Education Law Review - Providing education law and policy information and analysis

Last week the U.S. House of Representatives passed S.47, the Violence Against Women Reauthorization Act of 2013 ("Act") after the bill cleared the Senate earlier in February. Given the Act will soon be signed into law, institutions of higher education should take note, if not already, of several significant amendments to the Jeanne Clery Act (Section 485(f) of the Higher Education Act of 1965; 20 USC 1092(f)) in the bill.  See pages 36-39 of the House-passed legislation.  

As a threshold matter, the changes impact the preparation of the annual security report that institutions of higher education must publish and distribute by October 1 of each year on crime statistics and campus security policies.  Colleges and universities will be required to add to their reporting requirements "domestic violence, dating violence and stalking incidents that were reported to campus security authorities or local police agencies."

Institutions must also report whether a victim was "intentionally selected because of the actual or perceived . . . national origin [or] gender identity . . . of the victim."  These two categories (national origin and gender identity) are in addition to the current categories of actual or perceived race, gender, religion, sexual orientation, ethnicity or disability of the victim.

As a part of the annual security report, a school must include a much more expansive and prescriptive statement of policy, including among other things, the institution's programs to prevent domestic violence, dating violence, sexual assault, and stalking, as well as procedures the institution will follow (and standard of evidence used) during any institutional proceedings arising from a report of such incidents.

The changes to the Clery Act "shall take effect with respect to the annual security report . . . 1 calendar year after the date of enactment of this Act, and each subsequent calendar year." Assuming the President signs the law in March 2013, under one reading it appears the annual security report due by October 1, 2014 (covering calendar years 2011, 2012, 2013) must include the new data and policies.  Alternatively, it could mean the security report due by October 1, 2015 for the calendar years 2012, 2013, 2014 must include the new data and policies, thus allowing adequate time for implementation. The Department of Education should issue guidance very soon after enactment to provide clarity.  

Several days ago a federal jury found the President of Valdosta State University liable for $50,000 in compensatory damages for failing to follow notice and due process procedures prior to expelling a student.  With a Complaint first filed in 2008, Barnes v. Zaccari involved student Haden Barnes' protest of Valdosta State's decision to build two parking structures.  The protest consisted of a collage of photographs posted on Facebook, distribution of flyers voicing objection to the parking garages, and emails to President Ronald Zaccari and board members. 

In response, the President ordered Barnes "administratively withdrawn" from the school on the grounds Barnes represented a "clear and present danger."  No notice, other than the notice of dismissal, was provided.  Nor was there an opportunity to be heard. 

In September 2010, the court granted Barnes partial summary judgment finding President Zaccari had failed to provide due process.  In February 2012, the U.S. Court of Appeals for the Eleventh Circuit affirmed in part, reversed in part, and remanded.  Upon remand and trial, a jury found the president personally liable for $50,000 on February 1 of this year.  The facts give a full picture and are worth a read.  They can be found in the partial summary judgment order and decision of the Eleventh Circuit.        

Earlier today the Council for Christian Colleges and Universities (CCCU) installed Edward O. Blews, Jr. as the sixth president of its association--an organization committed to advancing Christian higher education. The CCCU consists of 171 institutions around the world focusing on the arts and sciences.  

Trained as a lawyer, Blews comes to the position with a deep background in higher education issues and policies, having served for 28 years as the president of the Association of Independent Colleges and Universities of Michigan.  

Those offering greetings and accolades included U.S. House members Dave Camp and Tim Walberg of Michigan, David Warren--President of the National Association of Independent Colleges and Universities, Molly Corbett Broad--president of the American Council on Education, and Kim Phipps, CCCU board chair and president of Messiah College (PA).  

With increasing fiscal constraints, a likely uptick in federal regulatory and sub-regulatory activities, and accreditation on deck for HEA reauthorization, President Blews will have plenty on which to engage.   

To our friends and colleagues, Talbert & Eitel, PLLC brings news on the business and professional fronts in 2013.  

On January 12, I will open a new law firm--Kent D. Talbert, PLLC--and continue to represent clients on education-related legislation, regulations, compliance matters, and cases.  My address and phone will remain the same:  1455 Pennsylvania Avenue, Suite 400, Washington, DC 20004 and 202.652.2324.  I will continue our education blog--www.educationlawreview.com--and have a new email, kent.talbert@kenttalbertlaw.com.    

On January 14, Bob Eitel will join Career Education Corporation (CEC) as Vice President of Regulatory Operations, National Accredited Institutions, based in Schaumburg, Illinois.  At CEC, he will join his U.S. Department of Education colleague, Diane Jones (formerly Assistant Secretary of Education for Postsecondary Education) who now serves as CEC's Senior Vice President for External and Regulatory Affairs.  Bob will forward his new company contact information in the next few weeks.  In the interim, you may reach Bob at bob.eitel@verizon.net.

We are excited about these changes, and thankful to the clients, friends, and colleagues who have supported our professional endeavor over the last three years.  We look forward to keeping in touch with each of you.  

After an earlier dismissal on procedural grounds by the U.S. Court of Appeals for the Fourth Circuit, Liberty University's challenge to the Affordable Care Act ("Act") will soon be on the front burner again. In a summary order of November 26, the Supreme Court sent the case, Liberty University v. Geithner, back to the Fourth Circuit to be re-heard in light of the high court's June decision in National Federation of Independent Business v. Sebelius.  Remaining issues to be resolved (as argued in the university's Petition for Rehearing. include challenges to the Act under the Commerce Clause, Necessary and Proper Clause, and Free Exercise Clause, among others.

How the case is resolved in the Fourth Circuit (VA, WV, MD, NC, SC) will have implications for universities as well as other organizations located in the circuit.     

The University of Texas at Austin has filed its brief on the merits in Fisher v. University of Texas at Austin.  UT's brief defends its use of racial preferences in university admissions.  Interestingly, two former George W. Bush Administration appointees, Greg Garre (former Solicitor General) and James Ho (Office of Legal Counsel at DOJ), represent UT in the case.  Amicus briefs aligned with UT are due next week.  The Supreme Court oral argument is set for Wednesday, October 10, 2012. 

I need to travel out of town more often.  While I was in Chicago for the NACUA Annual Conference last week through Saturday, the courts decided the Patient Protection and Affordable Care Act and the gainful employment litigation case filed by APSCU against the U.S. Department of Education.  

By now, you all know the result of the Supreme Court case in "Obamacare."  (More later on the intriguing language arising from the Medicaid portion of the case and how the ruling might lengthen the strings that attach to federal aid to education up the road.)

For many postsecondary institutions, however, last Saturday's ruling in APSCU v. Duncan will likely have a more immediate impact.  I have not yet read the opinion, but it appears that the Court has vacated and remanded to the Department the debt measure rule (34 C.F.R. § 668.7), the program approval rule (§ 600.10(c)-(d)), and the reporting portion of the reporting and disclosure rule (§ 668.6(a)).  The disclosure portion of the latter rule (§ 668.6(b)-(c)) stands.  The Court's judgment succinctly sets forth the ruling.

As many who read this blog will recall, the Association of Private Sector Colleges and Universities (APSCU) filed a complaint in D.C. federal district court challenging the U.S. Department of Education’s misrepresentation, incentive compensation, and distance education-state authorization regulations, which became effective July 1, 2011.  On July 12, 2011, the district court issued its decision in the case and vacated the distance education regulation (34 C.F.R.  § 600.9(c))--thus allowing the remaining regulations to take effect.

Both APSCU and the Department appealed the decision of the district court to the United States Court of Appeals for the District of Columbia Circuit.  Oral argument occurred last February.  Today, June 5, 2012, the court of appeals issued its ruling in the case.  A very quick review of the opinion indicates that the court

• found that the Department exceeded the HEA to the extent the misrepresentation regulations authorize the Secretary to sanction an institution without providing it with statutorily required protections;
• otherwise let the misrepresentation regulations stand;
• sustained the incentive compensation regulations, with two relatively minor exceptions that the Department will be able to correct on remand; 
• vacated the distance education regulation due to the Department's violation of the APA; and
• let stand the state authorization regulations.

I will post additional observations after analyzing the court's 55 page opinion.

Late in the day on Friday, March 16, 2012, the U.S. Department of Health and Human Services (HHS) placed its final rule on student health insurance coverage on public display at the Office of the Federal Register. The rule will not appear in the Federal Register until March 21.

Arising out of the Patient Protection and Affordable Care Act (Pub. L. No. 111-148) the new rule sets forth the requirements for "student health insurance coverage" and defines such coverage as a type of individual market health insurance coverage offered to students and their dependents under a written agreement between an institution of higher education and an issuer. The rule also specifies certain Public Health Service Act requirements are inapplicable to this coverage. 

Colleges and universities will want to carefully review the rule noting the comments and responses of HHS.

On February 16, 2012 at a hearing before the U.S. House Committee on Oversight and Government Reform, representatives of four member institutions of the Council for Christian Colleges and Universities (CCCU) expressed major concerns about the severe (and unprecedented) impact of the new Health and Human Services contraceptive mandate upon religious freedom.

The four higher education institutions are Union University (Jackson, TN), East Texas Baptist University (Marshall, TX), Calvin College (Grand Rapids, MI), and Oklahoma Christian University (Edmond, OK).  Dr. C. Ben Mitchell, the Graves Professor of Moral Philosophy at Union University noted "The policy [requiring the health insurance provided by most religious institutions, including CCCU institutions, to cover all FDA approved contraceptives] is an unconscionable intrusion by the state into the consciences of American citizens." President Dub Oliver of East Texas Baptist University framed the issue as "whether the government will force religious people and organizations to do something they believe is wrong."  Dr. Laura Champion, Medical Director of Calvin College Health Services raised the fundamental question of religious freedom, and Dr. Allison Garrett, the Senior Vice President of Academic Affairs at Oklahoma Christian University, finds the Obama Administration's "compromise" to insufficiently address religious colleges that self-insure.

At the time of this posting, there are at least two lawsuits filed by higher education institutions challenging the contraceptive mandate in federal court:  Belmont Abbey College v. Sebelius, Civil Action No. 1:11-cv-01989 (pending in the District of Columbia) and Colorado Christian University v. Sebelius, Civil Action No. 11-cv-03350-CMA-BNB (pending in the district of Colorado).  Additional details on the cases can be found here and here. 

A recent study published by the Education Sector and the American Enterprise Institute, “The Truth Behind Higher Education Disclosure Laws,” took a look at the rates at which 152 four-year colleges and universities complied with five new disclosure requirements under the Higher Education Opportunity Act of 2008 (HEOA).  The study reviewed graduation rates for students receiving Pell grants, credit transfer policies, employment and graduate school placement rates, textbook prices, and disclosures related to private student loans. The net results were shortcomings in the reporting of data, challenges in locating information on web sites, or otherwise obtaining information. 

Of course part of the challenge is the multiplicity of reporting and regulatory requirements that get added upon institutions each time the Higher Education Act is reauthorized.  Given the disclosure requirements are conditions of an institution’s program participation agreement for Title IV aid, there is risk to an institution should the U.S. Department of Education seek an audit or program review.   Compliance officers and others charged with implementation of new laws are well-served to review the study as well as the status of their own institution's disclosures.   

The Senate passed the Budget Control Act of 2011--the debt ceiling bill--this afternoon by a vote of 74-26, and the President has signed the bill.   

As many who read this blog know, the Association of Private Sector Colleges and Universities (APSCU) filed a complaint in D.C. federal district court challenging the U.S. Department of Education’s misrepresentation, incentive compensation, and state authorization regulations, which became effective July 1, 2011.  Today, July 12, the court issued its decision in the case and vacated the state authorization regulation (34 C.F.R.  § 600.9(c)).  The remaining regulations stand.  

I have only done a very quick read of the opinion, but I realized that today was a bad one for the proprietary schools after reading only its first few sentences, where the court wrote that “Uncle Sam” is entitled “to wield a heavy hand in regulating access” to funds for student loans and that the “Secretary wants to protect student applicants who might be film-flammed into signing up for worthless courses.”  With several exceptions, the decision pretty much goes downhill from there for the career colleges.  As the court also refused to enjoin the regulations pending an appeal, the misrepresentation and incentive compensation regulations are thus in place until a change in administration (assuming a new administration will want to tackle the issue) or a higher court reverses this element of the court’s decision (assuming the APSCU wishes to underwrite an appeal). 

One bright spot for the proprietary schools concerns the Department’s standing argument against APSCU, which the court rejected with a few sentences.  “Once published in final form, the new regulations affected APSCU members immediately, imposing an obligation upon them to re-orient their compensation programs and recruiting and marketing messages by July 1, 2011, as well as to inform and oversee outside contractors for whom the schools may now be liable for any misrepresentative statements . . . Further, distance education providers, such as online schools, must now ensure they are legally authorized in all States in which they provide student services, if those States so require.”  Pointing to the APSCU’s facial challenges of lack of statutory and constitutional authority, the court found them “fully ripe”.  

Another bright spot for the career colleges arises from the court’s decision to vacate the state authorization rule rather than remand it back to the Department for further consideration.  Although the court did not address many of the grounds asserted by the APSCU for challenging § 600.9(c), the court found that the Department failed to comply with the APA’s notice and comment requirements—a technical defect that the Department could have easily avoided.  Given the court’s rejection or deflection of APSCU’s substantive arguments under the Constitution and the Higher Education Act concerning the misrepresentative and incentive comp regs, it is quite likely that this rule would have survived the suit had the Department properly followed the APA.  The court appears to have a very high tolerance for the Department's wide-ranging interpretation of the HEA.    

This raises the question:  Will the Department begin the rulemaking process anew on this issue or call it a day?

As part of a government-wide initiative, the U.S. Department of Education recently published a 13-page Preliminary Plan.pdf for reviewing existing K-12 and higher education regulations, guidance documents, information collections, and priorities, requirements, definitions, and selection criteria governing discretionary grant programs. 

Technically called the “Preliminary Plan for Retrospective Analysis of Existing Rules,” the Plan’s intent is “to facilitate the identification of regulations that warrant repeal or modification, or the strengthening, complementing, or modernizing of regulations, where necessary or appropriate.” That certainly covers the waterfront—everything from repealing regulations that do nothing more than repeat the statute, to policy changes (small or large) that would “strengthen[], complement[], or modernize[] . . .regulations” in the eyes of the beholder.  

The Plan points out how the Department “tightened” higher education regulatory requirements on state authorization and credit hours in response to an earlier internal review of regulations (p.5 of Plan).  Yet, the House Education and Workforce Committee saw differently, voting 27-11 (H.R. 2117.pdf) to repeal these same regulations noting their excessive prescriptiveness and lack of a strong basis in evidence.   

So, whether you’re an institution of higher education, school district, charter school, or other interested party, you’ll want to watch closely how the “Preliminary Plan” becomes a “Final Plan” in the coming months.  A link can be found on the Department’s web page for submission of comments.   

Together with my law partner, I co-authored a paper, The U.S. Department  of Education's Federal Student Aid Program Integrity Final Regulations, that will appear in the April 2011 issue of Engage.  The paper discusses several of the new regulations under the Higher Education Act that take effect this July 1,  including those relating to substantial misrepresentation, incentive compensation, and state authorization requirements.  You can download the paper here. 

I also participated in a panel discussion entitled "Implications of the Obama Administration's Regulation of Higher Education" on Capitol Hill on March 28, 2011.  The panel included Diane Auer Jones, Vice President for External and Regulatory Affairs at Career Education Corporation.  Doug Lederman, the Editor of Inside Higher Ed, moderated the discussion.  I was able to highlight portions of my paper criticizing certain elements of the HEA regs.  Doug did a great job of moderating the discussion and in pointing out some of the inconsistencies in the policy arguments on both sides of the debate over the regulation of for-profit and non-profit postsecondary institutions. 

The Office for Civil Rights (OCR) of the U.S. Department of Education recently issued new guidance on bullying.  OCR notes that the purpose of its Dear Colleague is “to remind [school officials] .  .  .  that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights (OCR).” 

Given OCR’s enforcement authority and the fact specific nature of sexual harassment and bullying claims that may implicate Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973.pdf, and Title II of the Americans With Disabilities Act.pdf, all educational institutions should read the guidance closely. 

But OCR’s letter also bears attention for what it does not include—any discussion of case law since OCR last discussed it way back in 2001.  This is odd, as student-on-student sexual harassment cases are particularly fact specific, with court decisions turning on a handful of facts.  School district officials would benefit from a substantive review of the cases over the last ten years, noting not only findings of liability, but also instances where school districts deflected liability.  Indeed, in the aftermath of the leading Supreme Court case on student-on-student sexual harassment, Davis v Monroe County Board of Education.pdf, 526 U.S. 629 (1999), where the Supreme Court held that a school district could be liable for monetary damages under Title IX for student-on-student sexual harassment, several courts of appeal and district courts have decided student-on-student sexual harassment cases.  See Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir. 2000).pdf, Doe v. Bellafonte School District, 2003 U.S. Dist. LEXIS 25841 (3rd Cir. 2003).pdf, Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009).pdf, Schroeder v. Maumee Board of Education, 296 F. Supp. 2d 869 (N.D. Ohio 2003).pdf, Patenaude v. Salmon River Central School District, 2005 U.S. Dist. LEXIS 29066 (N.D. N.Y. Feb. 16, 2005).pdf, Theno v. Tonganoxie Unified School District, 377 F. Supp. 2d 952 (D. Kan. 2005).pdf, Doe v. Southeastern Greene School District, 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. March 24, 2006).pdf. Educational institutions should be familiar with these cases before responding to student-on-student sexual harassment claims and OCR enforcement actions.  

The National Advisory Committee for Institutional Quality and Improvement (NACIQI) held a teleconference meeting today, November 8, to handle various administrative matters relating to its upcoming December 1-3 meeting.  I had the opportunity to attend the meeting.

The NACIQI unanimously elected Cameron Staples its Chairman and Arthur Rothkopf its Vice Chairman.  Interestingly, Staples (a member appointed to the NACIQI by the House Democrats) was nominated by Larry Vanderhoof (a Senate Democratic appointee) and seconded by Arthur Keiser (a House Republican appointee).  Rothkopf (a House GOP appointee) was nominated by Susan Phillips (appointed by Secretary Duncan) and seconded by Bruce Cole (a Senate Republican appointee).  

Both Staples and Rothkopf have impressive resumes.  Staples is a member of the Connecticut House of Representatives and chairman of its finance committee.  He has been a member of the Connecticut legislature since 1993 and is a Visiting Lecturer in Law at Yale Law School teaching legislative advocacy.   He ran briefly for Attorney General earlier this year but withdrew after four months of campaigning.

Rothkopf has had a long career in law, government, and education.  Most recently, he served as a senior vice president at the U.S. Chamber of Commerce overseeing education and workforce initiatives.  Prior to that, he was President of Lafayette College in Pennsylvania, having come from the U.S. Department of Transportation, where he served as Deputy Secretary and General Counsel during the George H.W. Bush administration.  Rothkopf was a partner at a major D.C. law firm before joining 41's administration.

All in all, a good start that will provide the Committee with some seasoned leadership.

Just a few days shy of the expected adjournment of the 111th Congress, the U.S. Senate Committee on Health, Education, Labor and Pensions will hold another hearing on the for-profit higher education sector on Thursday, September 30, 2010, at 10:00 a.m, 216 Senate Hart Office Building.  Entitled "The Federal Investment in For-Profit Education:  Are Students Succeeding?", the witness list (as of September 27) includes Lauren Asher, President of the Institute for College Access and Success (Oakland, CA), Dr. Arnold Mitchem, President of the Council for Opportunity in Education (Washington, DC), Danielle Johnson (Tama, IA), and Kathleen Bittel (Acme, PA).