Case In Point: Lessons for the proactive manager

Volume 16 Number 04 | April 2024

Quotable .....

“ I believe in obedience to law because it protects the rights of all. ”

-- George Petrie (excerpt from the Auburn Creed)

This month we continue our review of 2023 events with a focus on the Compliance, Legal & Regulatory Category. For many years running this has been the category with the largest number of stories. Last year was no exception with over 250 stories linked, covering over 65 specific topics. There is little question that higher education is a highly regulated industry, and regulations are more likely to increase than decrease in the future.

The top five most common topics in this category in 2023 were:

Title IX
Discrimination Litigation
NCAA Compliance
Contract Litigation
Wrongful Death Litigation

The leader is by far Title IX—which comes as little surprise. The much anticipated new guidance has finally been released and will take effect August 1, 2024. We are still reviewing the changes and will have an assessment later this summer on what the changes really mean for higher education. Multiple lawsuits have already been filed in an attempt to prevent the changes from taking effect, so that litigation will also need to be monitored as we prepare for the changes. Stay tuned for updates on this vitally important topic.

I thought it might be interesting to list some of the diverse areas we covered in our Compliance, Legal & Regulatory Category:

Affirmative Action	Animal Safety
Athletic Unionization	Child Pornography
Clery Compliance	DEI Legislation
Domestic Violence	Defamation
False Claims Act	Foreign Influence
Free Speech	Hazing Litigation
Human Trafficking	Labor Litigation
NIL	Patent Litigation
Research Security	Retaliation
Transcript Withholding	Wrongful Death

The ways we can encounter compliance issues are vast. One of the best ways to avoid becoming the headline is to educate employees and create avenues where questions can be asked when faculty and staff are unsure of the correct approach. This is the basis of a strong compliance culture for the institution.

As always, there are many other risks that we must remain vigilant in managing within higher education. We again invite you to review these risks with a view toward proactively managing them and avoiding the headlines.

M. Kevin Robinson, CIA, CFE
Vice President
Institutional Compliance & Security& Privacy
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Information Security & Technology Events

Apr 23: Data Breach: If you attended a University Systems of Georgia (USG) institution, or are now enrolled, your personal data may be at risk. According to USG, cyber criminals accessed files when they purchased the software program MOVEit, for transferring and storing sensitive data. The Federal Bureau of Investigation (FBI) and Cybersecurity and Infrastructure Security Agency (CISA) determined that data was taken from the MOVEit platform by a cybercriminal group named CL0P. The files and information obtained by this cybercriminal group will likely be published on its website. (link)

Apr 11: Data Breach Lawsuit: Lewis & Clark College is facing a class action lawsuit filed by a former employee, alleging the school failed to protect student and employee data from a 2023 cybersecurity breach, and says the school failed to notify those impacted in a timely manner, according to court documents. The complaint, filed April 10 -- as reported by The Oregonian -- alleges negligence, breach of implied contract, and violations of Oregon's Unlawful Trade Practices Act and asks the court to certify the class action. According to the complaint, the breach took place around Feb. 28, 2023, and was discovered by the school around March 3, 2023. The school said they determined identifiable personal information and/or protected health information including names, dates of birth, Social Security numbers, and financial account information, were included in the hack. (link)

Apr 09: Data Breach Settlement: A class action lawsuit against Hope College for a 2022 data breach is being settled for $1.5 million. The lawsuit, which was filed in December 2022, stems from a data breach that occurred on or around Sept. 27, 2022. An investigation found that information like first and last names, birth dates, Social Security numbers, driver's license numbers and student ID numbers had been compromised. Class Representatives for the case are Jennie Devries, Tricia Garnett, Mark Cyphers, Timothy Drost, Joseph Rogers, Emily Damaska and Elisa Carter. The settlement was reached earlier this year, with notice mailings being sent to class members in February. (link)

Apr 08: Privacy & Data Ethics: Our personal data has become a hot commodity--traded and sold with little regard for the individuals it represents. The education policy ecosphere was recently atwitter after a data-related incident occurred ostensibly involving the University of Michigan (U-M). This incident has reignited concerns about the ethical use of student data and the responsibilities of academic institutions in safeguarding privacy and data security. Here's how it all unfolded: An engineer at Deepmind, a leading artificial intelligence company, received a targeted advertisement that appeared to be from the University of Michigan. The ad made a simple offer of access to an extensive dataset containing student papers and audio recordings of academic lectures--all for the (relatively) low price of $25,000. The backlash was swift, leading many to ask how U-M, a prestigious public university, could sell students' work in such cavalier fashion? (link)

Fraud & Ethics Related Events

Apr 08: Identity Fraud: A longtime University of Iowa hospital worker was not who his colleagues believed he was. From 2013 to 2023, William David Woods worked as a systems architect for the hospital's information technology department. In fact, though, the man working for the hospital -- at an annual salary of more than $140,000 by the end of his tenure, officials say -- was an entirely different person. The real William Woods, living in California, not only was a victim of a decades-long identity theft scam, but was criminally charged and committed to a mental health facility for trying to convince authorities he was who he said he was, according to federal prosecutors. The man was finally caught after a University of Iowa police detective investigated the real Woods' persistent claims. (link)

Apr 01: Application Inaccuracies: A Georgia university has joined schools in other parts of the nation navigating the fallout of an academic misrepresentation probe after its provost was ousted for inaccuracies on her curriculum vitae. The former provost was hired by Clayton State University to start in July to oversee academic programs for the nearly 6,000-student university. She was removed in late December, after anonymous complaints, one lodged by "a concerned faculty member," questioned the publications she listed on her application materials. (link)

Compliance/Regulatory & Legal Events

Apr 29: Title IX: Five Republican-led states have sued the Biden administration over its new rules expanding Title IX -- a federal civil rights law that protects students from sex-based discrimination in federally funded schools -- to protect transgender students. A handful of Republican officials in other states have publicly said they will not enforce the new rules but have stopped short of filing lawsuits. Texas Attorney General Ken Paxton, a Republican, sued the Biden administration Monday to block the rules, which will, in part, prohibit schools from barring trans students and teachers from using the school facilities and pronouns that align with their gender identities, among other policies. Paxton said the expanded rules mandate "compliance with radical gender ideology." (link)

Apr 23: The administration of U.S. President Joe Biden on Tuesday unveiled a rule extending mandatory overtime pay to an estimated 4 million salaried workers, going even further than an Obama-era rule that was struck down in court. The U.S. Department of Labor rule will require employers to pay overtime premiums to workers who earn a salary of less than $1,128 per week, or about $58,600 per year, when they work more than 40 hours in a week. The current salary threshold of about $35,500 per year was set by the Trump administration in a 2020 rule that worker advocates and many Democrats have said did not go far enough. The rule does not affect overtime requirements for workers who are paid hourly. (link)

Apr 23: Compliance: A critical audit of the University of Northern Iowa's Office of Compliance and Equity Management -- responsible for making sure UNI offers equal education opportunities and complies with state and federal laws like Title IX and affirmative action -- uncovered shortcomings that could "expose the university to unacceptable risks" and "result in serious consequences." "The current governance and reporting structure for (the office) does not promote collaboration with the necessary and appropriate functional areas of the institution, resulting in inefficiencies and the risk for non-compliance with university policy, and state and federal laws and regulations," according to the April internal audit being presented to the Board of Regents this week. (link)

Apr 19: Title IX Regulations: The Biden administration issued new rules on Friday cementing protections for L.G.B.T.Q. students under federal law and updating the procedure schools must follow when investigating and adjudicating cases of alleged sexual misconduct on campus. The new rules, which take effect on Aug. 1, effectively broadened the scope of Title IX, the 1972 law prohibiting sex discrimination in educational programs that receive federal funding. They extend the law's reach to prohibit discrimination and harassment based on sexual orientation and gender identity. While the new rules are expected to restore protections for accusers and expand the set of harassment complaints that schools are required to investigate, they are far from the sweeping rollback of Trump-era rules that was anticipated. (link)

Apr 17: Employee Conduct: Ann Coulter '84, a controversial conservative media personality, made her return to campus on Tuesday with a talk entitled "Immigration: The Conspiracy To End America." Audiences largely did not disrupt Coulter. However, a professor was arrested during the question and answer section due to disorderly behavior. At Coulter's last speaking appearance at Cornell in November 2022, numerous attendees protested, resulting in the removal of eight audience members and an early end to the event. Sporting a shirt that read "Keep Migrants, Deport The Racists," the professor, communication, an undocumented immigrant, criticized the event during the questions portion. She continued to shout remarks throughout the questions portion, such as "Racist," and put up middle fingers in response to many of Coulter's comments. (link)

Apr 17: Free Speech Lawsuit Settlement: Oklahoma State University will shut down its bias response team to settle a lawsuit filed by a nationwide campus free speech organization, the group announced Tuesday. The settlement secured by Speech First states the university will disband its Bias Incidents Response Team, will not reinstate the team nor create a new entity responsible for "bias incidents," and will wipe all references to the bias response team from its website and written material. The settlement also requires the public institution to change its "computer policy that previously forbade students from sending emails about politics," a news release from Speech First stated, adding the school will also rewrite its harassment policy to include "important speech protection for students." (link)

Apr 15: State Law: Last week, Gov. Katie Hobbs signed a bill allowing students at Arizona's state universities to opt out of having their student activity fees support campus groups they don't like. The new law will require all three of the state's public universities to give every student the opportunity to choose which clubs or organizations they don't want their fees to support. If students don't select any specific clubs to withhold their funding from, the university is free to allocate the funds to any program open to all students on campus. Rep. Alexander Kolodin, a Scottsdale Republican, said that he introduced House Bill 2178 to give Jewish students the option to not have their student activity fees go towards pro-Palestinan groups on campus. Kolodin, who is Jewish, said those groups use their platform on campus to call for "the annihilation of (Jewish) people" (link)

Apr 13: Breach of Contract Lawsuit: Former Calvin University President Wiebe Boer has filed a federal lawsuit in the Western District of Michigan U.S. District Court. In the lawsuit, Boer claims his former employer rushed him to resign, didn't allow him proper legal protections, unduly harmed his reputation and even racially discriminated against his wife, Joanna Boer, who is Black. Boer resigned last year after the school said they received a report that alleged Boer engaged in unwelcome and inappropriate communication and attention toward a member of the campus community. The school clarified the person was not a student. While the school said the alleged communication was neither sexually explicit nor physical, they said it was concerning.In the 44-page lawsuit, the former administrator claims the university essentially breached its contract when it forced him to resign. (link)

Apr 08: Athletics Compliance: Athletes in the National Association of Intercollegiate Athletics (NAIA) will only be allowed to compete in women's sports if they were assigned the female gender at birth, the national small-college organization announced Monday. The NAIA's Council of Presidents approved the policy in a 20-0 vote Monday morning after a December survey indicated widespread support for the move. The association's previous policy only applied to postseason competition. The new directive applies to all NAIA competitions. The NAIA is a national athletic governing body for 249 mostly small colleges across the country that are not part of the NCAA's three divisions of competition. The membership is 80% private schools. This decision does not apply to NCAA competitions. (link)

Apr 03: Title IX Settlement: Victims of sexual misconduct by a University of Maryland, Baltimore County swim coach will be entitled to $180,000 or $60,000 each as part of a settlement approved by the Maryland Board of Public Works on Wednesday. The $4.1 million settlement is a result of a consent decree the university is entering with the U.S. Department of Justice following a blockbuster Title IX investigation. It requires a number of changes, including offering financial compensation to victims. Under the agreement, athletes on the men's swim team between 2015 and 2021 could receive $180,000 if the DOJ or university investigation found they experienced dating violence that staff knew about or sexual assault by a former head coach. The same goes for swimmers on the women's team during certain academic years. (link)

Apr 01: Financial Aid Lawsuit: The settlement administrator Angeion Group LLC announced a proposed settlement with several U.S. colleges and universities Friday over alleged deceptive tactics in giving out financial aid. The preliminary proposal includes 10 schools in one case and and 17 in a second. The schools include Yale University, Johns Hopkins University and the University of Pennsylvania. The lawsuit alleged the schools conspired to make formulas for financial aid that resulted in students receiving a lower amount of support compared to if the schools didn't conspire, constituting a violation of antitrust laws. The schools have denied the allegations and argued the plaintiffs have no merit. (link)

Campus Life & Safety Events

Apr 25: Campus Protests: Protests have broken out at colleges and universities across the country in connection with the war in Gaza. Many pro-Palestinian protesters are calling for their colleges to divest of funds from Israeli military operations, while some Jewish students on the campuses have called the protests antisemitic and said they are scared for their safety. The student protests -- some of which have turned into around-the-clock encampments -- have erupted throughout the nation following arrests and student removals at Columbia University in New York City. Students at schools including Yale University, New York University, Harvard University, University of Texas at Austin, University of Southern California and more have launched protests. (link)

Apr 22: Campus Protests & Safety: The 100-year-old annual honors convocation at the University of Michigan is typically a decorous affair, with a pipe organ accompanying golf-clap applause. This year's event was anything but. Protesters rose from their seats, and unfurled banners with "Free Palestine" written in red paint. They shouted, "You are funding genocide!" Two days after the honors convocation, the university's president, Santa J. Ono, issued a stern rebuke: Enough. The University of Michigan is not alone. After years of often loose enforcement of their own rules, some of the country's most high-profile academic institutions are getting bolder, suspending and in some cases expelling students. (link)

Apr 18: Campus Protest: New York police removed a pro-Palestinian protest encampment at Columbia University on Thursday and arrested more than 100 demonstrators, including the daughter of a prominent Minnesota congresswoman. Several students involved in the protest said they also were suspended from Columbia and Barnard College, including Isra Hirsi, who is the daughter of Democratic U.S. Rep. Ilhan Omar. Police said 108 people, including Hirsi, were charged with trespassing at the private Ivy League institution. Two people were also charged with obstructing government administration. New York Mayor Eric Adams said the city was asked in writing by university officials to remove the encampment. "Students have a right to free speech, but do not have a right to violate university policies and disrupt learning on campus," Adams said. (link)

Apr 16: Safety v. Free Speech: The University of Southern California canceled a commencement speech by its 2024 valedictorian who has publicly supported Palestinians, citing security concerns, a rare decision that was praised by several pro-Israel groups and lambasted by free speech advocates and the country's largest Muslim civil rights organization. Andrew T. Guzman, provost and senior vice president for academic affairs for the private university in Los Angeles, said in a statement Monday that debate over the selection of valedictorian Asna Tabassum to give the May 10 commencement speech took on an "alarming tenor." Her speaking would have presented "substantial" security risks for the event, which draws 65,000 people to campus, he said. (link)

Apr 13: Campus Speech: Students on the St. Louis Community College Meramec campus say on Thursday they felt threatened and uncomfortable by a man livestreaming and spewing hateful language. Now, campus officials say they are investigating an interaction between an officer and students during the event. Zainab Ahmad was walking to class when she saw a man live streaming in the main campus quad. "The main target was Muslim students, but he was attacking the queer community on campus, he was making extremely anti-Semitic remarks as well, and campus police were just standing by. They didn't intervene," said Ahmad. Another student who asked not to be identified out of concern for his safety said he walked up to a campus officer and asked if there was anything that could be done. ‘He told me if I don't like it, I can go back to where I came from," said the student. (link)

Apr 06: Campus Protest: What began as a peaceful pro-Palestinian demonstration on Friday afternoon at Pomona College, quickly devolved after protesters stormed and then occupied the college president's office. By the end of the evening, 20 students had been arrested and booked by riot-gear-wearing local police forces. Nineteen students were charged with misdemeanor trespassing, and one with obstruction of justice, according to the Claremont Police Department. Police from Claremont, Pomona, Azusa, and La Verne responded to the scene. The protest started over the college's dismantling of a piece of student-erected pro-Palestinian protest art on the Claremont campus, which had been standing since March 28. (link)

Apr 05: Athletics: Suicides among U.S. college athletes have doubled over the past two years, according to data from the National Collegiate Athletic Association (NCAA). Suicide is now the second most common cause of death for college athletes after accidents, results show. "Athletes are generally thought of as one of the healthiest populations in our society, yet the pressures of school, internal and external performance expectations, time demands, injury, athletic identity and physical fatigue can lead to depression, mental health problems and suicide," wrote the research team led by Bridget Whelan, a research coordinator with the University of Washington in Seattle. During the two decades, 1,102 athletes died. Of those, 128 took their own lives, including 98 men and 30 women. The suicide rate among college athletes doubled comparing the first decade and the second, rising from 7.6% to 15.3%. (link)

Apr 05: Greek Life: A Washington University fraternity and a sorority have been suspended following an incident last month at a campus dining hall where members are accused of climbing onto tables, throwing raw eggs and using racial slurs. The university's Association of Black Students said the workers in the dining hall that night were largely racial minorities. The association is calling for the two organizations, Alpha Phi and Kappa Sigma, to be barred from campus and the students involved to be expelled. The incident happened around 10 p.m. March 21 at the Bear's Den dining hall in Zetcher House, a dorm between Forsyth and Wydown boulevards on Washington University's campus. The students didn't aim eggs or racial slurs at dining hall workers, but the staff felt intimidated and uncomfortable, said David Cook, president of the local food workers union, which represents the workers. (link)

Apr 04: Campus Protest: Controversy has erupted over the recent arrest of nine people at a pro-Palestinian rally at Stony Brook University, with numerous staff and students' names added to a letter criticizing the arrests as "criminalizing" protest, while school officials say the people were being disruptive. The arrests by university police occurred during a March 26 rally that included a march through campus followed by a demonstration in the administration building in support of Palestinians and calling for the divestment of Israel. These were the first arrests associated with the protests at Stony Brook and include seven students, one alumnus and one nonstudent charged with disorderly conduct, school officials said. (link)

If you have any suggestions, questions or feedback, please e-mail Kevin Robinson at robinmk@auburn.edu or Robert Gottesman at gotterw@auburn.edu. We hope you find this information useful and would appreciate hearing your thoughts. Feel free to forward this email to your direct reports, colleagues, employees or others who might find it of value. Back issues of this newsletter are available on our web site.