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Welcome
Welcome to the third 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:
- The vote to unionize Dartmouth College’s men's basketball team;
- The U.S. Supreme Court's decision to set aside a "bias-response team" policy challenge;
- Florida's bill settlement allowing students and teachers to discuss gender;
- Texas students' petition for an emergency First Amendment ruling;
- AI and the future of school safety;
- Pennsylvania's plan to make colleges ‘equal partners’ under a new system;
- The Federal Trade Commission's proposal to bolster children’s privacy online; and
- Security in building design falls short and adds costs.
In recognition of Women’s History Month, we are also pleased to share that Spilman recently received the Empowering Women Award from Virginia Lawyers Weekly. The Empowering Women Award is designed to showcase tangible and innovative efforts by law firms to advance women attorneys in the workplace and community. “We are honored to be included in the inaugural class of Empowering Women honorees,” said Lori D. Thompson, Member in Charge of our Roanoke office and Spilman’s DEI Committee Chair. Please click here to learn more.
If you have any questions about these topics, 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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“The election took place on Dartmouth’s campus in Hanover, N.H., under supervision of NLRB officials.”
Why this is important: In a groundbreaking move that could reshape the landscape of college athletics, the Dartmouth College men's basketball team has voted to unionize. This decision, which follows years of debate and activism around the rights of college athletes to join a union, marks a significant shift in the landscape of collegiate athletics. The vote to unionize was conducted privately in an election supervised by the National Labor Relations Board (NLRB). The players voted in favor of union representation, with the articulated goal of advocating for improved working conditions, healthcare benefits, and greater say in NCAA policies that directly impact their lives and careers.
Dartmouth has indicated that it intends to appeal the underlying decision that its student athletes were eligible to unionize (as employees under the National Labor Relations Act). If ultimately upheld on appeal, the decision by Dartmouth's basketball players to unionize could have far-reaching implications for college athletics. This unionization effort could set a precedent for other college teams and athletes to organize and advocate for their rights collectively. It also could put pressure on the NCAA and member institutions to reevaluate and reform policies that impact the well-being and rights of athletes. --- Kevin L. Carr
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“The question came to the court in a case filed against Virginia Tech by Speech First, a group that describes its mission as putting ‘colleges and universities on notice that shutting down unwanted speech will no longer be tolerated.’”
Why this is important: Earlier this month, the U.S. Supreme Court set aside a challenge to whether “bias-response team policies” chill students’ speech on university campuses. In Speech First v. Sands, the Supreme Court remanded the case to the U.S. Court of Appeals for the Fourth Circuit for dismissal as moot after Virginia Tech changed its challenged policy.
In 2019, Virginia Tech created its “Bias Intervention and Response Team,” which was responsible for governing the university’s response to reports of potential bias that could violate the university’s code of conduct and other policies. Virginia Tech’s bias-response team would investigate reports of bias and request a meeting with the potential offending student to discuss the speech or conduct at issue. Speech First sought to enjoin Virginia Tech, on behalf of anonymous students, from enforcing its bias-response policy, among other policies that Speech First felt were overbroad or vague. In opposition, Virginia Tech asserted that the litigants lacked standing to bring this action in place of the students. The university further argued that its revisions to the policy at issue, which made it applicable to employees rather than students, rendered the litigation moot.
In its adjudication of the matter, the district court held that the case was not moot because Virginia Tech voluntarily amended its policies and could reinstate the policies at any time. Notwithstanding, the district court found that Speech First lacked standing to challenge the policies. The Fourth Circuit affirmed the lower court's ruling. (In his dissent, in addition to contesting the court's decision with respect to standing, Judge J. Harvie Wilkinson claimed the bias-response policies constituted viewpoint discrimination.)
Speech First sought certiorari before the U.S. Supreme Court. The Supreme Court granted Speech First’s petition while vacating the judgment with respect to the bias-response team’s policy. The Supreme Court ordered that the case be remanded back to the Fourth Circuit for dismissal of the bias-response policy claims as moot because of Virginia Tech’s changes to the policy. In a detailed dissent, Justice Thomas, joined by Justice Alito, opined that this case raised important First Amendment questions affecting hundreds of universities nationwide and claimed it was a close question as to whether students are self-censoring because they fear the consequences of bias-response team actions.
While the Supreme Court remanded this case to the Fourth Circuit to be dismissed as moot, there is a strong likelihood more cases will arise that seek to challenge bias-response policies. As the district court noted, Speech First has made the same arguments challenging other university’s bias-response policies. See Speech First v. Fenves, 979 F.3d 319 (5th Cir. 2020) (challenging University of Texas at Austin’s “Hate and Bias Incidents” policy); Speech First v. Schlissel, 939 F. 3d 756 (6th Cir. 2020) (challenging Michigan University’s policy on prohibiting bullying and harassment); Speech First v. Cartwright, 32 F.4th 1110 (11th Cir. 2022) (challenging the University of Central Florida’s discriminatory-harassment policy). While this particular case was dismissed as moot, U.S. circuit courts are split 3-2 on whether a bias-response team and its policies chill students’ speech and violate the First Amendment. --- Isaiah C. Robinson
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“The settlement clarifies what is allowed in Florida classrooms following the passage two years ago of the law prohibiting instruction on sexual orientation and gender identity in early grades.”
Why this is important: In a significant development for educators in Florida, a settlement has been reached regarding Florida’s Parental Rights in Education bill (often referred to as the “Don't Say Gay" bill). This settlement allows students and teachers in Florida schools to discuss sexual orientation and gender identity without fear of disciplinary action, discrimination, or censorship.
The law was introduced with the aim of restricting discussion about sexual orientation and gender identity in Florida's public schools. Critics argued that the bill would stigmatize LGBTQ+ students, create a hostile environment, and limit educational opportunities for all students. The bill faced widespread criticism from educators, activists, and civil rights organizations both within Florida and across the country. Many argued it would infringe on free speech rights, undermine inclusive education, and harm the mental health and well-being of LGBTQ+ students. As a result, various legal challenges ensued.
Those legal challenges have largely been resolved with a settlement, the tenets of which include:
- Freedom of Discussion: Students and teachers are allowed to discuss sexual orientation and gender identity openly and freely in educational settings.
- Protection from Discrimination: LGBTQ+ students and teachers are protected from discrimination, harassment, and retaliation based on their sexual orientation or gender identity.
- Inclusive Curriculum: Schools are encouraged to adopt inclusive curricula that reflect the diversity of sexual orientation and gender identities, ensuring that all students feel represented and valued.
This settlement marks a significant victory for LGBTQ+ advocates in Florida but, as is often the case, the devil is in the details and implementation of the settlement is likely to involve some hurdles that will need to be overcome. --- Kevin L. Carr
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Texas Students' Petition for Emergency First Amendment Ruling | |
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By Lisa M. Hawrot
Campuses across the country have ongoing debates regarding many different aspects of free speech. At the heart of these debates is whether efforts to confront bias on campuses intimidate students who want to speak their mind. One of the more recent debates involves drag shows on college campuses.
In 2023, Florida was the first to ask the U.S. Supreme Court to address drag shows. Although not directed at college campuses, Florida had enacted a law, dubbed the “Protection of Children Act,” that made it a misdemeanor to knowingly admit a child to a sexually explicit adult live performance that would be obscene for the age of the child present. In June 2023, a District Court Judge in Florida blocked the law, holding it likely violated the Constitution’s free speech and due process protections and was unconstitutionally vague. The U.S. Court of Appeals for the Eleventh Circuit declined Florida’s emergency application for a stay of the district court’s injunction. The state then appealed to the U.S. Supreme Court asking for a stay of the lower court’s injunction, which would have enabled the state to enforce the law. In November 2023, the U.S. Supreme Court declined to do so.
Also in 2023, Texas sought to ban drag shows by passing Senate Bill 12, which was signed into law in June 2023. That law banned “sexually oriented performances” on public property and in the presence of anyone younger than 18. In September 2023, U.S. District Judge David Hittner found that law to be substantially overbroad and unconstitutionally vague.
In Texas, students at West Texas A&M University have been fighting with school officials since the school’s president canceled last year’s planned drag show. Interestingly, the president stated he would not allow the drag show to go forward on campus “even when the law of the land appears to require it.” The students previously had their case reviewed by two lower courts, claiming that those courts refused to act in time to save the previously scheduled drag show. In turn, the students moved the show off campus.
This time, the U.S. Supreme Court’s decision added a bit of a twist. The Justices stressed that the court was not dealing with the First Amendment questions, but rather procedural issues related to handling of the case by the lower courts. The U.S. Supreme Court gave the university a very short deadline to respond to the students' requests. In the meantime, the students will have to wait for a hearing from the U.S. Court of Appeals for the Fifth Circuit, widely viewed as the most conservative federal appeals court in the United States.
Unfortunately, until the U.S. Supreme Court decides to address this issue head-on, more confusion and challenges on this and other First Amendment issues on campuses will likely arise. In the recent words of Justices Clarence Thomas and Samuel Alito, “[u]ntil we resolve it, there will be a patchwork of First Amendment rights on college campuses.”
Click here to read the entire article.
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“All upgrades must be considered in collaboration with existing personnel so school security can be supported — not replaced — with automated technology.”
Why this is important: Methods of student monitoring may be changing from traditional practices to advanced technology solutions. Campuses across the country are experimenting with the use of expertly programmed metal detectors, digital hall passes, online activity monitoring programs, and artificial intelligence (AI) video tracking systems to address various safety concerns in schools. While these technologies offer efficiency in detecting risks, they also have shortcomings compared to manual methods, and their implementation requires careful consideration of financial and social implications.
It is important for all stakeholders to understand the limitations of AI safety technology and the need for collaboration between technology and human monitoring. Ultimately, advocates of the new technologies call for a balanced approach that prioritizes student safety without disregarding privacy concerns or incurring unnecessary financial burdens. --- Shane P. Riley
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“An 11-page report offers new details about Gov. Josh Shapiro’s plan to unite the state’s university system and community colleges.”
Why this is important: Pennsylvania Governor Shapiro's budget proposal for the 2024-25 fiscal year includes a significant increase in funding for PASSHE universities and community colleges by fifteen percent to $975 million. The proposal aims to consolidate these institutions under one system and requires legislative approval to become law. However, details regarding the merger plan have been scarce, leading to frustration among lawmakers.
While the Governor's office has begun offering some insights into how the proposed system would operate, details regarding local governance within the new structure remain unclear. The administration seeks input from various stakeholders, including legislators, college presidents, and union leaders. The proposal states that existing union contracts at public colleges will be honored under the new system.
The budget proposal also includes increased funding for state-related universities (i.e. Penn State, Temple, Lincoln, and Pitt) by five percent, although they are not part of the merger plan. Additionally, there is a suggestion to fund publicly supported colleges through a performance-based model, which has garnered support from some university leaders.
All in all, Shapiro’s plan leaves many questions unanswered, but could result in a historic public investment in Pennsylvania’s institutions of higher education if it is able to survive legislative scrutiny. --- Shane P. Riley
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“The new amendments would bolster children’s privacy by further restricting how companies can collect, use and monetize the data of underage users, shifting a greater deal of responsibility in this area to service providers.”
Why this is important: The 60-day comment period for the Federal Trade Commission's (FTC) proposal for additional provisions to be added to the Children’s Online Privacy Protection Rule (COPPA Rule) recently closed. Despite the ongoing debate regarding whether the COPPA Rule should be updated (it was last updated in 2013) or whether a new comprehensive data privacy law should be enacted, the FTC has gone forward with new proposed provisions to COPPA. These new provisions would, among other things, (1) expand parental consent requirements to include the provision of children’s data to any third parties (unless the data collection is considered “integral” to provision of the service), (2) prohibit a company from requiring consent as a term of service, (3) close a loophole that exempted from consent and notification requirements if a service provider declared the data was solely for internal use, (4) require service providers to publicly disclose the specific internal function for which such data is collected, and (5) essentially prohibit a service provider from sending unsolicited text messages to children in order to entice them to return to the provider’s platform. Spilman’s data privacy and security team is monitoring the progress of the FTC’s proposed additions. If you would like to discuss the FTC’s proposal or have any questions about online privacy related to children, give our team a call. --- Nicholas P. Mooney II
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“New report reveals that while security is a new priority in building design, a mismatch between ambition and reality leads to spiraling costs.”
Why this is important: Integrating security into building design has become one of the most important priorities for institutions over the past several years. This shift has been driven by high-profile data security breaches and active shooter situations that have brought to the forefront both the importance of physical site security and the value added by integrating physical security into building design. However, integrating physical security into building design comes at a cost, both monetarily and, sometimes, aesthetically, and institutions, designers, and contractors are working to find the appropriate balance.
As with any shift in design focus, integrating security into design also brings new liability and legal considerations for all parties involved. These risks should be addressed in contracts before projects begin. When navigating both the risks and benefits of incorporating security into design, assistance from an experienced attorney can be a valuable resource. --- Steven C. Hemric
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