Five Stories That Matter in Michigan This Week – January 19, 2024

  1. New Michigan Law Mandates Compulsory Arbitration for Higher Education Police Officers

Michigan’s law regarding compulsory arbitration of public labor disputed has been amended to include higher education institution police officers. The change takes effect on January 22, 2024.

Why it Matters: Higher education institutions should assess the impact the new law may have on their workforce.


  1. Fraser Trebilcock Welcomes Phyllis Dahl to the Firm

We are pleased to announce the hiring of Phyllis Dahl as the firm’s new Office Manager.

Why it Matters: Ms. Dahl has over three decades of experience in the legal industry, having worked at two private law firms before joining Fraser Trebilcock. She has a bachelor’s degree in public administration from Central Michigan University. Read more.


  1. Client Alert: PCORI Fees Due by July 31, 2024!

In Notice 2023-70, the Internal Revenue Service set forth the PCORI amount imposed on insured and self-funded health plans for policy and plan years that end on or after October 1, 2023, and before October 1, 2024.

Why it Matters: Notice 2023-70 sets the adjusted applicable dollar amount used to calculate the fee at $3.22. Specifically, this fee is imposed per average number of covered lives for plan years that end on or after October 1, 2023, and before October 1, 2024. For self-funded plans, the average number of covered lives is calculated by one of three methods: (1) the actual count method; (2) the snapshot method; or (3) the Form 5500 method. Learn more from your Fraser Trebilcock attorney.


  1. Michigan Cannabis Pulls in Nearly $280 Million in December

Cannabis sales are just below $280 million in December, via the monthly report from the Michigan Cannabis Regulatory Agency. Michigan adult-use sales came in at $276,732,645.94, while medical sales came in at $3,177,042.62, totaling $279,909,688.56.

Why it Matters: Marijuana sales remain strong in Michigan, particularly for recreational use. However, there still are significant concerns about profitability and market oversaturation that the industry is contending with.


  1. CRA Publishes December 2023 Data: Average Price Decreases

Per data released by the Cannabis Regulatory Agency (CRA), the average retail price for adult-use sales of an ounce of cannabis in December was $95.08, a small decrease from $97.51 in November. For the second time, this is an increase to the average price when compared to the year prior, when in December 2022, the average price was $90.68.

Why it Matters: While the prices of cannabis and cannabis-related products continue to decrease and make consumers happy, growers on the other hand are seeing profits decrease resulting in them seeking ways to halt new licenses to be granted in an effort to steady prices. Contact our cannabis law attorneys if you have any questions.

Related Practice Groups and Professionals

Higher Education | Ryan Kauffman
Phyllis Dahl
Employee Benefits | Bob Burgee
Employee Benefits | Sharon Goldzweig
Cannabis Law | Sean Gallagher

Fraser Trebilcock Shareholder Ryan Kauffman Participates in Arguments in Michigan Supreme Court

On Thursday, October 5, Fraser Trebilcock Shareholder Ryan Kauffman participated in arguments in the Michigan Supreme Court on cases brought against higher education universities related to the COVID-19 issue.

You can view the entirety of the argument by going to the Michigan Supreme Court’s YouTube page, or by clicking here (Mr. Kauffman’s argument starts at 43:40).

Fraser Trebilcock attorney Ryan Kauffman arguing in front of the Michigan Supreme Court.

Mr. Kauffman was also quoted in The Detroit News, which you can view here.

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at or 517.377.0881.

Former Student Falsely Accused of Sexual Misconduct Wins $5.3 Million Jury Award for Defamation and Civil Conspiracy

A jury in South Carolina awarded a former Clemson University student $5.3 million in connection with defamation and civil conspiracy claims he brought against three individuals stemming from false allegations of sexual misconduct.

While the lawsuit against the individuals did not include a Title IX claim, the underlying circumstances did involve a Title IX investigation. In fact, the male student did bring suit against Clemson for violations of Title IX and the Due Process Clause of the 14th Amendment to the U.S. Constitution, and Clemson settled for an undisclosed amount.

This case is noteworthy because it resulted in such a large damage award based on accusations of sexual misconduct, and the resulting fallout from the investigation, which is something colleges and universities must frequently address.

The Facts of the Case

The case involved a female student who accused a male student of sexual misconduct. The male student alleged that their sexual encounter was consensual, and that his accuser only alleged misconduct and filed a Title IX complaint with the school (alleging she had been sexually assaulted while under the influence of alcohol), after her boyfriend learned of the encounter.

The accuser and her boyfriend allegedly began calling the male student a “rapist” to their friends. And the male student was suspended from Clemson and expelled from the university.

The Implications

This case demonstrates that Title IX investigations can be fraught with risks. Such cases often involve allegations like the ones described above, and colleges and universities need to carefully handle such investigations, including any actions they take on the basis of allegations made by the parties involved.

If you have any questions about this case, or Title IX issues in general, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters and representing higher education institutions. You can contact him at or 517.377.0881.

Third Circuit Court of Appeals Rules that University can be Held Liable Under Title IX for On-Campus Murder by Nonstudent Guest

Following the on-campus murder of a student by her non-student boyfriend at Millersville University in 2015, the victim’s parents filed a Title IX claim against the university. The claim was rejected in a lower court, but, in a significant and consequential decision, the U.S. Court of Appeals for the Third Circuit reversed and held that the school could be held liable for the actions taken by a non-student guest on its campus.

This case serves as an important reminder for colleges and universities to pay close attention to their obligations under Title IX, and revisit and revise their policies as appropriate.

Case Background

The student-victim, Karlie Hall, was murdered in her dorm room by her boyfriend Gregorio Orrostieta.

Orrostieta was not a student, but he was a frequent visitor to the campus. In 2014, Hall was injured by Orrostieta in a domestic violence incident in her dorm room. Police responded, and Orrostieta was removed from campus, but no incident report was completed at the time. A resident advisor created an incident report, but the university’s administration failed to forward it to the school’s Title IX coordinator as required by school policy.

These and other facts were used to argue that the school acted with deliberate indifference to known harassment of a student.

The Court’s Analysis

Millersville University argued that it could not be held liable for the actions of a non-student guest on campus because it lacked notice that deliberate indifference to harassment, if perpetrated by a non-student guest, could result in Title IX liability.

In rejecting this argument, the Third Circuit cited the 1999 U.S. Supreme Court case, Davis v. Monroe County Board of Education. According to the Third Circuit:

“The Supreme Court made clear in Davis that a funding recipient may be liable for acts of sexual harassment by individuals other than students. Though Davis concerned only deliberate indifference to known student-on-student harassment, the Court’s holding was not based upon the classification of the harasser as a student, guest, or other type of third party … Instead, the Court’s focus was on whether the funding recipient had control over the harasser and the context of the harassment since the funding recipient can only ‘subject’ students to discrimination under Title IX if it has control over the harasser and remains deliberately indifferent to the harasser’s actions.”

The Third Circuit also stated the university’s Title IX policies in place at the time the incident occurred “contemplated Title IX liability could result from the actions of third parties such as ‘visitors’ like Orrostieta.”

While this decision was made by the Third Circuit, and therefore does not have precedential effect in the Sixth Circuit where Michigan colleges and universities are located, it nonetheless should serve as an important reminder to pay close attention to Title IX policies. The decision also comes shortly before the Biden administration is expected to release a Title IX notice of proposed rulemaking.

If you have any questions about this case, or Title IX issues in general, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters and representing higher education institutions. You can contact him at or 517.377.0881.

Recent NLRB Memorandum Argues that Certain College and University Student-Athletes Qualify as Employees and Should be Afforded Statutory Protections

The debate on whether college or university athletes should be considered as employees isn’t a new one, especially in light of coaches like Alabama’s Nick Saban receiving almost a $10 million salary. In fact, college coaches dominate lists of highest paid public employees in most states.

The conversation on the disparity between coach pay, revenue generated by the NCAA and higher education institutions from sports, and student-athletes seeking compensation for their participation is evolving. In July 2021, the NCAA adopted a new name, image and likeness (NIL) policy, by which student-athletes can be compensated for the use of their NIL. In addition, a recent memorandum by the National Labor Relations Board (NLRB) general counsel redefined the term “employee” as it applies to student-athletes. In the September 2021 nine-page memorandum, general counsel Jennifer A. Abruzzo takes the position that student-athletes are misclassified. The memorandum opens the door for students to be considered employees of a private university or college and have the option to unionize and participate in collective bargaining under the NLRB.

The purpose of the memorandum is to put private universities and colleges on notice of  NLRB’s pro-labor policy. NLRB doesn’t have jurisdiction over wages and compensation and cannot compel colleges and universities to pay student-athletes. The memorandum is not considered binding precedent, but Abruzzo’s reasoning indicates NLRB’s position should the right case appear before the board.

The Reasoning Behind the Memorandum

Abruzzo’s reasoning focuses on several key points, including misclassifying the term “student-athlete,” redefining the term “employee” in the context of an athlete, and the increasing social and racial justice activism occurring on campuses.

First, the memo argues colleges’ and universities’ use of the term “student-athlete” is an inherent  misclassification. This label prevents the athlete at a college or university from pursuing protection under federal law. Instead, Abruzzo calls on institutions to classify athletes as “players at academic institutions.”

In her second point, Abruzzo defines the term employee in the context of an athlete playing a sport at a college or university. “Players at Academic Institutions perform services for institutions in return for compensation and are subject to their control. Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment,” Abruzza asserts in her memorandum.

For example, a basketball player who plays on behalf of his or her private university and the NCAA performs a service by playing on the team and receives compensation in the form of a scholarship. The coach and staff dictate practices and general working conditions for the athlete.

Lastly, the memorandum also addresses the recent activism by students on campus. In the last few years, there has been an increase in participation in advocating for social and racial justice issues. She specifically highlights the Black Lives Matter movement and states that athletes who participate in such activism to improve working conditions should be protected from retaliation.

Precedent that supports NLRB’s recent memorandum

Abruzzo’s current memorandum essentially picks up where a 2017 memorandum left off. The NLRB, in GC 17-01, stated that Division 1 scholarship football players who competed in the NCAA at private colleges are employees, but declined to intervene. The memo was rescinded by the Trump administration, and the current Abruzzo memorandum reinstates the point that the football players at issue satisfy the definition of employee under Section 2(3) and the common-law agency test, in which an employee is “a person who performs services for another and is subject to the other’s control or right to control.”

In the June 2021 Supreme Court decision in NCAA vs. Alston, the Court unanimously upheld that a cap on education-related benefits for athletes violated antitrust laws. In his concurring opinion, Justice Brett Kavanaugh stated that college athletes “collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.” Given this context, Kavanaugh suggests collective bargaining could be a solution to provide college athletes a fairer share of the revenue their institutions generate. This decision also indicates that the court is moving toward legislation that benefits the athlete playing for a private institution or college.

In addition, Abruzzo notes that players at academic institutions can now be compensated for the use of their NIL, similar to professional athletes.

What are the practical implications of the memorandum for public universities and colleges?

As it stands, the NLRB memorandum impacts only private universities and doesn’t apply to athletes in public universities. For example, in Michigan, where there isn’t a Division 1 private school, the public universities are subject to the jurisdiction of the MIchigan Employment Relations Commission rather than the NLRB.

There is a potential caveat since Abruzzo indicated that she might pursue a joint employer theory of liability to apply to public universities as well. She concedes that the current memorandum puts athletes at public universities out of reach, but if (potentially) an NLRB-covered entity is involved in the conditions or terms of employment, the joint employer liability theory might extend to these institutions. The current memorandum certainly opens the door to that possibility. Abruzzo explicitly states, “I will consider pursuing charges against an athletic conference or association even if some member schools are state institutions.”

For those institutions that fall within the scope of the memorandum, there will be more of an impetus to form unions. It is unlikely this development will occur immediately, but Abruzzo’s memorandum clearly sets up the possibility.

The underpinnings of the memorandum certainly challenge the current model employed by private universities and colleges as well as NCAA policy on compensation. If one college or basketball program started paying their athletes, what impact would this have on competition overall? Would the public universities feel the need to follow suit?

The NLRB position seems to embrace a pro-labor stance. The landscape of the student-athlete appears to be evolving, and clearly the colleges and universities – both private and public – need to be attuned to these changes.

If you have any questions, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters and representing higher education institutions. You can contact him at or 517.377.0881.

New Congressional Bill Would “Encourage” Higher Education Institutions to Remove Criminal History Questions from Admissions Processes

In August, Senator Brian Schatz introduced the Beyond the Box for Higher Education Act (Senate Bill 2634) in the U.S. Senate. If enacted, the legislation would encourage (not require) colleges and universities to remove criminal and juvenile justice questions from their admissions applications by providing guidance and training schools to change their policies. The U.S. Department of Education would be responsible for issuing ​​guidance and recommendations.

Companion legislation (HR 4950) was introduced in the U.S. House of Representatives.

As of 2019, roughly 72 percent of colleges and universities in the U.S. included criminal history questions in their admissions processes. Advocates for the legislation argue that admissions professionals often reject otherwise-qualified applicants with criminal records without giving sufficient consideration to their skills, interests, demographic or sociological backgrounds.

Background of the Beyond the Box movement

The Beyond the Box (or “Banning the Box”) movement was established in 2004 as a national civil rights movement of formerly incarcerated people and their families. Its goal is to help these individuals achieve personal and professional success through a range of resources and policies. A major focus of the movement is to change policies that create barriers for individuals with a criminal record by working with federal and state agencies.

Recent, Additional “Beyond the Box” Legislation

This legislation comes on the heels of other federal efforts, affecting higher education and businesses more broadly, to open up access to resources to incarcerated individuals and destigmatize criminal history. For example:

  • At the end of 2020, Congress reinstated Pell Grant access to incarcerated students through the passage of the FAFSA (Free Application for Federal Student Aid) Simplification Act, lifting a 26-year ban. Questions about past drug convictions will also be eliminated from the Pell Grant application process, effective for the 2023-2024 award year.
  • The Fair Chance to Compete for Jobs Act of 2019 will go into effect as of December 17, 2021. It bans federal agencies and contractors from asking job applicants about their criminal history.

It is important to note that the Beyond the Box for Higher Education Act is merely pending legislation. It is uncertain as to whether it will actually be enacted into law. And even if it is, the legislation seeks to “encourage,” not mandate, higher education institutions to remove criminal history questions from their admissions processes. However, as judged by other recent legislation enacted related to Pell Grants and federal government employment practices, there appears to be a growing trend toward eliminating the consideration of criminal history in financial aid, admissions and employment through the legislative process.

In light of this, higher education institutions may want to examine their admissions policies and do contingency planning to the extent their policies require disclosure of criminal history.

We will keep you updated on further developments relating to this issue.

If you have any questions, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at or 517.377.0881.

U.S. Senate Passes the United States Innovation and Competition Act Which Would Allocate Billions Toward Higher Education Institutions

On June 8th, 2021, the U.S. Senate passed the United States Innovation and Competition Act (“USICA”), which is bipartisan legislation that would authorize billions of dollars in funding for technology research in the United States. A significant amount of funding is aimed at institutions of higher education.

The USICA, which would authorize $200 billion in funding for fiscal year FY 2022-FY 2026, is intended, according to its proponents, to counter the political and economic influence of China. The bill would provide for an expanded role for the federal government in certain “strategic sectors,” including semiconductors, drones, wireless broadband, and artificial intelligence, with increased funding and regulation of various industries.

The bill contains several higher-education provisions to facilitate research and development in the “key-technology focus areas,” including robotics, artificial intelligence, advanced energy sources, advanced computing, natural disaster prevention or mitigation, biotechnology and data storage and management.

The bill authorizes approximately $81 billion in appropriations for the National Science Foundation, which will oversee the allocation of funds available for higher education institutions, including:

  • Approximately $9 billion for higher education institutions to create technology centers that conduct research in one of the key technology focus areas.
  • Approximately $5 billion for scholarships and fellowships for community college students, undergraduates, graduate fellowships and postdoctoral awards for those studying in the key technology focus areas.
  • Approximately $4 billion for colleges and universities to conduct research and development with a focus on achieving “revolutionary technological advances” in the bill’s key-technology focus areas.
  • Approximately $4 billion to enable the transition of research results to developed and commercialized technologies within one of the key-technology focus areas.
  • Approximately $3 billion for establishing and operating test beds that advance the development, operation, integration and deployment of innovative technologies in one or more of the key-technology focus areas.

If you have any questions, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at or 517.377.0881.

Can Higher Education Institutions Make COVID-19 Vaccinations Mandatory for Students?

On April 23, 2021, the University of Michigan announced that all students who choose to live on its Ann Arbor campus during the 2021 fall term will be required to be fully vaccinated for COVID-19. It’s not the first university to make such a pronouncement, and almost certainly will not be the last, which raises an interesting question: Can higher education institutions legally mandate vaccinations?

As with most complex legal issues, it is a nuanced one, and different schools have taken different stances. As of May 6, 2021, according to the Chronicle of Higher Education, 225 schools have made vaccinations mandatory. Others are leaving the decision to students. And Virginia Tech University announced that it does not believe that it has the legal authority to mandate that students be vaccinated.

While many higher education institutions have routinely required students to be vaccinated for viral diseases such as measles and mumps, the COVID-19 vaccines fall into a gray area. The difference—which is the issue cited by Virginia Tech in suggesting that it lacks authority for a mandate—is that the U.S. Food and Drug Administration has only allowed the emergency use of the COVID-19 vaccines and has not given them its full approval.

In some states, the vaccine decision is being directed by state governments. In states such Arizona, Idaho, Florida, Montana and Texas, governors have issued executive orders prohibiting government entities from requiring proof of COVID vaccination for access to buildings or services. However, the breadth and scope of such orders differs by state. Texas’ order, for example, is one of the broadest, in that it affects both public colleges and private colleges that receive state funding.

In Michigan, there is no similar executive order, but a Michigan House of Representatives version of a spending bill includes language prohibiting the state’s public universities from requiring COVID vaccines as a condition of enrollment or attendance.

It is also important to note that, even if a higher education institution mandates vaccinations, exemptions may apply. For instance, both public and private colleges and universities are subject to the requirements of the Americans with Disabilities Act (“ADA”). A student could potentially seek an accommodation from a requirement to take a vaccine on medical grounds, but a school’s obligations with respect to each such request—whether an accommodation is necessary and, if so, the extent of any such accommodation—must be evaluated on a case-by-case basis.

In short, this is a complex issue involving a number of considerations—from the legal and regulatory landscape to the political environment. That may explain why some higher education institutions, such as Wayne State University, have adopted a middle-ground position short of a mandate that involves offering students incentives for getting vaccinated. In April, Wayne State University announced that it would deposit $10 into the student account of any student who uploaded proof of vaccination by May 7.

If you have any questions regarding these issues, or require assistance in evaluating your institution’s COVID-19 vaccination program, please contact Ryan Kauffman.

Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at or 517.377.0881.