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Welcome
Welcome to summer and the fifth issue of The Academic Advisor for 2024.
Whether your campus is hosting summer classes, camps, or events, tackling shelved tasks, or preparing for the new school year and impending regulatory changes, we understand that summer is an active time for school leadership and administrators. This newsletter aims to provide an overview of trending news in the education space and why it matters so that you can focus on the issues at hand.
In this issue, we examine the following topics of import for schools, institutions of higher education, and other education-focused organizations:
- The status of COVID-19 shutdown refund litigation impacting the UNC System,
- Efforts in West Virginia to mitigate funding shortfalls amid FAFSA issues,
- The pending NCAA settlement and its potential impact on universities,
- The litigious aftermath of Israel-Hamas protests on college campuses,
- How schools should prepare for new ADA digital accessibility requirements,
- The Fourth Circuit Court of Appeals’ treatment of parents’ curriculum challenge,
- How proposed regulations from CISA could impact cyber incident reporting for K-12 schools and institutions of higher education, and
- An update on Ohio House Bill 68.
During the summer months, our firm is pleased to host a talented group of law students, who get the opportunity to research and write, shadow our attorneys, and learn about the practice of law in a firm setting. As young professionals still deeply involved in higher education, our Summer Associates will be contributing to our summer publications and sharing their perspectives as both students and future legal practitioners. Please join us in welcoming Ethan Norris, Alexis Hellner, and Alan Parsons to The Academic Advisor team for this special summer edition.
We also invite you to join us on June 21 for our Charleston SuperVision Labor & Employment Symposium focused on "The Future of Work: Legal Strategies for Employers in a Dynamic Landscape." The symposium is a complimentary legal seminar that will dive into many topics of interest for human resources professionals and anyone who manages employees, including remote work, workplace investigations, artificial intelligence, emerging technologies, and privacy, union avoidance, and workplace violence. Please click here to learn more and register.
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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“University lawyers have estimated potential damages in the case of $260 million.”
Why this is important: The North Carolina Supreme Court has agreed to hear a lawsuit filed against the University of North Carolina (UNC) System that will determine if public universities in the state are liable for actions taken in response to the COVID-19 pandemic despite legislature-created protections.
On March 23, 2020, the UNC System required all in-person courses to be transitioned to online instruction for the remainder of the spring academic term and closed university campuses in response to the COVID-19 pandemic. In May 2020, students enrolled in the UNC System filed a class-action lawsuit seeking $260 million in pro-rata refunds for the tuition, fees, and on-campus housing and dining they had paid. In June 2020, the North Carolina General Assembly passed a bill, now North Carolina General Statute § 116-311, shielding all universities in the state from lawsuits relating to actions or omissions during or in response to COVID-19. This includes not refunding tuition or fees paid by students for the spring 2020 academic term.
The students argue that they “lost the benefit of the bargain for services and education for which they paid…in violation of their implied contract with [the UNC System].” They also argue that because § 116-311 shields universities from liability for their initial COVID-19 responses regarding tuition, it violates the Contracts Clause of the U.S. Constitution, the Takings Clause of the U.S. Constitution, and Due Process requirements. The UNC System argues that the statute is simply an expression of the state’s intent to use its sovereign immunity as enshrined in the 11th Amendment and North Carolina case law.
Lower courts have so far sided with the UNC System, finding that protecting universities is important and that the statute was a reasonable and necessary response to the COVID-19 pandemic and in the context of emergency orders issued by North Carolina Governor Roy Cooper. The students have appealed the decisions to the North Carolina Supreme Court, which agreed to hear the case.
The North Carolina Chamber Legal Institute, an affiliate of the business advocacy group, recently filed a request with the North Carolina Supreme Court to support the UNC System in this lawsuit. The group stated that affirming previous court decisions “will allow our state’s businesses, institutions, and individuals to count on the General Assembly’s assurances of reasonable liability protections during times of crisis.” While the lawsuit is primarily about state immunity from lawsuits, § 116-311 extends to cover private institutions. Therefore, if the North Carolina Supreme Court sides with the UNC System and upholds the statute, it also will be protecting other private entities that the state has afforded similar protections. --- Ethan S. Norris
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“West Virginia Gov. Jim Justice is calling state lawmakers back to the Capitol to consider an $80 million allocation to the state’s colleges and universities to help students pay for school amid the ongoing federal financial aid crisis, among other proposals.”
Why this is important: On May 17, 2024, West Virginia Governor Jim Justice issued a proclamation calling for a Special Session of the West Virginia Legislature to consider various items, including an allocation of more than $80 million to West Virginia colleges and universities to mitigate financial harm caused by delays and technical glitches impacting the revamped Free Application for Federal Student Aid (FAFSA) earlier this year. The funding would be used to assist colleges and universities and their students.
In April 2024, the U.S. Department of Education reported issues with its attempt to roll out a new FAFSA application. This issue caused many hopeful students to delay their college decisions. In response, Governor Justice declared a state of emergency for education in West Virginia and became the first Governor in the United States to take this step. The state of emergency enabled students to know whether they would receive the Promise Scholarship, a state merit scholarship equivalent to up to $5,500.
On May 24, 2024, West Virginia Senate Bill 1007, the bill designed to allocate funds to offset the FAFSA crisis, passed both chambers of the Legislature and was signed by Governor Justice. --- Isaiah C. Robinson
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“The NCAA settled instead of risking losing another lawsuit – and losing this lawsuit had the potential to cripple not only the NCAA, but all of collegiate athletics.”
Why this is important: College sports have long been more than mere recreational entertainment. Now, major college teams have become multi-billion-dollar industries responsible for generating masses of wealth for their schools every year. It was only a matter of time before the college athletes involved fought back to earn their share of the profits. In a movement that began to have momentum in 2021 with the NCAA’s endorsement policy, college athletes have been attempting to reap some benefits from the fruits of their labor. Much of this discontent has culminated in a settlement deal that top NCAA leaders and different athletic conferences have agreed on this week, though judicial approval will be necessary.
The settlement deal is the culmination of at least three federal antitrust lawsuits. These lawsuits have alleged that the NCAA violated antitrust laws by not allowing athletes to earn compensation for uses of their name, image, and likeness prior to 2021 and by prohibiting revenue-sharing from media agreements and other contracts. The NCAA and the nation’s five biggest athletic conferences, steering away from a trial and hoping to control their damages, have agreed to pay nearly $2.8 billion to settle these cases and have intentions to create a new compensation model to allow schools to set aside funds for college athletes.
Division I Athletes can expect certain conditions in this agreement. The NCAA would pay back past damages before 2021, with $2.8 billion to be paid over the next decade. Beyond this, the conferences have agreed to a revenue-sharing structure that would allow schools to spend up to $20 million a year to pay their athletes. The amount to be paid and how this would be allocated would be up to the individual schools, provided the terms comply with Title IX regulations. However, this agreement also would bar plaintiffs from filing any future antitrust claims, in addition to requiring the dismissal of those suits currently pending. This would largely limit lawsuits in the future, allowing only those who opt-out of the class to be able to sue.
It is essential that colleges keep track of the updates involving this settlement to ensure compliance with the resulting changes that are to occur. While the NCAA is fronting 40 percent of the damage costs, the remaining costs will be paid by Division I institutions with the amount varying depending on the conference and institution. In light of these payments, concerns arise for the fate of scholarships with a potential increased focus on roster sizes. Roster caps would greatly limit the availability of walk on athletic opportunities. Beyond this, revenue-sharing would implicate Title IX and may require schools to fund additional women’s scholarships, further increasing university spending.
In a time of so much confusion, universities involved must closely watch these developments. The undecided details of the proposed settlement may greatly change the format of college athletics departments and increase costs for universities as a whole. --- Alexis S. Hellner
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“Several colleges are facing lawsuits from students who claim the schools' handling of anti-Israel protests violated their rights.”
Why this is important: Over the past couple of months, lawsuits have been filed against multiple schools for the handling of on-campus protests concerning the Israel-Hamas conflict, including proposed class actions against two universities. The legal theories underlying the actions vary. While some lawsuits focus on reported discriminatory acts, including physical assault and harassment, directed at Jewish students by protesters, others arise from the protests’ disruption of classes and campus operations. After students at one state university were arrested during a campus sit-in protesting the conflict, the students filed a lawsuit in federal court claiming the school retaliated against them for exercising their free speech rights in violation of the First Amendment.
Colleges and universities have been grappling with the proper way of addressing the protests for months and the impact of their actions has extended to public officials. In particular, Texas Governor Greg Abbott came under fire last month after videos went viral of police arresting students at a state university in Texas. Campuses across the country likely will face ongoing challenges as the Israel-Hamas conflict continues.
While some schools escaped these difficulties this year, it is important that all institutions of higher education are prepared for campus protests that may arise irrespective of the circumstances or events motivating such action. As Spilman attorney Kevin Carr reported last fall, keys to the management of on-campus protests include establishing clear policies, ensuring open dialogue and communication between protestors the administration, prioritizing the safety and security of all individuals on campus, developing a public and media relations strategy that ensures the dissemination of accurate information, and consulting legal counsel to confirm that procedures and planned actions comply with state and federal laws. --- Isaiah C. Robinson
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“A new Justice Department rule aims to ensure state and local government web content and mobile apps are accessible for people with disabilities.”
Why this is important: On April 24, 2024, the U.S. Department of Justice (DOJ) passed a Final Rule for Title II of the Americans with Disabilities Act (ADA) mandating digital accessibility compliance for state and local government entities. Set to take effect on June 24, 2024, the rule requires all government entities, including public educational institutions, to be compliant with the technical standards set forth in the Web Content Accessibility Guidelines (WCAG) Version 2.1, Level AA. The passage of the rule is seen as a huge victory for those who have been fighting for accessibility in the digital age. Under its framework, those who have struggled with deafness, low vision, and manual dexterity issues will have better access to information that was previously unavailable to them. Helpful aids like captions, text resizing, contrast controls, alternative text, and compatibility with assistive technology are just some of the features required under the rule that will need to be ensured across nearly all digital content, including websites, digital textbooks, mobile applications and more.
State universities and public K-12 school districts with 50,000 or more residents are required to comply by April 24, 2026. Public K-12 school districts and county community colleges with 49,999 residents or less will have until April 26, 2027. Considering nearly every piece of digital content must adhere to the new requirements, public universities and school districts should start conforming their digital assets now if they have not already begun. This process will likely begin with an in-depth digital audit of content to test for accessibility issues either manually, automated, or a hybrid of the two. Any issues found will need to be resolved using best practices set forth in the WCAG Guidelines. This will be a cyclical process and new problems may appear over time. Schools that are not well-versed in accessibility modifications may need to seek expert help and should plan accordingly. Be wary though. The DOJ predicts a large number of third-party vendors are likely to enter the market after the new rule takes effect. Any outside assistance should be vetted with an eye for quality over speed. Schools should also consider and make plans for the budgetary impact of these changes and expert support.
The new rule does provide some limited exceptions to compliance. Archived web content, for example, is not required to be accessible if it has not been updated since the compliance date. Pre-existing social media posts and content posted by independent third parties are other examples of exceptions to the rule. As Title II only applies to public entities, private institutions are not subject to the new rule. However, those schools should expect the DOJ to be in the process of developing a similar rule for Title III, which applies to private entities and places of public accommodation. In lieu of a Title III rule, it would not be surprising if the DOJ were to make the new Title II rule applicable to recipients of federal financial assistance and thereby implicate private schools as well.
With the countdown to mandatory compliance, it would be prudent for schools, both public and private, to start implementing digital best practices sooner rather than later. The DOJ Fact Sheet issued in conjunction with the new rule provides additional guidance. --- Alan M. Parsons
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“Judges said parents failed to show Montgomery County Public Schools likely violated their free-exercise or due process rights.”
Why this is important: Muslim and Christian parents in Maryland are suing the state regarding their inability to opt-out of the elementary school curriculum. They argue that their inability to do so violates both the First and 14th Amendments, which include their right to determine the religious upbringing of their children.
In October 2022, the Montgomery County Board of Education (Board) announced that it, through its regular curriculum process, approved a group of LGBTQ-inclusive books as part of the English Language Arts curriculum. Although the individual contents vary, the books as a whole express their authors’ views on sexual orientation and gender identity through characters in different situations. Teachers were given wide latitude as to how and when to use the books although they were not able to elect to refrain from their use. Teachers also were provided with supporting materials to assist them in responding to potential questions the books might generate.
Initially, parents/caregivers were provided with notice and the ability to opt-out through agreements with individual principals and teachers. If the opt-out was elected, the teacher was to find a substitute book with the same language arts standards and objectives. However, in March 2023, the Board announced that a notice and opt-out option was no longer permitted although old requests were grandfathered. Apparently, individual schools could not accommodate the growing number of opt-out requests (many of which the Board claims were not religious in nature) without causing significant disruptions to the classroom. For instance, students were initially excused from class if the books were read aloud. This quickly became infeasible for teachers. Thus, the 2023-2024 academic year was the first full year where no notice or opt-out option was available.
Almost immediately some parents, teachers, and administrators began voicing concerns about the appropriateness of the books. Some were based on religious grounds. Others were based on claims that the books had age-inappropriate content in that some words used were not defined. Some parents/caregivers then sought to have their children exempted from the books believing that the books constituted an effort to teach students about sex, lessons about LGBTQ issues, or other age-inappropriate issues.
Eventually, six parents and an association called “Kids First” sued the Board over its refusal to provide notice and an opportunity to opt-out of their children’s exposure to certain books and related discussions, alleging that these actions violated state and federal law. The parents requested a preliminary injunction requiring the Board to provide the requested notice and opt-out option. When the district court denied their motion, the parents appealed to the U.S. Court of Appeals for the Fourth Circuit. Twenty-three states, religious organizations, and other groups filed amicus briefs in support of the parents while 19 states, the American Civil Liberties Union, other civil rights organizations, and various Maryland educational associations filed amicus briefs in support of the Board.
On appeal, the Fourth Circuit took no position on whether the parents would be able to present sufficient evidence to support their claims. Given the early stage of the litigation, the parents’ broad claims, and the high burden to obtain a preliminary injunction, the Fourth Circuit could only look at what they called the “scant” record before them on appeal. In doing so, the court noted that the record below provided little explanation of how the books were integrated into the larger collection of books offered as part of the Language Arts curriculum. Ultimately, the Fourth Circuit determined there was no evidence at present to demonstrate that the failure to provide an opt-out compels the parents or their children to change their religious beliefs or conduct. Thus far, the parents have not shown that the Board decision affects what they teach their own children. As such, the Fourth Circuit affirmed the district court order denying the preliminary injunction.
Although the parents did not meet their burden to obtain a preliminary injunction, this case is still in its early stages. As the Fourth Circuit opinion makes clear, the issues underpinning this litigation are far from over. --- Lisa M. Hawrot
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“Nonprofit K12 Security Information Exchange has backed the requirement for schools to disclose cyber incidents as generally ‘appropriate.’”
Why this is important: The federal Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA) was signed into law in March 2022. Among other things, CIRCIA required the Cybersecurity and Infrastructure Security Agency (CISA) within the U.S. Department of Homeland Security (DHS) to develop and implement regulations obligating covered entities to report covered cyber incidents and ransomware payments to CISA. In furtherance of this plan, CISA published a notice of proposed rulemaking (NPRM) in the Federal Register in April 2024 to implement CIRCIA.
Adding to the list of federal regulations to which educational institutions are subject, CISA has proposed to include in the description of a covered entity under CIRCIA all local educational agencies, educational service agencies, and state educational agencies, as defined under 20 U.S.C. § 7801, with a student population of 1,000 or more students, as well as institutions of higher education (IHEs) that receive funding under Title IV of the Higher Education Act. The explanation for expanding CIRCIA to cover educational institutions is not surprising. As highlighted by the statistics in this article and the analysis provided by DHS in its 2024 Homeland Security Threat Assessment, schools have been a constant target of ransomware due to budgetary constraints on information technology resources and the likelihood that schools will make ransom payments based on their obligation to function within certain dates and hours. While IHEs are already subject to cybersecurity incident reporting to the U.S. Department of Education under the Gramm-Leach-Bliley Act, that reporting is limited to incidents resulting in unauthorized access to student information. The NPRM expands the scope of reporting required of IHEs to a broader range of cybersecurity incidents and any ransom payments made by IHEs.
In general, the NPRM would require a covered entity to submit a covered cyber incident report to CISA within 72 hours after the entity reasonably believes it occurred. In addition, a covered entity would have to submit a ransom payment report to CISA within 24 hours after disbursement of the payment irrespective of whether the payment is made by the covered entity or a third-party on its behalf. The reporting requirements would apply to a “substantial cyber incident” that leads to substantial loss of confidentiality or network availability or integrity, serious impact on safety and resiliency of operational systems and processes, disruption to business operations, or unauthorized access to information systems or networks or any nonpublic information contained therein caused by specific types of provider or supply chain compromise.
The period for public comment on the NPRM expires on June 3, 2024. CISA expects to publish the Final Rule in 2025. As this article highlights, at least one non-profit leader in the K-12 threat intelligence space is backing the NRPM, but is requesting clarification from CISA on how cyber incidents initiated by students should be reported. As CISA weighs in on public comments and requests for additional information, Spilman attorneys will continue to monitor this impending rule and provide more information regarding its anticipated impact in the education sector. --- Erin Jones Adams
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Update on Ohio House Bill 68 | |
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Ohio House Bill 68 (HB 68), known as the “Ohio Saving Adolescents from Experimentation (SAFE) Act” and the “Save Women’s Sports Act,” has seen its share of procedural maneuvering. The “SAFE Act,” regarding gender transition services for minors, and the “Save Women’s Sports Act,” requiring schools, state institutions of higher education, and private colleges to designate separate single-sex teams and sports for each sex, were initially passed by the Ohio legislature. HB 68 was then vetoed by the Governor and his veto was thereafter overridden by the General Assembly. HB 68 was set to go into effect on April 24, 2024, until litigation began.
The American Civil Liberties Union (ACLU) of Ohio filed a lawsuit in the Franklin County Court of Common Pleas on March 26, 2024, against the part of the law that prohibits gender-affirming care for transgender youth. The ACLU contends that HB 68 violates four sections of the Ohio Constitution — the single-subject rule, the Health Care provision, the Equal Protection Clause, and the Due Course of Law provision. The lawsuit was filed on behalf of two families whose 12-year-old transgender daughters would lose access to gender-affirming health care. Initially, Judge Michael Holbrook of the Franklin County Court of Common Pleas entered a temporary restraining order, blocking the state from enforcing the Bill. Most recently, as part of a continuance order, Judge Holbrook extended the temporary restraining order until at least July 15, 2024. Attorney General Dave Yost thereafter filed an emergency motion in the Ohio Supreme Court asking the court to narrow the injunction and arguing that Judge Holbrook overstepped his judicial authority by placing the entire law on hold and applying it statewide as opposed to just the two plaintiffs challenging the law.
Meanwhile, the Defendant AG’s Motion to Dismiss and the Plaintiff’s Motion for Partial Summary Judgment remain pending. Thus, it has yet to be seen whether HB 68 will, in whole or in part, go into effect in Ohio. --- Lisa M. Hawrot
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