Higher Education Quick Takes

Quick Takes

January 13, 2021

University of Kentucky president Eli Capilouto voiced his support Monday for the university’s men’s basketball team and coach, who knelt during the national anthem during a game over the weekend to protest racial injustice and the storming of the U.S. Capitol by supporters of President Trump last week.

The team’s decision to kneel was harshly criticized by fans on social media and by public officials, media reports said. The Louisville Courier-Journal reported that a Kentucky state senator with family members in the military cried as he spoke on the Senate floor about how he was “hurt” by the demonstration and said people “have died to allow young men to … have the opportunity to play sports and speak their mind.” Two Kentucky law enforcement officials were taped burning a Wildcats basketball shirt on Sunday and one said the team “disrespected the American flag,” the Courier-Journal reported.

Capilouto said in a joint statement with Mitch Barnhart, UK’s director of athletics, that they support the players’ and head coach John Calipari’s right to kneel, which they called an act of free speech and expression.

“We won’t always agree on every issue. However, we hope to agree about the right of self-expression, which is so fundamental to who we are as an institution of higher learning,” the statement said. “We live in a polarized and deeply divided country. Our hope -- and that of our players and our coaches -- is to find ways to bridge divides and unify.”

Calipari said on a Monday radio show posted by UK Athletics that his players saw the images of the Capitol riot last week and “wanted to have their voices heard,” asking the coach to kneel with them. The demonstration did not have to do with the military and was not intended to offend anyone, Calipari said. Six Wildcats players even have family connections to the military, he said.

“I held my heart, but I did kneel with them because I support the guys,” Calipari said. “This came from their hearts and it was peaceful. It was peaceful. They did it to bring people together.”

January 13, 2021

The association representing for-profit colleges and universities, in a letter Monday, urged President-elect Joe Biden's administration not to single them out unfairly.

The Biden administration is expected to restore Obama administration rules eliminated by former education secretary Betsy DeVos aimed primarily at for-profit institutions. The rules would make it easier for students defrauded by institutions about the value of their degrees to file borrower-defense claims to have their student loans canceled, as well as potentially stripping institutions from receiving federal student aid dollars if their students do not find adequately paying jobs.

“We share many of the same goals as the President-Elect, including expanding access for those who wish to pursue postsecondary education, maximizing student outcomes, ensuring a return on educational investment, and rebuilding the economy through job training and career education opportunities targeted toward high-demand professions,” Career Education Colleges and Universities president and CEO Jason Altmire wrote in the letter.

He wrote, “We do not oppose the idea of regulations designed to hold institutions and programs accountable for their students' graduation and employment outcomes. We simply ask that the same rules apply to all Title IV institutions and programs across all sectors.”

January 13, 2021

The Education Department added long called-for information to its College Scorecard that shows how well students at institutions, including for-profits, are able to repay student loans.

"Today, we continue to build on the updates we've made to College Scorecard over the last several years by delivering even more transparency around student loan repayment," Acting Education Secretary Mitchell Zais said in a press release Tuesday. "Prospective students can now see a comprehensive picture of how borrowers from each institution are meeting their federal student loan obligations. This is the kind of real, unfiltered information students need to make informed, personalized decisions about their education."

The added information shows the percentages of borrowers who fall into eight loan repayment statuses two years after entering repayment: paid in full, making progress, delinquency, forbearance, default, not making progress, deferment and loans discharged.

Robert Kelchen, associate professor of higher education at Seton Hall University, praised the addition. “This is a big step forward in understanding student outcomes,” he said.

January 13, 2021

The Supreme Court heard oral arguments Tuesday in Uzuegbunam v. Preczewski, a case challenging speech restrictions at a public Georgia college.

The central legal question before the court is whether claims for nominal, or symbolic, damages -- e.g., an award of $1 -- are made moot if a government body changes the policy under dispute after a lawsuit is filed. The case was filed by Chike Uzuegbunam and Joseph Bradford, both former students at Georgia Gwinnett College, who challenged the college’s speech code after Uzuegbunam was stopped from publicly speaking about his Christian faith and distributing religious leaflets even after he obtained advance permission and reserved a space in the college’s “speech zone.”

The college initially defended its stance but subsequently relaxed its speech restrictions before the merits of the case were decided. The district court dismissed the case, and the students' claims for nominal damages, as moot, a decision upheld by the 11th Circuit of Appeals.

The students argue in their brief to the court that without the ability to press their case to seek nominal damages, they will not be redressed for the constitutional injuries they suffered. Further, the brief states, "holding that a nominal-damages claim is insufficient to continue a case or controversy eliminates any possibility for an attorney-fee award … This would deter litigants and attorneys from pursuing constitutional claims that lack a compensatory damages component, expanding opportunities for government officials to violate constitutional rights."

“Vindicating Chike’s and Joseph’s free-speech rights is particularly crucial here because Respondents’ misconduct occurred on a public-college campus," the students' brief states.

"The 'vigilant protection of constitutional freedoms is nowhere more vital' than at public colleges," the students argued. "Yet nearly 90 percent of public colleges and universities have adopted policies that are either clearly unlawful or constitutionally suspect under the First Amendment … And claims for prospective relief are highly susceptible to mootness because students graduate, and colleges change offending policies -- at least temporarily -- when sued."

"Students also frequently suffer no compensable harm from a college’s speech-suppressing policies. Unless a nominal-damages claim remains justiciable, many students will be deprived of their only remedy."

The attorney general office for the state of Georgia argued the courts were right in dismissing the case as moot, saying that federal courts should concern themselves with "cases and controversies with real stakes for the parties, not abstract disputes."

"Since the college permanently revised the policies petitioners challenged, nominal damages would give them no more than the satisfaction of having a federal court say they are right," the state of Georgia said in its brief to the court.

Free speech groups, including the American Civil Liberties Union, the Foundation for Individual Rights in Education, and a number of other organizations focused on religious liberty, filed briefs supporting the students' case.  

January 13, 2021

During his “State of College Sports” remarks Tuesday, Mark Emmert, president of the National Collegiate Athletic Association, said he is “extremely frustrated and even disappointed” with the United States Department of Justice’s suggestion that the association’s pending rules for allowing athletes to profit from their personal celebrity may violate antitrust law.

A DOJ letter sent by a department official on Jan. 8 delayed a scheduled vote by the NCAA Division I Council on name, image and likeness, or NIL, legislation, which was set to take place Monday. The association was “ready to take a big step” to support students’ NIL rights, but moving forward with the plans is now “ill-advised,” Emmert said during his remarks, which were part of the NCAA’s annual convention that will span the next two weeks.

“Because of an enormous amount of issues surrounding all of this, issues that, frankly, are beyond our control, it is now a very ill-advised thing for us to do at this stage,” Emmert said. “So we have to pause on this progress. And I'm very disappointed in that. More importantly, all of our college athletes are profoundly disappointed and I suspect even angry.”

Emmert said the NCAA is still committed to move forward with NIL “modernizations” and with changing Division I rules for athletes who transfer to different colleges, which were also at issue in the DOJ’s letter.

Emmert also addressed “critics,” some of them “within college sports,” who have recently called into question the significant wealth institutions gain and spend in athletics. One of these critics is the Knight Commission on Intercollegiate Athletics, a group of current and former college leaders that advocates for college sports reform, which recently published a proposal to separate top Division I football from the NCAA to increase oversight of the most lucrative programs in the sport. Under the proposal, football players would have NIL rights.

“There are those that think in fact that we should even take that part that's most entertaining and most lucrative and carve it off the association, set it over here and turn that into a pure entertainment industry with paid professionals,” Emmert said. “I couldn't disagree more. We are not just the entertainment industry. The single most important outcome for all but a tiny fraction of our athletes is to graduate from college with a meaningful degree.”

January 13, 2021

Today on the Academic Minute, part of Bentley University Week, Mateo Cruz, assistant professor of management, explores acute stereotype-threatening cues for women in the workplace. Learn more about the Academic Minute here.

January 12, 2021

The United States Department of Education’s Office of the General Counsel published a memorandum on Friday that states that LGBTQ students are not expressly included in protections under Title IX, the law that prohibits sex discrimination at federally funded institutions.

Questions about how Title IX applies to LGBTQ students surfaced after the U.S. Supreme Court’s landmark ruling in June, Bostock v. Clayton County, which cemented protections for LGBTQ workers under Title VII of the Civil Rights Act of 1964, the law that prohibits workplace discrimination based on race, sex, religion or national origin. The Supreme Court determined that “sex” under Title VII should be interpreted to include LGBTQ people, when they face discrimination based on their sexual orientation or gender identity.

Legal experts and some of the justices themselves suggested the ruling could have consequences for other laws that apply to sex discrimination, including Title IX. The Department of Education’s Office for Civil Rights, or OCR, overseen by former education secretary Betsy DeVos, has since signaled that it would investigate some Title IX complaints that allege discrimination based on homosexuality or transgender identity, but that some exceptions remain for Title IX enforcement. For example, the department said in previous letters that it is not discrimination against transgender students for a school to maintain separate sports teams based on biological sex.

Friday’s memo further maintained that OCR should only consider certain forms of discrimination based on LGBTQ identity as discrimination under Title IX and said that “sex” should only be interpreted to mean “biological sex, male and female.” Title IX allows for exceptions to the law based on biological sex, such as permitting schools to have separate bathrooms for male and female students, and therefore a claim that a transgender student was disallowed from using the bathroom not of their biological sex would not be discrimination, the memo said. The memo outwardly contradicts recent federal appeals court decisions on the matter.

The Human Rights Campaign, an LGBTQ rights advocacy organization, said in a press release that the department, in the Trump administration’s final days, is “misconstruing” the Supreme Court’s Bostock decision. Alphonso David, president of the campaign, said in the release that the memo “is unconscionable and legally flawed.”

“Over the last four years, Secretary DeVos has repeatedly attacked the LGBTQ community -- especially transgender students -- leaving an egregious record of recruiting anti-LGBTQ extremists,” David said. “The Biden-Harris administration and Secretary Designate Miguel Cardona must urgently rescind this discriminatory guidance.”

The department’s interpretation of how Title IX applies to LGBTQ students is not expected to last long. President-elect Joe Biden, a Democrat, will be inaugurated in less than two weeks, and the department will likely be turned over to Cardona, Biden’s nominee for education secretary.

January 12, 2021

The University of Alabama in Tuscaloosa announced Monday it will provide up to 80 hours of paid leave to employees affected by COVID-19 or related complications. The program aims to replace federal benefits that expired Dec. 31.

“We have implemented this program to protect the campus community from the spread of the coronavirus while acknowledging that balancing work and our personal lives is an important part of the University’s mission,” Stuart Bell, the university's president, said in a press release. “We want to assist our outstanding faculty, staff and student workers when they need time for illness or to care for their children during this unprecedented pandemic.”

All full-time, part-time, on-call, temporary and student workers are eligible for the program. The 80 hours of paid leave will be prorated for employees who work less than full-time. The pay rate for COVID-19 leave days is two-thirds of an employee's regular rate. Employees can supplement the remaining one-third with accrued sick leave, annual leave or compensatory time they have available.

To qualify, an employee must be diagnosed with COVID-19 and subject to a quarantine or isolation order; have COVID-19 symptoms awaiting a medical diagnosis or testing confirmation; receive an order to quarantine or isolate because of close contact with an infected individual or as directed by a case manager with the UA COVID-19 Support Program; experience side effects within two weeks of a COVID-19 vaccination; or care for children under the age of 18 whose school, place of care or childcare provider is unavailable because of COVID-19 precautions.

The program does not replace the university’s existing leave benefits.

January 12, 2021

Liberty University is suing Virginia governor Ralph Northam, a Democrat, in federal court, The Washington Post reported Friday.

The lawsuit concerns a budget amendment made last year that carved out exemptions in the state’s Tuition Assistance Grant program for students taking classes entirely online. Thousands of Virginia students taking classes online at Liberty are set to lose access to the state tuition grant.

The university is arguing that the distinction between online and in-person courses is arbitrary for the purposes of the grant, which is for Virginia students taking classes at private nonprofit institutions within the state, regardless of financial need. According to federal data from 2019, more than 70 percent of undergraduates and 90 percent of graduate students at Liberty take classes exclusively online. The university enrolls about 85,500 students in total.

The university relies heavily on state and federal financial aid, and the lawsuit says the changes “threaten to wreak severe economic and reputational harm” on the institution, the Post reported.

A spokesperson for the governor told the Post she could not comment on the lawsuit, but she said, “Governor Northam has made it a top priority to expand access to affordable, high-quality education.”

January 12, 2021

North Carolina State University could not find evidence to back allegations of misconduct against Chadwick Seagraves, a technology support services staff member who was accused last month of being a member of the Proud Boys, a far-right hate group, according to a statement on Monday from Mick Kulikowski, a university spokesman.

N.C. State conducted a “thorough review” of any possible “malicious online activities” by Seagraves, the statement said. Seagraves was accused of being the owner of a Twitter account that identified itself as belonging to a leader of the Proud Boys and of interacting with an N.C. State student in 2019, who said Seagraves doxed him, or distributed the student’s personal information online in an attempt to encourage others to harass him. Seagraves has forcefully denied being a member of the Proud Boys and that he doxed the student.

The university’s review, which lasted about a month and a half and was supported by external investigators, “did not substantiate any significant allegations,” the statement said. The university review also addressed more recent claims that Seagraves was part of the riot that stormed the U.S. Capitol last week; law enforcement officials verified that he was not in Washington, D.C., at the time, the statement said.

“The university can only institute formal disciplinary action against a state employee when there is just cause to do so, such as for substantiated violations of the law or NC State policies,” the statement said.

The review could not find such a violation, and the university’s statement noted that some N.C. State students and faculty members will be disappointed with this outcome. About 2,100 students, faculty and staff members have signed a petition demanding Seagraves’s removal from the university.

“We understand that the accusations and related discussion have caused hurt and evoked a variety of emotions on and off campus,” the university statement said. “Although we acknowledge the outcome will not satisfy everyone, NC State stands in strong opposition to intolerance and hate, and remains dedicated to doing all we can to advance the university's core values of diversity, inclusion and equity for all.”

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