Welcome
With spring semester well underway, welcome to our second edition of The Academic Advisor for 2023 – our e-newsletter focused on education law insights.
In this edition, we cover a variety of topics including:
- the impact of a significant win for underfunded public schools in Pennsylvania;
- a federal court ruling that protects Title IX exemptions for religious colleges;
- litigation before the United States Supreme Court concerning students with disabilities;
- library book banning and the First Amendment;
- college decisions to ban TikTok;
- the impending cybersecurity rule deadline and requirements for postsecondary institutions and third-party servicers;
- nursing educators’ rights to lactation breaks and private spaces; and
- an overview of the North Carolina Parents’ Bill of Rights.
We hope you enjoy this issue, and thank you for reading.
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“Pennsylvania is the latest state where the public school funding system was found to be unconstitutional, but the experience in other states suggests there’s no guarantee of swift, significant or longstanding change for the poorer school districts that sued in hopes of getting billions of dollars more for their budgets.”
Why this is important: While a recent Pennsylvania ruling issued earlier this month has been hailed as a victory for the underfunded school districts in the state, it could be a long road ahead before meaningful change makes its way to the students, teachers, and schools who need it the most.
The ruling, authored by Commonwealth Court Judge Renee Cohn Jubelirer, found that the state’s system of funding public schools violates students’ constitutional rights to receive a “comprehensive, effective, and contemporary” education. At its heart is the recognition that students in low property value areas and from low income families are not given the same opportunities and resources as those from more affluent areas.
However, moving to a more equitable funding system from the current model of funding primarily through local property taxes may be a much longer and arduous journey than achieving this seminal victory, which began with initial court filings in 2014. In other states with similar rulings, there has not been significant action taken by lawmakers to become fully compliant with the judges’ orders. Some more funding will come, experts say, but not nearly enough to resolve the inequities these districts are facing. Real change could end up taking years or, likely, decades.
In Pennsylvania, the path forward will largely be determined by the ability of Governor Shapiro and the divided Legislature to work together to enact sweeping changes fully compliant with Judge Cohn Jubelirer’s order. All eyes will be on the upcoming budget plan issued from the Governor’s office and the ensuing debate in the state’s House. As the victory celebrations die down, the lingering sentiment appears to be “we shall see.” ---
Shane P. Riley
“U.S. District Judge Ann Aiken of Oregon dismissed that case and said the students didn’t prove the exemption was created with the express intent of discriminating against the LBGTQ community.”
Why this is important: In 2021, U.S. Department of Education’s Office for Civil Rights issued guidance interpreting Title IX’s prohibition on sex-based discrimination as encompassing discrimination based on sexual orientation and gender identity. That same year, 44 LGBTQ+ plaintiffs represented by the Religious Exemption Accountability Project sued the Education Department, arguing a provision within Title IX that can exempt religious colleges from the statute based on conflicting beliefs is unconstitutional.
The plaintiffs, who brought the lawsuit in Oregon under the equal protection clause, presented evidence of their allegations of discrimination at various religious colleges, but federal Judge Ann Aiken said it was not enough to sustain the claims. Judge Aiken reasoned that the plaintiffs were unable to show that the exemption was enacted for the specific purpose of discriminating against LGBTQ+ individuals and dismissed the case. The plaintiffs have indicated that they are considering appeal.
Although this case concerned religious colleges and the corresponding exemption, it also has implications for all colleges receiving federal funding and thus subject to Title IX. At this time, guidance from the Education Department makes clear that Title IX should be interpreted to include prohibitions on discrimination based on sex, sexual orientation, and gender identity; and upcoming changes to Title IX regulations will undoubtedly codify these protections. Institutions of higher education should take proactive steps to ensure that their programs and activities are equally available and administered – and that LGBTQ+ students do not inadvertently experience discrimination – especially as we move toward the 2023-2024 school year and the expectation of new a regulatory landscape for Title IX. ---
Megan W. Mullins
“The Michigan case focuses on a deaf student who spent 12 years assigned to an aide who didn’t know sign language.”
Why this is important: The United States Supreme Court is currently considering a case that could have significant implications for students with disabilities and their ability to sue for damages. The case, Fry v. Napoleon Community Schools, centers around a deaf student in Michigan who was assigned to an aide who did not know sign language, leaving the student unable to fully participate in classroom discussions and activities. The case raises questions about whether students with disabilities have the right to sue for damages when schools fail to provide them with necessary accommodations.
At the heart of the case is the question of whether the student's parents, who filed the lawsuit on their daughter's behalf, were required to exhaust all available administrative remedies before seeking damages in court. The school district argued that the parents were required to first pursue a hearing under the Individuals with Disabilities Education Act (“IDEA”) before filing a lawsuit seeking damages. The parents countered that the hearing process would not have provided them with an adequate remedy, as it is focused on ensuring that schools provide students with appropriate educational services rather than compensating them for past harms.
The Supreme Court's decision in this case could have far-reaching implications for students with disabilities and their families. If the Court rules in favor of the school district, it could limit the ability of students with disabilities to seek damages for past harms, as they would be required to first pursue administrative remedies that may not provide them with adequate relief. On the other hand, if the Court rules in favor of the student, it could make it easier for families to hold schools accountable for failing to provide necessary accommodations.
The case is particularly significant given the challenges that students with disabilities already face in accessing quality education. Students with disabilities are more likely to experience bullying, to be suspended or expelled from school, and to drop out of school than their non-disabled peers. They are also more likely to be denied access to extracurricular activities and to be placed in separate classrooms or schools. All of these factors can have a significant impact on their ability to succeed academically and in life more broadly.
The Supreme Court's decision is expected to be announced in the coming months. In the meantime, the case serves as a reminder of the ongoing challenges faced by students with disabilities in accessing quality education and the importance of ensuring that all students have equal opportunities to learn and succeed. ---
Kevin L. Carr
“The case, Board of Education, Island Trees Union Free School District v. Pico, involved a lawsuit filed by students against a Long Island school board that removed books from a high school library that a politically conservative group had voiced objections to, according to a copy of the Supreme Court’s decision.”
Why this is important: As a new wave of book banning appears to be to be sweeping the nation, public school libraries are relying on a 1982 plurality opinion for guidance and coming up with more questions than answers. Pico, in which the United States Supreme Court ultimately sided with the students’ argument that the removal of certain books, such as “Slaughterhouse-Five” by Kurt Vonnegut and “Soul on Ice” by Eldridge Cleaver, violated their First Amendment rights, has left lower courts struggling to figure out the true limit as new calls for banning books discussing race, gender, and sexuality are being placed on local school boards. While Justice Brennan held that books may not be removed merely because the ideas within them are disagreeable to certain members, he did state that texts could be removed due to pedagogical, educational suitability, and vulgarity reasons. Ultimately, the test we are left with is one of motive with no clear elements defined.
Moving forward, it could be up to a new Court to reanalyze the issue in the context of the present day. The new ideas targeted by certain parent groups and other proponents of book bans are associated with challenges to the conventional ideas of gender, sex, and sexuality, and the roles of such in our society. Is the intention of removing these books to shield young students from complex ideas better suited for college level courses, or is it to suppress the ideas altogether in our society? Further, how would today’s Court, led by a conservative majority willing to challenge aged precedent, define the true First Amendment limit on book banning, if at all? All that we can glean right now is that the unfinished work of the 1982 Burger Court is moving back toward center stage. ---
Shane P. Riley
“Campuses are limiting use on school devices and Wi-Fi.”
Why this is important: Some colleges and universities in the United States are banning TikTok, a popular social media platform, due to concerns over data privacy and security. TikTok is owned by the Chinese company ByteDance, which has faced scrutiny over its ties to the Chinese government and the potential for user data to be accessed by Chinese authorities.
Many colleges and universities are limiting the use of TikTok on school devices and Wi-Fi networks, citing concerns over the app's data collection practices and the potential for sensitive information to be shared with third party companies or foreign governments. Some institutions have also raised concerns over the app's potential to distract students from their studies and to promote cyberbullying or other negative behaviors.
In addition to concerns over data privacy and security, the ban on TikTok may also reflect broader geopolitical tensions between the United States and China. The Trump administration previously sought to ban TikTok in the United States, citing concerns over national security, although the proposed ban was blocked by the courts. The Biden administration has also expressed concerns over TikTok's data collection practices and the potential for sensitive information to be shared with foreign governments.
Overall, the ban on TikTok reflects ongoing concerns over data privacy and security in the digital age, as well as broader geopolitical tensions between the United States and China. While some students may be disappointed by the ban, it is important for colleges and universities to prioritize the security and privacy of their students and to ensure that sensitive information is not put at risk. ---
Kevin L. Carr
“Higher-education institutions that handle federal financial aid data have until early June to comply with federal rules for protecting privacy and personal information.”
Why this is important: With only four months left before most changes to the federal Standards for Safeguarding Customer Information (“Safeguards Rule”) – a component of the Gramm-Leach Bliley Act (“GLBA”) that provides for the protection of consumers’ privacy and personal information – take effect, the Federal Student Aid Office is focused squarely on postsecondary educational institutions and third-party servicers, according to its recent
announcement. Is your institution ready for the June 9, 2023 deadline?
Colleges and universities that participate in federal student financial aid programs authorized under Title IV of the Higher Education Act of 1965 (“Title IV”) are obligated to protect student information under the GLBA. As belts and suspenders, each institution that participates in Title IV programs expressly agrees to comply with the GLBA Safeguards Rule through its Program Participation Agreement with the United States Department of Education. Third party servicers have similar obligations. Along with postsecondary institutions, servicers must sign the Student Aid Internet Gateway Enrollment Agreement, ensuring that all federal student aid applicant information is protected and guarded against unauthorized access in the administration of Title IV programs.
On December 9, 2021, the Federal Trade Commission issued final regulations to strengthen consumer protections under the
Safeguards Rule, which take effect June 9, 2023. Among the June 9 requirements, covered schools and servicers are required to have a written, comprehensive information security program that contains specific administrative, technical, and physical safeguards. Other mandates include risk assessments, implementation of risk control and testing safeguards, staff preparedness (necessitating training) to enact the information security program, and an incident response plan for institutions and servicers that maintain student information on 5,000 or more consumers.
Foreshadowing these expectations were multiple Dear Colleague Letters and electronic announcements from the Federal Student Aid Office over the past decade, informing schools of ways to strengthen their cybersecurity infrastructure to protect student financial aid information and emphasizing plans to enforce the GLBA through annual compliance audits. While all elements of the Safeguards Rule are vital, the Federal Student Aid Office indicates that an institution or servicer may significantly reduce the risk of a security breach “by encrypting customer information while it is in transit outside its systems or stored on its system and by implementing multi-factor authentication for anyone accessing customer information on its systems.”
As this article highlights, amendments to the Safeguard Rule come at a time when educational institutions remain significant targets of crippling ransomware attacks, including at least 35 colleges and universities in 2022 alone. In this environment, it is no surprise that failure to comply with the Safeguards Rule carries the potential for a heavy penalty – the inability to participate in Title IV programs. As the June 9 deadline approaches, schools and servicers should act now to ensure that their information security programs include the specific administrative, technical, and physical safeguards imposed by the Safeguards Rule and staff are effectively trained to implement these requirements. ---
Erin Jones Adams
“Congress expanded workplace pumping rights to millions more workers late last year, guaranteeing them the time and space to pump during the workday.”
Why this is important: The Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”), enacted by Congress in late December 2022, provides more nursing mothers with reasonable break time to express breast milk after childbirth and requires employers to designate private locations (other than bathrooms) that are free from intrusion and shielded from view for this purpose. With an expanded enforcement provision of the PUMP Act taking effect April 28, 2023, the United States Department of Labor is taking affirmative steps to ensure that educators understand these protections apply to teachers as well, according to a
press release issued by the Department earlier this month.
The PUMP Act extends these work-related rights to millions of women not previously covered by similar protections under the Fair Labor Standards Act that only applied to non-exempt employees. In addition, the PUMP Act allows working women to take legal action and seek monetary remedies if their employer fails to comply with the law, as well as clarifies when break time must be paid if nursing mothers are not completely relieved of their duties.
With the break time and space requirements already in effect, schools should confirm that their policies and designated spaces comply with the PUMP Act. In addition, schools should ensure that their human resources officials and supervisors are trained to support institutional compliance with the law and understand how to address related requests and staffing needs. ---
Erin Jones Adams
“Senate Republicans argue the bill is needed to safeguard parents’ integral role in their children’s lives, while opponents say it is dangerous to LGBTQ+ kids and will damage educators’ relationships with students.”
Why this is important: The Parents’ Bill of Rights, which contains a lengthy list of requirements for public schools, is at the center of controversy after passing the North Carolina Senate on February 7. The Bill, which will now head to the House for approval, has caused debate among proponents of the Bill and those who believe it will have unfair consequences on vulnerable students, particularly those who are part of the LGBTQ+ community. Some lawmakers and experts argue that provisions in the Bill, including the requirement that schools report any name or pronoun change to students’ parents, will expose LGBTQ+ individuals to discrimination and a potentially unsafe environment at home, while others contend that the Bill includes reasonable exceptions to safeguard against these concerns. Regardless, it is certain that we will see an uptick in similar types of bills being introduced, as is already the case in states like Missouri and Alabama. We will continue to monitor these issues and how they are affected by other important laws, such
