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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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Column in AAUP's Academe on Discharge of Student Loan Debt in Bankruptcy

For the January/February issue of AAUP's Academe, I have a column on the issue of the undue hardship standard as a requirement for the discharge of student-loan debt in bankruptcy proceedings.  The column is available here.


Federal Appeals Court Says "No" To Missouri Technical College Drug Testing All Students

We've had several blog posts, including here, about ongoing litigation in Missouri over a suspicionless drug testing program for incoming students at a two-year public college (Linn State).  In December 2016, the U.S. Court of Appeals for the Eighth Circuit issued an en banc decision (i.e., a decision by the full court and not a three-judge panel), available here, in which it (thankfully) invalidated parts of this testing regime based on Fourth Amendment protections.

Under the challenged policy, all incoming students were required to submit to a drug test in the form of a urinalysis.  Linn State operates multiple vocational programs in which students face potential safety risks from working with machinery or live electricity, but it also offers programs in which students engage in academic studies that did not pose such concerns.  The drug testing policy in question applied to all incoming students no matter the program in which they enrolled. According to the opinion, the college president enacted the policy after a survey of members of the institution’s advisory council indicated their support for drug testing all incoming students.  The policy was not started in response to the identification of any kind of systematic problems involving drug or alcohol use by students.  Absent a waiver from the college, students who refused to participate in drug testing could not enroll.

A federal district court upheld the drug-testing requirement for students enrolled in certain programs that presented particular safety risks, but it held that suspicionless testing of other students constituted an impermissible search under the Fourth Amendment.  Reversing in part, a panel for the Eighth Circuit initially decided that the school could implement the drug testing program for all incoming students without regard to program enrollment.  Agreeing to review the case en banc, the full court determined that the policy could not be applied to students in programs that did not raise particularized safety risks.

In its opinion, the Eighth Circuit explained that while searches under the Fourth Amendment typically require individualized suspicion, the existence of “special needs,” such as safety considerations, may warrant the use of suspicionless drug testing.  Along with safety issues, the school argued that the testing policy satisfied the special needs requirement in seeking to achieve the overall benefits of a drug-free environment for members of the campus community.  It also contended that the policy helped prepare students for drug testing regimes common in workplace environments.  The court rejected these various arguments in relation to students enrolled in programs involving no heightened safety risks.  In disallowing the policy under such circumstances, the court discussed that the school had identified no crisis or seeming epidemic of drug use among students.  Looking to a case in which the Supreme Court analyzed the permissibility of suspicionless drug testing of federal employees on the basis of job duties, National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the Eighth Circuit stated that the districted court appropriately engaged in a program-by-program analysis and the exclusion from testing of students enrolled in programs not raising special safety concerns.

Hopefully this case will serve as a useful caution to other institutions that might be considering a similar ill-advised testing program as that struck down in this case.


Submit a Proposal for the 2017 Education Law Conference

The 2017 Education Law Association conference will be in San Diego.  The deadline for proposals is March 1st. The ELA Conference is a great way to interact with others focused on education law issues.  You can visit here to submit a proposal.


Game Changer: NRLB Rules that Private College FBS Football Players Are Employees

On Tuesday, the NLRB’s Office of the General Counsel issued a ruling indicating that football players at private universities participating in the NCAA’s Football Bowl Subdivision (FBS) are employees under one section of the National Labor Relations Act. This determination significantly expands the 2014 ruling by the NLRB that Northwestern University football players are considered employees under the act. 

Moreover, it signals two probable, if not likely, outcomes. First, to the extent that FBS football players at a private college seek protection, individually or collectively, against unfair labor practices, the NLRB will treat them as employees of the university. Second, this opens the door to players at these institutions requesting pay for play, above and beyond the scholarships they receive.

There are seventeen private universities in the FBS: Baylor University (Big 12); Boston College (ACC); Brigham Young University (Independent); Duke University (ACC); University of Miami (ACC); Northwestern University (Big 10); University of Notre Dame (Independent / Affiliated with ACC); Rice University (Conference USA); University of Southern California (Pac 12); Southern Methodist University (American); Stanford University (Pac 12); Syracuse University (ACC); Texas Christian University (Big 12); Tulane University (American); University of Tulsa (American); Vanderbilt University (SEC); and Wake Forest University (ACC).

How this ruling will impact the college football landscape, particularly in the ACC, where 5 full members and 1 affiliate member of the 15 total members are private, remains to be seen. However, one thing is for certain: the ruling has the potential to be a game changer for the football programs at private FBS schools.


National Conference on Law and Higher Education -- Register Now!

Stetson University College of Law will be holding its 38th Annual National Conference on Law and Higher Education in Orlando, Florida from February 9 through 13, 2017. More information, including online registration and a schedule of events, can be found online at this link.

This is always a great event, coordinated masterfully by Professor Peter Lake and Higher Education Law blog's very own Mercy Roberg.  Nearly all the contributing editors to this blog have participated in the conference in the past, and many of us will be there again this year. 

I hope to see you in Orlando in February!