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Current
Legal Issues in University Management
#HED
2225
Wednesday, August 1, 2001 -- 8:30 a.m. to 12:15 p.m.
Thursday, August 2, 2001 -- 8:30 a.m. to 12:15 p.m.
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I.
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Introduction
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A.
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Overview
of Course
Objectives
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II.
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Review of
Basic Legal Concepts
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A.
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Public/Private
Distinctions
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B.
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Federal/State
Law
Relationships
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III.
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Current
Issues: Student/Institutional Relationships
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A.
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In
Loco Parentis
Revisited
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1.
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Two
views of current student rights and responsibilities and the
student/institutional relationships: Robert Bickel and Peter Lake, The
Rights and Responsibilities of the Modern University (Carolina Academic
Press 1999); Gary Pavela, “Today’s College Students Need Both Freedom
and Structure,” The Chronicle of Higher Education, July 29, 1992, p.B1.
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2.
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“Facilitator” university -- recognizes
that traditional age students do
not become adults overnight; posits that safety and security are part
of services students and parents expect. See, Furek v. University of
Delaware, 594 A.2d 506 (Del. 1991)(university’s policy against hazing,
“like its overall commitment to provide security on its campus” was an
assumed duty to student injured in hazing incident; it was part of “an
indispensable part of the bundle of services which colleges ... afford
their students.”)
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3.
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Non-custodial institution -- colleges and
universities are educational
institutions not custodians of adult students. Bradshaw v. Rawlings,
612 F.2d 135 (3rd Cir. 1979) (college policies against underage
drinking did not create a legal duty to protect a student who was
injured while riding in the car of an intoxicated fellow student, after
attending a sophomore class picnic.) See also, Booker v. Lehigh
University, 800 F.Supp. 234 (E.D. Pa. 1992)(policy statements guide
adult behavior and do not create responsibility for poor judgment).
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4.
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Courts may be moving from “no duty” rule
to a more nuanced look at
university/college liability for harm to students on and off-campus.
See, e.g., Mullins v. Pine Manor College, 449 N.E.2d 331 (Mass. 1983)
(college argued no duty to protect student from criminal acts by third
party criminal intruder who abducted student from dorm and raped her;
court held that college that requires students to live on campus has a
duty to provide reasonable security); but duty to exercise reasonable
care does not make university an insurer, Eisman v. State, 518 N.Y.S.2d
608 (Ct.App.N.Y. 1987) (university not liable for rape and murder of
student by a fellow student who was a convicted felon on parole where
there was no notice to university of unreasonable behavior by parolee
and no evidence murdered student was at risk). Pending case: Nova
Southeastern University v. Gross, 2000 WL 329234 (Fla. Sup. Ct. March
30, 2000) (duty of reasonable care re: off campus internship).
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B.
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Student
Discipline/Due Process
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1.
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General references: E.N. Stoner and K.
Cerminara,
“Harnessing the ‘Spirit of Insubordination’: A Model Student
Disciplinary Code,” 17 Journal of College & University Law 89
(1990); E.N. Stoner and Sheldon E. Steinbach, “The Truth About College
Discipline,” The Chronicle of Higher Education, Dec. 13, 1996 (see,
www.rssm.com/pubs/other/stoner1.htm).
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2.
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Fundamental requirement of due process is
the opportunity to be heard
at a meaningful time and in a meaningful matter. Matthews v. Eldridge,
424 U.S. 319 (1976). Key requirements: notice, impartial
decision-maker, no right to counsel, no right to cross examination,
some form of record (need not be verbatim), no right of appeal.
Standard of proof: substantial evidence.
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3.
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Deference to private college decision
making challenged: Schaer v.
Brandeis University. “Brandeis Lawsuit Puts Campus Courts in the Dock,”
The Chronicle of Higher Education, July 21, 2000, p. A33.
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4.
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Pending Criminal Investigations. Internal
disciplinary proceedings need
not be postponed.
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a)
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No threat to right against
self-incrimination because
testimony in internal proceedings is voluntary. Hart v. Ferris State
College, 557 F. Supp. 1379 (W.D. Mi. 1983).
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b)
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Internal
proceedings serve a legitimate educational and remedial purpose; no
double jeopardy attaches. Sate of Maine v. Sterling, 685 A.2d 432 (Me
1996).
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5.
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Important
to distinguish academic from disciplinary matters. See generally, Board
of Curators of the University of Missouri v. Horowitz, 435 U.S. 78
(1978); Regents of the University of Michigan v. Ewing, 474 U.S. 214
(1985). Courts look at the institution’s treatment of the situation,
after the fact rationales will be unconvincing if the institution has
treated the matter as a disciplinary issue. Factors to consider: does
the issue require the application of academic expertise? Will the
student be subject to some kind of stigmatizing label (guilty)? Is the
matter cummulative or does it involve a single issue? An academic
dismissal meets the requirements of due process if there is notice, an
opportunity to improve (where appropriate), careful decision-making and
informal meeting to discuss dismissal.
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6.
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Campus Sexual Assault Visitors Bill of
Rights, 20 U.S.C. 1092
(f)(8)(B)(iv) – on-campus disciplinary proceedings must allow accused
and accuser the same opportunities to have support persons present,
both are informed of the outcome.
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7.
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Application to off campus behavior okay
when: conduct was criminal;
conduct was directly related to campus mission and welfare, conduct
code says off campus behavior is covered.
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C.
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Mandatory
Student Fees
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1.
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In Rosenberger v. University of Virginia,
515 U.S. 819 (1995), Justice
O’Connor warned that mandatory fees might be susceptible to “a Free
Speech Clause challenge by an objecting student that she should not be
compelled to pay for speech with which she disagrees.”
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2.
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In
Board of Regents v. Southworth, 120 S.Ct. 1346 (2000), the Supreme
Court looked at the question whether the First Amendment is offended by
a policy or program under which a public university student must pay
mandatory fees that are used in part to support organizations that
engage in political speech.
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3.
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In Southworth, the Supreme Court held that
a university may determine
that its educational mission warrants support of a broad range of
groups and organizations, and for that purpose may collect mandatory
fees even if some of the fees go to organizations to which students
object. Union and state bar cases not applicable. Proper constitutional
standard is viewpoint neutrality.
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4.
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Open issues: must the board make factual
findings and adopt policies
expressing mission; what might make a mandatory fee program not
viewpoint neutral; can the university use referenda to decide which
groups receive fees; can the university restrict use of fees for
political and partisan purposes; what is status of using fees for
direct lobbying; would a refund or rebate procedure make a difference?
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D.
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FERPA
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1.
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Access
to Disciplinary Records
United States v. Miami University, 91 F.Supp.2d 1132 (S.D.Ohio
2000)(“The Chronicle’s argument that Ohio public policy favors openness
and disclosure of disciplinary records has no bearing on the Court’s
interpretation of FERPA.” “[T]he Court finds that university
disciplinary records fall within the definition of ‘education records’
as stated in 20 U.S.C. § 1232g. ... As the Court stated in its
Order granting a preliminary injunction in this case: ‘It is abundantly
clear the disciplinary records that are the subject of the instant case
satisfy both prongs of the statutory definition of education records.’”
Enjoining implementation of State ex rel. The Miami Student v. Miami
University, 680 N.E.2d 956 (Ohio) cert. denied, 522 U.S. 1022 (1997).
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2.
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New
Congressional authorization for disclosure of final results of
disciplinary proceeding to victim of a crime of violence or a
nonforcible sex offense, 20 U.S.C. § 1232g(b)(6)(A); disclosure to
the public of final results of disciplinary proceeding against a
student alleged to be perpetrator of crime of violence or nonforcible
sex offense if the institution determines that the student violated the
institution’s rules or policies, 20 U.S.C. § 1232g(b)(6)(B); and
disclosure to parents information regarding any violation by the
student of any federal, state, or local law or any rule or policy of
the institution governing the use or possession of drugs or alcohol if
student is less than 21 and has been determined to have committed a
disciplinary violation (unless state law would prohibit disclosure).
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3.
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Internet resource: www.ed.gov/offices/OM/fpco
(adminstrative agency website). Free on-line course, http://counsel.cua.edu/Ferpa/FERPA/default.htm.
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E.
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Criminal Records/Admissions
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1.
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Colleges may deny or revoke admission
because of an applicant’s prior
criminal conviction. See, Stokes and Groves, “Rescinding Offers of
Admission When Prior Criminality is Revealed,” 105 Ed. L. Rep. 855
(1996).
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2.
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olleges should determine as a matter of
policy whether to ask and if
so what to ask for, when to ask and how to use. See, “Use of Criminal
Convictions in College Admissions,” Presentation by Derek Langhauser,
General Counsel, Maine Technical College System, NACUA Annual Meeting,
June 28, 2000.
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a)
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Yes -- necessary
to evaluate character, maturity and responsibility; helps further safe
environment; helps determine whether student should get dorm space;
helps advising re: future licensure, etc; and helps compliance with
federal law barring aid to students with drug convictions. No -- state
law may limit right to request or compel, Va. Code § 19.2-392.4
(can’t ask for arrest record or expunged records); may create issues
re: discrimination; unfair penalty for those who have “paid debt,”
especially re: juvenile offenses; no way to verify with criminal
background checks; college shouldn’t assume a duty where none now
exists.
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b)
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When -- general
admissions application; specific application for program where
licensure or internship issues may arise; financial aid; residence hall
request.
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c)
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What --
convictions/guilty pleas for crimes other than traffic offenses; when;
where; terms or conditions of parole, plea, sentence; details of
offense; continuing duty to disclose. Vakas v. Kansas Board of Healing
Arts, 808 P.2d 1355 (Kan. 1991).
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d)
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How to
use --
weigh interests of college against facts of case, Arrocha v. Board of
Education, 677 N.Y.S.2d 584 (1998). There must be a rational
relationship between adverse action against student and interest of
institution. Should community be notified? Education record? State
notice laws.
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F.
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Campus Security Act.
The Student Right to Know and Campus Security Act (Pub.L. 101-542,
1990) now called the Jeanne Clery Disclosure of Campus Security Policy
and Campus Crime Statistics Act. Implementing rules, 34 C.F.R. 668.46.
Must report policies and crime statistics for last three years by
October 1 each year.
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G.
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Unionization of Students.
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1.
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Boston Medical Center Corp., 330 N.L.R.B.
No. 30 (Nov. 26, 1999)
(interns and residents are employees for purposes of the NLRA) and New
York University, 332 N.L.R.B. No. 111 (Oct. 31, 2000) (graduate
assistants are employees for purposes of the NLRA.) Applies to private
teaching hospitals and private colleges and universities nationwide.
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2.
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Watch for FERPA conflicts – records
regarding teaching assistants are
“education records.” Need to designate “status as teaching assistant”
as directory information in order to make a list available to union.
Cannot release social security number, rate of pay and bargaining unit
status without consent. Would violate FERPA. August 21, 2000 letter
from LeRoy S. Rooker, Director, Family Policy Compliance Office,
Department of Education to AFT, www.ed.gov/offices/OM/Omltrs/aft.html.
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IV.
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Current Issues: Americans
with
Disabilities Act
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A.
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Definition of Disability
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1.
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Eyeglass wearing pilots with correctable
vision held not disabled.
Supreme Court said, “if a person is taking measures to correct for, or
mitigate, a physical or mental impairment, the effects of those
measures -- both positive and negative -- must be taken into account
when judging whether that person is ‘substantially limited’ in a major
life activity and thus ‘disabled’ under that Act.” Sutton v. United Air
Lines, Inc. 527 U.S. 471 (1999). Person whose blood pressure controlled
by medication not disabled. Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999). Extends to self-accommodation. Albertson’s, Inc. v.
Kirkinburg, 517 U.S. 516 (1999) (“no principled basis for
distinguishing between measures undertaken with artificial aids, like
medications and devices, and measures undertaken, whether consciously
or not, with the body’s own systems”). Popko v. Pennsylvania State
Univ., 84 F.Supp.2d 589 (M.D.Pa.2000)(on remand for further
consideration of whether plaintiff’s epileptic condition was a
“disability” in light of recent Supreme Court decisions. Pacella v.
Tufts Univ. School of Dental Medicine, 66 F. Supp.2d 234 (D.Mass.
1999)(as corrected vision does not substantially limit a major life
activity). Tangires v. The Johns Hopkins Hospital, 79 F.Supp.2d 587
(D.Md. 2000)(employee with asthma not disabled where asthma was
treatable with medication that she refused to take).
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2.
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ADD/ADHD disabilities?
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B.
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Reasonable Accommodation
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1.
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Indefinite unpaid leave not a reasonable
accommodation. Lance v.
University of Tennessee, 60 F.Supp.2d 773 (E.D.Tenn. 1999).
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2.
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Plaintiff permanently restricted to light
duty work was no longer
qualified for custodial position with or without accommodation. Could
not perform functions of job. Scott v. University of Toledo, 2000 Ohio
App. LEXIS 851 (Ohio Ct. App. 2000).
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3.
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Student diagnosed with math learning
disability failed to pass a
required math class and therefore failed to obtain elementary education
degree; university provided several accommodations but would not waive
class or accept a D grade. Pangburn v. Northern Kentucky University,
2000 U.S. App. LEXIS 6413 (6th Cir. 2000).
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C.
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Documentation
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1.
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Student has obligation to give college
notice of disability and request
reasonable accommodation/academic adjustment. Notice and request must
be timely. Student must provide documentation.
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2.
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Documentation must show current
disability. Guckenberger v. Boston
University, 974 F.Supp.106 (D. Mass. 1997)(demands for documentation
must reflect medical expertise re: currency and age; distinction
between LD and ADD because of possibility of change in symptoms).
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3.
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Diagnostic professional must be qualified.
Standard in the field.
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4.
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Documentation must be complete. How
diagnosis was reached;
qualifications of diagnostician; how are major life activities
impacted; how disability affects academic difficulties; IEP may be
insufficient on its own; request for adjustment must be consistent with
documentation; if documentation is inadequate, institution must advise
student in a timely fashion.
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5.
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College may conduct its own evaluation at
its own expense.
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6.
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Academic adjustment must be
provided while the student is
being evaluated.
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7.
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Process for determining
adjustments should be interactive.
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8.
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IDEA
Families. Need to prepare for differences in expectations that students
and parents may have based on their experience in public school
setting. Should provide notice and train those handling orientation to
refer to disability services coordinators.
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D.
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Access
to Technology
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1.
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Use of technology is exploding: 1/4 of
classes use internet as part of
syllabus; use of email in classes up from 8% in 1996 to 44% in 1998.
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2.
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Qualified disabled students must have
equal access to the program.
Section 504, 29 U.S.C. 794, 34 C.F.R. 104; ADA, 28 C.F.R. 36.303, 28
CFR 35.160. Communication must be as effective. May consider
alternatives as long as access to the program is equal. May need to
provide training. Colleges must be proactive. See, Tyler v. City of
Manhattan, 857 F.Supp. 800 (D.Kan. 1994).
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3.
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What is access? facilities; computer
workstations; materials,
documentation and support; training and tech support; maintenance and
repair of accessible features; course materials; on-line class
discussion; submission of assignments.
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4.
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Consider accessibility in purchasing and
leasing. Consider benefits of
universal designs.
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5.
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Provide accessible technology in
integrated setting.
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6.
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Includes web design (recommendations from
DO-IT; University of
Washington).
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7.
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Web Resources: “Bobby”, a website that can
check other websites for
accessibility, www.cast.org/bobby; Equal Access to Software and
Information, www.rit.edu/~easi/>; Postsecondary Innovative
Transition and Technology, www.wri-edu.org/postitt/>; Alliance for
Technology Access, www.ataaccess.org/design.html.
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E.
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Testing
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1.
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See provisions on testing students with
disabilities in revised
(December 1999) Standards of the Joint Committee on Testing (American
Psychological Association, National Council on Measurement in
Education, and the American Educational Research Association); Bartlett
v. New York State Board of Bar Examiners, 156 F.2d (2d Cir. 1998)
vacated and remanded, 119 S.Ct. 2388 (June 21, 1999) (being
reconsidered in light of Sutton case)(is a student with LD disabled
under ADA?).
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2.
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Accommodation
must be provided so that person can demonstrate his or her aptitude and
achievement, not the effect of the disability (except where the
functions impaired by the disability are the factors the test purports
to measure). Not required to waive or lower essential program
requirements or to fundamentally alter nature of program.
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3.
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Must be well-reasoned decision. Wynn v.
Tufts University of Medicine,
932 F.2d 19 (1st Cir. 1991) and 976 F.2d 791 (1st Cir. 1992) and
Guckenberger v. Boston University, 8 F. Supp. 2d 82 (D. Mass. 1998).
Categorical denials of extra time beyond pre-set limits probably not
okay. Must make individual determination.
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F.
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Psychological/mental
Disabilities
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1.
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Dismissal of student because of a concern
that, as a result of the
student’s disability, the student might engage in conduct that poses a
risk to health or safety, special standards apply that are designed to
balance the legitimate concerns for safety with the goal of protecting
disabled students from unfounded fears and prejudice. Must be a “direct
threat.” School Board of Nassau County v. Arline, 480 U.S. 273 (1987).
A “direct threat” is a significant risk of causing substantial harm to
the health or safety of the student or others that cannot be eliminated
or reduced to an acceptable level through the provision of reasonable
accommodation. Individualized assessment. Institution must identify the
standards to be applied and give notice to the student that standard
not met. Must make decision on reliable information: objective evidence
and reasonable judgments relying on current medical knowledge. Doe v.
NYU, 666 F.2d 761 (2nd Cir. 1981). General reference: Thomas J.
Flygare, Students with Learning and Psychiatric Disabilities: New
Challenges for Colleges (NACUA Publication Series 2000).
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G.
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Access to Facilities
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1.
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Title III of the ADA existing facilities
approach
is different from Title II and Section 504. Obligation to remove
architectural barriers if “readily achievable.” Look at barriers not
program. Use common sense.
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2.
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Internet resource: U.S. DOJ, “Settlement
Agreement Between the United
States of America and Duke University,” www.usdoj.gov/crt/ada/duke.htm
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V.
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Current Issues: Employment Discrimination
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A.
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Training
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1.
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New incentives provided by Supreme Court.
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a)
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Kolstad v.
American Dental Association, 527 U.S. 526 (1999) (employer prevention
efforts relative to punitive damage claims)
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b)
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Faragher v. City
of Boca Raton, 524 U.S. 775 and Burlington Industries v. Ellerth, 524
U.S. 742 (1998)(affirmative defense requires “employer exercised
reasonable care to prevent and correct promptly any sexually harassing
behavior). Lower courts have applied this to harassment on the basis of
race, Allen v. Michigan Dept. of Corrections, 165 F.3d 405 (6th Cir.
1999) and disability, Wallin v. Minnesota Dept. of Corrections, 153
F.3d 681, 687-88 (8th Cir. 1998), cert. denied 526 U.S. 1004 (1999).
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2.
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The federal government has proposed
amendments to the FAR that would
impose training on entities that receive federal grants and contracts.
64 Fed. Reg. 37359 (July 9, 1999). Contractor qualifications to include
“workplace practices addressing matters such as training, worker
retention, safety programs and legal compliance.” See,
www.noblacklisting.org.
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3.
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Some states also have training
requirements. See, “The Emerging Law of
Training,” by G. Mathiason and M. deBernardo, Federal Lawyer 25, 26
(May 1998).
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4.
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Disheartening statistics published by
Tillinghast-Towers Perrin,
Under-Managed Risk: Employment Claims Drive Rising ELL Occurrences and
Costs: A Summary of Findings from the 1997 Educators Legal Liability
Coverage Survey (800-525-6741):
No training on sexual harassment offered by half of institutions
surveyed; on ADA by two thirds; on employee terminations by three
quarters. About 80% don’t train committees that make rank and tenure
decision, resolve grievances or conduct searches.
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5.
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Internet resources:
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a)
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University of New
Mexico -- www.unm.edu/~hrinfo/Eod/workshops/civilrightstrng.htm
linking to www.unm.edu/~hrinfo/civilrights/intro.htm.
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b)
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University of
Washington -- www.washington.edu/admin/traindev/index.html.
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c)
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www.preventivepractices.com,
on-line sexual harassment course for faculty and other university
employees and students.
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B.
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ADR/Mandatory Arbitration
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1.
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Some
employers are choosing to require new employees, as a condition of
hiring, to waive their right to resolve employment disputes in a
judicial forum and to have all such disputes resolved through
arbitration. Some employers are also requiring current employees to
sign such waivers as a condition of promotion, receipt of salary
increases or to keep their jobs.
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2.
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Where employees have entered such
agreements but nevertheless sought to
sue under state or federal laws, employers have responded by filing
motions to compel arbitration. Most of these cases have been decided in
favor of the employers. The Supreme Court affirmed in Circuit City
Stores v. Adams, 121 S.Ct. 1302 (2001) that arbitration clauses in
employment contracts are enforcible and the Federal Arbitration Act
applies.
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3.
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EEOC Policy Statement on Mandatory Binding
Arbitration of Employment
Discrimination Disputes as a Condition of Employment (July 10, 1997),
www.eeoc.gov/docs/mandarb.txt.
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4.
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Where enforced, courts tend to agree on
following:
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a)
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agreements must be
voluntary on part of employee;
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b)
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there is
consideration for the waiver;
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c)
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arbitration
process protects employee rights;
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d)
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Section 119 of the
Civil Rights Act of 1991 does not prohibit arbitration of claims
brought under Title VII, the ADEA or other federal civil rights laws.
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5.
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To increase enforceability of arbitration
clauses:
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a)
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binding on
employer and employee;
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b)
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use OWBPA waiver
as a model for waiver;
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c)
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provide for full
range of authorized remedies;
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d)
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require
arbitrators to be trained in employment discrimination law; and
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e)
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provide for limited judicial review.
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C.
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Retaliation
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1.
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Employees may bring retaliation claim
regardless of validity of their
underlying discrimination claim but there will be no retaliation claim
where no reasonable person could have believed that a single minor
incident violated Title VII, Clark County School District v. Breeden,
USSCt, Docket No. 00-866 (2001)
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2.
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Cause of action arises under separate
section of Title VII, 42 U.S.C.
§ 2000e-3(a)(i)(opposition) (Martin v. Howard University, 1999
U.S. Dist. Lexis 19516 (D.D.C 1999) and (ii)(participation). Also under
ADA, ADEA, FMLA, and Equal Pay Act.
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3.
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Exposure
may be great.
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a)
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Jury awarded a
former university employee $1,500,000 in Starkes v. Florida Board of
Regents, No. 98-669-CIV-T-25B (M.D. Fla. 1999), after finding that
university discriminated against her on the basis of race and
terminated her in retaliation for filing charge with EEOC.
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b)
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Two professors
awarded $1,800,000 after a jury found that the university had subjected
them to changes of class schedules, charges of insubordination, and
negative performance evaluations following their claim of reverse
discrimination. Gentner v. Cheyney Univ., No. Civ. A. 94-7443, 1999 WL
820864 at *3 (E.D. Pa. October 14, 1999).
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4.
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Claim has three elements: engaged in
participation or opposition;
suffered an adverse employment action; and there is causal connection
between protected activity and the adverse action. Employer may rebut
by articulating a legitimate non-retaliatory reason for action (doesn’t
have to prove that it is the real reason). Employee then must show
reason is a pretext.
|
|
|
5.
|
Provision in a University collective
bargaining agreement that required
a choice between internal grievance and EEOC charge was retaliatory on
its face under ADEA. EEOC v. Board of Governors of State Colleges and
Universities, 957 F.2d 424 (7th Cir. 1992), cert. denied, 506 U.S. 906
(1992).
|
|
D.
|
Uniform Guidelines on Employee
Selection Procedures
|
|
|
1.
|
The
Uniform Guidelines have been adopted by the EEOC (29 C.F.R. 1607), the
Civil Service Commission, and the Departments of Labor (41 C.F.R. 60,
Justice (28 C.F.R. 50.14) and the Treasury. Apply in cases brought
under Title VII of the Civil Rights Act. These are not regulations and
do not have the force of law. Clady v. County of Los Angeles, 770 F.2d
1421 (9th Cir. 1985) cert. denied, 475 U.S. 1109 (1986). See, also,
Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) (4/5ths rule
is a “rule of thumb”). But, there are rules on recordkeeping and
reporting, 29 C.F.R. 1602, as amended by 56 Fed. Reg. 35, 753 (July 26,
1991).
|
|
|
2.
|
“Best hiring procedures” not required.
Furnco Construction Corp. v.
Waters, 438 U.S. 567 (1978).
|
|
|
3.
|
Anything
you use (employment application, resume, background investigation,
former employer references, criminal records check) to determine
whether or not to hire a candidate is considered a selection
instrument. This is true whether the criterion is an objective test or
a subjective method. Each criterion used (not just the bottom line) can
be examined for an adverse impact. Connecticut v. Teal, 467 U.S. 440
(1982).
|
|
|
4.
|
Internet References
|
|
|
|
a)
|
hr-guide.com/software
and www.acd.ccac.edu/hr/employment
statistics/disparate impact/analysis4.cgi
discriminatory impact analysis; utilization analysis
|
|
|
|
b)
|
humanresources.ucr.edu/hrunits/employment/RecruitInterSelectGuide.htm\
model campus procedures
|
|
|
|
c)
|
www.uniformguidelines.com
Questions and Answers on Guidelines and Labor Department Report on use
of tests and assessments.
|
VI.
|
Current
Issues: Faculty/Institutional Relationships
|
|
A.
|
First Amendment/Harassment
|
|
|
1.
|
Cohen v. San Bernardino Valley College, 92
F.3d 968 (9th Cir. 1996).
(sexual harassment policy unconstitutionally vague; did not provide
professor with notice that his conduct would be prohibited). See, Cohen
v. San Bernardino Valley College: The Scope of Academic Freedom Within
the Context of Sexual Harassment Claims and In-Class Speech, 25 Journal
of College & University Law 1 (1998).
|
|
|
2.
|
Sexual
harassment policies “must be narrowly drawn to address the specific
evil at hand.” Cohen, 92 F.3d at 971. See, Ohio State University Policy
discussed in Sexual Harassment on Campus: A Legal Compendium 373 (Elsa
Kircher Cole, ed., National Association of College and University
Attorneys, 3rd ed. 1997).
|
|
B.
|
Hiring/references
|
|
|
1.
|
Hiring practices should be
position-specific, use valid and reliable
selection measures, involve trained search committees and managers.
|
|
|
2.
|
Failure
to screen potential employee adequately may lead to liability for
negligent hiring. Factors in determining reasonableness of inquiry.
Cramer v. Housing Opportunities Comm’n, 501 A.2d 35 (Md. 1985) (cost of
inquiry, ready availability of adverse info, type of position).
|
|
|
3.
|
Employers
generally have a qualified privilege to provide a post employment
reference unless they act with malice making defamatory statement with
intent to harm or provide information not relevant to prospective
employer’s employment decision. Many states have codified this common
law privilege. See, e.g., Va. Code Ann. § 8.01-46.1 (effective
July 1, 2000).
|
|
C.
|
Early Retirement
|
|
|
1.
|
Private institutions must consider ERISA,
federal income and social
security tax and Age Discrimination Act of 1967. Public plans not
subject to ERISA.
|
|
|
2.
|
Tenure buyout payments may not be wages
subject to FICA taxes. North
Dakota State University v. United States, No. A3-98-50 (D.N.D. 1999).
|
|
|
3.
|
Deferred compensation questions under
§ 457(f) must be resolved.
|
|
|
4.
|
The Older Workers Benefits Protection Act
(OWBPA) enacted in 1990
amended the ADEA by extending age discrimination coverage to employee
benefits and overturning Betts v. Public Employees Retirement System of
Ohio, 492 U.S. 158 (1989)(court had held that bona fide benefit plans
not meant to evade the law exempt from ADEA). Also established strict
requirements for waivers of age discrimination claims. 29 U.S.C. §
623(f)(1), 29 C.F.R. 1625.22: writing; advice to consult with an
attorney; no waiver of later claims; consideration; 45 days to consider
any waiver attached to an exit incentive; each participant has 7 days
to revoke after signing/can’t be waived. Party asserting validity of
waiver must prove it complied with OWBPA and was knowing and voluntary.
29 U.S.C. § 626 (f)(3); Raczak v. Ameritech, 103 F.3d 1257 (6th
Cir. 1997).
|
|
D.
|
Revocation
of Tenure
|
|
|
1.
|
In breach of contract actions where
termination for cause challenged,
one question is whether jury should review facts of the alleged
misconduct de novo. In Murphy v. Duquesne University, 745 A.2d 1228
(Pa. Super. 1999), the court held that judicial review of the
president’s decision to revoke tenure was limited to court’s review of
whether there was substantial evidence in the record of internal
proceedings to support conclusion that faculty member had engaged in
substantial misconduct. See also, Yackshaw v. John Carroll University
Board of Trustees, 89 Ohio App.3d 237, 624 N.E.2d 225, 229 (1993). But
see, McConnell v. Howard University, 818 F.2d 58 (D.C.Cir. 1987).
|
|
|
2.
|
Resource:
See generally, Good Practice in Tenure Evaluation, A Joint Project of
the American Council on Education, the AAUP and United Educators (ACE
2000).
|
|
E.
|
Intellectual Property
|
|
|
1.
|
Key issue is whether the work for hire
doctrine applies to
faculty-authored educational materials. Before the 1976 Copyright Act
was passed, codifying decades of case law that had evolved under the
1909 Act, there was a “teacher” exception. Many think that the
exception did not survive the 1976 codification because Section 101 of
a work for hire makes no reference to it. Some courts have determined
that the exception no longer exists. The University of Colorado
Foundation, Inc. v. American Cyanamid, 880 F.Supp. 1387 (D.Colo.
1995)(finding a journal article to be a work for hire) but see
Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987)(
University policy which is part of each professor’s contract provides
for faculty ownership of scholarly articles.)
|
|
|
2.
|
Internet reference:
www.utsystem.edu/ogc/intellectualproperty; authored
by Georgia Harper, Office of General Counsel, University of Texas
System, it is the best overall resource on copyright that exists.
|
|
|
3.
|
Patent protection for teaching methods may
be coming. Trademark Office
has granted patents for a business method. Business methods and
teaching methods are not readily distinguishable especially in an
on-line environment. Patentable subject matter; novelty and
nonobviousness, State Street Bank Trust v. Signet Financial Group, 149
F.3d 1368 (Fed. Cir. 1998). Example of patent – Amazon one-click
ordering.
|
|
|
4.
|
Conflicts of Interest and Commitment.
Faculty conflict of interest and
conflict of commitment policies should be reviewed with on-line
education in mind. For example, a prominent professor at Harvard,
Arthur Miller, supplied videotaped lectures to a competing institution
without Harvard’s permission.
|
|
|
5.
|
TEACH Act. Currently the Section 110 (2)
exception in the Copyright Act
for classroom teaching that allows a work to be displayed in class does
not apply to distance education or on-line courses. Senate Bill S. 487,
the Technology Education and Copyright Harmonization Act would amend
Sections 110 and 112 of the Copyright Act to allow instructors to use
portions of copyrighted works in on-line courses without the need to
seek permission from copyright owners. The bill passed the Senate on
June 7th. On June 28, the House Judiciary Committee on Courts, Internet
and Intellectual Property approved the bill without amendments and sent
it on to full committee for consideration.
|
|
|
6.
|
Distance learning policy development
resources: Ownership of New Works
at the University: Unbundling of Rights and the Pursuit of Higher
Learning (CETUS), www.cetus.org/ownership.pdf; Developing a Distance
Education Policy for the 21st Century (ACE), www.acenet.edu.home.html;
Intellectual Property Policy and New Media Technologies: A Framework
for Policy Development at AAU Institutions (AAU),
www.tulane.edu/~aau/IPNewMediaReport.html; Who Owns the Rights to
Instructional Materials? Rethinking Intellectual Property at the
University (CIC), www.cic.uiuc.edu/resources/ip/copyrtconf99.html.
|
|
|
7.
|
Faculty interest in class notes. Does
inclusion of notes from class
sessions for sale on-line violate the law?
|
|
|
|
a)
|
Expression of an
idea not protected until fixed in a tangible medium; lecture from notes
not protected unless professor is reading verbatim or lecture is being
recorded by professor when delivered.
|
|
|
|
b)
|
License to take
notes probably does not extend to commercial use.
|
|
|
|
c)
|
Even student’s
notes from lecture may be derivative work.
|
|
|
|
d)
|
Common law
copyright supplements federal statute. Williams v. Weiser, 273 Cal.
App. 2d 726 (1960).
|
|
|
|
e)
|
Internet
resources: “Teaching Law: The Legal Protection of Education and Its
Relevance for Online Notes Companies,“ Mathieu Deflam, www.sla.purdue.edu/people/soc/mdeflem/zteachlaw.htm,
“Ownership of Lectures: Commercial Notetaking in University Courses,” www.utsystem.edu/ogc/intellectualproperty/lectures.htm.
|
VII.
|
Current Issues: Academic
Computing
|
|
A.
|
Computer
Use Policies
|
|
|
1.
|
Five
Elements of Effective Computer Use Policies, from “Landmines in the
Information Highway: Academic Computing and the Law,” presentation by
Lucien Capone III, University of North Carolina at Greensboro, 2000
Annual Conference, National Association of College and University
Attorneys:
|
|
|
|
a)
|
Stand behind your system
administrator;
|
|
|
|
b)
|
Define who is
authorized to use the system and who has authority to grant access.
Emphasize that accounts and passwords may not be shared.
|
|
|
|
c)
|
Clearly
define the scope of acceptable use and make the limits
reasonable: use must be lawful, use may not violate university rules,
use may not result in commercial gain or profit, use may not imply
university sponsorship, use may not violate laws and policies against
discrimination and harassment, use may not involve spam, use may not
result in direct cost to university, personal web pages must include
disclaimers, may not register a university.edu domain for any computer
connected to network unless approved,
see, www.fis.ncsu.edu/ncsulegal/compuse.htm.
|
|
|
|
d)
|
Place reasonable
limits on the expectation of privacy.
|
|
|
|
e)
|
Enforce your
policy.
|
|
B.
|
Digital
Millennium Copyright Act
|
|
|
1.
|
DMCA, 17 U.S.C. § 114(1998),
provides a mechanism by which online
service providers can insulate themselves from copyright infringement
by users.
|
|
|
2.
|
DMCA adds a new safe harbor provision to
the Copyright Act. Service
providers are protected from liability for four classes of activities:
transitory communications, system caching, storage of information on
systems or networks at the direction of users, and information location
tools. Need to register an agent to receive notices of claimed
infringement. Must respond quickly to block material or take it down.
|
|
|
3.
|
Internet resource: www.loc.gov/copyright.
|
|
C.
|
Domain Names
|
|
|
1.
|
Anti-Cybersquatting Consumer Protection
Act, 15 U.S.C. §
1125(d)(November 29, 1999). Provides a civil cause of action against
anyone who in bad faith intends to profit from a mark, without regard
to the goods and services of the parties. Targets registration,
trafficking, or use of a domain name incorporating a trademark.
Sporty’s Farm LLC v. Sportsman’s Market, Inc., 202 F.3d 489 (2d Cir.
2000).
|
|
|
2.
|
ICANN Uniform Domain Name Dispute
Resolution Policy. Uniform Dispute
Resolution Policy for .com, .net and .org domains. Incorporated in the
domain registration agreement.
|
|
D.
|
Privacy
|
|
|
1.
|
Student
has no expectation of privacy in information maintained on hard drives
in university computer lab. United States v. Butler, http://www.med.uscourts.gov/opinions/hornby/2001/dbh_06252001_2-01cr18_u_s_v_butler.pdf
|
|
|
2.
|
FERPA concerns in a networked environment
– limiting access to those
with a “legitimate educational interest.” Need to prevent unauthorized
redisclosure of information.
|
|
|
3.
|
Federal Electronic Communications Privacy
Act of 1986 (ECPA). Permits
employers to monitor wire and electronic communications under some
circumstances – would apply to email. A service provider may intercept
a communication while engaged in an activity which is a necessary
incident to rendition of service or to protect the provider’s rights or
property. Stored communications also may accessed if authorized; need
written policy defining scope of authority to access. May intercept
when one party gives consent.
|
|
|
4.
|
To monitor email, institution should have
a clear, specific written
policy that sets boundaries for use of email and internet, states that
all communications are the property of the employer/service provider
and that users have no expectation of privacy, and articulates the
legitimate interest served by the policy. May be a subject for
bargaining. Email is probably a public record at state institutions.
|
|
E.
|
Protection of Internet Assets
|
|
|
1.
|
Reassess internet policies.
|
|
|
2.
|
Identify intellectual property – patent,
copyright, trademark—and
relate it to the internet.
|
|
|
3.
|
Capture intellectual property as it is
being developed.
|
|
|
4.
|
Obtain federal protection or registration.
|
|
|
|
a)
|
Patents – assess claim, assess
market, assess cost of loss
of right; must act “immediately” before publication.
|
|
|
|
b)
|
Trademarks –look at length of
use (1 to 2 years), type of
mark and value to institution.
|
|
|
5.
|
Police and enforce your rights.
Deal with infringers once – determine full extent of infringement
before proceeding.
|
VII.
|
Other Current Issues
|
|
A.
|
Access to Campus/Individuals and Outside Groups
|
|
|
1.
|
Physical forum for expression of views
must be open to all regardless
of view. Widmar v. Vincent, 454 U.S. 263 (1981).
|
|
B.
|
11th Amendment Immunity
|
|
|
1.
|
Congress cannot abrogate the
constitutional immunity of states from
suit unless the statute was passed under § 5 of the Fourteenth
Amendment. Seminole Tribe v. Florida, 517 U.S. 44 (1996). Congress’
powers under § 5 are limited to enforcing the actual substantive
guarantees of the 14th Amendment. City of Boerne v. Flores, 521 U.S.
507 (1997)(Congress must make specific findings that the substantive
guarantees of the 14th Amendment are being violated).
|
|
|
2.
|
1999
Trilogy: Florida Prepaid Postsecondary Educ. Expense Bd. v. College
Savings Bank, 119 S.Ct. 2199 (1999)(Flores standards must be applied in
determining whether attempt to abrogate was passed pursuant to §
5); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd., 119 S.Ct. 2220 (1999)(express waiver required; not constructive or
implied); Alden v. Maine, 119 S.Ct. 2240 (1999)(principles equally
applicable to suits in state court).
|
|
|
3.
|
Kimel v. Florida Board of Regents, 120
S.Ct. 631 (2000)(Senior
university faculty members alleged age discrimination related to
alleged age-based evaluation system and salary payments; sought back
pay and punitive damages from public university employers. Supreme
Court said that Congress violated the 11th Amendment in subjecting
states to suits for damages under the ADEA).
|
|
|
4.
|
Cases only apply to suits brought by
individuals and not to suits
brought by federal government.
|
|
|
5.
|
Cases pending and decided: ADA (Board of
Trustees of University of
Alabama v. Garatt, 121 S.Ct. 955 (2001), bars individual recovery
against states and state agencies), Copyright Act, Environmental
statutes, Equal Pay Act (Varner v. Illinois State University, 226 F.3d
927 (7th Cir. 2000) cert. filed 00-1277 (2001)), FMLA, IDEA,
Rehabilitation Act, Title IX (Litman v. GMU, constructive waiver
through receipt of federal funds, 186 F.3d 544 (4th Cir. 1999) cert.
denied, 120 S.Ct. 1220 (2000)), Title VII (Cooper v. St. Cloud
University, 226 F.3d 964(8th. Cir 2000), Maitland v. University of
Minnesota, No. 002192 (8th Cir.)).
|
|
|
6.
|
Issues for the future: can Congress
constitutionally require states to
waive sovereign immunity to participate in a federal program, receive
federal funds?
|
VIII.
|
Working
With Lawyers
|
|
|
1.
|
Remember
lawyers are advisors
|
|
|
2.
|
Never ask a lawyer what to do; tell the
lawyer what you want to do
|
|
|
3.
|
Ask for an assessment of the legal risks
|
|
|
4.
|
Weigh the legal risks against other factors
|
|
|
5.
|
A
good lawyer will distinguish between legal advice and policy advice
|
IX.
|
Legal
Resources
|
|
|
1.
|
General
Resource, especially for private colleges, Catholic University General
Counsel’s webpage, www.counsel.cua.edu/mainpage/index.htm.
|
|
|
2.
|
Legal
Links at www.nacua.org.
Kaplin and Lee, The Law of Higher Education.
|
|
