Legal issues facing higher education in 2023

Recent and upcoming legal challenges show that the First Amendment, protecting women’s sports, and affirmative action are among the legal issues facing higher education. Campus Reform compiled a list of the top issues that it will continue to report on in 2023.

6. Student wins permanent injunction after alleging that online exam’s room scan violated Fourth Amendment rights

A Cleveland State University student recently won permanent injunction against taking online exams that require a room scan. In August, a federal judge ruled in the student’s favor after he challenged one of Cleveland State’s online exam proctoring systems, which uses students’ webcams to detect possible threats to academic integrity. 

Higher Ed Dive reported on the suit against Cleveland State. The student asserted that he could not schedule an alternate in-person exam because he did not receive advanced notice about the room scan. Even if he did, the suit continued, he could not schedule an in-person exam because of the COVID pandemic. 

U.S. District Judge J. Philip Calabrese’s ruling described the violation of the student’s right to privacy under the Fourth Amendment: “Though the intrusion in this case was not physical, the same principles protecting the sanctity of the home apply to a visual intrusion conducted through remote technology.” 

“The lawsuit could have heavy implications for colleges and virtual proctoring companies, which exploded during the pandemic as institutions were forced to hold their exams online,” Higher Ed Dive reported. 

5. University of Southern California sued after collaborating with a program for online education, doctoring U.S. News rankings 

Former students of the University of Southern California (USC) recently sued the university and 2U, a company that develops and advertises online education programs. The students, who enrolled in USC’s online programs with the Rossier School of Education, said in their class action lawsuit that USC committed fraud through false advertising and allowing 2U to influence the graduate program. 

“For instance, 2U told investors that it typically wouldn’t contract with other colleges to offer competing programs—unless their current clients refused to grow programs so they could admit all qualifying students,” Higher Ed Dive reported. 

The lawsuit alleges that 2U used “aggressive recruiting,” which relied on doctored data shared with U.S. News & World Report, a media company that provides the definitive ranking of universities and their programs. 

USC submitted data to U.S. News that reflected students from a few of its in-person programs but claimed that the data reflected all graduate programs, including the online doctoral degree in teaching. 

Universities could face other legal challenges as U.S. News rankings are subject to increased scrutiny. 

The most recent example of scrutiny comes from the law schools that announced a boycott over the methodology used by U.S. News. “Those schools cited the pressure the rankings create to bring in students with high grades and scores on the Law School Admission Test and their discounting of students who pursue certain public interest or academic jobs,” Reuters reported. 

4. Universities face legal challenges over violations of students’, faculty members’ First Amendment rights

The University of Idaho recently settled a lawsuit brought by students and an advisor with the Christian Legal Society, an organization that equips “Christian attorneys and law students” to “serve Jesus Christ through the study and practice of law.” 

The students and their advisor received a no-contact order from a student alleging that they “harassed her,” according to Reason. Christian Legal Society members allegedly responded to the student’s question about gay marriage and left a note offering a follow-up conversation. 

The lawsuit claims that the university violated the students’ First Amendment rights by “punish[ing] students based on the content and viewpoint of those students’ protected speech.”

Universities will face other legal challenges stemming from alleged First Amendment violations in 2023. A U.S. district judge will rule on a case regarding the University of Oregon temporarily suspending a professor from a university Twitter account. 

The professor’s lawsuit asserts that the university committed “viewpoint discrimination” when the Division of Equity and Inclusion Account blocked him for posting “all men are created equal,” a reference to his views on “race blindness,” according to The Oregonian. 

Campus Reform has reported on ongoing threats to students’ and faculty members’ First Amendment rights, including bias reporting systems and attempts to prevent religious colleges and universities from upholding their principles. 

3. The Supreme Court is expected to rule on a Title IX case that could determine whether men can participate in women’s sports 

A federal appeals court recently upheld a district court ruling that continued a policy allowing biological men to participate in women’s sports in Connecticut. The families of female athletes sued defendants including the Connecticut Association of Schools and “multiple local school boards,” according to Higher Ed Dive. 

The Supreme Court could decide the case if the plaintiffs appeal the decision, and Higher Ed Dive reported that the high court is expected to hear a case related to Title IX and transgender athletes. 

Campus Reform has reported on the Connecticut athletes’ lawsuit and states’ efforts to protect women’s sports. 

2. The Supreme Court will rule on ‘race-conscious admissions’ 

In the fall, the Supreme Court heard oral arguments for two lawsuits targeting “race-conscious admissions policies” at Harvard University and the University of North Carolina. 

The group Students for Fair Admissions sued the universities, “alleging intentional discrimination toward Asian American applicants,” according to ABC News.  

The high court’s decision could overturn forty years of precedent, which currently allows university admissions to take race into account so long as they do not have quotas and their system is narrowly tailored. 

The American Psychological Association (APA) explained “narrowly-tailored” systems: “To be narrowly tailored, an admissions program cannot employ racial balancing or quotas, and it cannot use race in a mechanical way, such as by applying a specific number of admissions points to all applicants of particular races.”

ABC News said that the upcoming Supreme Court ruling on affirmative action could “declare that admissions policies must be race-blind.” 

1. The status of the Biden administration’s student loan forgiveness plan is uncertain as the Supreme Court prepares to hear its legal challenges 

The Supreme Court will soon hear arguments against the Biden administration’s student loan forgiveness plan, according to CNBC. The White House said in August that the plan targets “low-to middle-income borrowers” by forgiving up to $20,000 in federal student loans for Pell Grant recipients and $10,000 for non-Pell Grant recipients. 

One of the six lawsuits against the loan forgiveness plan involves states alleging that the plan “will hurt the profits of companies in their states that service federal student loans,” CNBC reported. 

The Supreme Court will also hear a case brought by two plaintiffs who are excluded from the plan. “Plaintiff Myra Brown does not qualify for debt forgiveness because the Debt Forgiveness Program does not cover commercially held loans that are not in default, and Plaintiff Alexander Taylor does not qualify for the full amount of debt forgiveness because he did not receive a Pell Grant when he was in college,” the complaint reads. 

Previous reporting from Campus Reform revealed that some argue the student loan forgiveness plan burdens taxpayers. Others argue the plan is “a slap in the face” to students who repaid their loans before the Biden administration announced the plan.