This morning, the Supreme Court of the United States heard oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Comer. The Court is considering whether excluding churches from an otherwise neutral and secular aid program administered by a state agency violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution.

Continue Reading A Level Playing Field for Religious Colleges and Universities? The Potential Impact of the Supreme Court’s Trinity Lutheran Decision

Many People Hands Holding Red Word Asap Blue SkySatisfactory Academic Progress (SAP) policy problems consistently make the U.S. Department of Education’s List of Top 10 common—and often expensive—Federal Student Aid program review findings. In short, under-developed SAP policies can lead colleges and universities to award Federal Student Aid funds to ineligible students—funds those schools must ultimately return to the Department. Findings related to SAP can even contribute to ending a school’s Federal Student Aid participation.

But there’s good news! Even if you don’t work in the financial aid office, it’s (fairly) easy to ensure your SAP policy includes required elements. Continue Reading Check SAP policies ASAP! Quick steps to progress and liability prevention

Columns_111968469In an en banc decision issued yesterday, the United States Court of Appeals for Seventh Circuit held that Title VII’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation.  See Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017).  In doing so, it became the first court of appeals to reach this conclusion, disagreeing with contrary decisions from multiple other circuits.  While this issue could very well be taken up by the Supreme Court of the United States, any Supreme Court decision would likely not come before early 2018.  Absent expedited action by the Supreme Court or a stay of the ruling, this will remain the law in the Seventh Circuit for the foreseeable future.

Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex[.]”  42 U.S.C. § 2000e-2(a)(1).  As the court acknowledged in the beginning of its opinion, virtually all courts of appeals shared the Seventh Circuit’s prior view that the term “sex” as used in Title VII “implies that it is unlawful to discriminate against women because they are women and against men because they are men,” and does not speak to discrimination based on sexual orientation.  Op. at 3-4. Continue Reading Seventh Circuit Holds That Title VII Prevents Sexual-Orientation Discrimination—Will More Courts Follow? And Is Title IX Next?

Hospital building exterior and hospital signThe U.S. Court of Appeals for the Third Circuit held recently that Title IX of the Education Amendments of 1972 (“Title IX”)—which prohibits sex discrimination in the “education programs or activit[ies]” of entities receiving federal financial assistance—can apply to residency programs at hospitals. The ruling may profoundly impact how hospitals respond to complaints of sex discrimination (including sexual harassment) by resident physicians and necessitate that hospitals comply with federal Title IX regulations and guidance. The ruling also opens the door for residents who experience sex discrimination to sue under Title IX, thereby avoiding the complex administrative exhaustion process required to file a similar claim under Title VII of the Civil Rights Act of 1964, which generally governs sex discrimination in the workplace. Please visit our website to read the legal alert authored by Derek Teeter and Lorinda Holloway.

Caution - Cost Cutting AheadPresident Trump’s Office of Management and Budget (OMB) released: America First: A Budget Blueprint to Make America Great Again.  The Budget Blueprint provides an overview of the President’s budget priorities for fiscal year 2018.

With respect to education, the Budget Blueprint proposes $59 billion in funding for the U.S. Department of Education (ED).  This would represent, a $9 billion (or 13%) reduction from the current funding level.

Some of more specific proposals in the President’s Budget Blueprint that would impact colleges and universities include the following:

  • Eliminating the Federal Supplemental Educational Opportunity Grant program;
  • Reducing the Federal Work-Study program significantly;
  • Maintaining level funding for Pell Grants;
  • Cancelling $3.9 billion in unobligated carryover funding in the Pell Grant Program; and
  • Maintaining $492 million in funding to support Historically Black Colleges and Universities and Minority-Serving Institutions.

Continue Reading President Trump’s Budget Blueprint: $9 Billion Proposed Reduction to Department of Education

Gavel On Rainbow FlagAs we noted was a possible outcome in our prior analysis of the Trump Administration’s withdrawal of the Obama-era guidance on facilities use by transgender students, the Supreme Court has remanded Gloucester County School Board v. G.G. without issuing a decision.  Prior to this remand order, the Court was set to decide whether Title IX required schools to allow access to sex-segregated facilities according to each student’s “internal sense of gender” as opposed to their “biological gender,” as specified in the school policy at issue.  The Supreme Court’s views on that topic will remain unknown until (and if) the Court elects to review another case presenting the same question.

After the Trump Administration withdrew the guidance, the Solicitor General’s office sent a letter to the Supreme Court to inform it of the policy change.  The Court then ordered both parties in the case (the student and the school district) to submit letters expressing views on how the case should proceed.  Both the school district and the student urged the Court to retain the case, hear oral argument, and decide the merits.  Continue Reading Supreme Court Remands Case Involving Facilities Use by Transgender Students Without Decision

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