cg2 consulting - Presentations

Presentations by Claire Guthrie Gastañaga

Education / Not-for-Profit
Presentations / OpEd / Articles

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.}

I.	Introduction
	A.	Overview of Course Objectives
II.	Review of Basic Legal Concepts
	A.	Public/Private Distinctions
	B.	Federal/State Law Relationships
III.	Current Issues: Student/Institutional Relationships
	A.	In Loco Parentis Revisited
		1.	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.
		2.	“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.”)
		3.	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).
		4.	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).
	B.	Student Discipline/Due Process
		1.	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).
		2.	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.
		3.	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.
		4.	Pending Criminal Investigations. Internal disciplinary proceedings need not be postponed.
			a)	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).
			b)	Internal proceedings serve a legitimate educational and remedial purpose; no double jeopardy attaches. Sate of Maine v. Sterling, 685 A.2d 432 (Me 1996).
		5.	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.
		6.	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.
		7.	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.
	C.	Mandatory Student Fees
		1.	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.”
		2.	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.
		3.	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.
		4.	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?
	D.	FERPA
		1.	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).
		2.	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).
		3.	Internet resource: www.ed.gov/offices/OM/fpco (adminstrative agency website). Free on-line course, http://counsel.cua.edu/Ferpa/FERPA/default.htm.
	E.	Criminal Records/Admissions
		1.	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).
		2.	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.
			a)	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.
			b)	When -- general admissions application; specific application for program where licensure or internship issues may arise; financial aid; residence hall request.
			c)	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).
			d)	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.
	F.	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.
	G.	Unionization of Students.
		1.	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.
		2.	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.
IV.	Current Issues: Americans with Disabilities Act
	A.	Definition of Disability
		1.	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).
		2.	ADD/ADHD disabilities?
	B.	Reasonable Accommodation
		1.	Indefinite unpaid leave not a reasonable accommodation. Lance v. University of Tennessee, 60 F.Supp.2d 773 (E.D.Tenn. 1999).
		2.	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).
		3.	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).
	C.	Documentation
		1.	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.
		2.	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).
		3.	Diagnostic professional must be qualified. Standard in the field.
		4.	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.
		5.	College may conduct its own evaluation at its own expense.
		6.	Academic adjustment must be provided while the student is being evaluated.
		7.	Process for determining adjustments should be interactive.
		8.	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.
	D.	Access to Technology
		1.	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.
		2.	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).
		3.	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.
		4.	Consider accessibility in purchasing and leasing. Consider benefits of universal designs.
		5.	Provide accessible technology in integrated setting.
		6.	Includes web design (recommendations from DO-IT; University of Washington).
		7.	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.
	E.	Testing
		1.	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?).
		2.	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.
		3.	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.
	F.	Psychological/mental Disabilities
		1.	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).
	G.	Access to Facilities
		1.	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.
		2.	Internet resource: U.S. DOJ, “Settlement Agreement Between the United States of America and Duke University,” www.usdoj.gov/crt/ada/duke.htm

V.	Current Issues: Employment Discrimination
	A.	Training
		1.	New incentives provided by Supreme Court.
			a)	Kolstad v. American Dental Association, 527 U.S. 526 (1999) (employer prevention efforts relative to punitive damage claims)
			b)	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).
		2.	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.
		3.	Some states also have training requirements. See, “The Emerging Law of Training,” by G. Mathiason and M. deBernardo, Federal Lawyer 25, 26 (May 1998).
		4.	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.
		5.	Internet resources:
			a)	University of New Mexico -- www.unm.edu/~hrinfo/Eod/workshops/civilrightstrng.htm linking to www.unm.edu/~hrinfo/civilrights/intro.htm.
			b)	University of Washington -- www.washington.edu/admin/traindev/index.html.
			c)	www.preventivepractices.com, on-line sexual harassment course for faculty and other university employees and students.
	B.	ADR/Mandatory Arbitration
		1.	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.
		2.	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.
		3.	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.
		4.	Where enforced, courts tend to agree on following:
			a)	agreements must be voluntary on part of employee;
			b)	there is consideration for the waiver;
			c)	arbitration process protects employee rights;
			d)	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.
		5.	To increase enforceability of arbitration clauses:
			a)	binding on employer and employee;
			b)	use OWBPA waiver as a model for waiver;
			c)	provide for full range of authorized remedies;
			d)	require arbitrators to be trained in employment discrimination law; and
			e)	provide for limited judicial review.
	C.	Retaliation
		1.	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)
		2.	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.
		3.	Exposure may be great.
			a)	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.
			b)	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).
		4.	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.