Higher Education Highlights Summer 2018

Higher Education Highlights Summer 2018

Changes on the Horizon for Students Studying on F, J and M Non-Immigrant Visas

A major change in USCIS policy could create significant problems for students studying on F, J and M non-immigrant visas. Starting August 9, 2018, those students who fail to maintain their student status will begin to accrue unlawful presence if they: (1) no longer pursue a course of study; or (2) engage in unauthorized activity. Accruing unlawful presence status can have dire consequences. If an individual accrues more than six months of unlawful presence status it will trigger a three-year bar to re-entry or adjustment of status. And if an individual accrues more than one year of unlawful presence status, it will trigger a 10-year bar to re-entry or adjustment of status. Therefore, it is critical for students who have violated their status to work quickly with their DSO or attorney to be reinstated within six months so they do not trigger any bars to re-entry.

Gender Pay Litigation On The Rise

The University of Denver’s Sturm College of Law resolved a pay equity lawsuit with seven female law professors, but the agreement will cost the University $2.7 million in payouts, as well as a host of “non-monetary” measures. Although an attention-catching result, this university is not alone. Gender pay lawsuits are on the rise, particularly in academia. Institutions are encouraged to become proactive about discovering and remedying pay inequity now before a lawsuit hits. A pay equity audit, if performed correctly, can be a valuable resource for an institution.

Massachusetts Supreme Court Rules Universities have Limited Duty to Prevent Student Suicide

In a hotly tracked decision that could have far-reaching implications, the Massachusetts Supreme Court set forth a narrow ruling that institutions of higher learning must take reasonable measures to protect a student from self-harm when it has actual knowledge of a student’s recent or planned attempt to commit suicide. While this decision should give schools comfort that they only have a duty to act to prevent student suicide under circumstances where it should be apparent that a student is in imminent harm, it does leave some questions unanswered. For example, the court did not define what constitutes a “recent” suicide attempt, it did not discuss at what point a university is relieved of its obligation to take “reasonable measures” to prevent a student from engaging in self-harm, and it did not provide an exhaustive, definitive list of reasonable measures that should be taken when a student is determined to be a substantial suicide risk. Despite these unanswered questions, this case should serve as a reminder to colleges and universities to reassess and reiterate their suicide prevention protocols and procedures to ensure they take appropriate action when a suicide risk becomes evident.

Blogging Away Academic Freedom: What is the Standard for Protected Faculty Speech?

Any day now, the Wisconsin Supreme Court will decide whether a private university had the right to sanction a professor for blogging about one of the university’s graduate students. Depending on the ruling, the court’s decision has the potential to give rise to review by the United States Supreme Court, which has sidestepped the issue of faculty speech in the past. As a result, this Wisconsin case has the potential to create an actual framework for addressing faculty speech -- and faculty speech on a private social media account no less, an ever-growing and never easy issue. Because of this, all university and college counsel are encouraged to track the Wisconsin Supreme Court’s decision.

False Claims Act Liability by way of False Statements in Program Participation Agreements

The False Claims Act (FCA) is intended to reach any type of fraud that might result in financial loss to the federal government. So, while it is true that over the past decade the FCA has been used to predominately combat fraud in healthcare and government contracting, institutions of higher education should not consider themselves immune to the FCA’s hefty penalties. FCA claims can arise in a variety of contexts for higher education institutions, including for example, through alleged violations of the 90/10 Rule for proprietary institutions, record keeping requirements, satisfactory academic progress statistics, job placement statistics, accreditation standards, and mismanagement of federal grant monies. Indeed, fraudulent statements in a Program Participation Agreement, particularly with respect to the Incentive Compensation Ban, are a hot bed for FCA claims at the moment.

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