Choosing your wayIn a joint letter issued February 22, 2017, the Departments of Education (ED) and Justice (DOJ) withdrew prior Title IX guidance from the Obama administration that required schools receiving federal funding to allow students to use sex-segregated facilities according to their gender identity, as opposed to their anatomical birth sex.

Obama-Era Transgender Guidance WithdrawnThe Obama administration provided the (now-revoked) guidance through two letters. First, on January 7, 2015, ED’s Office for Civil Rights (OCR) issued an opinion letter in response to a lawyer’s inquiry about a specific Virginia school district policy directing that students must use facilities corresponding to their anatomical birth sex. The letter stated that Title IX protected against discrimination based on sex, including gender identity, and that students must be allowed to use sex-segregated facilities according to their gender identity. On May 13, 2016, OCR and DOJ issued a Dear Colleague Letter more broadly confirming the departments’ view that Title IX required schools to allow access to sex-segregated facilities according to each student’s gender identity.

Continue Reading Trump Administration Withdraws Guidance on Use of Facilities by Transgender Students

dataLocks148650499Colleges and universities frequently hire third-party vendors to provide services that involve student data—cloud storage, online education delivery, and online grade books to name a few. Although the arrangements are common, they can run afoul of the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99) (FERPA) and other data privacy best practices. To learn more about what this means for colleges and universities, please visit Sean Tassi’s recent blog post on Husch Blackwell’s Byte Back blog.

students166671612Under the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), colleges and universities have a general duty to provide reasonable accommodations to employees and students with a qualifying disability. Unlike in the K-12 setting where schools are required to affirmatively address a student’s potential need for accommodations, in higher education, the ADA and Section 504 generally require a student to self-identify his or her disability, request accommodations, and then participate in an interactive process with the institution to determine whether and to what extent accommodations will be provided. Continue Reading Retroactive Accommodations Under the ADA and Section 504 Are Not Required and May Create Liability for Colleges and Universities

Diversity_122512350On Friday, February 10, 2017, the Trump Administration informed the Fifth Circuit that the United States will no longer challenge the injunction against enforcement of the joint Department of Justice and Department of Education guidance  on the treatment of transgender students that was issued last year. We expect further developments in the coming weeks and months, but for now: Continue Reading Gender Identity Shift: Federal Government No Longer Challenging Injunction on Transgender Student Guidance

Pregnant Business WomanHusch Blackwell’s Hayley Hanson and Katie Jo Luningham have co-authored a NACUANOTE titled The Pregnant and Parenting Student. The article discusses the state of regulatory guidance, Department of Education investigations, and litigation related to student pregnancy and parenting issues on campus. Because institutions must be prepared to address pregnancy-related issues that implicate an array of services, this NACUANOTE provides various suggestions and approaches available to colleges and universities when working with pregnant and parenting students.

Husch Blackwell will continue to monitor developments in pregnancy-related guidance, regulations and caselaw as Department of Education leadership and student lawsuits evolve. For more information about how to handle institution-specific questions about pregnant or parenting students on your campus, please contact a member of our Higher Education group.

Legal series

On January 27, 2017, the White House handed down an Executive Order suspending entry into the United States, as well as issuance of visas, for individuals “from countries of particular concern.” The Order also directs the implementation of additional screening mechanisms for all foreign national travelers to the United States. Colleges and universities that employ foreign national workers and enroll foreign students should be cognizant of the Order and its impact on the ability of their foreign national workers and students to obtain a visa and travel to the United States. Continue Reading Executive Order on Immigration and its Impact on Colleges and Universities

football_field_000013335426SmallSometimes common sense is not so common. By a Memorandum dated January 31, 2017, the General Counsel of the NLRB has taken the position that student athletes at private colleges and universities are employees within the meaning of the National Labor Relations Act, notwithstanding the Board’s issuance of its decision of Northwestern University in 2015 in which it declined to exercise jurisdiction after a representation petition was filed by a union seeking to represent the Northwestern University’s football players. Please visit Husch Blackwell’s Labor Relations Law Insider blog to read the full post.

education level conceptual meterThere is no shortage of opinions on the assessment of student learning in higher education, some have questioned the value of the assessment process (even going so far as to call it “madness”) while others assert the need for assessment and its intrinsic value to student learning and improved teaching.[1]  Love it or hate it, accrediting agencies require institutions to assess student learning.  And, based on actions taken by the Higher Learning Commission (HLC) during 2016, assessment continues to be a source of problems for some institutions.  Of the colleges and universities receiving public sanctions from the HLC during 2016, virtually all included concerns related to how institutions evaluate and improve teaching and learning through their assessment process. See HLC Criteria for Accreditation at Criterion 4.  Based on these decisions, here are five tips to help prevent your assessment process from becoming an accreditation headache. Continue Reading The Assessment Conundrum

Word go and an arrow written on asphaltIn the last days of the Obama administration, the U.S. Department of Education clarified that state authorization reciprocity agreements (SARAs) “are a satisfactory means to obtain authorization” for distance education programs under the Department’s December 19, 2016 State Authorization Final Regulations. Continue Reading SARAs OK under Interpretation of New Distance Education Regs

The demand for high-quality academic, enrichment and athletic programs for minors continues to grow. In response, many colleges and universities are expanding the ways in which they serve minors and their communities, through fee-based programs, mentoring and volunteer opportunities and partnerships with K-12 schools.

Much of this growth has occurred quickly and organically. As a result, existing policies may focus on important basics such as liability releases, background checks and suspected child abuse and neglect reporting. But these policies may fall short and fail to address the more practical risks regularly facing program staff and may not take into consideration applicable federal and state laws and case law developments that can impact program operations. Continue Reading Enhancing your minors on campus policy: five practical risk areas to focus on in 2017