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Welcome
Welcome to the eighth issue of The Academic Advisor – our e-newsletter focused on education law insights.
As your institutions kick off the start of a new academic year, there is no shortage of regulatory challenges, compliance measures, and risk management practices to consider. In this edition, we cover the following topics of interest for schools and other education-focused institutions:
- Blocked enforcement of the 2024 Title IX Regulations by the U.S. Supreme Court,
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Campus protest policy considerations and recent challenges,
- Measures to protect video privacy in the digital age,
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New union activities on college campuses,
- U.S. Department of Labor guidance on overtime eligibility and death of the Chevron Doctrine,
- New uses of generative artificial intelligence in schools, and
- An update on the SAVE Plan and its effect on student loans.
As an impending deadline reminder, institutions of higher education (IHEs) that receive funding from the U.S. National Science Foundation (NSF) are required to submit their first annual Foreign Financial Disclosure Report (FFDR) to NSF by September 3 or submit an extension request beginning on September 4. The new NSF rules on point obligate IHEs to disclose financial support of $50,000 or more received directly or indirectly from a foreign source in a “foreign country of concern.” For more details, see this guidance issued by the NSF.
We also want to alert you to important news in labor and employment law. Last week, a federal district court in Texas has set aside the Federal Trade Commission’s (FTC) final rule that bans most noncompetition agreements. The final rule was scheduled to go into effect on September 4, but the order indefinitely sets aside the rule and prohibits the FTC from enforcing it. Click here to read our complete reporting on this topic.
ANNOUNCEMENTS
We are very pleased to announce that Spilman is reaffirming our commitment to Mansfield Certification for 2024-2025. Since joining Mansfield in 2023, we have made strides in increasing the transparency and accessibility of its advancement processes, ensuring all talent at the firm has equitable opportunities for leadership roles and activities. Click here to learn more about the Mansfield Certification.
In addition, 66 of our attorneys have been selected by their peers for inclusion on the 2025 Best Lawyers list, five were selected as Best Lawyers "Lawyers of the Year," and 19 others were designated as Best Lawyers "Ones to Watch." Best Lawyers' methodology is designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Click here to see the entire list of recognized attorneys.
SPILMAN EVENTS
You are cordially invited to our upcoming "Your Business in the Digital Era: Legal and Commercial Challenges" event to be held on September 19 in Pittsburgh, Pennsylvania. This forum for risk management professionals and businesses is offered free of charge to clients and friends of the firm. Spilman attorneys and panelists will address cybersecurity threats, data privacy, legal and ethical concerns with artificial intelligence in business operations, intellectual property protection, and how to avoid and protect yourself from litigation. To learn more about this event and register to attend, please click here.
On October 4, we are hosting our 2024 SuperVision Labor & Employment Symposium in Winston-Salem, North Carolina. This complimentary event is tailored for human resources professionals, business owners, and anyone who manages employees. Dive into a day of invaluable insights on topics such as remote work; workplace investigations; artificial intelligence, emerging technologies, and privacy; union avoidance; workplace violence; and more. Please click here to register and learn more about this event.
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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“The high court left intact two separate orders from federal courts in Kentucky and Louisiana, which blocked the Department of Education from enforcing the entirety of the rule across 10 states.”
Why this is important: In a blow to the U.S. Department of Education (ED) this month, the Supreme Court blocked attempts by ED to revive the majority of the new Title IX regulations in states that are subject to preliminary injunctions issued by federal district courts in Kentucky and Louisiana over the summer. The injunctions stayed enforcement of the 2024 Title IX regulations in Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia. As previously reported in The Academic Advisor, though these injunctions primarily opined that ED had exceeded its authority under the new regulations by allowing sex discrimination covered by Title IX to protect against misconduct on the basis of gender identity, sex stereotypes, sexual orientation, and sex characteristics, the orders blocked enforcement of the 2024 Title IX regulations in their entirety.
This failed attempt by ED to demonstrate that the challenged provisions of the 2024 Title IX regulations stand on their own as an omnibus rule and are capable of partial enforcement during the pendency of the underlying cases means educational institutions in the affected states must continue to adhere to the 2020 Title IX regulations until the courts rule otherwise. The 2024 Title IX regulations are also enjoined in 16 additional states and at specific schools (that may be later supplemented) pursuant to other pending lawsuits, with the last injunctions issued by the Eleventh Circuit Court of Appeals and District Court for the Western District of Oklahoma on the eve of the August 1 effective date. Resolving speculation about whether ED would address the injunctions in agency guidance, ED stated that the 2020 Title IX regulations remain in effect in the enjoined states and schools in its 2024 Title IX Regulations: Pointers for Implementation updated in late July. Institutions not covered by the various injunctions were obligated to comply with the 2024 Title IX regulations by the August 1 deadline.
If you have any questions or concerns about Title IX compliance under these varying frameworks, please contact your Spilman attorney for further support. --- Erin Jones Adams
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“AAUP says the new college campus protest policies are overly restrictive, undermine academic freedom, and violate the First Amendment.”
Why this is important: As August winds down, students are returning to college campuses to start a new year. While many students and faculty look forward to a fresh start, university administrators are still addressing how they will handle campus protests. Since widespread and impactful protests arose earlier this year, schools across the country have been grappling to maintain order on campus without overstepping and violating First Amendment rights. Earlier this month, multiple universities announced amendments to their rules on campus protests with at least one university going so far as to limit access to the entire campus students and staff with university-issued identification cards.
In response to the restrictions on speech and access to college campuses, the American Association of University Professors (AAUP) issued a statement condemning the new rules. AAUP believes the policies “go beyond reasonable time, place, and manner restrictions” and “impose severe limits on speech and assembly that discourage or shut down freedom of expression.” This is not the first time this year that AAUP has issued a statement criticizing universities that place limits on protestors. On April 29, multiple AAUP chapters signed a statement condemning colleges and universities that countered peaceful protests by “inviting law enforcement in riot gear to campus and condoning violent arrests.”
It remains to be determined whether the restrictions enacted by some institutions of higher education are legally permissible, particularly at public institutions. The Supreme Court has previously addressed the issue of speech on public property. In its landmark decision of Brandenberg v. Ohio, 395 U.S. 444 (1969), the Supreme Court established the incitement test to determine whether inflammatory language in public places is protected by the First Amendment. The Court held that speech could only be prohibited if the speech: (1) was directed to inciting or producing imminent lawless action; and (2) was likely to incite or produce the lawless action. The Brandenberg test was previously applied to anti-war protestors in the 1970s on college campuses. Healy v. James, 408 U.S. 169 (1972); Hess v. Indiana, 414 U.S. 105 (1973). While the First Amendment restrictions on speech—such as the Brandenberg test and time, place, and manner limitations—do not apply to private institutions, these schools could nonetheless be subject to similar challenges under Title VI of the Civil Rights Act.
In developing protest policies, it is imperative that educational institutions work closely with their legal counsel to establish and enforce only legally permissible restrictions as this area of higher education law and the challenges institution face continue to evolve. --- Isaiah C. Robinson
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“A growing body of legislation means more schools, hospitals, and institutions of higher education need a tech strategy that defaults to anonymization and privacy.”
Why this is important: As the landscape of privacy legislation continues to evolve, organizations across various sectors, including schools, hospitals, and institutions of higher education, are facing increasing pressure to adopt robust video privacy strategies. These regulations are designed to protect individuals' personal information, particularly in environments where video surveillance and recording are prevalent. Video surveillance and recording have become integral tools for security, monitoring, and educational purposes. However, with the rise of these technologies comes the responsibility to protect the privacy of individuals captured on video. The growing body of privacy legislation reflects a global concern for the potential misuse of video data, which could lead to privacy breaches, identity theft, or unauthorized sharing of sensitive information. Several recent legislative measures have heightened the need for organizations to reassess their video privacy practices. For instance, the General Data Protection Regulation (GDPR) in the European Union imposes strict requirements on the processing and storage of personal data, including video footage. Similarly, in the United States, the California Consumer Privacy Act (CCPA) and the Health Insurance Portability and Accountability Act (HIPAA) establish stringent rules for handling video data in specific contexts, such as healthcare and consumer protection.
To comply with these regulations, schools and institutions of higher education are increasingly turning to technologies that prioritize anonymization and privacy. Anonymization involves removing or obscuring personal identifiers from video footage, making it difficult or impossible to trace the data back to an individual. This approach not only helps in meeting legal requirements, but also fosters trust among stakeholders, including students, patients, and staff, by demonstrating a commitment to protecting their privacy. Developing a technology strategy that defaults to anonymization requires careful planning and the adoption of advanced technologies. Organizations can employ techniques such as facial blurring, pixelation, and the use of AI-driven tools that automatically detect and anonymize individuals in real-time video streams. Additionally, secure data storage solutions and strict access controls are essential to ensure that only authorized personnel can view or handle video footage.
While anonymization is a critical step in protecting video privacy, it is not without challenges. For instance, anonymizing video data can sometimes reduce the effectiveness of surveillance or monitoring efforts, particularly if identifying individuals is necessary for security or compliance reasons. Institutions must strike a balance between privacy and functionality, often requiring customized solutions tailored to their specific needs and legal obligations. Moreover, the implementation of these technologies can be resource-intensive, requiring significant investments in infrastructure and training. As such, institutions must carefully evaluate their resources and seek out partnerships with technology providers that offer scalable and cost-effective solutions.
As privacy legislation continues to expand and evolve, educational institutions must stay ahead of the curve by regularly reviewing and updating their video privacy strategies. This includes staying informed about new regulations, investing in privacy technologies, and fostering a culture of privacy awareness among staff and stakeholders. Ultimately, by prioritizing anonymization and privacy in their tech strategies, institutions can not only ensure compliance with the law, but also build trust with the communities they serve. As video technology becomes increasingly pervasive, the commitment to protecting individual privacy will remain a key component of responsible and ethical organizational practices. --- Kevin L. Carr
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“More than 1,000 United Auto Workers Local 2300 members went on strike, saying the university failed to present a fair package and bargain in good faith.”
Why this is important: Workers at Cornell University recently went on strike as students prepared to move in for the upcoming school year. This strike followed agreements between unions and other institutions of higher education, including Penn State University, the University of California at Irvine, and the University of Rochester. Earlier this week, the United Auto Workers of America (UAW) and Cornell reached a tentative agreement on a four-year labor contract, signaling a possible end to the worker strike ten days after it began.
Among other benefits, Cornell workers are seeking a wage increase. Wage increases were agreed upon in the labor contracts recently negotiated by the other universities and employee unions. The request for increased wages is prompted, at least in part, by the increase in consumer goods and general price increases on housing and rent. According to U.S. Bureau of Labor Statistics, prices have increased 2.9 percent on all items from July 2023 to July 2024. Meanwhile rent prices during that same period have increased by 5.1 percent. The UAW is also seeking cost of living adjustments, which would increase employee compensation to coincide with inflation. If the cost of living keeps rising or remains high, other unions across the country will likely demand similar increases and provisions in their labor contracts to safeguard against the effects of inflation.
The workers and universities are not the only parties with a stake in the negotiations. Strikes pose various disruptions to student life within the university ecosystem, including the closure of dining halls. According to The Ithaca Voice, Cornell has been serving boxed lunches to students and asked faculty and staff to bring packed meals from home to avoid burdening strained eateries and campus dining halls. The potential dissatisfaction among students, faculty, staff, and other stakeholders pressure universities to get deals done.
Labor strikes at higher education institutions are unlikely to stop anytime soon. The agreements reflect the unions’ influence in advocating for workers' rights while the timing of the strikes demonstrate the ways that unions are leveraging key moments in educational institutions’ operations to enhance employee benefits. Educational institutions should be aware of the do’s and don'ts when addressing union activity on campus. By respecting employees' rights, providing accurate information, encouraging open communication, and being proactive, employers can create a positive work environment that addresses employees' concerns, provide a healthy and rewarding career for employees, and obviate the need for employees to form of a union. --- Nicholas A. Muto
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“Judges questioned whether the agency’s consideration of salary exceeds the authority delegated by Congress.”
Why this is important: The recent demise of the Chevron doctrine, a legal principle that granted deference to federal agencies' interpretation of ambiguous statutes, has sparked a significant legal debate in the Fifth Circuit Court of Appeals. Central to this discussion is the U.S. Department of Labor’s (DOL) salary test for determining overtime eligibility under the Fair Labor Standards Act (FLSA). Judges are now questioning whether the DOL's reliance on salary thresholds to define overtime eligibility exceeds the authority granted by Congress, posing potential challenges to longstanding labor regulations. The Chevron Doctrine, established in the 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., allowed courts to defer to federal agencies' interpretations of ambiguous laws as long as those interpretations were reasonable. This doctrine has played a crucial role in upholding various regulatory actions by federal agencies, including those by the DOL. However, recent Supreme Court decisions have signaled a retreat from Chevron, leading lower courts to reassess the extent of agency authority.
In light of Chevron's weakening, the Fifth Circuit is reconsidering the validity of the DOL's salary test for overtime eligibility. This test is a key component of the DOL's regulations under the FLSA, which stipulates that employees earning below a certain salary threshold are automatically eligible for overtime pay, regardless of their job duties. The salary test aims to provide a clear and objective measure for determining who qualifies for overtime, ensuring that lower-paid workers receive adequate compensation for extended work hours. During recent oral arguments, the Fifth Circuit judges questioned whether the DOL’s consideration of salary levels for overtime eligibility oversteps the bounds of the authority delegated to the agency by Congress. Specifically, the judges raised concerns about whether the DOL’s salary test improperly emphasizes salary over the statutory language of the FLSA, which primarily focuses on job duties when determining exemption from overtime pay.
If the Fifth Circuit concludes that the DOL's salary test exceeds the agency's authority, it could have far-reaching implications for labor law and employee compensation, including at educational institutions. A ruling against the DOL could lead to a reevaluation of the criteria used to determine overtime eligibility, potentially shifting the focus away from salary thresholds and towards a more nuanced analysis of job duties. This could result in a reduction in the number of workers eligible for overtime pay, particularly those in lower-wage positions. Additionally, a decision limiting the DOL’s authority could embolden challenges to other regulatory actions by federal agencies, particularly those that have relied on broad interpretations of their statutory mandates under the Chevron doctrine.
The Fifth Circuit's examination of the DOL's salary test for overtime eligibility highlights the broader legal ramifications of the Chevron doctrine's decline. As courts become less deferential to federal agencies, the scope of agency authority is likely to be more tightly constrained. This shift could lead to significant changes in how labor regulations are enforced and interpreted, with potentially profound consequences for workers' rights and employer obligations across the United States. The outcome of this case will be closely watched by legal experts, employers, and labor advocates alike, as it may set a new precedent for the limits of federal regulatory power. --- Kevin L. Carr
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“With its ability to automate and personalize communication, generative artificial intelligence is the ideal technological fix for strengthening parent involvement in students’ education.”
Why this is important: Research has consistently shown that parental involvement in their children’s education is highly beneficial as it decreases the chances of disciplinary issues, improves school attendance, and helps children achieve better grades. However, parents and families often struggle to stay connected with their children’s educational experience due to communication barriers, busy careers, and other familial responsibilities. In the modern digital age, with appropriate protections in place, artificial intelligence (AI) can be used as a transformative tool to bridge communication barriers and strengthen relationships between parents, families, and their children’s educational experience.
As this article posits, one reason parents and families may become disconnected from their children’s educational experience is schools’ lack the capacity to personalize communication with parents and families. In fact, 84 percent of teachers report that after teaching, they do not have enough time during their regular work day to complete administrative tasks, such as communicating with parents and families about their child’s progress in school or other concerns. Although schools have used various methods, such as texting applications, digital newsletters, and online portals, to share important information with families and encourage parental involvement over the years, connecting with families remains a struggle.
For the 2018-2019 school year, the U.S. Department of Education reported that 89 percent of students’ parents, from kindergarten to 12th grade, received general school-wide newsletters, memos, e-mails, or notices as the method of communication from their children’s schools. More narrowly, however, 66 percent of parents received emails or notes specifically about their child, and only 40 percent of parents received phone calls specifically about their child. It is clear that while parents are largely receiving generalized communications from their children’s schools, they are less frequently receiving personalized communications about their children’s progress and experiences in school. AI technology could help schools individually connect with parents, and in return, foster positive learning outcomes for their students.
The National PTA’s Collaboration Guide: Essential Tech for Family-School Communication provides detailed instruction on how schools and teachers can use technology to improve communications and relationships with parents and families. In summation, the National PTA recommends that schools should:
- Define communication goals and map the school district’s current approach to reveal where communication gaps exist.
- Use more intentional and inclusive decision-making for family-school communications.
- Invest in texting services to engage more families.
- Partner with technology vendors to improve implementation and support.
- Support collective efforts to build transparency and understanding of family-school communication technologies.
With appropriate usage parameters and safeguards, schools and educational institutions can continue to expand their use of technology to support families and students in their educational experience. Spilman is here to help your school navigate the legal considerations for implementing AI technology in the education space. --- Emily R. Merritt
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U.S. Supreme Court Temporarily Upholds 8th Circuit Order Regarding SAVE Plan | |
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By Lisa M. Hawrot
The SAVE (Saving on a Valuable Education) Plan was launched in August 2023. Borrowers who have been making at least 10 years of payments and originally took out $12,000 or less for college may qualify. For every $1,000 borrowed over and above that amount an additional year is added before a borrower can receive relief. The White House estimated that approximately $1.2 billion in debt would be canceled. In July 2024, the Department of Education paused student loan payments for 8 million borrowers after a federal appeals court temporarily blocked the SAVE Plan.
On August 28, 2024, the Supreme Court left in place the Order from the Eighth Circuit Court of Appeals that halts the program while it weighs the merits of the suit, brought by Missouri, Arkansas, Florida, Georgia, North Dakota, Ohio, and Oklahoma. As is common, the Justices did not include an explanation for their order. Missouri’s Attorney General called the Order a huge victory, while the Biden administration vowed to keep fighting to defend the plan.
The Supreme Court noted that it expects the Eighth Circuit to render its decision “with appropriate dispatch.” Depending on the speed with which the Eighth Circuit rules, there is a possibility the case could be appealed to the Supreme Court this fall. If that occurs, it would put this issue back before the Justices during the height of the Presidential campaign.
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