Privacy Tip #454 – Students Sue Kansas School District Over AI Surveillance Tool
Current and former students at Lawrence High School and Free State High School, located in Lawrence, Kansas, have sued the school district, alleging that its use of an AI surveillance tool violates their privacy.
The allegations revolve around the school district’s use of Gaggle, which is an AI tool that mines the district’s Google Workspace, including Gmail, Drive, and other Google products used by students through the public schools’ network. Gaggle is designed to “flag content it deems a safety risk, such as allusions to self-harm, depression, drug use and violence.”
The plaintiffs are student journalists, artists, and photographers who reported on Gaggle or had their work flagged and removed by the AI tool. They allege that Gaggle could access their notes, thereby allowing access by the district, which they allege is a violation of journalists’ legal protections. They allege that “[s]tudents’ journalism drafts were intercepted before publication, mental health emails to trusted teachers disappeared, and original artwork was seized from school accounts without warning or explanation.”
They further allege that the district’s use of Gaggle is a “sweeping, suspicionless monitoring program” that “violated student rights by flagging and seizing student artwork.” They allege that “Gaggle undermines the mental health goals it attempts to address by intercepting appeals for help students may send to teachers or other trusted adults.”
The lawsuit requests a permanent injunction to stop the use of Gaggle in the district, along with compensatory, nominal, and punitive damages as well as attorney’s fees.
AI tools have their place in today’s business environment, but without careful protocols implemented to protect user privacy, organizations can find themselves in lawsuits that will drain resources and time away from more critical areas of need.
Looping in Loper Bright to Require the EEOC to Follow Its Enabling Statute
Are the days numbered for the U.S. Equal Employment Opportunity Commission’s (EEOC) ability to permit plaintiffs to eschew the administrative process by issuing Notice of Right to Sue letters “on request” prior to 180 days? The short answer: they may certainly be.
On July 30, 2025, in one of the first decisions concerning deference to EEOC regulations since the Supreme Court of the United States struck down Chevron deference in Loper Bright Enterprises v. Raimondo, the U.S. District Court for the Eastern District of New York in Prichard v. Long Island University invalidated an EEOC regulation allowing it to issue “right to sue” notices on request before 180 days had passed.
Noting that the plaintiff employee had explicitly relied on cases that reviewed the EEOC’s regulation under Chevron, the court remanded the federal portion of the plaintiff’s claims to the EEOC and dismissed her state law claims without prejudice. On a broader level, this decision may signal to the agency that post-Loper Bright federal courts will not defer to EEOC regulations found to be inconsistent with the text of Title VII of the Civil Rights Act of 1964, the EEOC’s enabling statute.
Quick Hits
While the recent Supreme Court decision in Loper Bright overturning Chevron deference has been applied in some employment law agency contexts, very few decisions have since involved EEOC regulations.
A recent Eastern District of New York case (Prichard v. Long Island University) affords one of the first looks at how Loper Bright may be utilized for an employer’s strategic decisions to challenge EEOC regulations after the disassembling of Chevron deference.
Just a little over a year ago, the Supreme Court issued its landmark decision in Loper Bright Enterprises v. Raimondo, overturning the decades-old Chevron deference (which afforded great weight to agencies’ reasonable interpretations of ambiguous statutory language). For more information on this decision and its impact so far, take a look at our articles here and here. Chevron held that where an agency made a reasonable interpretation of ambiguous statutory language, courts were bound to defer to the agency. The Loper Bright ruling decidedly overturned that deference and squarely held that courts must exercise their independent judgment in deciding whether an agency acted within its statutory authority without simply deferring to an agency’s reasonable interpretation.
Since that time, in the employment and labor law context, several decisions have cited Loper Bright and overturned at least two U.S. Department of Labor (DOL) rules. However, decisions concerning EEOC interpretations of statutory language post-Loper Bright are scarce. Then comes Prichard, which makes clear that an EEOC regulation should not be given the deference previously afforded by Chevron without a court running through its own independent analysis of the interpretation.
Prichard v. Long Island University
In Prichard, the plaintiff, Cecilia Prichard, worked as a financial aid counselor for Long Island University. After she had a kidney transplant and had exhausted her leave under the Family and Medical Leave Act (FMLA), Prichard could not return to work, so the university terminated her employment. Prichard promptly filed a Charge of Discrimination with the EEOC, but requested a Notice of Right to Sue after the Charge of Discrimination had been pending with the EEOC for only fifty-seven days. The EEOC, relying on its long-standing practice under 29 C.F.R. § 1601.28(a)(2), “verified” it could not complete its investigation within the statutorily required 180 days and issued her a right to sue.
After Prichard brought her lawsuit, the university filed a motion to remand the case to the EEOC and dismiss her state claims. The university argued that her right to sue was invalid under the Americans with Disabilities Act, as amended, since the right to sue was issued prior to either the dismissal of her charge or 180 days within the administrative process. The court agreed with the university, holding that the EEOC’s interpretation of the statute in its regulation could not be squared with the actual statutory language. Importantly, the court also noted that the cases cited by Prichard in support of the EEOC’s interpretation were pre-Loper Bright and relied on Chevron deference. To that end, the court conclusively stated,
Prichard’s assertion that deference is due the EEOC’s interpretation of the statute effectively urges this court to operate in a parallel universe in which Loper Bright had been decided the other way. No case that Prichard cites (or that the Court has identified) sided with the EEOC on textual grounds without according deference: they either deferred to the agency pre-Loper Bright, or relied primarily on policy considerations. Neither approach now suffices to overcome the plain text of the statute.
(Citations omitted.)
As the court noted, without according deference to the agency’s interpretation, the contrast between the statutory mandate and the EEOC regulation is readily apparent and cannot be reconciled under Loper Bright.
The ADA incorporates the procedural requirements of Title VII of the Civil Rights Act of 1964. Title VII, in turn, makes plain that the EEOC can issue a notice of right to sue on a charge prior to 180 days of administrative processing only by dismissing the charge. There is no mention of providing a notice of right to sue on a charging party’s request prior to 180 days. Despite this absence and limitation on the statutory authority to issue such notices, the EEOC has always interpreted the statute to allow it to bifurcate its issuance of a notice of right to sue on request from a charging party. Under 29 C.F.R. § 1601.28(a)(2)—the regulation at issue—the Commission interpreted Title VII (and thus, those antidiscrimination statutes that employ Title VII procedures) to permit it (upon its discretion) to “issue [a notice of right to sue] … provided that the [appropriate EEOC officer] has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect.”
At bottom, the court held that the EEOC had created a method for plaintiffs to bypass the administrative process required by the statute. Indeed, the EEOC’s interpretation arguably undermined an integral purpose of the antidiscrimination employment statutes: for the Commission to first attempt to resolve employment discrimination charges prior to litigation.
Next Steps
While this lower-court decision is merely persuasive for federal district judges, it may affect employers’ practical decisions regarding litigation and indicate how Loper Bright can be applied in challenges to other EEOC regulatory interpretations. While the lawsuit might be refiled, this decision forces the agency to investigate the matter and provides an opportunity for the employer to potentially resolve the matter administratively.
Notably, the court relied upon Loper Bright, where prior courts had largely granted Chevron deference to the agency without exercising their independent judgment. Under Loper Bright, employers now have more options when determining whether to seek to challenge regulations. All the same, it is important to remember that courts can still uphold regulations based on prior decisions where the courts analyzed the regulations using their own independent judgment under the Chevron scheme. In other words, Loper Bright does not simply overrule all past decisions.
Further, the Prichard court found the EEOC’s rule authorizing the issuance of early right-to-sue letters directly contradicted the agency’s statutory authority. This is important because it underlines that an agency can overstep by contradiction, omission, or invention.
Numerous Appeals Challenge House Settlement
In the wake of the landmark June 6, 2025, House v. NCAA settlement, several groups have initiated appeals challenging the Settlement’s terms, asserting Title IX, antitrust, and other related issues.
Title IX and Antitrust Challenges
Three groups of female student-athletes appealed the district court-approved Settlement on grounds that the Settlement violates Title IX of the Educational Amendments of 1972 to the Higher Education Act. Title IX forbids colleges and universities from excluding students from participating in programs, denying them benefits, or subjecting them to discrimination based on sex.
One group challenges the backpay damage calculations under the Settlement agreement as imbalanced, alleging that the calculated damages vastly favor male student-athletes over female student-athletes, in violation of the law.
Another group asserts that the Settlement impermissibly extinguishes Title IX rights through an imbalanced process favoring male student-athletes over female student-athletes.
The third group asserts that the Settlement’s terms violate Title IX but also raises antitrust challenges to the Settlement.
Several additional appeals also assert antitrust challenges to the Settlement, including assertions of inadequate representation of student-athletes (male and female) in negotiating the Settlement and impermissible caps on revenue sharing.
Other Challenges
Male student-athletes also challenge the backpay damages calculations as favoring revenue-generating sports and scholarship student-athletes. They challenge the adequacy of the notice provided to student-athletes during the settlement negotiations. They also challenge whether the opt-out process permitted student-athletes adequate time to protest the final terms.
While these appeals triggered an automatic stay to the distribution of the backpay damages for former and current student-athletes, none requested a stay to the revenue-sharing terms going forward and being overseen by the College Sports Commission. Student-athletes will likely have to wait for a year or more for backpay payments until these appeals are resolved.
Diversity Programs Could Mean Defunding, New Attorney General Memorandum Warns
Federal law has long required recipients of federal funds to comply with anti-discrimination laws. Over the last decade, initiatives under the label Diversity, Equity and Inclusion (“DEI”) became a widespread vehicle for addressing alleged past and present discrimination at both public and private institutions. Now, the US Department of Justice has issued sweeping guidance characterizing these programs as unlawful race- and sex-based discrimination that could lead to loss of federal funds.
Practices that grant preferential treatment based on protected characteristics, such as race, color, national origin, sex or religion;
Practices that use facially neutral proxies for protected characteristics;
Programs that segregate participants based on protected characteristics; and
Training programs that promote discrimination or hostile environments.
Below we discuss the significance of this sea change and how impacted entities can ensure they do not put themselves at risk for losing federal funding.
Anti-Discrimination Under the Trump Administration
Earlier this year, Bracewell wrote about the Trump Administration’s use of the False Claims Act to police the use of DEI programs in the federal contracting process, under the executive order entitled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Institutions of higher education have likewise for months faced scrutiny under the Justice Department’s stated commitment to ending illegal DEI discrimination and eliminating the use of race in university admissions.
As recipients of federal funds, these entities must comply with Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin; Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on, or motivated by, race, color, religion, sex or national origin; Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in education programs; and the Equal Protection Clause of the Fourteenth Amendment, which prohibits discrimination from state or local governments. That has always been true. What is new is the Justice Department’s interpretation of what constitutes “unlawful discrimination” under these laws, and the threat of revoking federal funds for any entities engaging in the practices that have now been declared unlawfully discriminatory.
The DEI Memo’s interpretation materially expands the prohibited conduct and makes clear that it will reach all recipients of federal funding and entities that are otherwise subject to federal anti-discrimination laws. This includes all educational institutions (not just universities), state and local governments, public employers, nonprofits and charities that receive government grants, healthcare providers and private employers who receive federal financial assistance. The DEI Memo even threatens liability for federal funding recipients who “knowingly fund the unlawful practices of contractors, grantees, and other third parties” and recommends including nondiscrimination clauses in contracts to third parties, monitoring compliance and terminating funding if the third party is noncompliant.
Four Types of Unlawful Practices
The DEI Memo details four categories of unlawful discriminatory conduct that could result in losing federal funding: (1) granting preferential treatment—through providing certain opportunities, benefits or individuals—based on protected characteristics “in a way that disadvantages other qualified persons”; (2) using ostensibly neutral proxies that correlate with or are used as a substitute for protected characteristics (or using such proxies with the intent to advantage certain individuals with protected characteristics); (3) segregating individuals based on protected characteristics for programs, activities or resources; and (4) DEI training programs that stereotype, exclude or disadvantage individuals based on protected characteristics.
DEI programs appear to be the Justice Department’s primary concern in its guidance. Providing resources, trainings or programs for individuals based on protected characteristics is described by the Department as impermissible “segregation,” unless it is sex-based segregation in bathrooms, showers, locker rooms and dormitories, or women’s sports, which the guidance describes as necessary for the “privacy, safety and equal opportunity of women and girls.”
The guidance also focuses on impermissible selection processes—including for admissions, hiring and promotion—that use protected characteristics or proxies for the same. The Memo asserts that the goal of promoting diversity or retaining talent from diverse geographic areas and socioeconomic classes is not a compelling interest that withstands the scrutiny of race-based discrimination. Targeting recruiting efforts in low-income areas, for example, may be seen as an impermissible use of socioeconomic status as a proxy for race.
The guidance provides the following non-exhaustive list of conduct that would be considered unlawfully discriminatory.
Race-based scholarships or programs, including mentorship programs, leadership initiatives and internships that exclude students of other races;
Preferential admission, hiring or promotion practices that prioritize underrepresented racial groups;
Access to facilities or resources based on race or ethnicities, such as “designat[ing] a ‘safe space’ for students of a specific racial or ethnic group”;
“Cultural Competence” Requirements, e.g., requiring student applicants to describe their “lived experience” in order to evaluate the student’s racial background or asking faculty candidates to “describe how their ‘cultural background informs their teaching’”;
Geographic or Institutional Targeting of certain areas or organizations because of their racial or ethnic composition;
“Overcoming Obstacles” Narratives or “Diversity Statements” that serve as a proxy for race or other protected characteristics;
Race-based training sessions where participants are separated into groups based on race;
Segregation in facilities or resources, e.g., a study lounge designated for certain racial or ethnic groups. Facilities that are “single-sex based on biological sex to protect privacy or safety, such as restrooms, showers, locker rooms, or lodging” are permitted;
Implicit segregation through program eligibility, e.g., programs “for underrepresented minorities only”; and
Trainings that promote discrimination based on protected characteristics and create a hostile work environment through statements such as, “all white people are inherently privileged,” and “toxic masculinity.”
The Justice Department’s Recommended Best Practices
The DEI Memo warns that entities that engage in the above unlawful practices could have their federal funding revoked. To mitigate that risk, the Memo recommends that federal funding recipients:
Ensure inclusive access by avoiding “organizing groups or sessions that exclude participants based on protected traits”;
Focus on skills and qualifications that are specific, measurable, and “directly related to job performance or program participation,” rather than criteria like socioeconomic status or geographic diversity;
Prohibit demographic-driven criteria in scholarships, like those that target “first-generation students” or “underserved geographic areas”;
Document legitimate rationales in hiring, promoting or selecting contracts to demonstrate that selections were made for reasons unrelated to race, sex or other protected characteristics;
Scrutinize neutral criteria for proxy effects in hiring and admissions decisions—do not target “low-income students” to achieve racial outcomes;
Eliminate diversity quotas in favor of merit-based selections;
Avoid exclusionary training programs where participants are segregated based on protected characteristics or required to “confess” to personal biases or privileges based on a protected characteristic;
Include nondiscrimination clauses in contracts to third parties and monitor compliance and terminate funding for noncompliant programs; and
Establish clear anti-retaliation procedures for individuals who refuse to participate in potentially discriminatory programs and create “safe reporting mechanisms” for individuals who raise concerns.
Evaluating Programs for Compliance
Given the significance of both this shift and the stakes, entities that receive federal funding should engage in a thorough review of their relevant processes and programs to ensure full compliance with the new interpretation of federal anti-discrimination laws. This review should not be limited to the “obvious” DEI policies, but rather take a holistic view and evaluate any conduct that, while intended to promote previously acceptable goals, could be viewed as disadvantaging certain individuals based on protected characteristics.
Employment Implications When Colleges and Universities Shut Down
Over the past few years, several colleges and universities across the country have unexpectedly closed, often with little notice to the communities they served. When this happens, the immediate attention is usually given to students and how they will be able to continue their educational journey without significant losses of time, credits, and tuition dollars spent. Yet there are also important considerations that must be given to employees when a post-secondary institution suddenly ceases operations.
Quick Hits
When colleges and universities unexpectedly close, immediate attention is often given to students, but significant employment law considerations include compliance with the WARN Act, collective bargaining agreements, and individual contracts.
School closures necessitate careful handling of employee benefit plans, such as health insurance, retirement plans, and life and disability insurance, to ensure employees can make informed decisions and maintain coverage.
Administrators may want to confirm proper government filings and post-closing actions are completed, potentially contracting with current or third-party service providers to manage these responsibilities after the school has closed.
From an employment law perspective, school administrators and boards of education may want to consider the following potential compliance issues:
WARN Act Notices: The federal Worker Adjustment and Retraining Notification (WARN) Act generally requires that employers with one hundred or more employees provide at least sixty days advance notice of a mass layoff (usually meaning a layoff impacting fifty or more people). Some states have their own mass layoff notice requirements, which also must be followed. Notably, several state mass layoff laws can have lower thresholds at which the notice is triggered.
Collective Bargaining Agreements: Post-secondary institutions with unionized employees may have collective bargaining agreements that include provisions implicated by a layoff. For example, collective bargaining agreements often contain clauses regarding seniority rights, which could dictate the timing and manner of employee layoffs. There may also be health and pension provisions that have withdrawal obligations.
Individual Contracts: Faculty members and administrators often have individual employment contracts in higher education. Schools may want to review these contracts to determine the consequences for breach if the contract is ended early due to a school closure. Relatedly, these contracts may have notice provisions prior to termination of employment, and timely notice may minimize or eliminate any damages for breach.
Contracted and Seasonal Employees: In addition to regular, permanent employees, post-secondary institutions often utilize contracted workers and seasonal employees. Again, the school’s relationship with contracted workers is likely governed by a contract with a third-party staffing agency or vendor. Schools may want to evaluate these contracts for any notice requirements to end the contract and/or any penalties for breach. Similarly, schools may want to evaluate whether they have any obligations to seasonal employees, and give those seasonal workers advance notice, if possible, that their positions are being eliminated.
Payout of Accrued Leave: An increasing number of states have paid leave laws in effect. Many other state wage payment laws are triggered by specific employee handbook language regarding the payout of any accrued or earned leave. Colleges and universities may want to note all employee leave types and accruals and ensure that any such leave is appropriately paid out upon termination of employment.
Employee Records: Employee records, such as personnel files and payroll documents, are often governed by a record retention policy. Schools that intend to close may want to engage a third-party vendor to retain all employee records for the required time duration. Schools may also want to confirm that employees are given the third-party vendor’s contact information in case they need to access any documents after the school is closed, such as Forms W-2 and 1099-R information for tax filing purposes.
Employee Benefits
In addition to the employment compliance issues that arise during a school closure, there are significant implications for the school’s employee benefit plans. Administrators and boards of education should also be cognizant of their responsibilities under federal and state benefits laws, and also ensure that employees are able to make informed benefits-related decisions to protect and preserve their financial well-being and continuity of medical care for themselves and their families.
Employee benefit plans typically include health insurance, retirement plans, life insurance, disability insurance, and other welfare benefits. The common issues that arise with employee benefits plans during a school closure include the following:
Health Insurance: Typically, when a school shuts down and terminates its employees’ employment, the employees lose eligibility for the medical plan immediately or by the end of the month in which they are discharged. While the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 generally allows laid-off employees the right to continue their health insurance coverage for a period of eighteen months, there is an unfortunate twist here because the school’s medical plan coverage is likely ending. This will cut short the eighteen months of COBRA coverage that employees typically expect to receive. Consequently, employees would need to consider other healthcare options, such as a state healthcare exchange or their spouse’s health plan. Schools considering closure may want to carefully coordinate with their COBRA administrator to communicate COBRA rights and other alternatives to impacted employees.
Retirement Plans: Closing schools must also take action to terminate their 401(k), 403(b), and 457(b) plans, as applicable. This entails providing communications to employees that explain their distribution options and allow them to make elections. Schools will also need to notify their service providers, execute a resolution to terminate the plans, and amend the plans to bring them up to date with recent legislation and regulatory guidance from the Internal Revenue Service (IRS) and the U.S. Department of Labor (DOL). A school that sponsors a 401(k) plan may want to consider whether to submit a determination letter to the IRS to ensure the plan is qualified in form.
Life and Disability Insurance: Schools may also want to review their life and disability insurance policies to determine when coverage ends, and if employees may convert the policies to individual policies to ensure continued coverage without a lapse. Without a school’s contribution toward premiums, the cost to former employees will likely be higher, but there will be continuity of coverage for those who value the benefit.
Severance Benefits: Schools that have a severance plan may want to carefully review the plan’s governing document to follow the terms and conditions for eligibility, benefit calculation, and the form of benefit (lump-sum or in installments). Also, there will be additional requirements for officially winding down plans that are subject to the Employee Retirement Income Security Act (ERISA). Schools without formal severance plans may want to assess their finances to see whether they have the wherewithal to provide severance benefits to dismissed employees.
Government filings and post-closing actions: Finally, schools may want to make arrangements to ensure that all required government forms are correctly filed, such as a Form 5500 for 401(k) or 403(b) plans up to and including the year that a plan’s trust has been completely liquidated. Schools could contract with current Human Resources or other current employees to perform the required filings post-closure, or they could engage a third-party service provider to complete the required filings. Either way, schools will likely need to execute a written agreement to effectuate the ability to carry out these filing responsibilities and any other similar actions needed after the school has closed.
Challenges for International Student-Athletes Navigating the NIL Landscape
The House v. NCAA settlement, effective July 1, 2025, marks a new era in college sports compensation that allows for payments to student-athletes for the use of their name, image, and likeness (NIL) from their colleges or universities. Despite these advancements, receiving NIL payments will create a unique challenge for international student-athletes, the vast majority of whom are studying in the U.S. on student visas that limit their ability to work. The absence of federal guidance on this issue further complicates international student-athletes participation in monetizing their NIL, both through payments from their school and third-party deals. Institutions of higher education and student-athletes should pay close attention to ensure their ongoing legal compliance.
Visa Constraints and Employment Restrictions
International student-athletes, who typically study in the U.S. on F-1 student visas, must navigate immigration law limits on their ability to work in the U.S. F-1 visa holders are generally prohibited from working off-campus without specific authorization. On-campus employment is permitted if it is directly affiliated with the school and meets other requirements, but NIL-related activities often fall outside these boundaries.
Under immigration law, “employment” is broadly defined in 8 CFR § 274a.1 to include any service or labor performed in the U.S. for an employer or other entity in exchange for compensation, which could be monetary or otherwise. It includes hourly and salaried employment, as well as independent contractor work, self-employment, and freelance work. It also may include volunteering if another person would be paid for the same work and/or if the work benefits a third party. The misconception that any type of “passive” income is permissible is incorrect, as there is no such exception under immigration law.
This broad definition of employment poses challenges for international student-athletes who wish to be compensated for their NIL without engaging in unauthorized employment, particularly when it comes to those student athletes engaging in promotional activities on behalf of their sponsors. The House Settlement clarifies that student-athletes can receive NIL payments without it being considered “pay to play.” However, the NCAA rules that arose out of the settlement – at least for now – require that some third party deals are subject to a fair market value test, and even deals with schools often require athletes to engage in certain promotional activities as a condition of payment. This requirement begs the question: can an international student athlete promote the monetization of their NIL without it being considered “work” under immigration law? The stakes are high: if an international student is found to have engaged in unauthorized employment, they risk losing their F-1 status and ability to stay in the United States, including for post-graduate opportunities.
So, how can an international student athlete promote their NIL without “working” under immigration law? Some creative solutions have emerged. For example, NIL promotional activities and payment may be conducted abroad without running afoul of U.S. immigration law. AI and social media managers can also play a role in making sure that the international student athlete is not performing “work” under immigration law. Engaging in promotional activities in the U.S., however, remains an unclear – and ultimately risky – proposition.
Implications for Institutions of Higher Education and Student-Athletes
Colleges and universities must carefully balance compliance with immigration laws while exploring NIL opportunities for their international athletes. Institutional agreements with international student athletes should recognize their unique status, and be structured to avoid an immigration violation. Institutions should also train their international student athletes on their obligations, keeping in mind that third party NIL deals could violate immigration law as well. Ultimately, the onus for compliance is on the student athlete; however, institutional support can play a role in making sure that student athletes are able to monetize their NIL without facing unintended consequences.
NIL and Sports Representation: The New Wild West
In February, McNeese State’s basketball manager, Amir “Aura” Khan, rose to fame when a video featuring him went viral on X/Twitter. In the video, Khan led players out of the locker room with a boombox on his shoulder while rapping along to “In and Out” by Lud Foe. The video garnered millions of views and earned Khan name, image, and likeness (NIL) deals with TickPick, Insomnia Cookies, and others in excess of $100,000. Khan’s moment is emblematic of the new age for college sports, where brands seek to engage with prized demographics and student-athletes have new opportunities to benefit from the use of their NIL.
The NCAA’s 2021 decision to permit student-athletes to earn compensation from the use of their NIL fundamentally altered the landscape of college athletics. Student-athletes (and even aspiring student managers) are now permitted to profit from their personal brand, creating new opportunities, and considerations, within the realm of sports representation at the collegiate level. As college athletes sign endorsement deals at increasingly younger ages, the legal and regulatory issues surrounding NIL and the representation of student-athletes are becoming more complex.
NIL Evolution
In June 2021, the Supreme Court issued its decision in Alston v. NCAA.[1] In a unanimous ruling, the Court upheld a lower court’s finding that the NCAA’s restrictions on education-related benefits for athletes were anticompetitive. While the Alston decision did not directly address NIL, it reinforced antitrust scrutiny of NCAA compensation limits and catalyzed the NCAA’s decision to revise its NIL rules in July 2021.
The Alston case, while related, is distinct from House v. NCAA, a class action lawsuit challenging the NCAA’s long-standing restrictions on athlete compensation. In June 2025, a final approval of the settlement was granted, permitting schools to share up to $20.5 million in revenue directly with student-athletes.[2] The settlement also introduces several compliance measures. For example, in order to assess the fair market value and legitimacy of third-party NIL agreements, Division I athletes will be required to report deals exceeding $600 to an independent clearinghouse. The settlement reflects a seismic shift toward a more centralized, regulated, and revenue-sharing model in college athletics. Some analysts warn that this new oversight mechanism – especially regarding what qualifies as a valid NIL deal – could reduce the value of certain NIL arrangements, particularly those that resemble “pay to play” incentives rather than conventional brand endorsement deals.
On July 1, 2021, the NCAA implemented a policy allowing student-athletes to monetarily benefit from their NIL, even in states that have not enacted NIL legislation, and to use professional services providers, such as agents, for NIL activities.[3] For decades prior, NCAA athletes were prohibited from receiving any form of financial compensation beyond potential athletic scholarships. Now, agencies play a critical role in managing athletes’ personal brands – often before they step foot on a college campus.
The increasing scale of the NIL marketplace is evident in the projected earnings of top athletes over a 12-month period. On3, a media outlet focused on college sports, recently estimated that Arch Manning (projected top NFL draft pick) has an NIL valuation of $6.8 million, with Carson Beck (projected number 7 NFL draft pick) at $4.3 million and The Ohio State University wide receiver Jeremiah Smith at $4.2 million.[4]
A New Class of Agents
Historically, athlete representation has primarily focused on professional athletes, with agents becoming involved only after an athlete turned pro. However, with college athletes now legally permitted to monetize their personal brand and NIL earlier in their careers, a growing number of new agencies are entering the NIL space, seeking to represent college and even high school athletes. Further, many traditional agencies are exploring NIL opportunities.
This shift has created new challenges for athletes, schools, and advisors navigating the evolving regulatory landscape. It has also introduced a distinct category of representation—NIL agents—whose roles and obligations differ in key ways from those of traditional sports agents:
Scope of Representation: Traditional agents primarily negotiate playing contracts with professional teams. NIL agents, by contrast, focus on endorsement deals, branding, social media strategy, and content monetization.
Compensation Structure: Both types of agents typically earn a commission, but traditional agents usually receive 3–5% of team contract values, while NIL agents may charge 10–20% of earnings from brand partnerships and content deals.
Regulatory Oversight: Traditional agents must be licensed by the professional leagues in which their clients play and must comply with applicable CBAs. NIL agents operate under an evolving mix of state laws, institutional policies, and NCAA guidelines, with no unified national licensing system currently in place.
Timing of Engagement: Traditional agents generally work with athletes entering or already in the professional ranks. NIL agents engage with athletes in the beginning of, or sometimes before, their collegiate playing careers begin.
The Issues of Timing and Informed Consent
The representation of pre-collegiate and collegiate athletes implicates important legal considerations regarding informed consent and contract enforceability. In California, for example, a contract with a minor is voidable by the minor until they reach adulthood, but the obligations of any adult party to that contract remain enforceable. While California courts have the power to affirm certain types of contracts (in which case, the contract cannot be voided on the grounds that a party was a minor when the contract was signed), NIL representation agreements do not necessarily fit into the categories of contracts that such courts have the power to affirm. NIL agents operating in California and states with similar laws should be mindful that, absent court approval or specific statutory protection, contracts with minor athletes may be voided—potentially after significant performance has already occurred—leaving the adult party bound while the minor walks away.
In addition, with many athletes still in their teenage years when they sign NIL deals, questions may arise about whether they fully understand the terms and long-term implications of their agreements. One relevant case involves Chicago Bears defensive lineman Gervon Dexter, who filed a federal lawsuit seeking to void his agreement with a NIL group on the basis that it was predatory.[5] According to reports, under the agreement, signed in 2022 while Dexter was a student, Dexter agreed to pay the agency 15% of his pre-tax NFL earnings for 25 years in exchange for a one-time payment of $436,485. For context, the current average NFL salary is approximately $3.2 million per season. Though the case is still pending, Florida lawmakers have expressed support for Dexter’s position and argue that his NIL deal does not comply with Florida’s NIL laws.
To date, over 30 states have enacted NIL laws, while others have introduced NIL-related legislation. No two states’ laws are the same – they vary regarding the protections in place for athletes, when athletes can and cannot promote their NIL, agency licensing requirements, disclosure obligations, who can compensate athletes, how compensation can be structured, and other aspects. A federal framework could potentially provide more consistency across jurisdictions. The U.S. House of Representatives has recently introduced the Student Compensation and Opportunity through Rights and Endorsements (“SCORE”) Act, a bipartisan bill that seeks to standardize NIL protections nationwide, regulate agents representing student athletes, and prevent universities from revoking scholarships due to injury or poor performance. In addition, press reports indicate that the President is considering issuing an executive order directing the National Labor Relations Board to clarify whether college athletes qualify as school employees. While proponents of a national legislative framework believe these efforts will provide a more sustainable future for college sports, others express concern that federal interaction would centralize control in the NCAA and limit athlete’s rights.
Other Legal Challenges for NIL Deals and the NCAA’s Role
As NIL deals proliferate, legal disputes may become more frequent – particularly where the terms of the deal are unclear or athletes are not well-versed in contract law. Agents face heightened exposure in this environment, especially when representing multiple athletes in the same sport or position, or when they maintain business relationships with brands seeking deals with their clients. These scenarios raise serious conflict of interest concerns that may implicate both legal ethics and state NIL compliance requirements.
Perhaps the most significant legal challenge, however, remains the NCAA’s evolving and inconsistent approach to the regulation of NIL. While the NCAA now permits athletes to profit from their NIL, it has yet to adopt a uniform and comprehensive set of policies. This regulatory vacuum has created a fragmented system as schools and states implement varying rules to fill the gap, complicating matters for both athletes and their agencies.
The Future of NIL
As the NIL market continues to grow, legal and regulatory frameworks will likely continue to evolve. Industry observers anticipate ongoing discussions regarding standardization of NIL deals and potential movement toward more uniform regulations across states and schools. At the same time, the role of agencies continues to grow as more student-athletes seek professional representation. Legal practitioners can contribute to this developing area by providing guidance on clear contractual agreements, compliance considerations and relevant legal protections.
5 Key Takeaways for Student-Athletes
Understand your rights and obligations under any NIL contract.
Work with trusted and experienced advisors who have your best interests in mind.
Consider the long-term implications of any NIL deal in addition to the short-term effects.
Do not feel pressured to sign the first deal presented to you.
Stay educated on the evolving legal landscape.
5 Key Takeaways for Agencies
Understand the current state and federal legal landscape.
Prepare for further regulation and changes to the legal landscape.
Ensure clear and transparent NIL contracts.
Consider conflicts of interest caused by other clients and business relationships.
Develop partnerships that align with athletes’ personal values to maximize long term success.
FOOTNOTES
[1] National Collegiate Athletic Association v. Alston et al., No. 20-512, slip op. (U.S. March 31, 2021).
[2] Federal judge approves $2.8B settlement, paving way for US colleges to pay athletes millions | AP News
[3] NCAA adopts interim name, image and likeness policy | NCAA.com
[4] On3 NIL Valuations
[5] Florida legislator says Bears DT Gervon Dexter’s NIL deal violated law – ESPN
Caroline Heffernan also contributed to this article.
DHS Submits H-1B Weighted Selection Rule for Federal Review: Implications for Employers and Foreign Workers
The Department of Homeland Security (DHS) has submitted a proposed rule to the Office of Information and Regulatory Affairs (a division of the Office of Management and Budget) that would replace the current H-1B lottery system with a weighted selection process. This regulatory development may have significant implications for U.S. employers, foreign students, and current H-1B workers.
On July 17, 2025, DHS-USCIS submitted for OMB review a proposed rule titled “Weighted Selection Process for Registrants and Petitioners Seeking To File Cap-Subject H-1B Petitions” (RIN 1615-AD01).
The H-1B program provides 85,000 annual visas for specialty occupation workers, including 20,000 reserved for advanced U.S. degree holders, and is currently subject to random lottery selection when demand exceeds supply.
Potential Changes and Selection Criteria
While the specific provisions remain confidential pending Federal Register publication, the proposed rule is expected to implement selection criteria that may include wage levels, education qualifications, or other merit-based factors. Historical precedent suggests the rule could prioritize registrations based on prevailing wage levels corresponding to the Department of Labor’s four-tier wage structure.
The rule submission occurs as USCIS announced that sufficient registrations have been received to meet the FY 2026 cap, indicating continued high demand for H-1B visas among U.S. employers.
Potential Impact on U.S. Employers
Hiring Strategy Adjustments: Employers may need to reassess compensation packages and position classifications to improve selection probability under a weighted system. Companies historically offering entry-level wages may face reduced selection rates.
Budget and Planning Implications: Organizations may need to increase salary offers to meet higher wage thresholds, potentially affecting budgets for international talent acquisition and workforce planning strategies.
Compliance Considerations: Employers will need to ensure accurate wage determinations and classifications align with any new selection criteria, requiring closer coordination between HR, legal, and compensation teams.
Potential Impact on Foreign Students and Current H-1B Workers
F-1 Students: Recent graduates may face increased competition for positions meeting higher selection criteria. Students in STEM fields with advanced degrees may have advantages, while those seeking entry-level positions could encounter greater challenges transitioning from student to work status.
Current H-1B Workers: Extension and transfer petitions may be affected depending on wage levels and position classifications. Workers in lower wage categories may need to seek promotions or position changes to maintain competitiveness in future selections.
Career Planning: Foreign nationals may need to adjust career trajectories and salary expectations to align with weighted selection criteria, potentially affecting decisions about educational investments and job market entry strategies.
Regulatory Context and Historical Background
A similar wage-based selection rule was finalized in January 2021 but was subsequently vacated by a federal court and withdrawn by the succeeding administration. That rule would have prioritized selections based on the highest Occupational Employment Statistics prevailing wage levels for relevant Standard Occupational Classification codes and employment areas.
The current regulatory landscape includes the beneficiary-centric selection process implemented in March 2024, which selects registrations by unique beneficiary rather than by individual registration. The interaction between this existing framework and the proposed weighted selection system will require careful analysis upon rule publication.
Anticipated Implementation Timeline and Process
OMB Review: The proposed rule is currently under Office of Management and Budget review, which typically takes up to 90 days but may vary based on rule complexity and stakeholder input.
Public Comment Period: Following OMB clearance, the rule will be published in the Federal Register with a public comment period, typically lasting 60 days.
Final Rule Development: DHS must review and respond to public comments before issuing a final rule, with implementation dates typically 30-60 days after final publication.
Compliance and Preparation Considerations
For Employers:
Review current H-1B positions and wage classifications against Department of Labor prevailing wage data
Assess potential budget impacts of wage adjustments
Develop strategies for position restructuring or compensation adjustments
Prepare for enhanced documentation requirements that may accompany weighted selection
For Immigration Practitioners:
Monitor Federal Register for rule publication and specific selection criteria
Prepare client advisories on potential changes to filing strategies
Review portfolio of cases for potential impacts on current and future filings
Develop templates for revised petition strategies under new selection criteria
For Foreign Workers:
Evaluate current position classifications and wage levels
Consider timing of career advancement or position changes
Assess educational credentials and their alignment with proposed criteria
Plan for potential impacts on renewal and transfer petitions
Operational Considerations
The proposed rule, if implemented, may affect H-1B registration and petition filing strategies, requiring adjustments to employer practices and expectations. Organizations should consider preparing for potential changes to selection probability calculations and developing contingency plans for workforce planning under modified selection criteria.
Key Considerations in Sports and Entertainment Mixed-Use Developments
In recent years, there has been a surge of interest in sports and entertainment mixed-use developments that blend professional or collegiate stadiums or arenas with retail, hospitality, residential, office and public gathering spaces. In addition to enhancing the game day atmosphere for sports franchises and universities, these entertainment districts represent long-term investments that can generate new revenue streams, increase franchise value, attract additional capital and build a deeper connection with fans and the surrounding community. But while the upside is significant, so is the complexity. These districts often involve sensitive land aggregation efforts, public-private cooperation, long time horizons and regulatory scrutiny from municipalities, leagues, associations and the media. Success depends not just on a compelling vision, but on careful planning from the outset.
This article outlines key legal and structuring considerations that sports franchises, universities and their partners should keep in mind when embarking on the development of mixed-use sports and entertainment districts.
Confidentiality and Control of Information
Land assembly is often the first and most delicate step. To avoid price inflation or landowner holdouts and to control messaging to the community, it’s critical to attempt to maintain the confidentiality of the development. This can be complicated by formation and disclosure rules for entities in certain jurisdictions. Selecting the right jurisdictions and structuring ownership entities to preserve anonymity is crucial, especially considering the media attention that these projects often entail.
It’s equally important to consider the impact of information flowing to interested parties, especially when public entities are involved. When public entities contribute land, funding (in the form of financing or tax abatements) or entitlements, franchises, universities and their partners should prepare for political and media attention and, in some cases, scrutiny. Even in cities that are enthusiastic about sports-led development, the politics of land use and public funding can quickly become contentious. Franchises, universities and their partners should be mindful that written and oral communications (including emails), term sheets, agreements and other documents may be subject to open records requests by the public. Understanding the scope of public disclosure laws and how to structure confidentiality protections is essential in managing information flow.
Navigating League Oversight and Financial Rules
Major professional sports leagues and university governing bodies have a vested interest in preserving the integrity of the leagues, governing bodies and member franchises/clubs/institutions. These leagues/governing bodies impose far reaching rules and regulations on their member franchises/clubs/institutions to protect against the consequences of defaults that are inherent to any real estate development and financing, including with respect to revenue sharing, debt limits and asset control. These rules and regulations would ideally be factored into the initial planning and structuring of the development of sports-anchored mixed-use districts to avoid future complications and legal expenses.
Transfer Taxes and Development Flexibility
Because these developments are typically phased over many years and may involve multiple co-investors and development partners, careful upfront structuring is essential. A well-designed organizational structure can provide operational flexibility while minimizing exposure to transfer taxes, property tax reassessments and related costs. The goals include:
Enabling upper-tier transfers or affiliate reorganizations without triggering real estate transfer taxes; • Preserving the ability to allocate parcels to different entities as phasing evolves; and
Accounting for ownership thresholds and local tax rules that may trigger reassessment or additional compliance obligations.
The ability to shift parcels or bring in new capital partners as the development matures can be a significant competitive advantage, but only if structured correctly from the start.
Land Acquisition
While structuring and compliance issues dominate much of the planning process, franchises, universities and their partners still must piece together the land itself. Securing control of the land around the stadium or arena is rarely straightforward and almost never achieved through a single method. Common methods include:
Fee simple purchases or acquisition of upper-tier ownership interests in landholding entities; • Purchase options that allow control over timing and price without immediate capital outlay; • Long-term ground leases, particularly useful with public or institutional landowners;
Contribution of leasehold interests, such as parking lots or practice facilities, into the development structure;
Reciprocal use or branding agreements with neighboring landowners that create access or development rights without full ownership;
Acquisition of distressed debt as a “loan-to-own” strategy where properties are encumbered or in default; • Easements to secure necessary infrastructure, utilities or shared access rights; and
Public land acquisition, either through negotiation, land swaps, or, where available, the exercise or threat of eminent domain.
These districts often require a creative and flexible approach to land acquisition, combining multiple strategies tailored to each parcel’s ownership, use and value.
Conclusion
Sports and entertainment mixed-use developments are complex, public-facing and often politically sensitive, but represent one of the most exciting and high-impact development opportunities in real estate today. They require a careful blend of real estate, corporate, public policy and league/governing body compliance considerations. By
involving experienced counsel early in the process, franchises, universities and their partners can avoid preventable pitfalls, preserve flexibility and maximize long-term value.
The One Big Beautiful Bill Act: Implications for Tax-Exempt Organizations and Charitable Giving
The One Big Beautiful Bill Act introduces substantial changes to federal tax law, including select provisions affecting tax-exempt organizations and charitable contribution deductions for individual and corporate taxpayers.
As enacted, the Act reflects significant changes from earlier versions of the legislation covered in previous alerts and omits several provisions that would have considerably impacted tax-exempt organizations. This alert highlights certain key provisions in the Act relevant to tax-exempt organizations.
Executive Compensation Excise Tax
Section 4960 of the Internal Revenue Code currently imposes an excise tax on exempt organizations that pay more than $1 million in remuneration or that make an excess parachute payment to any “covered employee.” Prior to the Act, a “covered employee” generally included any employee (or former employee) of an “applicable tax-exempt organization” if the employee is one of the five highest compensated employees for the current taxable year, or was a covered employee in a prior year beginning after December 31, 2016.[1] The Act expands the definition of a “covered employee” by removing the requirement that the employee is (or was) one of the five highest compensated employees.”[2]
College and University Endowment Tax
Section 4968 of the Code currently imposes a flat 1.4% excise tax of the net investment income of certain private colleges and universities that have at least 500 tuition-paying students and at least $500,000 per student in assets.
The Act replaces the flat 1.4% excise tax rate in Section 4968 with a three-tiered structure based on the institution’s student adjusted endowment:
Institution’s student adjusted endowment between $500,000 and $750,000: 1.4%.
Institution’s student adjusted endowment between $750,000 and $2,000,000: 4%.
Institution’s student adjusted endowment above $2,000,000: 8%.
The new tiered tax structure applies to private colleges and universities that have at least 3,000 tuition-paying students and at least $500,000 in “student-adjusted endowment.” The institution’s “student adjusted endowment” is determined based on the total fair market value of the institution’s assets (other than assets used directly in carrying out the institution’s exempt purposes) per student.[3] For purposes of determining the institution’s total assets, the assets and net investment income of any related organization of the institution will be treated as assets of the institution.[4] A related organization is any organization that controls or is controlled by the institution, is controlled by one or more persons that also control the institution, or is a supported or supporting organization with respect to the institution.[5]
Charitable Deductions
Individual Taxpayers: The Act permanently reinstates a charitable contribution deduction for non-itemizing taxpayers, capped at $1,000 ($2,000 for joint returns) for cash contributions to certain qualifying charities.[6] For itemizing taxpayers, the Act creates a 0.5% floor on charitable contributions and permits disallowed charitable deductions to carry forward only to the extent they exceed this 0.5% threshold.[7]
Corporate Taxpayers: The Act establishes a new floor on charitable deductions for corporations equal to 1% of taxable income, up to a maximum of 10% of taxable income for the year.[8] Charitable contributions exceeding 10% of the corporation’s taxable income for the year can carry forward for five years after the year the charitable contribution was first taken into account. Contributions disallowed by the 1% floor carry forward only from years the corporation’s contributions exceed the 10% ceiling.[9] Corporate taxpayers may wish to evaluate their charitable giving programs and structure contributions to charitable organizations to qualify as a trade or business deduction in lieu of a charitable deduction where possible.
The Act does not include the following provisions included in earlier versions on the legislation:
Excise Tax on Net Investment Income: The Act does not include provisions that would have increased the net investment income tax on private foundations under Section 4940 of the Code.
Unrelated Business Taxable Income: The Bill does not include any changes to unrelated business income tax.
Excess Business Holdings: The Act does not include the provisions that would have amended excess business holdings of private foundations with respect to certain employee-owned stock.
Termination of Tax-Exempt Status for Terrorist Supporting Organizations: The Act does not include the proposed modification to Section 501(p) of the Code, which would have added a definition of “terrorist supporting organizations” to Section 501(p) and provided the Secretary of the Treasury with the authority to designate an organization as a terrorist supporting organization without consulting with the Secretary of State and the Attorney General.
[1] IRC Section 4960.
[2] Section 70416.
[3]Id.
[4]Id.
[5]Id.
[6] Section 70424.
[7] Section 70425.
[8] Section 70426.
[9]Id.
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One Big Beautiful Bill: How are North Carolina Tax-Exempt Organizations Affected?
The One Big Beautiful Bill Act (“Act”) has passed Congress and has been signed into law by President Trump.
There are a host of wide-ranging changes coming to the Internal Revenue Code (“Code”) under the Act, including changes that affect tax-exempt organizations. North Carolina tax-exempt organizations should be aware of these changes; while some may not affect your organization directly, others may have a significant impact either on current operations or future plans. This article discusses a summary of the relevant changes contained in the Act that affect tax-exempt organizations.
Charitable Contributions
All organizations exempt from taxation under Code Section 501(c)(3) should be aware of the changes to the charitable contribution deduction rules so that they may provide accurate information to potential donors.
Typically, only individuals who itemized their deductions are eligible to claim a charitable contribution deduction; those who claim the standard deduction are not eligible. Under the Act, a now-expired provision is reinstated, revised, and made permanent to allow filers who claim the standard deduction to also claim a charitable contribution deduction, up to one thousand dollars ($1,000.00) (two thousand dollars ($2,000.00) for married couples filing jointly).
For individuals who itemize their deductions and who claim a charitable contribution deduction, a floor is implemented whereby a deduction is only allowed to the extent contributions exceed one-half of one percent (0.5%) of the taxpayer’s contribution base. Additionally, the contribution limit for cash contributions of 60% of adjusted gross income that was temporarily enacted as part of the Tax Cut and Jobs Act of 2017 is made permanent.
For a corporation to claim a charitable contribution deduction, it now must make aggregate contributions of at least one percent (1%) of its taxable income for the year.
Executive Compensation Excise Tax
Under current law, tax-exempt organizations are subject to an excise tax on excess compensation (compensation exceeding one million dollars ($1,000,000.00) paid to their top five highest compensated employees. (Code Section 4960.) Under the Act, this excise tax is expanded to cover not just the organization’s top five highest compensated employees, but all current and former employees during any taxable year beginning after December 31, 2016. While most organizations will be unaffected by this change, large tax-exempt organizations should be aware of the expansion of this excise tax.
Tax Credit for Contributions to Scholarship Granting Organizations
One provision particularly of note for North Carolina, given the recent focus on school choice policies in the state, is the establishment of a tax credit for donations to scholarship granting organizations (“SGO”). SGOs are organizations exempt from taxation under Code Section 501(c)(3) that are not private foundations and grant scholarships to families for qualified educational expenses, including private school tuition. States will have to elect to participate and submit a list of SGOs within their state.
Colleges
North Carolina is home to a number of notable private colleges and universities, which are subject to changes under the Act. Currently, private colleges and universities are subject to a 1.4% excise tax on net investment income under Code Section 4968. The new law implements a new tiered approach to this tax based on the value of the institution’s endowment per student. The rate remains the same at 1.4% for endowments of $500,000 to $750,000 per student. The tax increases to 4% for endowments between $750,000 and $2,000,000 per student and increases further to 8% for endowments over $2,000,000 per student. Institutions with an endowment of less than $500,000 per student are not subject to the excise tax imposed by Code Section 4968.
For more information, you may wish to review the legislative summary for the Act on Congress.gov.
Safeguarding Your Role: Decision-Making for College Students in Unexpected Situations
Parents of young children often hear the saying, “the days are long, but the years are short.” That sentiment tends to hit home as children grow older and begin reaching major milestones—starting college being one of the most significant.
If you have children who are 18 or older, it’s important to consider taking a few simple steps to ensure that in the event of an emergency, you can make critical health care and financial decisions on their behalf, access their medical information and financial accounts, and obtain their educational records.
Medical Information. Once your child reaches age 18, they are deemed to be an adult by law, and you no longer have a legal right to make health care decisions on behalf of your child or to access your child’s health care information. As a result, if you have an adult child, your child must execute certain legal documents naming you as their health care agent and permitting you to access their medical information:
Your child must execute a “Health Care Proxy” naming you as their agent for health care decisions. In this document, your child authorizes you to make health care decisions on your child’s behalf if they become unable to make or communicate such decisions themself. The child may also share their own wishes regarding medical treatment.
Your child must also sign a “HIPAA Authorization Form.” The Health Insurance Portability & Accountability Act of 1996 (generally known as “HIPAA”) protects the privacy of an individual’s medical information, and health care providers may require written consent from a patient to share information with family members, including parents of an adult child. Your child’s college or university may also have policies in place preventing it from sharing medical information without the student’s consent. This form will serve as written permission authorizing those providing health care services to your child to share medical information with you as your child’s health care agent.
In addition, you should be in contact with the health services department of your child’s college or university. The institution may provide its own form for authorizing the release of medical information that can be kept on record with the institution’s health services department.
Financial Accounts. If you are to have the ability to act on behalf of your adult child with respect to financial matters, your child also needs to execute a “Durable Power of Attorney” naming you as your child’s agent with respect to the child’s assets and finances. If your child is attending college away from home, is studying abroad, or undergoes a medical emergency, it may be useful for you to access your child’s accounts on their behalf. This allows you to pay bills for a child out of their accounts, make deposits, and open or close accounts. In addition, a durable power of attorney allows you to handle other financial tasks for the child, like filing tax returns or renewing a lease.
Educational Records. Finally, the Family Educational Rights and Privacy Act (FERPA) protects the educational records of a child who has turned 18 or is enrolled at a postsecondary institution from access by their parents. If the child’s parents claim the child as a dependent on their tax returns, the parents may still access the child’s education records without the child’s consent. However, institutions may be reluctant to allow access to education records for any child over the age of 18 without a “FERPA Waiver” signed by the child, regardless of their status as a dependent. If you would like to have access to your child’s educational records, you should contact the institution to request a FERPA Waiver form.