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

Empty school classroom with blackboard for training. 3D renderinThe U.S. Department of Education recently released two reports spotlighting the achievements and challenges of its Office for Civil Rights (OCR). During an event with U.S. Secretary of Education John B. King Jr., former Education Secretary Arne Duncan, and Assistant Secretary for Civil Rights Catherine E. Lhamon, the Department released two reports touting OCR’s achievements.

Read more.

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 Texas Federal Court Halts New FLSA Salary Level Test