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Welcome
Happy holidays and welcome to our final issue of The Academic Advisor for 2024. Thank you for engaging with us through the newsletter this year.
With this publication, we strive to provide schools, colleges and universities, and other education-focused organizations with trending legal news in the education industry and explain how these developments affect institutional operations, compliance, and risk mitigation strategies. We hope The Academic Advisor has helped your institution identify key legal issues this year and guard against related challenges.
In this final 2024 edition, we focus on the following topics of import:
- The passage of Ohio’s Protect All Students Act;
- How Maryland’s higher education privacy law could influence other states;
- Changes ahead for Title IX under the new presidential administration;
- The effects of new policy restrictions on F-1 visa holders;
- An update on student loan forgiveness;
- How the Trump administration may affect the education sector; and
- Strategies for mitigating cyber threats in higher education.
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As we look ahead to the New Year, please let us know if there are any special topics you would like The Academic Advisor to address in 2025.
We wish you a happy and safe holiday season! 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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“Colleges and universities already take protecting student data seriously, but new regulations could turn accepted best practices into law.”
Why this is important: Maryland has enacted a new privacy law affecting higher education institutions in the state, adding to several federal laws already in effect concerning data privacy and cybersecurity. Currently, in order to receive funding under Title IV of the Higher Education Act, universities nationwide must comply with the Gramm-Leach-Bliley Act (GLBA) and the Family Education Rights and Privacy Act (FERPA), which regulate access to student records, including financial records.
The new Maryland law builds upon the federal standards by enacting requirements already in place in many states relating to K-12 students. Notably, the law requires schools to have a privacy governance and risk management program in place to develop standard procedures for addressing threats and attacks. These programs must also be periodically reviewed by third-party security experts.
Universities must also display privacy notices on their website homepages so users are clearly informed of their rights in the data that is collected from them. Under the Maryland law, students also have a right to access their own personally identifiable information that is collected from them and request specific corrections and deletions. Among other requirements, the law mandates that contracts with vendors comply with the university’s privacy governance policy and employ reasonable security controls to protect student data.
While this law is currently limited to institutions within Maryland, it is likely to be a model implemented across the country as data privacy concerns grow nationwide. Universities ahead of the curve should begin to plan now for heightened privacy regulations and standards, while also avoiding the current risks of cybersecurity attacks. If your institution needs assistance crafting and implementing a data privacy policy, contact Spilman for help. --- Shane P. Riley
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“The incoming president has promised to undo the Biden administration’s rule, which interprets the law’s protections to include LGBTQ+ students and staff.”
Why this is important: The Biden administration’s amended Title IX regulations, among other changes, expanded the law’s protection to include LGBTQ+ students and staff. This Final Rule took effect on August 1, 2024; however, it has continuously been met with obstacles impairing its enactment in many states.
Due to the controversial expansion of sex discrimination under the Final Rule, numerous states, school districts, and parental rights organizations almost immediately filed lawsuits across country in response. The plaintiffs sought preliminary injunctions to enjoin the subjected states and schools from implementing the Final Rule and obtained them with astounding success. As a result of these efforts, at least 26 states and 670 institutions are enjoined from implementing the Final Rule. However, both the Education Secretary and U.S. Department of Education have appealed the injunctions, and as of today, oral arguments have already been heard in the matter of Louisiana, et al. v. U.S. Department of Education before the Fifth Circuit, as well as in the matter of Tennessee, et al. v. Cardona before the Sixth Circuit. The matter of Alabama, et al. v. U.S. Secretary of Education is on appeal in the Eleventh Circuit, and oral arguments are scheduled for December 18, 2024.
Despite this litigation, the election of President Trump for a second term presents a more significant threat to the Final Rule. In particular, President Trump has promised that his administration will either rescind the Final Rule or revert Title IX back to the regulations of 2020. For schools in states that are enjoined from implementing the Final Rule, a return to the 2020 regulations would simply mean continuing to follow their current Title IX policies, which have yet to implement the Final Rule. However, schools that overhauled their policies to comply with the Final Rule by the start of the 2024 - 2025 school year would be obligated to amend them once again. On the other hand, if the Trump administration decides to implement entirely new regulations, Title IX experts expect that such regulations will not be finalized until the end of 2026 or the beginning of 2027, at the earliest.
In addition to the expansion of sex-based protections under Title IX, the Trump administration will also likely address the treatment of transgender student inclusion in sports. Under the Biden administration, the Department of Education proposed a rule to prohibit blanket bans on transgender students’ participation on sports teams aligning with their gender identity. Within this proposed rule, the Biden administration also created a framework for schools when drafting transgender athlete inclusion policies. However, the Biden administration never finalized the rule that would enforce such policies.
Even if the Biden administration worked to finalize the Title IX rule regulating the treatment of transgender students in athletics, it is likely that Congress would side with the Trump administration and overturn such rule under the authority of the Congressional Review Act (CRA). The CRA authorizes Congress to overturn certain actions of federal agencies within 60 congressional days. In 60 days, the newly elected members of Congress will take office, which is now a Republican majority in both the House and the Senate. Although not guaranteed, it is very likely that Congress will follow the direction that President Trump has projected on all Title IX issues, so Congress may even work to pass new legislation concerning such issues. --- Emily R. Merritt
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“International students in the US will no longer be able to study abroad for longer than five months as part of what stakeholders believe could be an ‘unintended consequence’ of a new policy change.”
Why this is important: Studying abroad can be a rewarding intellectual experience for students. However, a new federal policy will change how—and whether—international students enrolled in U.S. colleges and universities can take advantage of those opportunities. On August 27, 2024, U.S. Citizenship and Immigration Services issued a policy clarification that restricts students at U.S. institutions on an F-1 visa from participating in study abroad programs that last longer than five months.
Under previous rules, F-1 visa holders could remain enrolled at a U.S. institution while studying abroad with some programs lasting a full academic year. However, many study abroad programs last longer than five months. Under the new policy, international students taking part in these programs run the risk of losing their ability to re-enter the U.S. to continue their education. This policy change will likely force U.S. colleges and universities to rethink the structure of their study abroad offerings. In order to accommodate F-1 visa holders, institutions likely will need to offer shorter-term options in the summer or strict semester-long programs.
With this policy and its effects largely going unnoticed by schools until recently, some colleges have called for the government to re-evaluate. Out of concern for students already in study abroad programs, Minerva University in San Francisco has asked the government for a grace period for students currently studying abroad. Because the policy was enacted with immediate effect, a potential grace period would allow current F-1 visa holders to adjust their plans so they do not lose their status. --- Isaiah C. Robinson
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“Biden announced two income-driven repayment plans for borrowers to work towards the end of their debt or even full loan forgiveness on a 20- to 25-year timeline under the Pay-As-You-Earn (PAYE) and Income-Contingent Repayment (ICR) plans.”
Why this is important: President Joe Biden will attempt to push through two more options for federal student loan forgiveness. This time it will target individuals facing significant financial hardships.
The SAVE Plan, which remains in a state of uncertainty, lowered monthly payments and got rid of high interest payments. It also offered full forgiveness after meeting certain qualifications. However, it phased out new enrollments in the older income-driven repayment plans – Pay-As-You-Earn (PAYE) and Income-Contingent Repayment (ICR). Starting in mid-December 2024, the Department of Education will once again allow borrowers to sign up for these plans.
The ICR considers an individual’s income and family size and would allow some borrowers to achieve debt forgiveness after 20 or 25 years. The downside is that it ends up costing borrowers more and has fewer benefits regarding interest. Borrowers in the PAYE program have the opportunity to lower their monthly payment.
The Biden administration also recently announced a new waiver on student loan debts where the borrower has experienced or is experiencing hardship related to their loan. It would define hardship as “likely to impair the borrower’s ability to fully repay the Federal government.” It also considers the costs of enforcing the full debt. In some cases, if the Department of Education determines that that borrower will most likely default on the loan, it could be fully forgiven. Officials will use what they are calling a “predictive assessment” and provide the Secretary of Education with this information. The Secretary will also have discretion to grant this one-time relief waiver. It is estimated that it could apply to anywhere from 2.67 to 8 million borrowers.
During President Biden’s administration, the Department of Education has provided approximately $175 billion in student loan forgiveness for around five million individuals. However, the Trump administration has opposed most efforts for similar programs and pushed for monthly payments to increase from 10 to 12.5 percent of borrower’s discretionary income during his first term. Thus, both the ICR and PAYE programs could be short-lived. However, while the SAVE Plan remains tied up in the courts, these programs and this one-time waiver will provide some additional interim relief to borrowers that qualify. --- Lisa M. Hawrot
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Ohio Passes the Protect All Students Act | |
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By Lisa M. Hawrot
On November 27, 2024, Ohio’s Governor signed into law Senate Bill 104, which amended the terms of the College Credit Plus Program, setting forth requirements that allow students in grades 7-12 to earn college credits. Included in the middle of this 40-page Bill is the newly enacted Protect All Students Act, requiring Ohio's K-12 schools and institutions of higher education to designate single-sex bathrooms, shower rooms, and change rooms and permitting schools to make individual accommodations in special circumstances. Senate Bill 104 goes into effect on February 25, 2025.
Click here to read the entire article.
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“Much of his platform focuses on rolling back the federal government’s role in schools and giving states and parents more of a say in what children learn, with the goal of rooting out any ‘left-wing indoctrination.’”
Why this is important: As this article highlights, the election of President Trump for a second term could have significant implications in the education sector. In particular, President Trump has focused on minimizing the role of the federal government in schools and undoing certain regulatory changes implemented during the Biden administration. Key initiatives that President Trump has pledged to tackle include:
- The abolishment of the U.S. Department of Education (ED), which would require approval by Congress and a new framework for administering federal funding appropriated to K-12 schools, managing federal student loan and financial aid programs, and enforcing anti-discrimination laws (such as Title IX) that are currently administered by ED;
- The establishment of universal school choice to enable parents’ use of public school funding for their children to attend public, private, or religious K-12 schools, which would likely require congressional action;
- Roll back of the 2024 amendments to Title IX regulations, which would take time under federal rulemaking procedures but could be supported by directives for the U.S. Department of Justice to stop defending the Final Rule in court, as well as possible new regulations that prevent transgender student-athletes from playing on sports teams that do not align with their biological sex; and
- Enhanced parental rights relating to classroom curriculum, which would be difficult to accomplish because states and local school boards generally control these elements of students’ education but could be supported through new requirements on schools’ receipt of federal funding, investigations, and lawsuits.
In addition, the Trump administration will be faced with a decision regarding student loan repayment as Spilman attorney Lisa Hawrot further explains in this newsletter.
Only time will convey the extent to which a second Trump administration may effect these changes. These initiatives would require significant congressional support and willingness to overhaul existing federal infrastructure, which President Trump may achieve with Republications controlling both chambers of Congress. With education remaining a highly politicized focus area for presidential administrations, educational institutions must be adaptable because the only constant is change. --- Erin Jones Adams
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“By understanding who, where and how attackers are targeting universities and colleges, and taking a human-centric approach, officials can better safeguard their sensitive data.”
Why this is important: Institutions of higher education house vast amounts of sensitive data ranging from financial information to government-funded research. The extensiveness of these networks and open information-sharing environment that universities foster inherently pose a security risk. As this article highlights, a layered and targeted defense system can help to mitigate these vulnerabilities and protect against cyber threats. A human-centric approach that prioritizes user education, particularly increasing awareness of cybercriminal tactics, can reinforce institutional cyber security and significantly reduce the risk of data breach through phishing schemes. In addition, email security systems that allow for real-time threat intelligence, insider threat management detection tools, and a comprehensive data loss prevention solution can aid in preventing the unauthorized transfer of data, identifying unusual user behavior, and protecting against impersonation attacks.
With increasing legal and operational risks from cyber threats, a complex body of regulations with which to comply, time-intensive response procedures, and the threat of lawsuits and regulatory penalties, institutions of higher education face no shortage of challenges when it comes to data security. If your institution would benefit from a legal review of its cybersecurity policies, response plans, breach notification procedures, and cyber insurance coverage, please contact your Spilman counsel or any member of the Education or Technology Practice Groups for further assistance. A proactive approach can reduce the potential for significant monetary and reputational harm. --- Nicholas A. Muto
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