School Choice on Agenda for House Committee on Education and the Workforce

School Choice will be on the front burner on Wednesday, February 3, 2016, as the House Committee on Education and the Workforce holds a hearing (“Expanding Educational Opportunity Through School Choice”) at 10:00 AM in Room HVC-210 of the Capitol Visitors Center.   Witnesses are yet to be announced.  Stay tuned for updates as available.

UPDATED 2/2/16, 3:30 PM EST:  Witnesses are:

Mr. Gerard Robinson, Resident Fellow at the American Enterprise Institute, Washington, DC

Hon. Rob Bryan, N.C. House of Representatives, Charlotte, NC

Dr. Luis Huerta, Assoc. Prof. of Education and Public Policy, Teachers College, Columbia University, New York, NY

Ms. Denisha Merriweather, Student at the University of South Florida, Tampa, FL

Title IX, Transgender Students, Locker Rooms and Bathrooms

On both the K-12 and higher education fronts, school districts and institutions of higher education continue to face Title IX lawsuits brought by transgender students or their parents over schools’ policies on bathroom and locker room use.  In the two most prominent cases, G.G. v. Gloucester County School Board (Eastern District of Virginia) and Johnston v. University of Pittsburgh (Western District of Pennsylvania), the school district and university prevailed on Motions to Dismiss.  A close reading  provides a good sense of the classic kind of fact pattern in these cases and the reasoning of at least two courts.

Both cases are on appeal to the U.S. Court of Appeals for the Fourth and Third Circuit, respectively. Multiple amici have weighed in, as have several states and the United States.  Oral argument was held earlier this week in Gloucester County School Board while briefing continues in the University of Pittsburgh case into mid-February.

School districts and institutions would do well to keep close tabs on this aspect of Title IX litigation.

Scope of Office for Civil Rights Enforcement Authority Questioned

“Behind the Scenes:  A Closer Look at OCR’s Enforcement Authority” questions the legal authority of the Office for Civil Rights to demand certain remedies as a condition for resolving Title IX sexual assault complaints against colleges and universities.  This short article discusses the enforement authority found in Title IX of the Education Amendments of 1972, as well as accompanying regulations.   

Six Higher Education Title IX Sexual Misconduct Agreements Analyzed

During 2014, six universities–Tufts University, Virginia Military Institute, Ohio State University, Princeton University, Southern Methodist University and Harvard Law School–signed Title IX resolution agreements resolving sexual misconduct or sexual harassment complaints (or both) filed with the U.S. Department of Education’s Office for Civil Rights (“OCR”), and in one instance, a Title IX compliance review initiated by OCR. 

The paper, “Behind the Scenes:  A Closer Look at the Title IX Resolution Letters and Agreements in 2014,” analyzes the agreements and corresponding letters of findings, and concludes with a discussion of common themes.   

Court of Appeals Holds Notice and Comment Rulemaking Required

In a 2-1 decision  announced on November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed a Texas court’s injunction against executive actions of the Department of Homeland Security that had sought to give quasi-legal status and work permits to certain undocumented immigrants.  In so holding, the court noted the executive actions constituted, in effect, a substantive rule requiring Notice and Comment Rulemaking under the Administrative Procedures Act (APA), which the Department had not done (see the discussion beginning at page 42).    

The question arises whether other actions of the executive branch, such as binding Dear Colleague Letters, Memoranda, and the like may be legally vulnerable under the court’s APA analysis.  Yes, they are.        

Family Educational Rights and Privacy Act (FERPA) Dear Colleague Letter: Notice and Comment Rulemaking Required

A little over a month ago the U. S. Department of Education released a draft FERPA Dear Colleague Letter (guidance) seeking public comments (due October 2, 2015) on its preliminary legal view that there are very limited circumstances whereby a university may share student medical records with its own legal counsel.

Under the Department’s proposed guidance, “institutions [of higher education] that are involved in litigation with a student should not share student medical records [under FERPA’s “school official” exception, 20 USCS § 1232g(b)(1)(A), 34 C.F.R. § 99.31(a)(1)] with the institution’s attorneys or courts unless the litigation in question relates directly to the medical treatment itself or the payment for that treatment, and even then disclose only those records that are relevant and necessary to the litigation.”

While the Department’s request for public comment on its draft letter is positive, it is at the same time curious. The Department’s highly restrictive reading of FERPA (at least in its draft) cries out for regular Notice and Comment rulemaking in the Federal Register, not a Dear Colleague guidance letter.  

Taking such a restrictive reading of the law via a Dear Colleague Letter raises fundamental legal questions.  Where federal departments or agencies have given binding effect to Dear Colleague Letters, Memoranda, Bulletins, Circulars, Manuals, Advisories or other forms of “guidance,” courts have set-aside such letters and related, requiring the government to go back and follow regular Notice and Comment requirements of the Administrative Procedures Act.  Iowa League of Cities v. EPA_ 711 F.3d 844, (8th Cir. 2013); see also Appalachian Power Co v EPA, 208 F. 3d 1015, 1021-1028 (D.C. Cir. 2000).  For a more detailed discussion, see Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals and the Like–Should Federal Agencies Use Them to Bind the Public? 41 Duke L. J. 1311 (1992); William Funk, Interpretive Rules Symposium:  A Primer on Legislative Rules, 53 Admin. L. Rev. 1321 (2001); Gwendolyn McKee, Judicial Review of Agency Guidance Documents:  Rethinkng the Finality Doctrine, 60 Admin. L. Rev. 371 (2008). 


Combating Campus Sexual Assault is Focus of Senate Hearing

The Senate Committee on Health Education Labor and Pensions will receive testimony on Wednesday, July 29, 2015 from two panels of witnesses on “Reauthorizing the Higher Education Act:  Combating Campus Sexual Assault.” The hearing begins at 9:00 AM in room 216 of the Hart Senate Office Building.  

Panel I includes the Honorable Claire McCaskill (D-MO), the Honorable Dean Heller (R-NV), the Honorable Kirsten Gillibrand (D-NY), and the Honorable Kelly Ayotte (R-NH).  

Appearing on Panel II will be the Honorable Janet Napolitano (President of the University of California), Dana Bolger (Co-Founder of Know Your IX), Dolores Stafford (Executive Director of the National Association of Clery Compliance Officers and Professionals as well as President and CEO of D. Stafford & Associates) and Mollie Benz Flounlacker (Associate Vice President for Federal Relations of the Association of American Universities).   

Accreditation on the Agenda for June 17, 2015 Senate Hearing

Accreditation is the subject of the next higher education reauthorization hearing scheduled for Wednesday, June 17, 2015 at 10:00 AM before the Senate Committee on Health Education Labor and Pensions.  

Earlier in the year, the committee released a white paper titled “Higher Education Accreditation: Concepts and Proposals.”   The paper serves as a means to enlist feedback from the public on a number of potential options for reforming accreditation in a Higher Education Act reauthorization bill. 

HELP Committee Hearing on Ensuring College Affordability

The Senate Health, Education, Labor and Pensions Committee will focus upon ensuring college affordability at its hearing set for Wednesday, June 3, 2015 at 10:00 AM in Room 430 of the Dirksen Senate Office Building. The hearing is one of several on the reauthorization of the Higher Education Act.  

Witnesses include Dr. Judith Scott-Clayton, Assistant Professor of Economics and Education (Teachers College, Columbia University); Dr. Elizabeth Akers, Fellow (Brown Center on Education Policy, the Brookings Institution); Mr. Michael Mitchell, Policy Analyst (Center on Budget and Policy Priorities); Dr. F. King Alexander, President and Chancellor (Louisiana State University); and Mr. James Kennedy, Associate Vice President for University Student Services and Systems (Indiana University).

Senate HELP Committee to Explore Institutional Risk-Sharing

On Wednesday, May 20, 2015 at 10:00 AM, the Senate Health, Education, Labor and Pensions Committee will host a hearing on risk-sharing by institutions of higher education as part of the committee’s ongoing work on the reauthorization of the Higher Education Act.  Back in March the HELP Committee released a staff white paper on “Risk-Sharing/Skin-in-the-Game:  Concepts and Proposals” for public comment.

Headlining the witness list is the Honorable Jack Reed, U.S. Senator from Rhode Island.  Other witnesses include Andrew Kelly (Director of the Center on Higher Education Reform of the American Enterprise Institute), Robert Silberman (Executive Chairman of Strayer Education, Inc.), Jennifer Wang (Policy Director of the Young Invincibles), and Dr. Douglas Webber (Assistant Professor at Temple University).