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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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Revocation of the 2011 Dear Colleague Letter: Who was it protecting?

In the era of #MeToo, the public is more aware than ever about sexual violence; but what about college campuses? Approximately 13,224,000 women will be attending degree-granting institutions in the United States (U.S.) in the fall of 2019.  At a time when college women are three times as likely to experience sexual violence, and only a small percentage are reporting these incidents to authorities due to embarrassment, concern it was not significant, or it would not be investigated or taken seriously, all students need a safe and equitable environment to live and learn.  How do college campuses balance these responsibilities?    

The higher education community is still waiting for final guidance from the U.S. Department of Education Office for Civil Rights (OCR) on campus sexual misconduct. Despite Executive Order 13777 garnering 16,376 public comments, of which 99% supported Title IX and 97% supported upholding the 2011 Dear Colleague Letter on Sexual Violence, OCR published a Dear Colleague Letter on September 22, 2017, withdrawing the 2011 Dear Colleague Letter and 2014 Questions and Answers on Title IX and Sexual Violencestating the documents did not provide clear guidance for institutions or equitable Title IX inquiries for both parties.  In the interim, U.S. Secretary of Education, Betsy DeVos released interim guidance on campus sexual misconduct.  In November 2018, OCR released a Notice of Proposed Rulemaking to make these changes official.  

Some say that colleges may be the most direct beneficiaries of the changes, allowing them more leniency in their policies and procedures.  Proponents of the changes say it decreases liability of colleges, which would allow them to increase support to victims, and improves the rights of the accused. Critics of the Proposed Rulemaking, including the American Civil Liberties Union (ACLU) and the National Women’s Law Center, were particularly concerned with the mandatory cross-examination by advisor, which all students may not be able to afford, the narrowed definition of sexual harassment to only ‘pervasive and egregious behavior’ and the requirement of colleges to only investigate claims reported to the proper official and that occurred within a college’s program or activities (i.e., not off-campus).  In addition, some are concerned that it may discourage sexual assault survivors from reporting incidents, although that was not the new policy’s purpose.

            Marshall University has had a series of Title IX lawsuits, filed against them due to their alleged mishandling of campus sexual assault cases.  In one case, Gonzalez v. Marshall University Board of Governors, a student was repeatedly exposed to her attacker, while he remained on campus.  In addition, during the student conduct hearing, the accuser was aggressively cross-examined by the accused’s private attorneys, while she did not have counsel present.  Also, the hearing was not conducted by properly trained individuals, and physical evidence was not permitted due to the ongoing criminal trial.  The accused later entered a Kennedy plea (see Kennedy v. Fraiier) in the criminal case, which created a loophole for him to return to the university based on their policies, and the accuser left the university as a result.  Similarly, Doe 1 v. Baylor University was a case filed by 10 former students that accused Baylor of not adequately investigating their claims of sexual assault. While their Title IX claims were denied due to statute of limitations, their state-law claims of negligence and breach of contract were upheld. 

Sexual violence on our college campuses is an epidemic, and Title IX’s aim is to protect students and employees and provide a more equitable learning environment.  Title IX is not perfect but was revoking guidance that clearly had public support the answer?  Do universities need more leniency in application of Title IX?  Does the government need to provide the necessary training and resources to enforce the regulations that were already in place?  In the end, who was revocation of the 2011 Dear Colleague Letter ultimately protecting?   

This is a guest post from Nicole Hacker, a PhD student and research graduate assistant in the Department of Educational Leadership at Central Michigan University.



Educational System Unprepared to Accommodate Unaccompanied Migrant Children

In recent news events, the public has been notified on the influx of immigrants from Central America coming to the U.S. for security and stability. The caravan of migrants includes children that are unaccompanied by their parents (or legal guardians) and at times are traveling alone with a family member or a hired guide. In 2015, the Migration Policy Institute (MPI) reported that 102,000 unaccompanied migrant children from Central America and Mexico had crossed the border; however, this number has increased in the past recent years. Why are these children coming to the U.S. unaccompanied? Christopher Nugent stated that these children are “fleeing from persecution [from government or gangs]; some have experienced abuse, neglect and abandonment [from one or both parents]; some may have been brought by adults to the United States intent on exploiting them [as cheap labor or for commercial sex]; and still others are looking to reunify with their parents or relatives.” The Supreme Court ruling in the case of Flores v. Reno gave the children the opportunity to be released from custody and given a fair due process in the courts. Some of the children qualify for trafficking visa, asylum, or a special juvenile status.

So, what happens when the children are released into the general public? Some children are released to sponsors (parents, family or friends) that will care for them and children without sponsors are taken in to care by the Office of Refugee Resettlement (ORR) through special care programs, according to Nugent. In any situation, the children have to be enrolled and attend school as required under state law and specified in ORR Enrollment Guide. Further, under the Supreme Court decision of Plyler v. Doe in 1982, the Court ruled that a free K-12 education could not be denied to undocumented children nor their legal status could be questioned. 

But how prepared is the K-12 educational system to receive and provide services to migrant children? MPI points out the importance of programing, such as, English as Second Language (ESL) courses, bilingual services, training teachers, and job skill development programs for those minors that are aging out. The matter of youth aging out from receiving a high school education or degree leaves little to no opportunity to further receive a higher education. There are some programs designed for these students to receive non-traditional educational services after aging-out but can only cater to a selective few. Nevertheless, K-12 educational systems need to be better prepared to serve this population to decrease the educational gap for Latinx students.

This guest post is authored by Alejandro Gradilla, a Ph.D. student in the Educational Leadership program at Central Michigan University.


A Solution for One Benefits Many: The Case for Closed Captioned Online Video

As a librarian, life-long reader, and PhD student, I prefer to read rather than watch videos. However, when watching a video for academic purposes, I turn on closed captions and read as I watch. My preference demonstrates inclusive design principles which advocate for user-centered design that seeks out and designs for exclusions. The second principle states, “Designing for people with permanent disabilities actually results in designs that benefit people universally.” Including closed captions in educational videos benefits all students, not only students who are deaf or hard of hearing. This matter is of interest to me because I have two hearing loss conditions: tinnitus, which affects about 15% of Americans, and a rare condition known as “cookie-bite” hearing loss.

The National Association of the Deaf(NAD) filed federal lawsuits in the U.S. District Court for the District of Massachusetts against Harvardand M.I.T. on February 12, 2015 claiming that the universities violated the American with Disabilities Act (ADA) by “denying deaf and hard of hearing people access to thousands of videos and audio tracks that each university makes publicly available, for free, on broad-ranging topics of general interest.” Not only do some of Harvard and M.I.T.’s videos lack closed captions, but also some videos contain inaccurate captions.          

According to the U.S. Department of EducationTitle II of the ADA prohibits discrimination against people with disabilities, and Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against people with disabilities by institutions that receive federal funding. Title II requires public entities to provide “auxiliary aids and services” to people with disabilities so that they have “an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.” Although Harvard and M.I.T. are private universities, both accept federal research grants, thus, they must comply with both ADA and Section 504. Both Harvard and M.I.T. are members of the Association of American Universities (AAU) which represents the top 60 U.S. universities that earn the majority of federal research grants.  

In 2012, The Federal Communications Commission (FCC) established rules regarding closed captioning for online videos in response to the 21stCentury Communications and Video Accessibility Act of 2010 (CVAA). Any person or organization that makes video programming available directly to end users online is responsible for adhering to these rules. The rules include a provision for an exemption from the closed captioning rule in cases where it would be economically burdensome to implement.

The Civil Rights Education and Enforcement Center’s summary of actions taken in the lawsuits against Harvard and M.I.T. noted that both universities requested the legal proceedings halt until the Department of Justice (DOJ) issued website accessibility regulations. Harvard’s attorneys claimed that captioning these materials is an undue burden. On February 9, 2016, Magistrate Judge Katherine A. Robertson stated that “striking the appropriate balance between accommodating the rights of Plaintiffs and not unduly burdening Harvard requires a fact intensive inquiry” and that “online content may not be specifically mentioned in the regulation, but neither is it specifically excluded.” All university programs whether offered in a physical building or online must comply with federal laws. In response to M.I.T.’s motion, Robertson stated that “at the heart of this case is a straightforward claim that M.I.T. failed to provide auxiliary aids or services,” thus the court, not the DOJ, has authority over the matter. Agreeing with Robertson, Judge Mark G. Mastroianni denied Harvard’s motion on November 3, 2016 and denied M.I.T.’s motion on November 4, 2016. Both universities attempted, but failed, to settle their cases through mediation, and court dates have been set for 2019. 

In response to a 2018 request from Congress, the DOJ refused to draft website accessibility regulations. Congress had expressed concerns about ADA Title III lawsuits which increased from 2,722 in 2012 to 7,663 in 2017. In Level Access’s analysis, the DOJ letter asserted that “the ADA applies to websites” and the “lack of regulations doesn’t release anyone from the need to make their websites accessible.” 

Any reasonable person would expect universities to provide students with barrier-free access to course-related videos. Approximately 48 million Americans, about 20%, are deaf or hard of hearing. As universities increasingly offer more online courses and as 58% of faculty and counting “flip the classroom,” about 20% of enrolled students will require closed captions on video lectures. Susan deMaine urged faculty to apply user-centered design principles to create accessible online courses, and concluded that: 

When we use principles of universal design to guide the creation of online materials that everyone can use, the end result is a more holistic approach that gives shape and meaning to the technical standards. Not only does the purpose of the standards come through more clearly, but the standards are also enriched with a more design-centered focus that seeks effectiveness in form as well as function.

Although the Harvard and M.I.T. lawsuits are about public accessibility to online videos, and not about student accessibility, universities that receive federal funding must comply with federal laws and owe a duty to everyone for barrier-free access to publicly available videos. Waiting for the DOJ or Congress to act is not necessary. Including closed captions in online videos benefits all people, not only the 20% of Americans who are deaf or hard of hearing. 

This is a guest post from Kathy M., Dean of University Libraries at Central Michigan University and a PhD student in CMU’s Educational Leadership program.  


Is Optional Practical Training (OPT) Really an Option Anymore?

What would you do if you landed a dream internship at Facebook but couldn’t accept it because of delays in processing your work authorization? This is exactly the situation for one student at Dartmouth College, and he’s not the only one. It seems these days that Optional Practical Training(OPT) is becoming less of an option for international students, with a 91% increase in processing times for immigration cases since the 2014 fiscal year. 

The transition for international students in the United States from full-time study in higher education to employment can be a challenging one, as there are limited legal means to change seamlessly from student to employee. OPT functions as a bridge to allow F1 visa-holding international students to begin their careers in the United States through either permitting a summer internship or extending legal stay for up to one year after graduation. Employers may decide to sponsor their OPT employees for the H1B visa, which grants foreign nonimmigrants work authorization for up to six years. However, there is currently a cap on H1B availability at 65,000 per year.

The demand for this pathway from higher education to employment for international students is evidenced by the nearly 200,000 H1B applications received for the 2018 fiscal year. The Department of Homeland Security also responded to the demand for this pipeline by extending the possible length of stay for STEM graduates from 12 months to 29 months in 2008. The rationale was to limit disruption to U.S. STEM employers who were struggling to obtain H1B visas for their employees due to the high volume of applicants and low cap. The 2008 extension was challenged in Washington Alliance of Technology Workers v. DHS in 2015. The plaintiffs, a labor union focused on preserving the interests of American workers, argued that DHS had exceeded its statutory authority and acted capriciously in modifying OPT regulations. Although the court agreed with the DHS’s reasonableness in issuing the extension, they found that DHS had committed a procedural violation by not inviting public comment on the change before issuing it. DHS later corrected the issue, and in 2016 extended the available period even further for STEM graduates to 36 months.

Although no cases have yet been heard over the recent wave of OPT processing delays, this is not the first time administrative issues have plagued U.S. Citizenship and Immigration Services. In 2007, the State Department issued a visa bulletin that signified eligibility for visa application for a large number of immigrants only to reverse itself a few weeks later. The American Immigration Law Foundation responded by threatening to file a legal complaint against U.S. Citizenship and Immigration Services and the Department of State (DOS); after much pressure, the DOS accepted the applications. Another threat of a class-action lawsuit against the Department of Homeland Security emerged from a similar situation. The plaintiffs claimed they spent thousands of dollars in preparation for their application, including legal fees, medical exams, and preparing documentation.

The delays in processing time and administrative faux paus described here represent significant barriers to international students and workers building stable, happy, and prosperous lives in the United States. The current inefficiencies in the way work authorizations are processed do a great disservice to international students in higher education. Optional Practical Training should truly be an option, as advertised.  

This post was guest authored by Jennifer Majorana, a Ph.D. student in Educational Leadership at Central Michigan University and works with international students in higher education.


Federal Laws Banning Familial Donations to Universities Gut the Heart of Giving

The nation’s largest higher education admission scandal to date, commonly known as the Varsity Blues Scandal, recently led to dozens of indictments and documents outlining years of the wealthy elite bribing their children’s way into acceptance. With many stumped as to how this legal form of favoritism and bribery can continue, some have proposed that the government should play a more direct role in the monitoring of how funds are given to institutions. Recently, U.S. Senator Ron Wyden announced plans to introduce a bill that would prohibit colleges and universities from accepting donations from parents of currently enrolled students or those about to engage in the admissions process. At first glance this may appear as a way to curb the immediate concern of legal but unethical donations, it also would continue to hurt the millions of students immersed in higher education today. 

For decades, higher education institutions have faced declining enrollment and lower state and federal support, which has increased the cost of student tuition upwards of 300%. Institutions are relying on the support of donors to continue operations and academic and co-curricular upgrades. While substantial gifts impact the bottom line of institutions but are smaller in number, a large piece of the pie falls on non-alumni donations, specifically families that contribute smaller amounts of $25-$50. These amounts are adding up to large chunks of budgets that supplement scholarships and public service efforts

            Additionally, since federal oversight of donations typically lays most heavily with the tax benefit to donors, states are left to manage laws regarding institutional giving. States like Ohioallow the option of donors, for non-political affiliated purposes, to remain anonymous throughout the process. Under this logic, institutions do not have provide specific data to lawmakers or the public unless there is reason to suspect foul play. While most institutional professionals may claim to not know about admission scandals similar to those exposed earlier this year, those taking “second looks” at applicants could easily be vailed under the donor anonymity framework. 

            Furthermore, it is important to recognize that the admissions scandal has less to do with a select few wealthy individuals and more to do with a culture of elitist disregard for the admissions process. Saying parents and families are unable to donate to their children’s institution would easily lend way to other naturally developing loopholes. Parents could make donations a decade before their child’s application, to foundations that serve the institution without oversight, or continue to give to coaches and private organizations aimed at aiding students throughout the process. 

            While there may never be a sure-fire way to fix some individuals abusing the system to create “advantages” for their students, one potential solution may be to better provide support to and monitoring of the admission process. A recent article in The Atlantic provides insight that the entire admission system may not be an individualized process but more a machine aimed at efficacy, not accuracy. Applicant reviews of only 10-20 minutes leaves little time to explore the different motives and fact checking needed to verify accurate status of an applicant’s background. Providing more uniformity and structure to this process could allow for a strengthen framework to catch those abusing legal giving and illegal practices. While not perfect, admissions oversight serves as a potential alternative to a national legal overhaul of all familial donations that mainly aim to support ethically admitted student success. 

This post was guest authored by Jennifer Drevon, a doctoral student in Educational Leadership at Central Michigan University.