Education Law Update | 2023 Back-to-School Edition

Schools across South Carolina are suddenly full of activity again, with administrators, teachers, and students anticipating an exciting 2023-2024 academic year. Wyche’s Education Law Team is also excited for the new year and ready to be a resource for school leaders at all levels, from preschool to postsecondary. See below for a summary of some recent changes in law and regulation that may affect your institution.[1]

1. South Carolina General Assembly Passes Education Scholarship Accounts Program

Signed into law this past May, the Education Scholarships Account Act will take effect in the fall of 2024. This law will create “education scholarship accounts,” or ESAs, which will allow parents and guardians of children in secondary schools to receive up to $6,000 per year to pay for tuition, transportation, supplies, and technology at either private schools or public schools outside of the district for which their children are zoned. To be eligible for the scholarships, families must have household incomes within certain specified ranges of the federal poverty guidelines. While scholarships will not be available until the 2024-2025 school year, families can begin the application process in January 2024 and school leaders may want to begin preparing now, given that as many as 5,000 scholarships may be awarded for 2024-2025, and as many as 10,000 in 2025-2026 and 15,000 in 2026-2027 and subsequent school years.

2. Public School Teachers Get Paid Parental Leave

South Carolina public school teachers will enjoy a new benefit this academic year, with paid parental leave now available. Under a new Act passed in May 2023, school districts will be required to provide up to six weeks of paid leave to a parent who is the primary caregiver for a newly adopted child or who gives birth, and up to two weeks of paid leave to a parent who is not the primary caregiver or whose co-parent gives birth. Parents who foster a child will also be entitled to take up to two weeks of paid leave. Public charter schools in South Carolina are not required to offer the new benefit but may choose to do so if their board adopts this policy. The South Carolina Department of Education has put together guidance and a list of FAQ here to aid school districts in implementing the new benefit.

3. U.S. Supreme Court Closes the Door on Affirmative Action in College Admissions

In late June the U.S. Supreme Court issued its decision in Students for Fair Admissions v. Harvard, holding that Harvard’s and UNC’s use of race as a factor in their admissions policies violated the Equal Protection Clause of the Fourteenth Amendment (as to UNC) and Title VI of the Civil Rights Act of 1964 (as to both schools).  The Court made clear, however, that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” On August 14, 2023, the U.S. Department of Education issued a Dear Colleague letter and a set of questions and answers, providing guidance on what practices remain permissible in pursuit of a diverse student body.

At present, the Court’s decision will likely have little impact on admissions policies at private secondary schools, which are not subject to the Fourteenth Amendment because they are not state actors and are not subject to Title VI of the Civil Rights Act, so long as they do not accept federal funding.

 4. New Title IX Regulations Anticipated in October Will Address Sexual Assault and Transgender Athletes

The Department of Education announced in late May that new regulations implementing Title IX of the Education Amendments of 1972 will be issued in October 2023. These regulations are anticipated to address two different areas: (i) protections for students who experience sexual assault and harassment at school, and (ii) athletic eligibility of transgender students.  The new regulations will be applicable to public secondary schools and institutions of higher education, as well as private colleges and universities that receive federal funding.

Title IX regulations addressing sexual assault and harassment underwent a major overhaul in 2020, with schools forced to rewrite policies and train staff over just a few months in summer 2020.  The implementation period this time around may be longer, if the Department allows schools until the beginning of the 2024-2025 academic year to adopt new policies and train staff. But a mid-academic-year implementation cannot be ruled out. We will have to wait and see what the final rule requires.

The Title IX athletics regulation will likely prohibit blanket bans on transgender athletes’ participating on teams that align with their gender identity. Schools are expected to retain flexibility, however, to prevent some transgender athletes from playing some sports if the athletes’ participation interferes with objectives like fairness in competition or avoidance of sports-related injuries.  Thus, the Department has said that it expects elementary and middle school students would be able to play sports that align with their gender identity while there may be some limitations for transgender students at the high school and collegiate levels.

The legal outlook for the Title IX athletics regulation is uncertain in South Carolina, which (like some twenty other states) has a law requiring transgender athletes to compete on teams that correspond with the gender listed on the athletes’ birth certificates. State challenges to the athletics regulation are likely, as are lawsuits that challenge South Carolina’s “Save Women’s Sports Act” on the basis of the new regulation.

5. Student Loan Relief Held Unconstitutional

In June, the Supreme Court handed down Biden v. Nebraska, holding that the Secretary of Education did not have statutory authority to establish a student loan forgiveness program that would cancel about $430 billion in debt.  The Secretary’s plan would have provided relief to most federal student loan borrowers—nearly 43 million people—and would have completely erased the debts of 20 million borrowers.  The Court explained that although the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) permits the Secretary to make modest adjustments to existing provisions dealing with financial aid programs under the Higher Education Act of 1965, it does not authorize him to outright cancel this volume of student loan principal.

The Biden Administration has announced that it will continue to pursue debt relief through the Higher Education Act, creating a one-year “on-ramp” period that will begin on October 1.  During this period, borrowers will not be considered in default for late or missing payments.

[1] This update is not legal advice. Please consult an attorney for guidance on your particular situation.

Wade Kolb

Wade S. Kolb III

Wade’s practice centers on advising educational institutions and employers of all types in navigating complex legal problems. His career handling litigation and appellate work informs the analysis he provides and facilitates his role as trusted outside general counsel.

A former teacher, Wade leads Wyche’s education law practice, providing guidance to secondary schools and institutions of higher education on policy and handbook reviews, student discipline and honor code matters, and regulatory compliance, including Title IX. Wade also leads Wyche’s internal investigations group, helping clients promptly and efficiently collect facts and find solutions to a range of issues.

Prior to joining Wyche, he served as a law clerk to the Honorable Ed Carnes on the United States Court of Appeals for the Eleventh Circuit. Active in the community, Wade is a member of numerous boards and non-profit organizations, including the Palmetto Project, the Carolina Youth Symphony, and the Rotary Club of Greenville, of which he served as president from 2022-2023.


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