Texas Federal Court Halts New FLSA Salary Level Test

Money puzzleOn Tuesday, November 22nd, the United States District Court for the Eastern District of Texas issued an order granting a motion for preliminary injunction brought by 21 states and numerous business associations to stop the implementation of the new FLSA salary level test for exempt employees.

In order for an employee to be considered “exempt” from minimum wage and overtime requirements under the FLSA, the employer must determine that the employee’s position meets a three part test. First, the position must earn a salary. Second, the employee must meet the minimum salary level test for each week worked for the employer. And third, the employee’s “primary” duties must be the performance of exempt work as described in the regulations. Continue Reading

What President-Elect Trump’s Department of Education Could Mean for Colleges and Universities

Since November 9th, all schools have been asking the same question—what does the election mean for higher education?  During President Obama’s administration, higher education has experienced a dramatic increase in the number of Dear Colleague Letters (“DCL”) and enforcement by the Department of Education (“ED”). Specifically, President Obama’s ED has focused on Title IX and Title IV. President-Elect Trump may cease enforcement of all the DCLs issued by President Obama’s ED. President Bush set this precedent in 2001 when he directed ED to cease all enforcement of DCLs issued under President Clinton’s administration.  Continue Reading

The Department of Education Announces the Largest Clery fine in History—$2.4 million

On Thursday, the Department of Education announced the conclusion of its five year investigation of Pennsylvania State University’s compliance with the Clery Act, which stemmed from revelations about the Jerry Sandusky sexual assaults. The report details some 11 identified violations and announces monetary fines totaling $2.4 million. Prior to yesterday’s announcement, the largest Clery Act fine in history was assessed against Eastern Michigan University in the amount of $357,500 (although the university only paid $350,000). The Clery Act has been in place since its passage in 1990. However, the Department has consistently increased the requirements for reporting and, in recent years, has more aggressively imposed fines for non-compliance. Continue Reading

Supreme Court to Review Department of Education’s Requirement on Restrooms for Transgender Students

Late last week, the Supreme CouToilet signsrt of the United States granted the petition for a writ of certiorari in Gloucester County School Board v. G.G. on two of the three questions presented for review.  Thus, later this term (prior to the end of June) the Supreme Court will likely resolve a growing split among courts of appeals as to whether schools receiving federal funding are required—pursuant to Department of Education (“ED”) guidance interpreting Title IX—to permit students to use restroom facilities according to their gender identity, irrespective of their anatomical gender.  Adding to the confusion on this issue, a federal district court in Texas issued a nationwide injunction prohibiting ED from enforcing its guidance on this issue. Continue Reading

miceli_julieHusch Blackwell welcomed Julie Miceli as Partner to its Chicago office on October 3, 2016.

A member of the firm’s Healthcare, Life Sciences & Education industry team, Miceli served as in-house counsel at a major private research institution prior to joining Husch Blackwell. She also served as the deputy general counsel for higher education and federal student aid at the U.S. Department of Education, and prior to that, as the chief of staff and special counsel to the General Counsel for that agency.  She began her practice as assistant attorney general in the Education Section of the Ohio Attorney General’s office, providing legal counsel to the state’s public colleges and universities, two state Boards and a commission, before going in to private practice representing educational institutions. Continue Reading

Federal court holds retroactive application of new sexual misconduct “consent” definition improper

On September 28, 2016, the United States District Court for the District of Rhode Island entered a lengthy order holding that Brown University breached a contract with student John Doe when it committed missteps in Doe’s disciplinary hearing stemming from allegations Doe engaged in sexual misconduct against a female student. The court vacated Doe’s dismissal from the university and ordered his record expunged, but it left open the potential for Brown to re-try Doe if it did so in conformity with the court’s rulings. Continue Reading

New Reporting Obligations for States Regarding Teacher Preparation Programs


Last week, the U.S. Department of Education (“Department”) issued final regulations regarding the teacher preparation program accountability system. The regulations become effective 30 days from the date they are published in the Federal Register—the regulations have not yet been published as of the date of this post.

The goal of the accountability system is to collect and disseminate meaningful data on the quality of teacher preparation programs, provide such programs with ongoing feedback to help them improve, and respond to educator concerns regarding their readiness to enter the classroom after graduation. The regulations apply to all teacher preparation programs within the state, including traditional, alternative routes, and distance learning. Continue Reading

Closing Comments: Time for comments to DOJ regarding the regulation of web accessibility under Title II of the Americans with Disabilities Act ends Friday

This is the last week to submit comments to the Department of Justice in response to the 123 questions it posed in its supplementalComputer Use_iStock_000005238604_Large advance notice of proposed rulemaking (SANPRM) regarding the regulation of web accessibility under Title II of the Americans with Disabilities Act. As an update, the SANPRM was released in May 2016, after the DOJ previously elicited comments on this issue in 2010.

View the questions posed by DOJ and provide comments using the online link. Continue Reading

Department of Education demands intense independent Financial Aid audits

The U.S. Department of Education’s Office of Inspector released a new guide for independent auditors evaluating Title IV Federal Student Aid compliance by proprietary (for-profit) colleges and universities. The guide places several audit categories under standards more akin to the Federal Student Aid program review process than to traditional independent audits. Could non-profits be next? Continue Reading

Texts to Students: New Developments and Open Questions Under the Telephone Consumer Protection Act

Danger on screen in 3D

The Federal Communications Commission (FCC) recently provided additional guidance about when text messages and automated calls initiated by colleges and universities are exempt from liability under the federal Telephone Consumer Protection Act (TCPA). Below is a brief background of relevant portions of the TCPA, a summary of new guidance from the FCC, and a few open issues to consider. Continue Reading