Higher Education Highlights Summer 2019

Higher Education Highlights Summer 2019

Esports

Electronic sports (esports), also known as competitive video and computer gaming, continues to boom in popularity.  Esports is a spectator-driven phenomenon: some reports estimate the global esports audience will total 456 million in 2019, a sizeable increase from the 395 million-person audience in 2018, and industry revenue generated in 2019 could reach nearly $1.5 billion.   This explosive growth is notable at the collegiate level.  The National Association of Collegiate Esports (“NACE”), a nonprofit membership organization focused on growing and advancing collegiate varsity esports, reports that at the time of its inception in 2016 only seven colleges and universities had varsity esports programs; NACE now reports 130+ member institutions, 3,000+ student athletes, and $15 million in esports scholarships and aid.   It remains to be seen how, and whether, esports will be definitively classified at the collegiate level, creating yet another question mark in the legal landscape.

Trump

On March 21, 2019, the Trump Administration elected to wade into the free speech arena by issuing the Executive Order, entitled “Improving Free Inquiry, Transparency, and Accountability At Colleges And Universities.”  The Executive Order in broad strokes directs 12 federal agencies, including the Department of Education, National Science Foundation, and Department of Defense, along with the Office of Management and Budget, to “take appropriate steps” to ensure that educational institutions receiving federal funding “promote free and open debate on college and university campuses” and “avoid creating environments that stifle competing perspectives.”  However, the Executive Order provides no framework as to how the executive agencies are to determine whether a college or university is complying with the Order’s policy goals and directives.  Similarly, there are no specific penalties for non-compliance, nor any discussion as to how penalties are to be assessed.  Yet, the Order comes against a well-documented backdrop of the Executive Branch threatening to withdraw federal funding from academic institutions deemed to be hostile to free speech in the eyes of the Trump Administration.

Hazing

Forty-four states and the District of Columbia have anti-hazing laws. Those that do not (yet) have anti-hazing laws on the books include Montana, Wyoming, South Dakota, New Mexico, Alaska and Hawaii. One of the strictest criminal laws for hazing in the country was just passed in Pennsylvania.  The new law, known as the Timothy Piazza Anti-hazing Law, 18 Pa. C.S. § 2801, et seq. (the “law”), implements a variety of new requirements for higher education institutions and imposes strict criminal sanctions.  Since Pennsylvania’s law passed, eight states, including Texas, Florida, Indiana, New Jersey, Ohio, South Carolina, California, and Louisiana have proposed stricter hazing laws.  Many of these proposals are comparable to, or adopt from, Pennsylvania’s law.  Given the possibility that Pennsylvania’s strict stance may be indicative of the new trend, this article answers some of the questions and requirements about the new PA law.

Title IX

Within the past year, numerous administrative complaints have been filed with the Department of Education’s Office for Civil Rights alleging that collegiate programs supporting women violate Title IX.  The complainants argue that because Title IX protects all persons from discrimination on the basis of sex, programs specifically designed to advance women on campus unlawfully discriminate against males.  At this stage, complaints continue to be investigated, but at least one school has a resolution agreement with the Department relating to female-only scholarships and programs.

GDPR

Over the course of the GDPR’s first year, numerous enforcement proceedings have taken place throughout Europe. These actions have been leveled at companies ranging from a Danish taxi company to a Portuguese hospital to the multinational tech giant Google. The penalties dished out by regulators have ranged from orders to stop or limit data processing, to nominal fines, to a fine of €50 million. These enforcement proceedings show how regulators are prioritizing the myriad new obligations that the GDPR imposes on controllers and processors of personal data. As organizations continue working to understand and comply with GDPR provisions that are sometimes broad and ambiguous, these proceedings provide some helpful concrete examples of how the rubber has met the road. This article discusses some key aspects of the GDPR that have served as the basis for enforcement actions.

Timely Warning

If there is one thing that her time as the Department of ED’s Clery Act Compliance Director taught this author, it is that Timely Warnings are the lowest of the Clery Act’s low-hanging fruit.  Those decisions – to issue or not to issue a TW – are, by far, the easiest for government officials to Monday-morning-quarterback, and often serve as the quickest path to findings of Clery Act violation.  With the benefit of time, hindsight, and documentation, it takes relatively little effort for ED officials to dissect a disaster in order to determine what was done well and what should have been done differently.  As a result, school administrators must become adept at managing both the tragic and the unpredictable.  The former Compliance Director offers tips for timely warning compliance.

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