april 2019 risk and compliance news...april 2019 risk and compliance news following are excerpts...

April 2019 Risk and Compliance News Following are excerpts from news articles having a risk management or compliance impact. The full article may be seen at the referenced source. Topics for this month include the following:

• Academic Programs

• Access/Disability

• Campus Security

• Diversity/Discrimination

• Environmental Health & Safety

• Finance/Accounting

• Human Resources

• Information Security & Privacy

• Student Financial Aid

Academic Programs

Admissions Scandal Hits Harvard

As the admissions scandal hit last month, officials at Harvard

University might have felt some relief when applicants to Yale

and Stanford Universities were implicated, but no would‐be

Harvard students.

Harvard remains a step removed from the Varsity Blues

indictments. But on Thursday, The Boston Globe reported that

a wealthy man had purchased a home from the Harvard

fencing coach, paying well over what the home was worth. A

short while later, the man's son was admitted to Harvard and

joined the team. Unlike the Varsity Blues scandal, the man's

son appears to be committed to the sport and is still listed on

the team roster.

Harvard is now investigating the matter. "Harvard University

was unaware of these circumstances until it was contacted by

The Boston Globe, and is now undertaking an independent

review of this matter. We are committed to ensuring the

integrity of our recruitment practices," said a statement the

university provided to Inside Higher Ed.

According to the Globe, the home in question was owned by

Peter Brand, the fencing coach at Harvard. In 2016, he sold the

home for nearly $1 million, even though its assessed value was

$549,300. The purchaser, Jie Zhao, never lived in the house and

sold it 17 months later, taking a loss of $324,500. But in the

interim, Zhao's younger son was admitted to Harvard and joined

the fencing team. Zhao told the Globe that the purchase had

nothing to do with his son's efforts to get into Harvard. His son

was an excellent student and fencer, Zhao noted. But he did

want to help out Brand, who has had a long commute from his

home to work and could benefit by buying a home closer to the

university. (Zhao's older son was on the team at the time.)

Brand did not respond to the Globe or Inside Higher Ed about

the situation.

Harvard has a conflict‐of‐interest policy that would appear to

apply to cases where a coach would sell a home at an inflated

price to the father of an athlete and an applicant.

The policy states that “a conflict of interest exists when

individual commitment to the university may be compromised

by personal benefit. Employees are expected to avoid

situations or activities that could interfere with their

unencumbered exercise of judgment in the best interests of

Harvard University.”

Failure to report potential conflicts, the policy says, "may be grounds for disciplinary action and may lead to termination."

Claudine Gay, Edgerley Family Dean of the Faculty of Arts and

Sciences at Harvard, sent professors a message Thursday

about the situation. In the message, Gay said that the reports

currently being investigated "are not related in any way" to the

Varsity Blues scandal. In that scandal, some parents are

accused of bribing coaches to place their children's names on

lists of recruited athletes, even though those children did not

play the sport and had no intention of doing so. Generally,

being a recruited athlete has a major positive impact on the

odds of admission, in particular at elite colleges that turn away

many qualified applicants.

"The new allegation that came to light this week is against one

individual regarding transactions that pertain to one family. I

say this not to minimize the concerns that this allegation raises. I take them very seriously. Instead, I want to ensure that

we consider them in the appropriate context," Gay wrote.

She added, "These revelations naturally raise questions about

how Harvard’s recruitment practices for student athletes

compare to those of peer institutions. I want to take a moment

to describe them for our community. Our process is distinctive

in two important ways. First, the applications of all recruited

student athletes are reviewed by the full admissions committee

and decisions are made through a vote of the entire committee.

The committee has approximately 40 members. Second, all

recruited student athletes must be interviewed by an

admissions officer or alumni interviewer. It is my understanding

that other institutions may have different practices."

New Procedures Announced at Dartmouth

Dartmouth College has not been touched by any of the

indictments, either.

But on Thursday the college confirmed that it is taking steps to

prevent the kind of abuses alleged in last month's indictments.

"In light of these revelations, the athletics office is

strengthening its efforts to ensure the integrity of that process.

We are committed to formalizing the protocols for

administrative approval of each recruit and an annual review

of all first‐year students who were recruited athletes to ensure

that they appear on the appropriate team roster," said a

statement from the college. "Going forward, we will require

that, before a coach communicates their support for a

candidate to the Admissions Office, that candidate’s athletic

credentials are reviewed and approved by an administrator as

a legitimate recruit with the athletic talent necessary to

contribute to our Division I varsity team. While the data from

the last three entering classes demonstrates that no

Dartmouth coach has supported an inappropriate candidate,

this protocol is being instituted to further increase the rigor of

the process in response to the 'Operation Varsity Blues'

scandal uncovered at other institutions."

Source: Inside Higher Ed—April 8, 2019

...................................................................................................

Risk and Compliance News—April 2019

Moving Forward (At Last) on Federal RuleChanges

A tumultuous three months of back‐and‐forth between U.S.

Department of Education officials and representatives across

higher education culminated last week in proposals that clarify

and update existing rules around digital learning and innovation.

Advocates for online learning and other emerging education

models found plenty to celebrate as the process wrapped up.

The final proposed rules include language that mitigates

ambiguity around phrases like “distance education” and

“regular and substantive interaction,” which have long puzzled

institutions developing programs for an increasingly diverse

set of learners.

Meanwhile, the Department of Education abandoned several

controversial proposals from the beginning of the process,

including eliminating the federal credit‐hour standard and

removing the cap on outsourcing of academic programs, amid

widespread criticism.

Still, critics of the process and the proposed changes continue

to worry that the new rules as written remove vital checks on

new programs and providers and could open the door to

abuses of students. Fittingly, some elements of the proposed

rules, like a waiver process of sorts for institutions eager to

bypass accreditation for innovative programs, will require

further clarification.

The department in January laid out a wide range of priorities

for this year’s negotiated rule‐making process, a formal

convening to hash out federal rules that clarify existing laws. A main committee of negotiators met for 14 full days from

January to April, and each of three subcommittees spent six

daylong sessions debating portions of the proposed rules.

The goal of each negotiated rule‐making process is for

participants to formally reach consensus on proposed rules.

This time they did, which means the department is legally

obligated to put those proposals through a public comment


period before preparing to implement them. If they hadn’t, the

department itself could have rewritten the proposals.

The earliest the rules could go into effect is July 2020, though

the implementation process could extend into 2021, after the

next presidential election. Diane Auer Jones, the Education

Department’s principal deputy under secretary, told reporters on Thursday that the new set of proposed rules represents

“the start of a conversation, not the end.”


...................................................................................................

OCR Tells Med School to Stop Considering Race in Admissions

The U.S. Education Department's Office for Civil Rights is

requiring Texas Tech University's medical school to stop

considering race in admissions. The move marks an escalation

of the Trump administration's efforts against colleges'

affirmative action policies.

The move is based on past U.S. Supreme Court decisions, not

the current lawsuit against Harvard University, which critics of

affirmative action hope will be a vehicle to limit the ability of

colleges to consider race in admissions.

In the OCR agreement with Texas Tech, the government states

that the medical school could resume consideration of race in

admissions if it provides a "reasoned, principled explanation

for its decision and identifies concrete and precise goals"

consistent with legal standards. Any such future plan ‐‐ which

OCR would require the university to provide the government

60 days in advance for review ‐‐ would have to show that race‐

neutral alternatives would not work. Further, the plan would

need to show that "no undue burden is imposed on applicants

of any racial groups."

Texas Tech's medical school appears to have gotten in trouble

for failing to demonstrate that it was conducting regular

reviews of its affirmative action programs to be sure that

consideration of race was needed.

The university indicated in a letter to OCR that it believed it

was not doing anything illegal, but that it would go along with

OCR's determination.

Medical schools have long played a key role in affirmative

action debates. The Supreme Court's 1978 Bakke decision,

which involved an applicant to the medical school at the University of California, Davis, continues to govern college

admissions policies well beyond medical schools. The ruling

said that colleges could consider race in admissions, in certain

circumstances, but could not reserve slots based on race or

ethnicity.

In the years since, medical schools have struggled with

diversity, seeing dramatic increases in Asian American

enrollments but remaining relatively flat in black and Latinx

enrollments.

Eric Bentley, vice chancellor of the Texas Tech University System, wrote to OCR that the university was agreeing to the

limits placed by OCR, but that the university "strongly believes

that diversity in academic medicine is not only a necessity at

[the medical school] but is a necessity nationally as well."

The Center for Equal Opportunity, which opposes the

consideration of race in admissions, filed a complaint against

Texas Tech in 2004, and that complaint led ‐‐ eventually ‐‐ to

the recent agreement.

Roger Clegg, president and general counsel of the center, said via

email that he believed "a lot" of colleges are not "meeting the

narrow tailoring requirements set out by the Supreme Court."

And one of those requirements, he noted, is to conduct regular

reviews of whether the policies to consider race are needed.

Future of Affirmative Action

The agreement between OCR and Texas Tech comes amid a

push by the Trump administration to limit colleges'

consideration of race. The administration has backed a lawsuit

charging that Harvard discriminates against Asian American

applicants, and is investigating the issue at Yale University as

well. (Both universities deny wrongdoing.)

An Education Department spokeswoman said that the

agreement was consistent with Supreme Court rulings. "The

Supreme Court has issued clear guidance on the appropriate

consideration of race in college admissions and OCR is

enforcing … the court’s rulings," she said via email.


...................................................................................................

Access/Disability

Legal Battle over Captioning Continues

Two high‐profile civil rights lawsuits filed by the National

Association of the Deaf against Harvard University and the

Massachusetts Institute of Technology are set to continue

after requests to dismiss the cases were recently denied for

the second time.

The two universities were accused by the NAD in 2015 of failing

to make their massive open online courses, guest lectures and

other video content accessible to people who are deaf or hard

of hearing.

Some of the videos, many of which were hosted on the

universities' YouTube channels, did have captions ‐‐ but the

NAD complained that these captions were sometimes so bad

that the content was still inaccessible.

Spokespeople for both Harvard and MIT declined to comment

on the ongoing litigation but stressed that their institutions

were committed to improving web accessibility.

This is not the first time a university has faced legal

consequences for failing to adequately caption videos. The

University of California, Berkeley, decided to remove thousands

of educational videos from public view in 2017 after the U.S.

Justice Department ordered the university to provide captions.

The decision drew criticism from disability rights advocates but

highlighted the financial and administrative burden placed on

universities by web‐accessibility requirements.

Both MIT and Harvard have argued in court filings that they

should not be required to provide closed captions for every

video they create or host on their websites. After the

institutions’ first attempt to dismiss the cases was denied,

there was a yearlong attempt to reach a settlement out of

court. When that attempt failed, the universities again moved

to dismiss the cases.

Judge Katherine A. Robertson of the U.S. District Court of

Massachusetts largely rejected the universities' second attempt

to dismiss the cases. On March 28, Robertson denied the


institutions' pleas for the exclusion of their websites from Title III

of the Americans With Disabilities Act and Section 504 of the

Rehabilitation Act. Title III of the ADA prohibits disability

discrimination by "places of public accommodation."

Section 504 of the Rehabilitation Act prohibits discrimination on

the basis of disability in programs that receive federal funding.

Judge Robertson did, however, agree that the universities could

not be held responsible for the accessibility of third‐party

content on their websites under the Communications Decency

Act. The CDA was an attempt by Congress in 1996 to regulate

pornographic material on the internet, but Section 230 of the

act has been used to argue that operators of internet services

should not be regarded as publishers and cannot, therefore, be

held liable for content they did not create.

Arlene Mayerson, directing attorney of the Disability Rights

Education and Defense Fund and one of the lawyers

representing the plaintiffs in the case, said that the third‐party

content represents “a tiny amount of the material that we

have been looking to have captioned.” The most significant

part of Judge Robertson's ruling was her rejection of the

universities' arguments that much of their online content was

outside the accessibility requirements of the ADA and the

Rehabilitation Act, Mayerson said.

Harvard and MIT define third‐party content as "including

content posted by students, individual faculty members and

other scholars." But in court documents, the plaintiffs

disagreed that content created by "individuals such as faculty

members and students who are closely associated" with the

universities should be classified as "third party." Judge

Robertson ruled that third‐party content could not include

content created or developed "in whole or in part" by the

universities, or "someone associated" with the universities.

Scott Lissner, the ADA coordinator at Ohio State University, said

he believes it is his responsibility to make all content on Ohio

State websites accessible, regardless of where it comes from.

“If we believe the information is useful to our constituents and

program participants then it should be available to all of our

constituents and program participants with the same level of

independence, planning and effort,” he said.

Mayerson believes the recent ruling against the universities is

the "end of the line" in terms of having their cases dismissed.


...................................................................................................


University of Louisville Being Investigated for Possible Disability Discrimination

The U.S. Department of Education's Office for Civil Rights is

investigating the University of Louisville for possible disability‐

related discrimination.

University spokesman John Karman confirmed that the Office

for Civil Rights has launched a case, which specifically concerns

website and online course accessibility.

The education department's website says the U of L

investigation began March 27.

Inside Higher Ed reported in November 2018 that hundreds of

colleges are being investigated for their failure to ensure

individuals with disabilities can access their websites properly.

The investigation into Louisville may be similar.

Universities like U of L that are recipients of federal financial aid

are legally expected to institute "reasonable accommodations"

in order to make online resources accessible to all visitors,

including those with limited mobility and people who are blind

or deaf, according to Inside Higher Ed.

In some cases, lawsuits have been filed over problems

students experienced when they tried to use online classes or

electronic course materials.

Chris Danielsen, a spokesman for the National Federation of

the Blind, said people with disabilities, including those who

have visual impairments, often have trouble accessing

colleges' websites and online classes. The federation has filed

complaints and worked with individuals who came forward

with complaints that prompted the Office for Civil Rights to

investigate the matter.

People with visual impairments regularly use online resources in

their day‐to‐day life, just like everybody else, Danielsen

noted. For example, he is blind and works on his computer by

using a screen reader that identifies and verbally describes text,

links and other data that's presented on each web page he visits.

But certain websites, including those of various colleges, aren't

always compatible with that kind of software.

“When we talk about accessibility ... what we’re talking about

is websites or digital content that is coded in such a way that

it’s difficult for a screen reader to interpret it," he said. "It's

getting better because of all the investigations and because

there's more awareness, but it's not unusual at all.

"I would not be surprised if those kinds of issues were not what

OCR is investigating with respect to the University (of

Louisville)," he said.

Section 504 of the Rehabilitation Act of 1973 and Title II of the

Americans with Disabilities Act of 1990 both include protections

against discrimination and require that colleges either ensure their technology is fully accessible to people who have disabilities

or otherwise provide "equal access to the educational benefits

and opportunities afforded by the technology," according to the

Department of Education's website.

In recent years, the department's Office for Civil Rights has

resolved various technology‐related cases.

For example, it reached an agreement with the University of

Virginia's business school in 2010 concerning the use of e‐readers

that aren't fully accessible to students who have visual

impairments, and in 2014 the University of Cincinnati agreed, among other things, to review any e‐learning platform it uses as

well as its website and correct any accessibility problems it found.

Source: Courier Journal—April 9, 2019

...................................................................................................

Red Flags for Applicants with Mental Health Issues

Colleges aren't supposed to ask applicants whether they have

a disability. But many applicants share the information on their

own. In some cases, it may relate to a student's high school

record. For many students, upon being urged to write an

application essay about something significant in their life, or

overcoming a challenge, dealing with a disability can be a

logical topic.

But what if that information is used against the applicant? That

appears to have been happening to applicants with mental

illness at New College of Florida, and the situation is raising

concern there and elsewhere among advocates for students with disabilities.


If an applicant writes an essay about issues with psychological

challenges, the admissions staff places a red flag on the

application and it receives another view. Notably, this happens

even if the student has received a score (in a formula largely

based on grades, high school curriculum and test scores) that

qualifies the applicant for automatic admission. And some of

those applicants have been getting rejected.

New College says the red flags were just part of a holistic

admissions process (generally used for those who don't qualify

for automatic admission) and didn't assure rejection of anyone.

Two students who had jobs in admissions complained about

the practice last year, saying that it amounted to illegal

discrimination against people with disabilities. New College

conducted an investigation and determined that the practices

were legal. When that investigation became public last week,

when The Herald‐Tribune wrote about it, many students and

alumni were upset. They said that the practice ‐‐ even if legal

(which some doubt) ‐‐ wasn't ethical.

On Friday, Donal O'Shea, president of the college, posted a

statement to social media in which he said that the issue would

be investigated again ‐‐ this time by an outside group.

"New College very much values cognitive diversity," he wrote.

"We love the different learning styles, the different abilities

and the different challenges that our students bring."

He added, "We are aware of complaints about the admissions

process and the climate in the admissions office. We take

these very seriously." He said that an external investigation would take place in May.

While many students are applauding the new investigation,

the college's Facebook page also has comments from students

and alumni asking why the college, having known about the

situation for a year, didn't do more until the issue became

public last week.

The Complaint

New College is a public institution in Florida, and stands out for

having the size and approach of a liberal arts college in a state

where public universities tend to be large in size with many

graduate and professional programs. The college has a strong

academic reputation.

The two former admissions workers who filed the complaint ‐

‐ Maria Simmerling and Eugenia Quintanilla ‐‐ were students

who graduated last year. They have posted a copy of their complaint online. They describe working in admissions out of

their love for the college, but also their dismay on discovering

in 2017 that there was a new policy to place red flags on the

applications of people with disabilities for the purpose of

"weeding out" such applicants.

They write that they understand why some applicants need a

second review, but fear that flagging those whose essays noted psychological challenges was an illegal and unethical attempt to

keep out students with psychological and other disabilities.

They write that they tried to discuss the issue in the admissions

office and filed a formal complaint with the college only when

they were shut down.

The Investigation

That complaint led to an investigation and report by Barbara

Stier, chief compliance officer at the college. New College

released a copy of the report to Inside Higher Ed. The report

found that red flags were indeed used in admissions to set off

another review, but stressed that they were used for multiple

reasons. An applicant might be flagged for "essay topic" (as the

complaint said with reference to psychological disabilities), but

also for low test scores or low grades or a missing foreign

language requirement. Many of those flagged for reasons

other than essays would not have met the standards for

automatic admission.

Stier examined the files of those applicants who received a red

flag for material mentioned in an essay and who scored at or

above the level that is supposed to lead to guaranteed

admission. She found a range of outcomes for these 33

applicants in the period studied. Of the 33, 13 were admitted,

11 were rejected, and the rest were either placed on a waiting

list or asked for additional information. The range of outcomes

led Stier to say that there was no discrimination.

Not everyone is convinced that the policy is appropriate.

John MacPhee, executive director of the Jed Foundation,

which promotes mental health awareness and suicide

prevention among college students, said via email that he was

troubled by what New College has been doing.

"Disclosing mental health challenges in a college application

essay is an authentic and brave thing to do, and it is exactly the

kind of honest sharing that is encouraged to reduce the shame,

secrecy and fear that can hold people back from seeking

mental health care," said MacPhee. "We would be concerned

if such disclosure were to be used as an input to consider not

admitting a student to school; and if it were, transparency


would be critical as it would be important for students and

families to know so before they submit an application."

Guidance for College and Students

The U.S. Education Department, during the Obama

administration, published guidance for students and colleges

on transitions to postsecondary education for students with

disabilities.

The guidance says that disability status cannot be the reason

for rejection. "If you meet the essential requirements for

admission, a postsecondary school may not deny your admission simply because you have a disability," says the

guidance. It goes on to say that there is no obligation by an

applicant to inform a college of a disability unless it is part of a

request for an academic adjustment related to the disability.


...................................................................................................

Campus Security

Student Destroys 66 College Computers

A former student has admitted to causing thousands of dollars’

worth of damage to computer equipment owned by the College

of St. Rose, a private nonprofit institution in Albany, N.Y.

Vishwanath Akuthota pleaded guilty this week to destroying

66 college computers as well as computer monitors and

lecture hall podiums worth more than $58,000, according to

the U.S. attorney's office in New York.

Akuthota used a USB Killer to destroy the computers. The

device is small and looks like an ordinary USB thumb drive, but

it sends a command that causes high‐voltage power surges

that can damage computer hardware.

Akuthota admitted he intentionally destroyed the computers

and recorded himself doing so on his iPhone. In the video, he

made comments such as “I’m going to kill this guy” before

inserting the USB Killer device.

Akuthota, 27, is an Indian national who is in the U.S. on a student

visa. He is due to be sentenced in the U.S. District Court of the

Northern District of New York in August. He has already agreed

to pay back $58,471 in restitution to the college but faces up to

10 years in prison and a possible fine of up to $250,000.


...................................................................................................

Diversity/Discrimination

Montana State University Settles Discrimination Case, Hit with New One

Montana State University has agreed to pay $120,000 to a

former student who claimed school officials discriminated

against him when they expelled him for allegedly threatening

violence against a transgender student.

The Bozeman Daily Chronicle reports news of the school's

settlement with Erik Powell comes the same week as the

transgender student filed a lawsuit of her own against the school.

Powell denied making the statement against the student that

was the basis of his expulsion. His attorney, Jesse Binnall, says

MSU will erase the expulsion from his record.

Myka Perry claims in her lawsuit filed Monday that MSU

discriminated against her by refusing to provide coverage for a

second and third gender‐affirming surgery. MSU spokesman

Michael Beck says neither party admitted wrongdoing in

Powell's case. He declined to comment on Perry's lawsuit.

Source: Billings Gazette—April 19, 2019

...................................................................................................

U.S. Supreme Court to Rule on LGBTQWorkplace Protections under Title VII

Whether LGTBQ employees are protected from employment

discrimination by Title VII of the Civil Rights Act will be decided

by the U.S. Supreme Court next term.

The Court has agreed to hear three cases to determine:

1. Whether Title VII’s ban on “sex”‐based discrimination

prohibits discrimination based on sexual orientation;

and

2. Whether Title VII prohibits discrimination against

transgender claimants based on their status as

transgender or based on sex stereotyping.

With these cases, the Supreme Court will address pending

LGBTQ protections, providing much needed guidance to

employers and employees.


Sexual Orientation under Title VII

The Supreme Court has agreed to hear two cases together in

order to resolve a split in the U.S. Courts of Appeals on whether

Title VII’s prohibitions against discrimination “because of sex”

extends to discrimination based on sexual orientation.

In Zarda v. Altitude Express Inc. and Ray Maynard, 883 F.3d 100

(2d Cir. 2018), the Second Circuit held that Title VII extends to

sexual orientation claims. Skydiving instructor Donald Zarda

told one of his customers he was gay in an effort to make her

more comfortable skydiving in tandem with him. Shortly after

that, the customer’s boyfriend told the employer Zarda was

gay and the employer fired Zarda. Zarda sued the employer for

wrongful termination and discrimination in violation of Title

VII. Refusing to dismiss the case, the Second Circuit joined the

Seventh Circuit and the Equal Employment Opportunity

Commission (EEOC) in holding Title VII extends to sexual

orientation claims.

On the other hand, the Eleventh Circuit, in Bostock v. Clayton

County, Georgia, 723 F. App’x 964 (11th Cir. 2018), held that Title

VII does not apply to discrimination based on sexual orientation.

Child‐welfare‐services coordinator Gerald Bostock claimed that

after the employer learned he was gay, the employer falsely

accused him of mismanaging public money in order to fire him.

He claimed he was fired because of his sexual orientation.

Transgender Protection under Title VII

In the third case, the Court will clarify whether Title VII

protections extends to discrimination based on gender identity.

In EEOC v. R.G. & G.R. Harris Funeral Homes Inc., 884 F.3d 560

(6th Cir. 2018), the Sixth Circuit held that Title VII prohibits

discrimination based on gender identity. Aimee Stephens was

a funeral director at a small funeral home. The employment

records for Stephens identified her as a man when she was

hired in 2007. In 2013, Stephens wrote a letter to her funeral

home employer that she identified as a woman and wanted to

wear women’s clothing to work after she returned from

vacation. Within two weeks, the employer had terminated her employment based on the religious views of the organization.

Stephens sued for discrimination under Title VII. The Sixth

Circuit, siding with the EEOC, held that Title VII protects

claimants based on gender identity from discrimination.

Source: Jackson Lewis—April 22, 2019

...................................................................................................

Brigham Young University Students Protest the Honor Code Office

Student protests are a rare sighting at Brigham Young University

(BYU), a non‐profit research university guided by The Church of

Jesus Christ of Latter‐day Saints, whose mission statement is to

“assist individuals in their quest for perfection and eternal life.”

But on April 12, 300 students, led by the group Restore Honor, gathered on the Provo, Utah campus to protest the school’s

Honor Code Office, which is known to be strict.

Students claim that the university is mistreating victims of

sexual assault and harassment, especially women and LGBTQ

students. Protestors could be heard chanting, “God forgives

me, why can’t you?”

The Honor Code states that faculty, administration, staff, and

students at BYU will “seek to demonstrate in daily living on and

off campus those moral virtues encompassed in the gospel of

Jesus Christ,” by demonstrating a chaste and virtuous life,

abstaining from alcohol and regularly attending church, to name a few.

The dress and grooming standards for men and women require

unrevealing clothing, no facial hair and no more than one

piercing for women on their ears. For men, earrings and other

body piercings are not acceptable.

In early 2016, the university separated the Honor Code Office

from the Title IX Office to ensure women’s equal treatment on

campus. In addition, BYU added an amnesty policy that says

students will not be punished by the university for any

violations against the honor code if they report an incident of sexual misconduct.

However, some students say the administration has punished

them for reporting their own sexual assaults, using the code

against them.

The university also posted a Q&A with Kevin Utt, BYU’s new

director of the Honor Code Office, discussing some of the

questions students commonly ask.


“Our goal is to help students come back into good standing as

quickly as possible. We want students to succeed here,” Utt said.

Despite these efforts, students remain tenacious in their

claims that problems still remain.

In July 2018, a student reported that she had been sexually

assaulted. She was suspended for two semesters from BYU‐

Idaho despite the school upholding her complaint after the

man she accused of assaulting her told their bishop that she

had been drinking when the alleged assault happened.

Students also allege that the administration has created an

environment that encourages snitching on their peers and they

feel officials dole out severe consequences for minor infractions,

leaving students feeling dejected and unsupported.

Freshman Grant Frazier says he would like to see less

punishment and more compassion.

“The Honor Code, as many of you may know, was made by

students for students. So it needs to be reformed by students,”

he said to the demonstrators.

Sidney Draughon, a 2018 BYU graduate, even started an

Instagram account, which shares students’ negative

experiences with the code, including her own.

During her freshman year, Draughon says she was called into

the Honor Code Office because of an old photo and tweet from

high school. She was called in a second time during her senior

year over a different allegation, delaying her diploma.

“It’s about all of you sharing your stories of hurt and feeling

like you’re rejected and feeling like you don’t fit in at BYU. But I’m here to tell you that you do. I don’t care who you are,” she

told students.

Not all students agree with the protest, however. During a

moment of silence for LGBTQ students who have been

mistreated by the Honor Code Office, one student could be

heard saying, “If you don’t like the Honor Code, go to a

different school.”

“We here at the university believe in the atonement,” Frazier

said. “We believe in the Gospel and we think the Honor Code

Office has forgotten that. And it’s our job to remind them.”

Source: Campus Safety Magazine—April 22, 2019

...................................................................................................

Jury Awards UC Irvine Neurosurgeon $2Million in Whistleblower Retaliation Case

An Orange County jury awarded $2 million in damages this

week to a UC Irvine neurosurgeon who alleged in a lawsuit that

the University of California Board of Regents and the former

dean of UCI’s School of Medicine violated whistleblower

protection laws when he was retaliated against for filing a

grievance against his supervisors.

“I am incredibly relieved to finally be vindicated now six years

after the event and 2.75 years since having to file a lawsuit,”

plaintiff Mark Linskey, a tenured professor of neurological

surgery, said in a statement following Monday’s verdict.

The lawsuit, filed in June 2016, alleged that defendant Ralph

Clayman, former dean of the medical school, along with Johnny

Delashaw, former chairman of the department of neurological

surgery, collaborated to oust Linskey from the department in

retaliation for a grievance he had filed against them expressing

concerns about patient safety and conflicts of interest.

In the complaint, Linskey alleged patient safety was put at risk in

June 2012 when vascular neurosurgery cases — surgery done

under a microscope on blood vessels in or around the brain or

under the neck — were removed from the general neurosurgery on‐call service and that future emergency neurovascular cases

were reserved for Delashaw and another doctor.

Linskey said he requested inclusion in the neurosurgery

vascular call schedule and was denied. Linskey filed a grievance

with the Committee on Privilege and Tenure in March 2013,

naming Clayman and Delashaw.

The lawsuit alleged that Clayman retaliated against Linskey by

pushing to have him moved from the department of

neurosurgery to the department of general surgery. It also

alleged that Delashaw threatened residents by ordering them

to not assist Linskey during surgery and discouraged verbal communication with him.

Linskey also named the UC Board of Regents in the lawsuit,

saying it failed to protect him even after he submitted a UCI

Whistleblower Retaliation Complaint Form in May 2014.

Source: Los Angeles Times—April 25, 2019

...................................................................................................


Environmental Health & Safety

Mumps Outbreak at Temple University

More than 100 confirmed or probable cases of mumps have

been diagnosed at Temple University as an outbreak that

began with just a few cases in February continues to spread across the Philadelphia campus.

City Department of Health officials believe that the close quarters

in which college students live has accelerated the spread of the

disease, and they expect more cases to be diagnosed.

Although mumps and other highly contagious viral diseases

such as measles have largely been eradicated in the United

States, there have been sporadic outbreaks in pockets of the

country that have been largely attributed to so‐called anti‐

vaxxers, or parents who refuse to vaccinate their children.

College students are generally susceptible to outbreaks of all kinds of contagious diseases, including certain strains of

meningitis and the flu.

The Philadelphia health department on Monday reported 18

confirmed mumps cases and 90 probable cases associated

with the outbreak. The university already held a free

vaccination clinic, administering booster shots for mumps to

nearly 5,000 students and staffers as of last week. Other

students and professors were vaccinated at the campus health

center, which is still offering shots, said Ray Betzner, a

university spokesman.

The Centers for Disease Control and Prevention recommends

two doses of the MMR vaccine (which stands for measles,

mumps and rubella and protects against all three) during

childhood. The first shot is generally given when a child is

between a year and 15 months old and a second booster shot

is given between ages 4 and 6, normally about the time when

most children begin attending school.

Mumps is well‐known for the characteristic severe swelling it

causes in the cheeks and neck, but other symptoms range from

a fever and headache to aches and loss of appetite. In some

cases, deafness can occur, and more dangerous complications

can happen after puberty, including inflammation of the

testicles or ovaries.

A person who has received a single dose of the MMR vaccine

has about a 78 percent chance of not contracting mumps and

a 88 percent chance of prevention with the second dose,

according to the CDC. Health officials said, however, that while

the measles and rubella components of the vaccine are strong,

the protection against mumps tends to fade as people age.

Few people receive a third booster shot, they said.

Mumps is spread through spit and mucus, so college students

who are often packed together in classes and dormitories or

who share drinks and food are particularly susceptible, said

Susan Even, chairwoman of the American College Health

Association’s Vaccine‐Preventable Diseases Advisory

Committee and executive director of the University of Missouri

at Columbia’s Student Health Center. Symptoms don’t usually

show up until at least two weeks after someone is infected, but

it can take up to a month, allowing the virus to spread

undetected, Even said.

The outbreak at Temple is believed to have originated with a

person who traveled internationally, said Jim Garrow, city

health department spokesman. Garrow did not identify

whether the person was a student. Mumps is a common

disease in other countries such as in Japan, where people are

not routinely vaccinated against it.

The university first announced the outbreak on Feb. 28 with just

a few students testing positive. More and more cases were

confirmed throughout March. An online petition, which has

since been taken down, pressed for university administrators to

close the campus until the outbreak was eliminated. Temple

officials did not consider this option and the city health

department did not recommend it because it would not halt the

spread of the disease, said Betzner. A visitor to campus and even a student wouldn’t necessarily catch mumps merely by being in

the presence of someone who had contracted it, he said.

Only about 20 percent of the cases occurred among students

who live on campus, said Betzner. Students can ask for

cleaning supplies for their dorm rooms if they are worried

about contracting the illness, he said. And students whose

roommates or suite mates have contracted mumps can change


rooms. The city health department has said those who are sick

should stay away from healthy individuals for at least five days.

The university did not require incoming students to have the

MMR vaccination, but administrators have since revised the

university's policies and will request verification that students

received the vaccination beginning next academic year,

Betzner said. The CDC recommends a third booster shot only

for people who live in the area of an outbreak.

Many colleges and universities require students to receive the

vaccine before coming to campus, Even said. She noted,

however, that some institutions do not have the resources to

check the health records of every first‐year student.

College campuses have encountered mumps outbreaks

before. More than 420 cases of mumps were diagnosed at the

University of Missouri in 2016. All of the infected students had

received the university’s required two doses of MMR. More than 450 mumps cases were diagnosed at the University of

Iowa and the surrounding area from 2015 to 2016.


...................................................................................................

Over 1,000 Quarantined in Measles Scare at LA Universities

More than 1,000 students and staff members at two Los

Angeles universities were quarantined on campus or sent

home this week in one of the most sweeping efforts yet by

public health authorities to contain the spread of measles in

the U.S., where cases have reached a 25‐year high.

By Friday afternoon, two days after Los Angeles County

ordered the precautions, about 325 of those affected had been

cleared to return after proving their immunity to the disease,

through either medical records or tests, health officials said.

The action at the University of University of California, Los

Angeles, and California State University, Los Angeles — which

together have more than 65,000 students — reflected the

seriousness with which public health officials are taking the

nation's outbreak.

"Measles actually kills people, so we have to take that really

seriously," said Dr. Armand Dorian, chief medical officer at USC

Verdugo Hills Hospital.

Those under the quarantine were instructed to stay at home

and avoid contact with others. They also were barred from

traveling by public transportation, including planes, trains,

buses or taxis. If they must travel for an emergency, they were

told to notify public health officials first.

"This is a legally binding order," the county's public health

director, Dr. Barbara Ferrer, told reporters.

Anyone who violates it could be prosecuted, she said, but

added that it appears everyone is cooperating so far. She didn't

describe what penalties those who don't could face.

The number of measles cases in the U.S. has climbed to nearly

700 this year, including five in Los Angeles County and 38

altogether in California. The surge is blamed largely on parents

not getting their children vaccinated because of

misinformation about the supposed dangers.

Still, several students at Cal State‐LA were shocked that their

campus could be hit by a measles outbreak.

"When they were like measles, I was like, 'What? Where did

that come from,'" said Sergio Dula, a communications major.

Eden Guerra, a kinesiology major, was surprised classes weren't

canceled, noting, "This is like serious, like it’s life, you know."

Cal State‐LA reported 875 students, staff, faculty and visitors

were placed under quarantine after possibly being exposed to

measles earlier this month. About 250 had been cleared by

Friday after proving they are immune to the disease.

At UCLA, 129 students and faculty were quarantined. All but

46 had been cleared by Friday.

Cal State‐LA is primarily a commuter school, while many UCLA

students live on campus. Some UCLA students were provided

a quarantine area to stay in, university officials said, though

they gave no details. Only one person remained there Friday.

Those covered by the quarantine were singled out based on

their possible exposure to either an infected UCLA student

who had attended classes in two buildings on three days


earlier this month, or a person with measles who visited a Cal

State‐LA library on April 11, officials said.

Those possibly exposed at Cal State‐LA were located by

tracking the records of people working in the library and those

who logged on to its computers during the four hours the

infected student was there.

Given the amount of time a person can remain contagious,

officials said the quarantine would end at UCLA on Tuesday

and at Cal State‐LA on Thursday.

Around the country, lawmakers in California, New York,

Washington state and Oregon have responded to the outbreak

by moving to crack down on exemptions to vaccinating

children. On Friday, President Donald Trump urged everyone

to get vaccinated.

Source: KSL—April 26, 2019

...................................................................................................

Finance/Accounting

What Schools Need to Know About CFPB's Prepaid Accounts Regulation

Counsel at schools and universities understandably don’t follow

legal developments in financial services very closely, but recent

changes in regulations affecting prepaid accounts could impact

institutions of higher education. On April 1, 2019, the Consumer

Financial Protection Bureau’s (“CFPB”) Prepaid Accounts Rule

will take effect. Under the new regulation, financial services

utilizing prepaid accounts will be subject to a number of

requirements related to disclosures and error resolution.

Institutions of higher education may encounter prepaid products in two ways: (i) the payment of employee wages by

the institution onto payroll cards, and (ii) the disbursement of

Title IV funds onto prepaid cards often called “campus cards.”

Schools that have payroll or campus card programs may see

changes in those programs – especially around the disclosures

that accompany the cards.

It’s important to note that payroll cards have been regulated

at the federal level for a number of years now. In addition,

most states have laws or regulations governing payroll cards.

You can review state requirements in your jurisdiction by

navigating to our interactive survey of state payroll card law.

While the Prepaid Accounts Rule does not directly place

compliance obligations on colleges and universities, the CFPB

does expect schools to conduct oversight of their prepaid

account programs. In 2015, institutions became subject to

requirements in partnering with issuers of campus cards. Among

those requirements, institutions must ensure that the terms of

the prepaid accounts “are not inconsistent with the best

financial interests of the students opening them.” In its Prepaid

Accounts Rule, the CFPB cited the immense volume of funds

disbursed onto campus cards (projected to reach $3.98 billion in

2019) and noted the questionable practices of some institutions

which could increase the likelihood of consumer harm.

In a February 2018 letter to the Department of Education, the

CFPB shared an unpublished analysis of student use of college‐

sponsored deposit and prepaid accounts. In that report, the

CFPB revealed that institutions that received compensation in

exchange for selecting a certain campus card program chose

programs that assessed significantly higher fees to the student

cardholders. In their findings, the CFPB suggested the data may

be useful in determining whether colleges and universities

were faithfully discharging their obligations in selecting

campus card programs.

While the Prepaid Accounts Rule may not fundamentally

change the obligations for colleges and universities, it is a

strong reminder that regulators have not forgotten about the

role that institutions play in selecting campus card and payroll

card programs, as well as the increased likelihood of consumer harm when they shirk their oversight obligations.

Source: Womble Bond Dickinson—April 1, 2019

...................................................................................................

Scrutiny of a Financial Relationship

A former Arizona State University professor sparked outcry last

week by publicly accusing the institution of shady dealings with

the publisher Cengage.

Brian Goegan, former clinical assistant professor of economics

at Arizona State, claimed that the university had received a

“large monetary grant” from Cengage. In exchange, the

university made Cengage’s $100 courseware a requirement for

students in introductory economics courses, said Goegan.

University leaders flatly denied the accusation.

In an email to his students, which was later shared on Reddit,

Goegan said he was required to fail 30 percent of his class in

order to make the new courseware look like it was significantly


improving students’ grades. Arizona State leaders said this was

untrue.

Arizona State’s provost, Mark Searle, issued a statement in

response saying there was “no factual evidence” that Arizona

State received a grant from Cengage.

But The Arizona Republic unearthed a contract showing that

Arizona State and Cengage did have a revenue‐sharing

agreement for an adaptive learning platform, which Arizona

State staff and Cengage are developing together.

“I do feel some vindication,” said Goegan in an email.

“Especially since for a little while there they were denying that

any such contract existed.”

The “co‐publishing and fulfillment agreement,” signed in

January 2016, outlines how much money both Arizona State

and Cengage would keep from sales of the new adaptive

platform both to Arizona State students and outside students

whose institutions may adopt the platform in the future.

During a pilot of the new platform from spring 2017 through

spring 2018, the contract says Arizona State would charge

students $100 for the courseware, retaining $21 and paying

Cengage the remaining $79. Following the pilot period, Arizona

State would retain $1 and remit Cengage $99. Each course is

projected to enroll 2,200 students by the end of this year.

If the courseware that Arizona State helped to develop were

sold to another institution, Cengage would pay Arizona State a

revenue of 2 percent under sales of $250,000. This revenue

share would increase as sales grow, up to a maximum of

5 percent over sales of $2,250,000.

“It’s important to note that this section of the contract

envisions a hypothetical situation in which Cengage has found

another university ‐‐ not Arizona State ‐‐ that wants to license

the adaptive learning platform that was built collaboratively by

ASU and Cengage,” said Bret Hovell, Arizona State spokesman.

Alex Baker, vice president of policy at ASU’s Undergraduate

Student Government Tempe, said students “still have many

unanswered questions” about the concerns raised by Goegan.

It is still unclear whether Goegan was forced to fail students,

said Baker. The student government has requested to see

grade distributions from the economics department but has so

far been denied, he said. Requests for more information on

other courseware deals with publishers, which are part of a

wider adaptive learning project led by the university provost,

have also been denied.

Baker feels the university’s response to Goegan’s claims was

disappointing. “I wish they had been more open and

transparent. They put out statements that were very carefully

worded and full of caveats.”

University leaders have repeatedly said, for example, that

students are not required to pay to do their homework. Yet a

syllabus from one of the economics classes clearly states, “all

homework is done and turned in on MindTap” ‐‐ meaning it

would be impossible for students to pass if they didn't

purchase an access code.

The student government passed a bill earlier this week calling

for an independent external investigation into the university's

partnership with Cengage. But Baker acknowledges the student

government is a “paper tiger” that does not have the power to

initiate such an investigation. “The university would be fully

within their rights to put this bill in the shredder,” he said.

“I don’t believe the university will take any action,” said Baker.

But he is hopeful that students might persuade the Arizona

Board of Regents or state legislators to look more closely at

how textbooks and courseware are selected by the university

and consider whether they represent good value for students.

Hovell said he didn't "have anything to add about what

happens going forward."

In addition to calling for an external investigation, the student

government bill supports the creation of a new supervisory

body with student representation “with the authority to

approve or deny the usage of any homework submission

platform with costs to students greater than $50.”

Alastair Adam, co‐CEO of FlatWorld, a publisher of low‐cost

textbooks, said the students’ suggestion to play a role in

approving instructional materials is a good one. “We need

more sunlight on these processes,” he said.

Adam described how kickbacks and incentives have become a

tool for some publishers trying to win contracts. “It’s just like

how the pharma industry operates,” he said.

Though these financial inducements might be used by

universities to boost departmental funds or fund legitimate

research studies, they are bad news for students who want to

save money.

Adam described a recent situation in which a university, which

he declined to name, asked for cash in exchange for selecting a

FlatWorld textbook over a competing publisher.

The bidding document reads, “The department requests that

you include a proposal for a grant, or payback program to the

department for each textbook purchased in a semester. We

expect this to be a dollar amount that is paid directly to the

department to support facilitation of this course. We are open

to other ideas in this area, and expect that you address the

requirement in your proposal.”

It continues, “Any grant or payback should not simply inflate

student costs. We are offering a volume and would like to

absorb any discounts in the form of a grant or payback.”

The call to not inflate student costs is the “get‐out‐of‐jail

piece,” said Adam. But he notes, "given the volume, the

discount obtainable for the student could have been even

lower if the kickback didn’t have to be absorbed ‐‐ so it is

absolutely coming out of the student’s pocket.”

When Adam responded to say his price was already low, the university suggested he mark up the price in order to mark it

down. He refused.

“We did not win that contract,” he said.

Nicole Allen, director of open education for SPARC, said that

publishers have always offered incentives to universities to

choose their products, but what is and isn't acceptable has

become less clear.

"The ethical questions were just simpler to navigate when we

were only talking about books. Now the types of products are

more complex with adaptive platforms and homework

software, and the deals intertwine the interests of institutions

and publishers," she said. "If a university customizes a resource,

do they deserve royalties? If a department negotiates a deal to

reduce costs, is it fair to take a cut of the 'savings'?"

"Higher education owes it to students to grapple with the

ethics of this new course content landscape, and to avoid

replicating the same inequalities baked into the system it's

supposed to improve."


...................................................................................................


Human Resources

U.S. Department of Labor Proposes Updates to Regular Rate of PayRegulations

The U.S. Department of Labor (DOL) issued proposed rules that

would update the regulations governing what forms of

compensation are included and excluded from the calculation

of overtime under the Fair Labor Standards Act (FLSA). The

proposed rules are intended to clarify and, in some cases,

simplify, the overtime calculation under federal law. To ensure

their employees are paid correctly, employers should avoid the

prevalent assumption that overtime pay calculation simply

involves multiplying an employee’s hourly wage by 1.5. Rather,

under the FLSA, the overtime calculation is far more detailed

and complex.

The comment period for the proposed rules closes on May 28,

2019. Employers should review their overtime and other

relevant payment plans to ensure compliance with state and

federal law.

The DOL issued the proposed rules on March 29, 2019 to

provide clarity for understanding the calculations that form

the basis for an employee’s “regular rate of pay.” Unless an

employee (or the employer) satisfies an overtime exemption,

the FLSA requires an employer to pay an employee overtime

whenever the employee works more than 40 hours during any

given workweek. Under the FLSA, overtime is paid at one and

one‐half times an employee’s “regular rate of pay.”

Superficially, this seems like simple math. However, the

“regular rate of pay” is a term of art under the FLSA. It includes

“all remuneration for employment” paid to an employee by

the employer, subject to eight specific exceptions, known as

the “statutory exceptions,” divided by the hours worked during the workweek in question for which such remuneration

was paid. The “statutory exceptions” are as follows:

Sums paid as gifts or payments in the nature of gifts at

holiday time or on other special occasions. The amounts


of which are not measured by or dependent upon hours

worked, production or efficiency;

Payments made for occasional periods when no work is performed due to vacation, holidays, illness, failure of the

employer to provide sufficient work or other similar

cause; reasonable payments for traveling expenses or

other expenses incurred by the employee in furtherance

of the employer’s interests for which the employee is

reimbursed; and other similar payments to an employee

which are not made as compensation for hours of

employment;

Payments made in recognition of services performed

provided the fact of the payment and amount of the

payment are at the sole discretion of the employer and

not pursuant to any prior contract, agreement or promise;

Contributions irrevocably made by an employer to a

trustee or third person pursuant to a bona fide plan for

providing old‐age, retirement, life, accident, or health

insurance and other similar benefits;

Extra compensation provided by a premium rate paid for

certain hours worked by the employee because such hours are in excess of eight (8) in a day or forty (40) in a

week or in excess of the employee’s normal working hours

or regular working hours as the case may be;

Extra compensation provided by a premium rate for

working on weekends, holidays, regular days of rest or the

sixth or seventh day of the workweek provided such

premium rate is not less than one and one‐half times the

rate established in good faith for like work performed in

non‐overtime hours on other days;

Extra compensation paid to an employee pursuant to an

applicable employment contract or collective bargaining

agreement for work outside of the hours established by

such contract or agreement provided such extra

compensation is paid at rate not less than one and one‐

half times the rate established in good faith for like work

performed during such work day or workweek; or

Any value or income derived from employer‐provided

grants or rights pursuant to a stock option, stock

appreciation right or bona fide employee stock purchase plan.

Since the regulations regarding the regular rate of pay were

last updated nearly 60 years ago, there have been a number of

perks and other rewards that employers provide to employees

and it is unclear whether such perks and rewards are included

or excluded from the regular rate of pay. For example, are the

cost of gym memberships, fitness classes, wellness programs,

management coaching, stress reduction programs, paid time

off and mandatory sick leave included or excluded from the

regular rate of pay? The DOL’s proposed rules try to address

these issues.

Specifically, the DOL intends to update federal regulations

concerning the regular rate of pay to reflect changes in the

modern workplace and to incentivize employers to provide

employees with more employee benefits without worrying

about their impact on the regular rate of pay—and ultimately

the calculation of overtime. In short, the DOL proposes

clarifications to confirm that employers may exclude from the

employee’s regular rate of pay the following:

The cost of providing wellness programs, onsite specialist

treatment, gym membership and fitness classes, and

employee discounts on retail goods and services;

Payments for unused paid leave, including paid sick leave

and paid time off or “PTO”;

Reimbursed expenses, even if not incurred “solely” for the

employer’s benefit;

Reimbursed travel expenses that do not exceed the

maximum travel reimbursement under the Federal Travel

Regulation System and that satisfy other regulatory

requirements;

Discretionary bonuses, by providing additional examples

and clarifying that the label given a bonus does not

determine whether it is discretionary;

Benefit plans, including accident, unemployment and legal

services; and

Tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rules also includes additional clarification about

other forms of compensation, including payment for meal

periods, “call back” pay, “show up” pay and other forms of

payment that may be required by state or local law or an

applicable contract or agreement.

Source: Fox Rothschild—April 5, 2019

...................................................................................................


Department of Labor Proposes NewDefinition to Joint Employment under FLSA

On April 1, 2019, the Wage and Hour Division of the Department

of Labor (“DOL”) proposed a new, clear‐cut test for determining

“joint employment” under the Fair Labor Standards Act

(“FLSA”). According to the DOL, the proposed changes are

designed to promote certainty for employers and employees,

reduce litigation, promote greater uniformity among court

decisions, and encourage innovation in the economy.

The proposed four‐part test considers whether the potential

joint employer actually exercises the power to:

1. Hire or fire the employee;

2. Supervise and control the employee's work schedules

or conditions of employment;

3. Determine the employee's rate and method of

payment; and

4. Maintain the employee's employment records.

This four‐part balancing test would replace antiquated FLSA

guidance that had vaguely suggested that two entities may be

joint employers if they are “not completely disassociated”

from each other. Over the years, this broad language had

evolved into contradictory tests applied in different federal courts that arrived at inconsistent conclusions as to the

existence of joint employer relationships. The new four‐part

balancing test is slated to eliminate any circuit splits over the

issue and, according to the DOL, is supposed to make joint

employer analysis: “simple, clear‐cut, and easy to apply.”

The four‐part balancing test was derived from a Ninth Circuit

case entitled Bonnette v. California Health & Welfare Agency,

704 F.2d 1465 (9th Cir. 1983) abrogated on other grounds,

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528

(1985). However, the DOL has modified the test in Bonnette by

proposing that even if an entity has reserved contractual rights

to act with respect to an employee’s terms and conditions of

employment, that theoretical ability is irrelevant for purposes

of the joint employer analysis. This modification to Bonnette is

likely one of the reasons why the proposed new rule is

expected to provide greater protection to franchisors and

companies that use staffing agencies.

The DOL’s proposed rule also states that additional factors

could be applied to the joint employer analysis if it appeared

that a potential joint employer was exercising significant

control over employees or otherwise acting directly or

indirectly in the interest of the employer in relation to the

employee. However, the DOL made clear that the joint

employment test would not look to whether the worker is

economically dependent on the potential joint employer.

Economic dependence would no longer be relevant to the joint

employment analysis, but still would remain relevant to

whether a worker is an employee or independent contractor

of the employer.

The DOL’s proposed rule also explains that an entity’s business

model (such as a franchise model), certain business practices

(such as allowing an employer to operate a store on the

person’s premises, or participating in an association health or

retirement plan), and certain business agreements (such as

requiring an employer in a business contract to institute sexual

harassment policies), do not make joint employer status more

or less likely under the Act.

The Notice of Proposed Rulemaking (“NPRM”) will publish on

April 9, 2019 in the Federal Register, at which time interested

parties may submit comments on the proposal at

www.regulations.gov in the rulemaking docket RIN 1235‐AA26

by June 10, 2019. Only comments received during the comment

period will be considered part of the rulemaking record.

Source: Clark Hill PLC—April 11, 2019

...................................................................................................

Information Security & Privacy

Best Practices by the Department of Education's Privacy Technical Assistance Center for Data Destruction under FERPA (Updated Mar. 2019)

Best Practices Document by the Department of Education's

Privacy Technical Assistance Center for data destruction under

the Family Educational Rights and Privacy Act (FERPA). The

document provides a guide on properly destroying sensitive

student data after it is no longer needed by detailing the life

cycle of data, the legal requirements relating to the

destruction of data, and methods for properly destroying data. The document further provides examples of how to implement

best practices for data destruction within an organization.

Source: NACUA—April 1, 2019

...................................................................................................

www.regulations.gov

Data Breach Exposes up to 1.3M Georgia Tech Faculty, Students

It sounds a bit ironic: a data breach potentially affecting 1.3

million current and former students, faculty and staff

members at Georgia Tech, the world renowned university with

lauded computer science programs.

But it happened.

The school disclosed the breach, its second in less than a year,

on Tuesday, saying it feared the exposed information

included names, addresses, social security numbers and birth

dates. Tech spokesman John Toon said officials at the

school, which typically has around 30,000 students enrolled,

learned in “late March” that a central database had been

accessed by an unknown outside entity.

Toon said Tech immediately corrected the application, but

personal information was likely exposed. “Georgia Tech’s

cybersecurity team is conducting a thorough forensic

investigation to determine precisely what information was

extracted from the system,” he said.

The school is working to identify the individuals whose data

was compromised and intends to contact them, Toon said. He

didn’t say by when victims could expect to be notified.

The breach is reminiscent, but far larger, than one last July when students were furious after the university mistakenly

emailed the personal information of nearly 8,000 College of

Computing students to other students.

The information leaked in 2018 included student identification

numbers, phone numbers, dates of birth, addresses, grade‐

point averages and nations of origins for those born in other

countries. Social security numbers weren’t included, Tech

officials said.

Nate Knauf, who’s studying computer science at Tech, told The

Atlanta Journal‐Constitution the latest breach was “incredibly disappointing.”


He added: “Given our high rankings in computer science, this

is simply inexcusable.”

Many questions remain unanswered in the breach,

including how and when the breach was discovered; who

committed it; where the 1.3 million estimate of affected

parties came from; and what, if any, law enforcement agency is investigating.

Toon said he couldn’t yet offer that information. He did say the

U.S. Department of Education and University System of

Georgia have been notified.

While it may seem strange for a school that teaches cybersecurity

to be hit twice in a year, schools like Tech aren’t uncommon

targets as data hacks become increasingly commonplace.

“Academic institutions aren’t exactly new targets — they are

actually big targets,” said Humayun Zafar, a professor in

information security at Kennesaw State University. “At the end

of the day the systems that are used across the board (for data

retention) are similar.”

Such breaches have happened at universities across the

U.S.: The University of Texas, Yale University, and in 2018,

federal authorities indicted nine Iranians for allegedly hacking

144 American universities.

Then there are the hacks of municipalities, including Atlanta,

banks, Equifax, big box retailers and even hospitals. Last year,

Augusta University Health officials said they feared sensitive

health and personal information of about 417,000 people may

have been compromised.

Each attack can be different, with different motives and levels of

success, and it’s too soon to say how the Tech hack played out.

But Zafar said he suspects what happened at Tech was a so‐

called “zero day” attack, which is where a hacker find and

pounces on a system vulnerability that the system’s owner

isn’t aware of. It’s something like what could happen if a

homeowner forgot leaving a spare key under the doormat. A

crook can come along, find it and get in the house.

What tends to happen after zero day attacks, Zafar said, is the

attacked victim recognizes the vulnerability and patches it so

the issue won’t happen again. The homeowner moves the key.

But the crook has already been inside, and the damage must

be assessed.


“We continue to investigate the extent of the data exposure

and will share more information as it becomes available,”

Mark Hoeting, the school’s vice president for information

technology, said in an email to students. “We apologize for the

potential impact on the individuals affected and our larger

community. We are reviewing our security practices and

protocols and will make every effort to ensure that this does

not happen again.”

Source: AJC—April 2, 2019

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As Wearable Technology Booms, Sports and Athletic Organizations at All Levels Face Privacy Concerns

As wearable and analytics technology continues to explode,

professional sports leagues, such as the NFL, have aggressively

pushed into this field. (See Bloomberg). NFL teams insert tiny

chips into players shoulder pads to track different metrics of

their game. During the 2018‐2019 NFL season, data was

released that Ezekiel Elliot ran 21.27 miles per hour for a 44‐

yard run, his fastest of the season. The Dallas Cowboys are not

alone as all 32 teams throughout the league can access this

chip data which is collected via RFID tracking devices. Sports

statistics geeks don’t stand a chance as this technology will

track completion rates, double‐team percentages, catches

over expectation, and a myriad of other data points.

There are obvious questions and concerns about the use of this

technology, and not just at the professional level. Wearables

can be found at all levels of sports and athletic activities,

including at colleges and high schools. At the professional

level, the NFL is unique in that it allows teams to use the chip

data during contract negotiations. However, players do not

have full access to this information, unless specifically granted

by individual teams. This is important since there is much

debate over who truly owns this data. And, for a variety of

reasons, players and athletes want to know where their

information is stored, how it is stored, whether and how it

might be used and disclosed, who has access to it, and what

safeguards are in place to protect it. Major League Baseball

and the Players Association added Attachment 56 to the 2017‐

2021 Collective Bargaining Agreement to address some of

these concerns. But, again, these and other questions are not

unique to professional ball players.

With devices ranging from wearable monitors to clothing and

equipment with embedded sensors, professional teams,

colleges and universities, local school districts, and other

sports and athletic institutions, as well as the companies that

provide the wearables, can now collect massive amounts of

data such as an athlete’s heart rate, glucose level, breathing,

gait, strain, or fatigue. On the surface, this data may relate to

an athlete’s performance and overall wellness, which may be

somewhat apparent to onlookers without the aid of the

device. However, alone or aggregated, the data may reveal

more sensitive personal information relating to the athlete’s

identity, location, or health status, information that cannot be

obtained just by closely observing the individual. When

organizations collect, use, share, or store this data, it creates

certain privacy and security risks and numerous international,

federal, and state data protection laws may apply. Any sports

or athletic organization that develops a wearable device

program, or has reason to believe that these devices are being

used by coaches and others to collect similar data, should be mindful of these risks and regulatory issues.

Source: Jackson Lewis—April 5, 2019

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Effectively Addressing Security Concerns on Campus

Over the past year, federal intelligence, security, and science agencies, as well as Members of Congress, have expressed

increasing concern regarding theft of intellectual property,

breaches in scientific integrity, targeted cyberattacks, the

participation of academic researchers in foreign talent

recruitment programs, and other forms of foreign interference

relating to research performed at U.S. universities. These

concerns have stemmed from countries including, but not

limited to, China, Russia, Iran, and North Korea.

We know public research universities believe it is imperative

to take these concerns seriously and to take proactive

measures on campus. To assist universities in responding to

these growing concerns, late last fall APLU and AAU conducted

a survey to collect examples of effective policies, practices,

tools, and resources that universities are using to ensure the

security of research and to address ongoing and emerging

foreign security threats. This week APLU and AAU shared some

key practices emerging from the survey, including: conducting

an inventory of current campus security‐related activities;

communicating with faculty about potential security threats

and providing reminders of federal and university disclosure

and export controls compliance requirements; and considering

implementation of additional campus policies and practices to

bolster security and mitigate risk.


In brief, suggested actions that universities are encouraged to

take if they haven’t done so already include:

Sharing broadly steps that are already being taken or are underway to ensure the security of the research

enterprise on campus;

Conveying to faculty the importance of fully and accurately

disclosing conflicts of interest and conflicts of commitment,

including foreign affiliations and positions, foreign financial

conflicts, and other financial support during grant

application, award, and implementation processes;

Creating high‐level, cross‐campus working groups and

task forces to bring together key faculty and staff

stakeholders and facilitate additional university

coordination; and

Bolstering activities in the areas of faculty and student

training; review of foreign gifts, grants, and contracts;

review of faculty foreign financial interests and

affiliations; intellectual property protection; interactions

with federal security and intelligence agencies; safeguards

and protections for foreign travel; international visitors to

campus; and export controls compliance.

Source: Association of Public & Land‐grant Universities—April

24, 2019

...................................................................................................

WSU Settles Lawsuit over 2017 Hard Drive Theft for $4.7 Million

Washington State University has settled a class‐action lawsuit

after a hard drive containing millions of people’s personal data

was stolen from a storage unit.

A safe containing the backup hard drive was taken from an off‐

site storage container in Olympia on April 21, 2017. The hard

drive belonged to the school’s Social and Economic Sciences

Research Center (SESRC).

The drive contained sensitive information of over 1.3 million

individuals who had participated in studies and evaluations

conducted by the SESRC from 1998 to 2013. The data included

names, Social Security numbers and personal health

information — much of which was not encrypted.

The victims, some of whom say their data was used for identity

theft crimes, filed the class‐action lawsuit, claiming they were

unaware their information was being stored and that the Pullman university was negligent in storing the hard drive in an

unsecured location.

WSU countered the plaintiffs’ argument, stating it is difficult to

tie the identity thefts to the WSU breach given the number of

recent data breaches across the country, reports Beckers

Hospital Review.

“While Washington State University disputes the claims made

in the suit, the university has concluded that continued

litigation would be even more expensive and time‐

consuming,” said WSU spokesman Phil Weiler.

Under the settlement, victims may be entitled to receive up to

$5,000 in cash reimbursements for any out‐of‐pocket

expenses incurred by the breach. Some victims claimed they

were forced to buy credit monitoring services to monitor

identity theft.

Victims will also be entitled to two years of free credit

monitoring and insurance services, administrative fee

payments, attorney fees and other breach‐related expenses,

according to Health IT Security.

Furthermore, the school agreed to destroy all archived

research data related to the project referred to in the suit and

any remaining research data will be moved to a secured

location. It will also implement new policies, procedures,

training and technology based on a risk assessment and audit.

WSU joins a growing list of schools and hospitals that have

either experienced data breaches or reached settlements.

In March, UCLA Health settled a class‐action lawsuit for $7.5

million after hackers gained access to personal information of

over 4.5 million patients in 2014. Also in March, Georgia Tech

experienced a data breach that exposed the information of 1.3

million current and former students, as well as applicants and

staff members.

In December 2018, hackers were able to steal over $800,000

from Cape Cod Community College after gaining access to the

school’s bank information.

Source: Campus Safety Magazine—April 26, 2019


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Student Financial Aid

Low-Income Students Told Brown U. That Textbook Prices Limited Their Choices. Here’s What the University Is Doing About It.

At Brown University the open curriculum — which gives

students wide latitude in choosing courses — is a point of pride

because it allows them the freedom to explore their interests.

But some low‐income students have felt hemmed in. They

avoided courses that required expensive books and materials, or

took such courses and made do without them. And that wasn’t

the worst of it. “Some students,” said Richard M. Locke, the

university’s provost, “felt they were trading off books for food.”

In response, Brown started a pilot program this year to buy

required textbooks for some low‐income students. In the fall

the program will expand to cover all incoming freshmen whose

financial aid includes university scholarship funds, as well as

upperclassmen with a parent contribution of $0. Participating

students will simply gather their required materials at the

bookstore and pay with a swipe of their campus ID.

The books program is one of several moves Brown has made

in recent years to better support its low‐income students.

Those changes were sparked by student activism.

Across the country, colleges face growing pressure to take care

of students’ basic needs. The University of Kentucky is

providing additional support, including a dedicated staff

member, in the wake of a hunger strike. Students at Sarah

Lawrence College, in New York, recently released a long list of

demands. Texas’ Amarillo College, meanwhile, has attracted

national attention for its comprehensive approach to

supporting students.

Unlike those colleges, Brown is among the country’s

wealthiest. Colleges in its group have more economically

diverse enrollments than they once did, but they still enroll

small shares of low‐income students, compared with most

colleges. At Brown, 14 percent of students receive federal Pell

Grants, an imperfect but widely used marker of low‐income

status. That representation is similar to many peer institutions,

but quite low beyond them.

Elite colleges don’t educate huge numbers of low‐income

students, but they do provide significant financial aid to the

ones they enroll. In theory, students at Brown should be able

to pay for their books. The university meets students’ financial

need, and the aid formula includes books and supplies.

But the figure is an estimate, and even if it’s accurate, plenty

of students end up spending more. Even then, the idea that

students can pay for books out of their summer earnings — an

assumption that’s often baked into elite‐college financial aid

— might not work out in students’ real lives. They might not

be able to earn enough money. They might need to spend it on

something else.

“When we talk about how money works on campus, often we

think about financial aid, and it stops there,” said Anthony

Abraham Jack, an assistant professor at Harvard University’s

Graduate School of Education.

Jack’s research reveals the limits of that approach. A theme of

his recent book, The Privileged Poor: How Elite Colleges Are

Failing Disadvantaged Students, is that “access is not

inclusion,” he said. Low‐income students, Jack said, often feel

a disconnect between the effort an elite college made to

recruit them and the lack of support they face once they enroll.

“You almost feel lied to,” he said.

Between scholarship like Jack’s and student advocacy, that

disconnect is getting harder for colleges to ignore.

Structural Challenges

The recent changes at Brown have their roots in diversity and

inclusion demands that students made in 2015, a year that saw

similar activism at colleges around the country.

One of the university’s responses was to create a new position,

assistant dean of the college for financial advising.

Among other things, Vernicia Elie, who holds the position,

oversees an emergency grants program. Students’ requests,

which they submit online, are confidential, but they have

provided Elie with a detailed view of the financial frustrations

of Brown’s most vulnerable students.


In Elie’s first year, students submitted 745 applications for

emergency funding, many of which she was able to approve.

But there were others she couldn’t, due to federal regulations

that prevent colleges from providing students with more aid

than calculations determine they need.

The requests formed a “rich data set” revealing what students still needed, Elie said. They coalesced around two issues: books

and food.

Students’ stories, which Elie shared with other officials in a

2017 report, “helped us see what was happening structurally,”

she said. Brown’s growing share of low‐income students

meant that there was now a critical mass of them on the

campus. To Elie, their presence meant that Brown had to ask

itself: “Have we created some policies and systems that don’t

align with our values?”

Elite colleges enroll more low‐income and first‐generation

students than they used to. Many students embrace those

identities. As a result, the conversation on some campuses is

starting to shift from one that expects low‐income students to

assimilate to one that listens to them and uses their insights to

create a better educational environment for everyone.

Another result of 2015’s student activism was the creation of

Brown’s Undocumented, First‐Generation College and Low‐

Income Student Center. The students who worked there were

well aware that buying books continued to be a pain point for

low‐income students. They even started a lending library, a

task that involved lots of planning and organizing, not to

mention schlepping books across campus.

“It was so much hard work,” said Auriana Woods, a senior

majoring in public policy and Africana studies who used to

work at the center. “We were trying to do this thing on our

own.”

In the fall of 2017, two of Woods’s friends were in student

government. Along with a fourth student, they submitted a

proposal asking the university to cover the cost of books for

students on financial aid, and pointing to a similar program at

Williams College.

Students, Woods said, are on a different timeline than

administrators are. With only four years on a campus, they want

to make change happen quickly. Still, this year’s pilot program,

she said, “was an important start, a manageable start.”

Source: The Chronicle of Higher Education—April 11, 2019

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What Should Colleges Tell AdmittedApplicants about Aid?

For years, many consumer advocates and education finance

experts have criticized the way some colleges tell admitted

applicants about the financial aid they will receive if they enroll.

Studies have found inconsistencies in how colleges describe

the same forms of aid and have criticized suggesting that loans

are the same as grants. Others have criticized colleges for not

distinguishing among various forms of loans. Given that many

students and their families may not understand the

significance of borrowing through a federal versus private loan

program, for example, critics say that less‐than‐clear aid letters make it difficult for students and families to make

informed decisions.

With students who have multiple admission offers for the fall

deciding where to enroll, the U.S. Education Department's

Office of Federal Student Aid last week issued guidance to

colleges on their aid explanations. The recommendations:

"Avoid calling your financial aid offer an 'award' and avoid calling it a 'letter.' Loans are not awards. Work‐study is not

an award, it is the potential for employment that offers

earnings to students. Using a term like 'financial aid offer'

or 'college financing' is clearer. Given that many

institutions deliver these offers via electronic

communication, calling them 'letter' can also be

confusing."

"Avoid issuing a financial aid offer that does not include

cost of attendance."

"Avoid listing the cost of attendance without breaking it

down into clear components. For students and families to

be able to plan how to cover costs, the provided cost of

attendance needs to be transparent about what is and is

not included. While basic needs like food and shelter are

critical, other key costs such as books, supplies, medical

insurance and transportation also need to be anticipated

as students and families determine if a school is a financial

fit for them."

"Avoid listing grant and/or scholarship aid, loans and work‐study together. Listing grant and/or scholarship aid,

loans and work‐study together can lead students and

families to confuse the terms and their specific

requirements. Listing them separately makes it clear what

is a loan (needs to be paid back), what is a grant or

scholarship (does not need to be repaid), and what

constitutes as work‐study (must be earned by securing a

job and working to receive it)."

"Avoid listing student loans without clarifying the source (federal, state, institutional or private)."

"Avoid listing Parent PLUS loans with student loans.

Parent PLUS loans are different than student loans and

involve higher risk."

"Avoid issuing a financial aid offer without net cost calculated. Net cost is the difference between the total

cost of attendance and all grant/scholarship aid received.

Not including net cost is confusing to students and families

and makes comparing financial aid offers very difficult, if

not impossible."

Megan Coval, vice president for policy and federal relations at

the National Association of Student Financial Aid

Administrators, said the guidance from the Education

Department was generally consistent with her organization's

views. NASFAA has a code of conduct that covers many of the

same issues.

The organization has endorsed efforts to promote greater

clarity among aid offers. However, Coval noted that the

organization has also opposed what it terms "rigid

standardization" through legislation that would mandate a

single aid notification method. Coval said that institutions have

different missions, different student bodies and different aid

resources, making it unrealistic to require that every aid

notification look exactly alike.

At the same time, Coval said that the association takes

seriously the need for colleges to be transparent with aid

offers. She said the association receives "a handful" of

complaints a year about colleges that are not providing

information to students compliant with the association code.

In these cases, she said, the association investigates and works

with colleges to improve the way they share information about

aid with admitted applicants. In every case, she said, the

colleges have made the changes requested.

"I don't think schools are coming from a place where they are

trying to mislead or be deceptive," she said.

Source: The Chronicle of Higher Education—April 22, 2019

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