Hot topics in higher ed law

Despite the uncertainties of how the Trump administration may approach federal regulations affecting higher education institutions, there are some areas that community colleges must address no matter what, such as overtime regulations and compliance, Title IX enforcement and sexual harassment.

A roundtable discussion for community colleges at the Community College National Legislative Summit in Washington, D.C., examined how the new administration may tackle certain higher education regulations, from using executive orders, guidance documents and enforcement. That can include revoking previous orders and guidances, noted Robert Dunston, an attorney who specializes in higher education.

“It (guidance) can be pulled tomorrow,” he said, although he added it is unlikely as new appointees need time to learn their jobs and about their staff.

But there are certain legal issues that will affect community colleges even without changes from the administration. For example, recruitment and enrollment will likely play an important role in the the legal focus for colleges and universities over the next two to four years, Dunston said. Decreasing enrollment is already affecting smaller private colleges, prompting some of them to even close or merger with other colleges, he said. Community colleges are somewhat shielded for now, as they don’t depend on the 18-to-22-year-old population as much as four-year institutions, but there are some areas that drops in enrollment will definitely touch, such as construction and faculty/staff sizes.

“I would not be planning big building projects right now,” Dunston said.

Hourly employees

Another issue that will continue to be on community college lawyers’ plates is how to handle employee issues related to whether they are exempt or nonexempt and employees or private contractors. Even if the administration backs off enforcement of certain regulations, many states and plaintiffs’ attorneys will continue to push on these issues, Dunston said.

He suggested that colleges keep closer tabs on what they require of hourly employees, from properly keeping time cards to how they handle emails and calls outside employees’ work time. These issues can affect many college employees, from librarians and athletic trainers, to public accountants.

“I expect to see more claims in this area from hourly workers,” Dunston said.

Sexual assault, Title IX and students with disabilities

Title IX and other civil rights and sexual assaults will also continue to be in the forefront for colleges. Dunston recommended that colleges focus on their policies and procedures by taking a broader look. Sometimes after an incident a college may address only one aspect of its policies and procedures. For example, he noted issues of sexual harassment pertain to employees as well as students.

Web accessibility was also discussed at the session. College attorneys expect to continue to see more claims regarding web accessibility and reasonable accommodations in all programs, including online courses. This also can include formats and tools, such as PowerPoint.

Dunston provided examples that can prompt a claim:

  • Website pages that do not work with screen readers, including untagged PDF documents
  • Failing to convert books and documents in a timely manner or inaccurately
  • Using PowerPoint and web videos in classes without simultaneous translation or captioning for blind or deaf students

The annual Community College National Legislative Summit is hosted by the Association of Community College Trustees in collaboration with the American Association of Community Colleges.

About the Author

Matthew Dembicki
is editor of Community College Daily.