their institutions’ adherence to Title IX as it evolves while also managing the strong reactions that these changes in the law evoke among students, faculty, staff, and other constituents.
Spilman will continue to keep you apprised of important changes to Title IX as they occur, and our Education Practice Group stands ready to assist your institution with its Title IX needs. --- Erin Jones Adams
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“In a nine-page ‘fact sheet’, OCR clarified that, under Title IX, NIL money paid to college athletes should be held to the same gender-equity standards as athletic scholarships.”
Why this is important: On January 16, in a final effort to address Title IX before the Biden administration ended, the U.S. Department of Education (ED) issued a Fact Sheet explaining that compensation issued by schools for use of student-athletes’ name, image, and likeness (NIL) will be treated as athletic “financial assistance” under Title IX; and as such, that a school must treat NIL compensation for students like other athletic financial assistance, such as athletic scholarships and grants, and make it available to male and female student-athletes in a manner that is substantially proportionate to the number of students of each sex participating in interscholastic or intercollegiate athletics at that school. In addition, the guidance indicated that in assessing Title IX compliance, ED would also consider whether schools are providing equivalent athletic opportunities in the areas of publicity, support services, and other benefits as well.
As this article highlights, the timing of the guidance and its impact on the pending House v. NCAA settlement was no coincidence. Coming just two weeks before the deadline for settlement objections in that case, which stands to allocate billions in future revenue sharing for college athletes in a manner that is more favorable to male basketball and football players than other athletes, the guidance teed up another wrinkle to that plan. As numerous athletes, parents, and other stakeholders filed objections this week before the January 31 deadline per Front Office Sports, it is no surprise that gender inequality in the revenue sharing framework has been challenged. On April 7, Judge Claudia Wilken of the Northern District of California will consider these objections and others, including challenges to roster limits and potential antitrust violations, and determine whether to finally approve the House v. NCAA settlement.
While the Trump administration has yet to opine on this guidance, the Fact Sheet is not law or regulation and could be revoked or not enforced by ED moving forward. Given that Title IX has been one of the most politically charged laws in higher education for more than a decade; the Trump administration previously overhauled Title IX under the 2020 regulations; President Trump and his Education Secretary nominee Linda McMahon very likely view NIL revenue sharing as a beneficial business opportunity for schools and athletes; and the Trump administration previously rescinded Title IX guidance issued by ED under the Obama administration, President Trump may direct ED to revoke this guidance as well, replace it with new guidance, or advocate for the passage of federal legislation that exempts NIL payments from Title IX coverage altogether.
For schools that move forward with the issuance of NIL payments without following the “substantially proportionate” framework, a withdrawal of this guidance will not stop the inevitability of litigation by student-athletes who contend such actions violate Title IX. Absent a change in the law that clearly directs otherwise, the impact of Title IX on NIL payments will likely become the subject of protracted Title IX litigation, which could nevertheless treat NIL payments as financial assistance under Title IX. Schools navigating these issues should work closely with their legal counsel to assess the risks and determine how evolving guidance in this space affects their revenue sharing plans. --- Erin Jones Adams
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“Education Secretary Miguel Cardona said Trump’s vow to eliminate the department would widen gaps between ‘haves and have nots.’”
Why this is important: The recent inauguration of President Trump will usher in a new era of cabinet members, policies, and administrative initiatives. The U.S. Department of Education (ED) will be a focus of this new administration for many reasons, but perhaps the most important reason of all: its elimination.
President Trump has nominated Linda McMahon, a former World Wrestling Entertainment executive who also served in the first Trump administration as head of the Small Business Administration, to lead ED. However, McMahon’s confirmation hearing has not yet been scheduled. In the interim, President Trump has tapped Denise Carter as the acting Education Secretary, who was the acting chief operating officer of the Office of Federal Student Aid.
President Trump has stated that one of his goals during his administration is to eliminate ED altogether. Former Education Secretary, Miguel Cardona, raised concerns that the elimination of ED would widen disparities between students because the ED is a civil rights agency that protects the rights of all students and ensures students receive proper support through public education. However, President Trump and his administration intend to minimize the federal government’s role in education and to push more power to the states and local communities. For example, the Trump administration hopes to bolster school choice initiatives. President Trump has also stated he will sign an executive order that “cut[s] federal funding for any school pushing critical race theory, transgender insanity and other inappropriate racial, sexual or political content on our children.”
Within the first week of his presidency, President Trump signed an executive order requiring the recognition of only two sexes, male or female, which ended the Biden administration’s efforts to extend Title IX discrimination protections to transgender students. Further, Title IX can no longer be interpreted to apply to discrimination based on sexual orientation or gender identity. In light of this executive order and the recent federal district court decision vacating the 2024 Title IX regulations, ED will likely issue new Title IX guidance to schools. ED has also pledged to follow President Trump’s lead in rolling back federal diversity, equity, and inclusion (DEI) practices, including within its departmental communications, resources and staffing; and as of January 29, President Trump has issued an executive order titled Ending Radical Indoctrination in K-12 Schooling, which addresses gender identity and DEI programs in furtherance of this rollback. --- Emily R. Merritt
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“Besides considering accommodation issues with cellphone use, as well as fairness, many attorneys advise school administrators to take a commonsense approach to creating and implementing the policies.”
Why this is important: States and schools have struggled with best practices for their handling of cell phones in K-12 schools. While some institutions have banned them entirely during the school day, others have implemented more lenient approaches. No matter the approach that a school district or locality take, it is important that they consider the legal risks.
As this article highlights, the three primary reasons for cell phone restrictions at school are cyberbullying, distractions devices pose for children, and electronics impeding face-to-face communication. Each of these reasons provides a strong justification for implementing clear and enforceable cell phone policies in schools. Decisionmakers must balance students’ rights with the need for a conducive learning environment. These policies must also comply with federal, state, and local laws, ensuring they do not unintentionally discriminate or disadvantage specific groups. While sound rules are a key to avoiding related issues, schools must also ensure the consistent enforcement of these rules. Consistency in enforcement is crucial not only to ensure fundamental fairness in their application, but also to avoid claims of unfair treatment or violations of constitutional rights like free speech or due process.
Both parents and students have raised concerns about the implementation of cell phone bans in schools. Parents have expressed the importance of their children having access to their phones in case of emergencies, whether at school or involving personal matters. Meanwhile, students are apprehensive about the potential for school administrators to access their private information if their phones are confiscated. It is crucial for schools to establish clear and transparent protocols to address these concerns in an effective manner, ensuring both legal compliance and the trust of all parties involved.
Managing cell phone use in schools requires a thoughtful and balanced approach that considers the diverse perspectives of parents, students, and educators. While the need to address issues like cyberbullying, distractions, and the decline of face-to-face communication is clear, policies must also respect students' rights and address parental concerns about safety and accessibility. By crafting clear, equitable, and legally compliant policies and enforcing them consistently, schools can create an environment that supports learning while addressing modern challenges. Open communication and collaboration with all stakeholders will be key to ensuring the success and fairness of these measures. --- Nicholas A. Muto
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“Guardrails guide instructors as they embrace artificial intelligence to design customized learning experiences and other compelling AI developments.”
Why this is important: The U.S. Department of Education released a toolkit for educators in October of 2024 aimed at providing guidance on the opportunities and risks the integration of artificial intelligence (AI) poses to schools and classrooms. So far, there has not been much consensus on core policy, but there are some emerging trends taking shape across the country. First, precautions (i.e., guardrails) seem to be prevailing over appropriate use cases so far, as many teachers and administrators are worried about the rapid spread of the newly and quickly evolving technology. While there are no hard-and-fast rules, best practices are a top concern.
There is also a focus on personalization, which can be individualized to the topic, grade level, or student age. Many teachers who are early adopters of AI are creating their own custom GPTs, or AI chatbots, trained on specific data, that will relate to specific students. This helps tailor the use of AI to what the educator wants it to focus on and avoid what they do not.
Another aspect for schools and school districts is the use of AI in physical security and cybersecurity. Regarding physical security, some school districts are using AI to monitor bus safety and driver behavior to reduce accidents. There are also plans to apply AI tools to routing and logistics so the bus system can run most efficiently. In cyberspace, schools are aware they must keep up with hackers who have rapidly evolving AI tools at their fingertips. They are realizing that the best tactic for fending off AI attacks is AI-powered security.
These trends emerge at a time when both student and teacher use of AI has been climbing year over year according to the Center for Democracy and Technology. Per the non-profit’s data, between the 2022-2023 and 2023-2024 school years, teacher use grew from 51 percent to 67 percent and high school student use grew from 58 percent to 70 percent. Yet even with such significant numbers, most teachers lack firm guidance on use and how to handle suspected AI-related plagiarism and other inappropriate use. It is possible that AI tools themselves will help alleviate these issues, as plagiarism detection software can help quickly identify where AI text generators may have been used or heavily relied on. However, it is quite clear from these trends that AI use in the classroom is something everyone must adapt to, evolve with, and accept.
If you are an educator or educational institution struggling to develop an appropriate AI use policy or guidance document, Spilman is here to help. --- Shane P. Riley
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“The American Civil Liberties Union of West Virginia has filed a lawsuit on behalf of the American Humanist Association against the WDA and its executive director Marie Prezioso.”
Why this is important: The West Virginia Water Development Authority (WVWDA) is responsible for distributing grants through the Economic Enhancement Grant Fund. The grants are used for projects across West Virginia that focus on water systems. The grants can also be used for general economic development projects. In October 2024, the WVWDA issued a $5 million grant to the College of St. Joseph the Worker. The Steubenville, Ohio college is affiliated with the Catholic Church and only offers a degree in Catholic Studies. The grant issued to the college is for expanding the school into Weirton, West Virginia, renovating existing buildings, and potentially establishing a satellite campus in Charleston, West Virginia.
On January 13, 2025, the ACLU of West Virginia—on behalf of the American Humanist Association—filed a lawsuit against the WVWDA for giving the grant money to the College of St. Joseph the Worker. The lawsuit alleges that by using West Virginia taxpayer funds to support the religious school, the WVWDA violates the West Virginia Constitution. In a statement, ACLU of West Virginia’s Legal Director Aubrey Sparks said “[t]ens of thousands of West Virginians wonder every day where they will get clean drinking water… The College of Saint Joseph the Worker has every right to exist and to educate its students in line with its religious worldview, but to force the taxpayers of West Virginia to fund its mission is wholly inappropriate and unconstitutional.” While the WVWDA has not provided a statement since the lawsuit was filed, WVWDA Executive Director Marie Prezioso previously defended the decision, stating “[a]ll I’ve been hearing about is how we don’t have enough trained workers. This project will be another source of training to get much-needed workers into the workforce.” --- Isaiah C. Robinson
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Ohio House Bill 8 – Parents’ Bill of Rights | |
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By Lisa M. Hawrot
Ohio recently passed House Bill 8, more commonly known and referred to as the “Parents’ Bill of Rights.” This Bill goes into effect on April 9, 2025.
The Bill requires that no later than July 1, 2025, the Board of Education (BOE) of each city, local, exempted village, and joint vocational school develop and adopt a policy to promote parental involvement in the public school system.
Click here to read the entire article.
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