November 1, 2024

The Academic Advisor - Education Care Insights, Issue 9, October 2024

Hikmat Al-Chami, Kevin Carr, Lisa Hawrot, Erin Jones Adams, Emily Merritt, Nicholas Muto, Shane Riley, Isaiah Robinson

Spilman Thomas & Battle, PLLC

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October 31, 2024

Welcome

Welcome to The Academic Advisor - our e-newsletter focused on education law insights.

With Fall Break behind us and the race to end-of-term underway, we highlight the following topics of import for schools, universities, and education-focused institutions in this edition:

How West Virginia has handled growing threats against schools;
The latest on House v. NCAA and its effect on NIL offerings;
The potential impact of the Navient settlement on student loan servicing;
Effective measures for K-12 institutions to combat cyber threats;
Curriculum opt-out in Maryland and possible Supreme Court involvement;
The South Carolina Supreme Court decision affecting private school scholarships;
The Department of Education suit regarding McNair grants; and
The impact of net neutrality on educational institutions.

As always, thank you for reading.

Series of Threats Against W.Va. Schools Spurs Response from Educators, Law Enforcement

Amidst the positive energy and excitement that comes with a new school year, many schools and communities across the state have been disturbed by potential threats of violence. According to the FBI field office in Pittsburgh, as of mid-September, more than a dozen online threats had been made against West Virginia schools. While most of the threats were deemed hoaxes, the FBI has considered each threat serious and urged the public not to repost them.

On September 12, Governor Jim Justice issued a press release directing the West Virginia Fusion Center to act as the central repository for all threats of violence against West Virginia schools. Governor Justice stated that “each and every one of these threats will be investigated and all of our resources are working to protect our students, our schools, and our communities.” Meanwhile, school districts across the state have been doing what they can to keep their students safe. One school district moved to remote learning after a threat was issued. Other county school boards have held meetings to provide updates to parents and hear from the public.

According to WBOY and the West Virginia Fusion Center, as of September 30, at least 12 students have been expelled and could face criminal charges as a result of the online school threats. In addition, more than 20 people have been arrested in connection to the threats. The West Virginia Department of Education reports that hundreds of threats were made across the state by threatening violence through social media posts and reporting emergencies from both within and outside the state borders. --- Isaiah C. Robinson

House v. NCAA Settlement Attorneys Working to Clarify Booster, NIL Collective Enforcement

In House v. NCAA, two student-athletes challenged the NCAA and sought damages for the use of their name, image, and likeness (NIL), as well as an injunction to lift restrictions on revenue sharing with student-athletes from broadcast rights. Earlier this year, the NCAA settled the lawsuit for $2.78 billion and agreed to allow member institutions to distribute funds of up to $20 billion to Division I athletes who have played since 2016. Since that time, the NCAA and the plaintiffs’ attorneys have been negotiating the details of the settlement agreement that will significantly change the economic model for student-athletes moving forward. As of early October 2024, the settlement has received preliminary approval from Judge Claudia Wilken of the Northern District of California, clearing the path for eligible student-athletes to receive revenue-share payments from schools as early as next year.

The settlement would last for 10 years and require roster limits for all NCAA sports, along with neutral arbitration to resolve disputes. The settlement would also allow schools to share $20 to $23 million of annual revenue with their athletes. The parties have been working through clarifications regarding team boosters and NIL collectives, which provide more than 80 percent of the dollars distributed to student-athletes. In settlement revisions issued late last month, the parties have removed the term “booster” from the settlement; clarified that NCAA enforcement of NIL pay-for-play rules will be limited to groups closely affiliated with schools such as collectives and vetted through a thirty-party clearinghouse; and exempted NIL deals with individuals whose families have contributed less than $50,000 to a school from certain restrictions.

While not banning NIL collectives altogether, the settlement proposes to limit their activity and return more power to the institutions and the NCAA. Proponents of the collective model say that limiting their ability to engage with student-athletes will dampen their facilitation of third-party deals and give the institutions and the NCAA too much gate-keeping power. The final approval hearing for the settlement is tentatively scheduled for April 2025. All are optimistic that these issues can be worked out in the near future and provide more certainty for the schools, students, conferences, and collectives alike. --- Shane P. Riley

Navient Reaches $120 Million Settlement for Misleading Student Loan Borrowers

The recent $120 million settlement between Navient, formerly one of the largest student loan servicers in the country, and the Consumer Financial Protection Bureau (CFPB) highlights the tension between efficient loan servicing and protecting student borrowers' interests. The settlement, which bans Navient from servicing federal student loans and obligates Navient to pay a $20 million penalty and $100 million in relief to impacted borrowers, underscores the increasing federal oversight in the student loan industry and its impact on millions of borrowers.

The settlement comes on the heels of a lawsuit launched in 2017 by the CFPB regarding violations of multiple consumer protection laws. The CFPB claimed Navient misled borrowers about repayment plans, botched payment processing, and harmed the credit of disabled borrowers, among other issues. While Navient has consistently denied any wrongdoing, it states that the agreement enables the organization to put "these decade-old issues behind [it]" and achieve a “resolution consistent with [its] go forward activities[,]” which have excluded servicing federal student loans since 2021.

While the settlement appears to be a victory for borrowers, critics argue that such actions could have unintended consequences. In particular, opponents contend that the complexities of servicing millions of loans create inherent challenges, and punitive measures could discourage companies from participating in federal student loan programs. Navient previously serviced loans for more than 12 million borrowers, managing about $300 billion in loans. Meanwhile, CFPB Director Rohit Chopra states that the ban on Navient will "finally put an end to the years of abuse."

As the student debt crisis continues, policymakers and regulators must ensure responsible loan servicing while maintaining a system that can effectively manage the enormous volume of student loans. The outcome reckons to shape the future of student loans and influence how both borrowers and servicers navigate the complex landscape of education finance. --- Hikmat N. Al-Chami

Strategies for Fortifying K-12 Cybersecurity in the Digital Age

When considering cybersecurity targets and threats, K-12 institutions may not be the first thing that comes to mind. Yet student records, personnel data, health records, and administrative files are all vital pieces of information that K-12 institutions maintain and risk compromising when data security in a K-12 setting is breached by a cyber threat. As previously reported in several of our publications, cyberattacks targeting educational institutions have increased, making it crucial to address this issue in a manner that not only prevents data loss, but also disruptions to the learning environment. To avoid cyberattacks and mitigate the damage they cause, this article offers various measures that educational institutions, including K-12 schools, can employ to protect their databases.

One effective step in this important work is to secure technology. Schools often operate with outdated technology and software, which makes them more vulnerable to increasingly complex cyberattacks. Due to recent moves to more remote and hybrid learning models, technology is used more in K-12 settings than ever before. While beneficial in many respects, this means that vulnerable information resides on more devices. Regular vulnerability checks can help to identify weaknesses in school networks and digital infrastructure that need to be secured. Meanwhile, strict encryption protocols for sensitive data can aid in further ensuring that even if intercepted, the data remains unreadable and secure. In addition, grants from governmental agencies such as the Department of Homeland Security are available to support the replacement of outdated technology and to implement security infrastructure upgrades.

Regular training of both staff and students is also critical for reducing the likelihood of a successful cyberattack. Required learning sessions for the individuals who use school-issued technology, or personal technology that provides access to school networks or sensitive data, equip them with the information needed to recognize cyber threats and react appropriately, including by immediately reporting related concerns to a designated school official. Educational institutions can also implement a comprehensive technology security plan to ensure all constituents know how to respond in the event of a cyber threat. In addition, while reliance on third-party support for data storage needs may be acceptable, it is imperative that institutions first vet their vendors’ data security policies and practices and establish an agreement that ensures the vendors’ use of any required technical safeguards and prompt notification of any threatened or actual data breach, among other obligations.

By adopting proactive measures to secure critical data and information, educational institutions can avoid costly reactive solutions and better manage their already limited budgets. The solution to increased cyberattacks against K-12 schools is not a one-time fix. As technology evolves and the threats become more elaborate and harder to recognize, the cybersecurity measures that educational institutions implement must be stronger to respond in kind. Like all educational institutions, K-12 schools must prioritize cybersecurity and continually update their security measures to avoid cyberattacks. --- Nicholas A. Muto

Will Supreme Court Hear Maryland LGBTQ+ Curriculum Opt-Out Case?

Muslim and Christian parents in Maryland sued the state regarding their inability to opt out of the elementary school curriculum. They argued that their inability to do so violates both the First and Fourteenth Amendments, which include their right to determine the religious upbringing of their children.

In October 2022, the Montgomery County Board of Education (Board) announced that through its regular curriculum process, the Board had approved a group of LGBTQ-inclusive books as part of the English Language Arts curriculum. Although the individual contents vary, the books as a whole express their authors’ views on sexual orientation and gender identity through characters in different situations. Teachers were given wide latitude as to how and when to use the books although they were not able to elect to not use them at all. Teachers were also provided with supporting materials to assist them in responding to potential questions the books might generate.

Initially, parents/caregivers were provided with notice and the ability to opt out through agreements with individual principals and teachers. If the opt-out was elected, the teacher was to find a substitute book with the same language arts standards and objectives. However, in March 2023, the Board announced that a notice and opt-out option was no longer permitted although old requests were grandfathered in. Apparently, individual schools could not accommodate the growing number of opt-out requests (many of which the Board claims were not religious in nature) without causing significant disruptions to the classroom. For instance, students were initially excused from class if the books were read aloud. This quickly became infeasible for teachers. Thus, the 2023-2024 academic year was the first full year where no notice or opt-out option was available.

Almost immediately some parents, teachers and administrators began voicing concerns about the appropriateness of the books. Some were based on religious grounds. Others were based on claims that the books had age-inappropriate content in that some words were being used without definitions. Some parents/caregivers then sought to have their children exempted from the books, believing that the books constituted an effort to teach students about sex, lessons about LGBTQ issues, or other age-inappropriate issues.

Eventually, six parents and an association called “Kids First” sued the Board over its refusal to provide notice and an opportunity to opt out of their children’s exposure to certain books and related discussions alleging that it violated state and federal law. The parents requested a preliminary injunction requiring the Board to provide the requested notice and opt-out option. When the district court denied their motion, the parents appealed to the U.S. Court of Appeals for the Fourth Circuit. Twenty-three states, religious organizations, and other groups filed amicus briefs in support of the parents and 19 states, the ACLU and other civil rights organizations, and various Maryland educational associations filed amicus briefs in support of the Board of Education.

On appeal, the Fourth Circuit took no position on whether the parents would be able to present sufficient evidence to support any of their claims. Given the early stage of the litigation, the parents’ broad claims, and the very high burden to obtain a preliminary injunction, the Fourth Circuit could only look at what they called the “scant” record before them on appeal. It noted that the record below provided little explanation of how the books have been or would be integrated into the larger collection of books offered as part of the Language Arts curriculum. Ultimately, the Fourth Circuit determined that at present, there was no evidence that the failure to provide an opt-out compels the parents or their children to change their religious beliefs or conduct. Thus far, the parents have not shown that the Board's decision affects what they teach their own children. As such, the Fourth Circuit affirmed the district court’s order denying the preliminary injunction. It is important to note, though, that the Fourth Circuit also concluded that the parents had not yet presented evidence establishing their burden of proof for obtaining a preliminary injunction.

As a result, Muslim, Christian, and Jewish parents in Mahmoud v. Taylor are now asking the U.S. Supreme Court to determine whether parents should be allowed under the First Amendment to remove their child from instruction that they say goes against their religious beliefs. They argue that the inability to do so violates “parents’ right to protect their children’s innocence and direct their religious upbringing.” The Supreme Court will decide whether it will hear the case. As it is already set to hear two education-related cases, and since it only accepts approximately 80 out of 7,000-8,000 petitions, it will be interesting to see whether the Court also wants to address religious beliefs in the context of the First and Fourteenth Amendments. --- Lisa M. Hawrot

South Carolina Supreme Court Deals Blow to Private School Scholarships

In Eidson v. South Carolina Department of Education, the South Carolina Supreme Court recently ruled that the statewide Education Scholarship Trust Fund Program (Program) is unconstitutional. The Program, which was enacted in 2023 and took effect this year, is a K-12 voucher program that allows qualifying parents to apply for a scholarship worth $6,000 per eligible student, per year to be used for tuition or certain educational expenses at a school of their choosing, including private schools. To be eligible for the 2024-2025 school year, students must have a household income that does not exceed 200 percent of the federal poverty guidelines. The Program also covers tutoring services, technology needs, and other educational services for students with disabilities.

To date, the Program has enrolled nearly 3,000 students. However, the Program’s trajectory is likely to change. In a 3-2 decision, the South Carolina Supreme Court held that the Program violated the South Carolina Constitution because the General Assembly cannot appropriate funds to be used for private school tuition. The South Carolina Constitution specifically provides that “[n]o money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.” The South Carolina Education Association and the South Carolina State Conference of the NAACP argued, and the court agreed, that “[a] parent who chooses to use a scholarship to pay their child's private school tuition is undoubtedly using public funds to provide a direct benefit to the private school.” Eidson v. S.C. Dep’t of Educ., No. 2023-001673, 2024 WL 4141893, at *8 (S.C. Sept. 11, 2024). Thus, the court confirmed that the Program’s public funds are to be used for public education.

Although the Program cannot be used for private school tuition, which directly benefits the private institution, the Program may still be used for other educational expenses that indirectly benefit the private institution. Some examples of qualifying expenditures that do not directly benefit private schools, and are thus deemed constitutional, include, among others, tutoring services, technology assistance, and services for students with disabilities. Nevertheless, the Eidson ruling could jeopardize the school enrollment of children whose families relied on the Program’s scholarships for tuition this academic year. The ruling could also potentially undermine other state-funded scholarships utilized by students at private colleges and HBCUs. It is important to consult your legal counsel with any questions or concerns about the Program because both public and private educational institutions in South Carolina could be impacted by the South Carolina Supreme Court’s ruling. --- Emily R. Merritt

Education Department Sued Over Race-Based Criteria for McNair Grants

Since 1989, the Ronald E. McNair Post-Baccalaureate Achievement Program (commonly referred to as the McNair Scholars Program) has provided funding to low-income, first-generation students who are underrepresented in graduate programs. During the 2023-2024 school year, the McNair Scholars Program issued over $60 million for projects across more than 200 colleges. However, in late August 2024, Young America’s Foundation filed a federal lawsuit requesting an injunction to stop the Program. According to the lawsuit, Young America’s Foundation argues that the race-based qualifications for the Program violate the Constitution’s equal protection clause. The lawsuit comes just over a year after the U.S. Supreme Court struck down race-conscious admissions. The plaintiffs argue that the Supreme Court’s decision in Students for Fair Admissions extends to the McNair Program’s eligibility requirements.

According to President of Young America’s Foundation and former Governor of Wisconsin Scott Walker, “[d]enying a student the chance to compete for a scholarship based on their skin color is not only discriminatory but also demeaning and unconstitutional.” Since the Supreme Court struck down race-conscious admissions, state governments and other organizations have acted to expand the Supreme Court’s ruling. On the same day the Supreme Court issued its decision, Missouri’s Attorney General ordered the state’s colleges to stop considering race as a factor in scholarship programs. Ohio’s Attorney General has instructed colleges that the Supreme Court’s decision extends to scholarship programs. In November 2023, a private organization sued the University of Colorado for distributing funds under the McNair Scholars Program. Courts will likely continue to see similar suits as the full impact of the Supreme Court’s decision continues to unfold. --- Isaiah C. Robinson

What the Reinstatement of Net Neutrality Means for Higher Education

The debate over net neutrality regulations has reignited as the Federal Communications Commission (FCC) voted to reinstate rules classifying broadband providers under Title II of the Communications Act. This decision impacts how internet service providers (ISPs) can manage their networks and has significant implications for higher education institutions, libraries, and internet users at large. Advocates argue that net neutrality is crucial for maintaining an open and fair internet, while critics contend that such regulations could stifle innovation and investment in broadband infrastructure.

Net neutrality regulations, which aim to ensure equal treatment of internet traffic by service providers, have seen significant changes over the past decade. Initially implemented in 2015, these rules were repealed in 2017, and in 2023, the FCC voted to reinstate similar provisions. The recent decision to reclassify broadband providers under Title II of the Communications Act expands the FCC's oversight of these companies. This broader authority potentially allows the commission to address not only core net neutrality principles, but also related concerns such as equitable access to digital services, user privacy, and information security.

Opponents of the regulations argue that reinstating net neutrality laws under Title II of the Communications Act might have broader detrimental effects on the telecommunications industry as a whole. These critics also argue that neutrality rules could discourage investment in network infrastructure and innovation at a time when such practices are booming due to the rapid growth of cloud computing services such as ChatGPT and streaming video services such as Netflix and Hulu, which require continuous network improvements to meet such demand.

The impact of net neutrality laws can even be felt at the higher education level. Organizations like EDUCAUSE and the Association of Research Libraries (ARL) have voiced strong support for net neutrality regulations and argue that an open internet is crucial for academic freedom and equal access to educational resources. ARL’s Director of Information Policy and Federal Relations Katherine Klosek emphasized that net neutrality laws go directly to the heart of the FCC’s authority to protect against digital discrimination. Similarly, Senior Advisor for Police and Government Relations at EDUCAUSE Janet Cummings comments that net neutrality regulation underscores the importance of affordable internet access for students when considering the effects COVID-19 had on lower-income households regarding equitable access to broadband and bandwidth, which is now even more pressing as the Affordable Connectivity Program is no longer active.

Ultimately, the net neutrality debate embodies a difficult balance between maintaining an open, fair internet and fostering a telecommunications industry capable of meeting ever-growing bandwidth demands. The discussion continues as policymakers weigh the needs of various stakeholders, from educational institutions and libraries to ISPs and consumers. With legal challenges to the FCC's authority ongoing, including a recent stay from the U.S. Court of Appeals for the Sixth Circuit, the future of net neutrality regulations will still remain uncertain. --- Hikmat N. Al-Cham

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.