Ten Major Issues Facing Higher Education Institutions In 2023

• Jurisdiction: United States,Federal
• Law Firm: Jenner & Block
• Subject Matter: Consumer Protection, Education
• Author: Mr Ishan K. Bhabha, Lauren J. Hartz, Lindsay C. Harrison, Katharine McLaughlin, Savannah Berger, Casey L.M. Carlson and Victoria Hall-Palerm
• Published date: 09 February 2023

The last few years have been eventful and, at times, difficult ones for institutions of higher education. Institutions have been deeply impacted by issues ranging from the COVID-19 pandemic, to debates over free speech, to changes in immigration law, and to the ever-increasing pace of technological change, to name but a few. These impacts have been felt by institutions in numerous ways, including through increased legal risk and litigation. But notwithstanding all that has happened, 2023 may be one of the most impactful years for higher education in recent memory. Some of the issues we present below represent challenges for institutions of higher education while others represent opportunities. But all of these issues are important, interesting, and worthy of careful consideration as the year progresses.

#1 Race-Conscious Admissions

The Supreme Court is expected to decide two lawsuits challenging race-conscious admissions policies at Harvard College and the University of North Carolina at Chapel Hill (UNC) in June 2023. The petitioner in both cases, Students for Fair Admissions (SFFA), alleged that Asian-American applicants were denied undergraduate admission because of race-conscious admissions programs that benefit certain minority groups but disadvantage Asian Americans. The Court's decision could overturn 40 years of precedent'including Bakke, Grutter, and Fisher' permitting the consideration of race in admissions for the purpose of furthering student body diversity.¹

While oral argument in November 2022 reflected a sharply divided court, the conservative majority appeared prepared to overrule at least significant parts of Grutter and thus prohibit the explicit consideration of race in higher education admissions. Such a decision would obviously mark a sea change for admissions policies and would be one of the most significant court decisions regarding higher education in decades. Because the Supreme Court's decisions in these cases will likely not come out before June 2023, colleges and universities should be able to largely complete this year's admissions cycle in accord with the Court's existing precedent. Nonetheless, institutions of higher education should be prepared for the need to reformulate policies before the next admissions cycle to comply with the Court's forthcoming decisions.

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#2 Artificial Intelligence

The exponential rate of development in AI poses challenges and opportunities for colleges and universities. The use of AI technology, particularly AI-based facial recognition, has become commonplace for remote assessment proctoring due to the COVID-19 pandemic, and its use is likely to grow. Used in this manner, AI can be a useful means of stemming academic misconduct.

On the other hand, the growth of AI presents substantial challenges, too. For example, institutions have already faced suit under statutes such as the Illinois Biometric Privacy Act for capturing of students' biometric information, including through use of online remote proctoring tools.² Moreover, facial recognition technology, including AI-based proctoring software, is better at detecting light-skinned people than dark-skinned people and better at detecting men than women, raising issues of discrimination and equity.³ Students with accessibility needs, learning disabilities, neurodivergence, or mental health conditions may also be at risk for discrimination by AI proctoring systems, as may transgender students.⁴

Recent well-publicized developments in generative AI'algorithms, such as ChatGPT, that can be used to create new content, including text, audio, code, images, and video'will require institutions of higher education to consider how to address AI use in assessments like essay writing and adjust academic integrity policies to address such technology. And the proliferation of generative AI will also raise copyright questions for institutions of higher education. Courts will soon consider the "fair use" of input data'i.e., the training data that is ingested and used by AI algorithms.⁵ As owners of tremendous amounts of intellectual property, colleges and universities will have to consider how best to protect their data and other intellectual property.

#3 Immigration: DACA Under Threat (Again)

Once again, colleges and universities will be forced to confront significant challenges related to immigration in 2023. The most high-profile issue remains the ongoing challenge to the legality of the Deferred Action for Childhood Arrivals (DACA) program. Originally brought in 2018, the lawsuit by Texas and several other states seeks to end the DACA program.⁶ It is being litigated in the Southern District of Texas before the same district court that ended the DAPA program during the Obama administration.⁷

The federal district court and Fifth Circuit have already signaled that they believe DACA is unlawful.⁸ They are currently evaluating whether the rule promulgated by the Biden administration to formalize the DACA program alters that legal calculus.⁹ The litigation is proceeding in the district court, on remand from the Fifth Circuit, but a decision is anticipated later this year.

If the district court finds that the codified rule is unlawful, the temporary reprieve given to existing DACA recipients could end, subjecting hundreds of thousands of existing DACA recipients to removal and threatening their ability to work legally in the United States.

Given the importance of the DACA program to colleges and universities, this is litigation that schools will want to follow closely as it continues to work its way through the federal courts. And should the courts ultimately end the DACA program, universities will likely play an important role in the compelling push for a legislative solution, which at that point may be the Dreamers' only option.

#4 Antitrust Scrutiny for Institutions and Athletic Conferences

The NCAA, conferences, and institutions of higher education will continue to respond to the Court's ruling in NCAA v. Alston,¹⁰ which held that certain NCAA restrictions on education-related benefits for student-athletes violated federal antitrust laws. For example...