Welcome to the ninth edition of The Academic Advisor for 2023 – our e-newsletter focused on education law insights.

In this edition, we cover the following issues of import for educational institutions: 

• The accreditation process overhaul for North Carolina (and Florida) colleges; 
• Florida DEI regulations and the impact on higher education;
• NIL and the employment status of student-athletes;
• DHHS and new disability protections under Section 504; 
• How CCTI improves financial aid offer letters and supports risk management;
• Resolution of a disability harassment investigation by ED in Pennsylvania; 
• How to achieve strategic cyber resilience;
• ACLU and school surveillance
• First Amendment considerations and planning for protests; and
• Strategies for managing remote cybersecurity teams.

In addition, we are very pleased to be a sponsor of the 17th Annual Labor and Employment Law Conference of the American Bar Association (ABA) being held in Seattle, Washington, November 8-11, 2023. The firm is integrally involved with the ABA L&E Section and this conference with members of our firm serving as the management-side Vice Chair of the Section, track coordinators for the Conference, and Employer Co-Chair of the Revenue and Partnership Development Committee. At the Conference, our firm will present on "The Pregnant Workers Fairness Act and PUMP Act: New Federal Protections for Pregnant Workers,” as well as the intersection of Section 7 of the National Labor Relations Act and Title VII. You can learn more about the conference here. If you are attending the event, please let us know. 

Also, our firm recently hosted a technology-focused webinar you may find of interest. Member Alex Turner and Associate Malcolm Lewis hosted The Road Ahead: How To Properly Collect, Store, and Use Consumer Data during which they discussed how organizations can learn from auto industry mistakes regarding the collection, storage, and use of consumer data. They also discussed how organizations can effectively collect, use, and protect consumer data. Institutions of higher education and secondary schools are no stranger to the risk of data breach and loss. You can watch that webinar here. 

Finally, we are excited to share that our firm has been named to the 2024 "Best Law Firms" list by Best Lawyers. The rankings are based on a rigorous assessment process that involves the collection of client and lawyer evaluations, peer reviews from leading attorneys, and additional information provided by law firms. 

During this season of gratitude, we wish to convey our thanks to you for the myriad ways your institutions educate, inspire, and develop the thought-leaders of tomorrow. 

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

By Erin Jones Adams

Last month, North Carolina Governor Roy Cooper signed House Bill 8 (HB 8) into law. In addition to establishing a new computer science requirement for high school graduation and certain age verification requirements to protect children from online pornography, HB 8 controversially requires public colleges and universities to utilize a different accrediting agency every accrediting cycle, which usually runs between five to ten years. (Exempted from the requirement are professional, graduate, departmental, or certificate programs with specific accreditation requirements, including law, pharmacy, and engineering, among “other similar educational programs” identified by the Board of Governors of The University of North Carolina.) Despite the passage of HB 8, Governor Cooper urged the General Assembly to “reevaluate” the accreditation requirements, noting that “the changes to the university and community college accreditation process are onerous and will add an unnecessary burden and increase costs for our public higher education institutions[.]” 

As highlighted by Higher Ed Dive, North Carolina is not the first state to pass legislation that seeks to overhaul the accreditation process.

Click here to read the entire article.

By Kevin L. Carr

In recent years, the topic of Diversity, Equity, and Inclusion (DEI) has taken center stage in the United States, particularly within the realm of higher education. Universities and colleges across the nation have been grappling with how to create inclusive environments while respecting the principles of free speech and academic freedom. Florida has made headlines by drafting regulations that aim to clarify DEI prohibitions at its institutions of higher learning, igniting a passionate and contentious debate over the balance between free expression and combating discrimination. 

Click here to read the entire article.

“At a Senate hearing, NCAA president Charlie Baker shifted the focus of college sports' needs toward the possibility of athletes being deemed employees of their schools and away from federal legislation to regulate how they can be compensated for their fame.”

Why this is important: In 2021, the National Collegiate Athletic Association (NCAA) lifted its ban on name, image, and likeness (NIL) payments to athletes. Although a great victory for student-athletes, institutions have been forced to navigate unfamiliar waters without any federal law or guidance that uniformly regulates the way student-athletes can earn money through NIL deals. This uncertainty has invited conversations about the bargaining power of institutions during the athletic recruitment process and whether student-athletes should share in institutions’ profits from televising college sports. 

In the process, collegiate athlete advocacy groups are leading the charge to recognize student-athletes as employees of their respective institutions for compensation purposes. These groups contend that recognizing athlete employee-status would level the playing field during recruitment by allowing them to negotiate the terms of their scholarship and increase equity within athletic departments. However, considering athletes as employees may detrimentally impact institutions and potentially increase exposure to liability. If student-athletes were granted employee status, they would be covered under a number of federal laws relating to employment and may have the right to organize and/or to file unfair labor practice charges with the National Labor Relations Board, among other actions. 

As previously mentioned by the chairman of the U.S. House of Representatives subcommittee on Innovation, Data, and Commerce, NCAA regulations and forthcoming federal law should strike a delicate balance between the rights of college athletes to profit from their own NIL while also recognizing that collegiate sports are distinguishable from professional sports (regarding compensation/benefits and endorsement deals). In the meantime, institutions should continue to monitor congressional activity regarding NIL compensation and student-athlete employee status and await federal guidance that may determine the rights of both parties. --- Kelsie A. Wiltse

By Kevin L. Carr

The Department of Health and Human Services (DHHS) plays a critical role in ensuring that all individuals have access to necessary healthcare and social services, regardless of their disabilities. One of the key regulations that governs this commitment is Section 504 of the Rehabilitation Act of 1973. Recently, DHHS has introduced a new rule regarding Section 504, which has significant implications for covered organizations, recipients, and the disability community at large. 

Click here to read the entire article.

By Erin Jones Adams

When the College Cost Transparency Initiative (CCTI) began in 2022, leaders of 10 higher education institutions formed the task force “to improve the clarity, accuracy, and understanding of student financial aid offers by producing a set of guiding principles and minimal standards to be used when communicating aid offers,” according to CCTI. CCTI aims to help educational institutions communicate with students and their families about college costs in an accurate and understandable manner. What began as small cohort of participating schools has rapidly gained momentum with more than 400 public and private schools presently involved as partner institutions. 

Click here to read the entire article.

“Over a period of six months, classmates repeatedly directed disability slurs at the student and both physically attacked the student and threatened to attack him in a manner directly related to his disability, all of which the student’s parent, and school staff, reported to a district principal.”

Why this is important: The U.S. Department of Education’s Office for Civil Rights (OCR) recently resolved a disability harassment investigation involving the Allegheny Valley School District in Pennsylvania. The investigation found the district failed to protect a student with a disability from pervasive harassment, creating a hostile environment, and violated Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990.

During a six-month period, the student faced repeated disability slurs, physical attacks, and threats related to their disability from classmates. The district's response was inadequate, as they did not thoroughly investigate reported incidents and treated each as isolated. Additionally, OCR found the district did not convene a formal meeting to modify the student's individualized education plan (IEP) for more than six months, despite the parent's request.

The district has now committed to corrective actions through a Resolution Agreement with OCR, including training staff, providing counseling and other services to the student, reevaluating the impact on the student's education, and reviewing bullying incidents over a three-year period. In addition, the district will assess the school's climate to ensure a nondiscriminatory environment for all students. These actions represent the district's commitment to rectify the issues identified in the investigation, ensure the protection and rights of students with disabilities, and create a more inclusive and supportive educational environment for all students. The resolution serves as a way to enforce compliance with federal civil rights laws and ensure students are not subjected to a hostile environment based on their disabilities. --- Shane P. Riley

"At colleges and universities across the nation, leaders agree that the key to ensuring business continuity and sustainability is cyber resilience."

Why this is important: As highlighted in previous editions of The Academic Advisor, the education sector is one of the most targeted parts of the United States economy for cyberattacks and ransomware attacks, outpacing health care, technology, financial services, and manufacturing. With financial viability already being a huge challenge for many colleges and universities nationally, one component that should not be overlooked in a higher education institution’s operating expense budget is cyber resilience. 

Altogether, how might this look practically? --- Malcolm E. Lewis

Click here to read the entire article. 

By Lisa M. Hawrot

Schools across the county use a myriad of different surveillance technologies, including school communications monitoring, online monitoring, web filtering, weapon detection systems, and remote video monitoring. According to a survey by the American Civil Liberties Union (ACLU) highlighted in a K-12 Dive article, 87 percent of 14 to 18-year-olds are aware of technologies used by their schools. The question is whether or not these technologies actually improve school safety or undermine a parent’s trust in the school and its teachers.

Click here to read the entire article.

By Kevin L. Carr

Protests on college campuses are a common occurrence and often provide opportunities for students and other members of the community to express their opinions and concerns. It is essential for colleges and universities to balance their own goals and the First Amendment rights of protestors. Where the First Amendment applies, here are some tips on how institutions can achieve this balance.

Click here to read the entire article.

By Kevin L. Carr

Managing a remote cybersecurity team at colleges and universities involves addressing a unique set of challenges to ensure the security of sensitive data and infrastructure. There is an additional overlay of potential concerns because of the nature of the data to which these employees are exposed. There are some strategies to help colleges and universities manage issues associated with a remote cybersecurity team.

Click here to read the entire article.