U.S. Department of Justice Engages on Campus Free Speech

In a refreshing message delivered earlier this week, Attorney General Jeff Sessions called for a “national recommitment to free speech on campus” while speaking at the Georgetown University law school.

To the point, on September 26th the Department of Justice (DOJ) filed a Statement of Interest in a free speech case that two students filed against a public college in the northern district of Georgia. The case, Uzuegbunam and Bradford v. Preczewski, et al., Civil Action No. 1:16-cv-04658-ELR, involves a challenge to the public school’s Speech Zone Policy and its implementation of the policy.  DOJ’s Statement sides with the students in their contentions that the school’s free speech policy and practices are unconstitutional under the First and Fourteenth Amendments.

In recent months, campus speech has generated Hill interest (committee hearings in House and Senate), and can be expected to engage members during any mark-up of higher education reauthorization legislation. To date, Congress has authored a Sense of the Congress on Campus Free Speech.  It dates back to 1998 (slightly amended in 2008) as part of the Higher Education Act. This time, a stronger push is likely.

The Latest on Gavin Grimm v. Gloucester County School Board

After my last post of July 26, 2017, the Fourth Circuit Court of Appeals remanded this Title IX “bathroom” case and removed it from the September 12, 2017 oral argument calendar. The reason for the remand is for the trial court to determine whether the case is moot in light of Gavin Grimm’s graduation from high school.

In this regard, on August 4 the trial judge ordered the parties to file position statements outlining their views of how the proceedings on remand should transpire.

The parties came to agreement on a joint position statement and filed it with the court last Friday, August 18. The position statement acknowledged that Grimm filed a Motion to Amend the Complaint on August 11, and that the School Board consented to the Motion.  The parties further suggested the following briefing schedule:

(1) within 21 days from docketing the Amended Complaint, the School Board shall file a responsive pleading or motion;

(2) within 14 days from the filing of any Motion to Dismiss, Grimm shall file a memorandum in opposition; and

(3) within 6 days from the filing of Grimm’s opposition, the School Board shall file its Reply.

The trial judge can be expected to establish the official schedule in coming days.

Higher Education Hearing on Transparency, Student Aid, Privacy; ED FY2018 Budget Released

“Empowering Students and Families to Make Informed Decisions on Higher Education” is the title of hearing set for Wednesday, May 24, 2017 at 10:30 AM in the Subcommittee on Higher Education and Workforce Development of the House Committee on Education and the Workforce.  The hearing will focus upon transparency in higher ed, effectiveness of federal student aid programs, and privacy matters.

Witnesses from the American Institutes for Research, American Enterprise Institute, Institute for Higher Education Policy and Pepperdine University will provide testimony.

Meanwhile, earlier today the White House released the FY2018 budget (covering Oct. 1, 2017 through Sept. 30, 2018) of which the Department of Education budget is here.

Updates on Key Higher Education Litigation

Three key cases (Title IX Dear Colleague of 2011, Title IX bathroom/locker room use, Accreditation) remain pending in federal court.  A brief status update follows–

Title IX Dear Colleague of 2011.  John Doe and Oklahoma Wesleyan University v. U. S. Department of Education, et al., Civil Action No. 1:16-cv-01158-RC.  Filed in federal court in the District of Columbia, the plaintiffs challenge, among other things, the April 4, 2011 Office for Civil Rights Title IX Dear Colleague Letter (preponderance of the evidence standard) as a violation of the Administrative Procedure Act.  In September 2016 the United States filed a Motion to Dismiss; in November 2016 plaintiffs filed a Motion for Summary Judgment.  The most recent action occurred in March 2017 when the United States filed a Notice of Supplemental Legal Authorities.  The parties await a decision.

Title IX and Bathroom/Locker Room Use.  G.G. v. Gloucester County School Board, No. 15-2056. This case deals with the intersection between a school district’s policy governing bathroom use and Title IX.   Earlier this year, the Supreme Court sent this case back to the U.S. Court of Appeals for the Fourth Circuit for additional briefing in light of the withdrawal of the Office for Civil Rights questionable transgender guidance issued in May 2016.  The parties filed opening briefs in the Fourth Circuit in early May 2017 with Reply briefs due June 2, 2017.  Several organizations have filed amicus briefs.

Accreditation.  Accrediting Council for Independent Colleges & Schools (ACICS) v. U.S. Department of Education, Civil Action No. 1:16-cv-02448.  In this DC federal court case, ACICS challenges the Department’s termination of ACICS’s status as a “recognized” accreditor.  Both parties have filed Motions for Summary Judgment and await action by the court.

 

Hearing Set on FY2018 Education Budget

The Subcommittee on Labor, Health and Human Services, Education, and Related Agencies of the House Committee on Appropriations has scheduled a hearing on May 24, 2017, 11:00 AM in 2858 Rayburn on the proposed Department of Education budget, FY2018 (covering Oct. 1, 2017 through Sept. 30, 2018).  Secretary of Education Betsy DeVos is scheduled to testify.

Meanwhile, the final Consolidated Omnibus Appropriations Act, 2017 to fund the federal government through September 30, 2017 became law (Public Law 115-31) on May 5, 2017.  Key take-aways for the Department of Education are–

  • Increase of $9 million for charter schools
  • Reauthorizes DC Opportunity Scholarships through 2019
  • Increase of $1 million for magnet schools
  • Increase of $550 million for Title I grants to the states
  • Increase of $90 million for IDEA grants
  • Increase of $23 million for Impact Aid
  • Increase of $25 million for 21st Century Community Learning Centers (before- and -after school care)
  • Elimination of school improvement grants (-$450 million)
  • Decrease of teacher training grants (-$200 million)
  • Permits year-round Pell grants

 

 

 

What the NY Times Failed to Report

Too often in our day balanced reporting has fallen by the wayside.  Such was the case in a NY Times article (“Betsy Devos’s Hiring of For-Profit College Official Raises Impartiality Issues”)  published online March 17, 2017 about Robert S. Eitel, a former law partner of mine and current member of the beachhead team at the U.S. Department of Education.  The article left out critical information about the full extent of the recusals Mr. Eitel pursued and agreed-to with the Department’s ethics office.  Writer Jennifer Rubin of the Washington Post’s Right Turn blog aptly captures the issues here.

 

 

The Latest on G.G. v. Gloucester County School Board

Given the Supreme Court’s vacatur and remand of G.G. v. Gloucester County School Board to the U.S. Court of Appeals for the Fourth Circuit, the contention of the parties now is over what the briefing schedule should be, and when oral argument should be held–whether at the court’s May 2017 sitting or the September sitting.

The latest briefs supporting an expedited hearing, response to the expedited hearing, and reply are here, here, and here.  No briefing schedule or hearing date has yet been set (as of March 21).

Streamlining and Simplifying Federal Student Aid

Earlier today (March 21), the Subcommittee on Higher Education and Workforce Development of the House Committee on Education and the Workforce hosted a hearing focused upon streamlining and simplifying federal student aid.  The subcommittee heard from a Vice Provost, a financial aid administrator, an education policy expert, and a representative of a think tank.  More information including witness statements can be found here.  In recent Congresses, simplification has been oft mentioned (and continuing) as a key issue in the reauthorization of the Higher Education Act.

 

Argument Set For March 28, 2017 in Transgender Bathroom Case

Oral argument in Gloucester County School Board v. G.G., No. 16-273,  will occur on Tuesday, March 28, 2017 at 10:00 AM in the U.S. Supreme Court.

The Court will hear from counsel on two issues:  (1) If [the doctrine of Auer deference] is retained, should deference extend to an unpublished agency [U.S. Department of Education] letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? (2) With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. 106.33 be given effect?

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