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Saturday
Apr232016

Off-Campus Conduct & College Codes: A Crossing or Collision with Due Process?

What is due process? Traditionally, due process is the government’s responsibility to perform fair and regular procedures before legally depriving you of life, liberty, or property. Traditionally, due process equates to greater individual protections when the claim against you is more serious and the potential penalty holds greater consequences. And traditionally, due process is guaranteed through Constitutional protections of the Fifth and Fourteenth Amendments when students attending a public college are at risk of suspension or expulsion. However, college degrees no longer have traditional value; they’re worth more than ever. Accordingly, suspension or expulsion from college can be life-changing. Is due process adapting from traditional applications to meet the current demanded protections of students across the United States?

Some colleges recognize this increased value and adapting the application of due process to students facing suspension or expulsion. North Dakota recently recognized students’ due process rights, passing legislation permitting students at public colleges to have attorney representation during hearings potentially resulting in suspension or expulsion. Complicating this matter, colleges across the United States have instituted conduct codes allowing accountability of students for off-campus behavior. Essentially, colleges can educationally sanction students for criminal charges occurring miles from campus if the conduct negatively impacts the mission of the college. The stakes for college students earning a degree have rarely been greater, and the net colleges can cast to regulate student conduct have rarely been wider.

It’s not just the value of having a college degree, but also it’s more of the disadvantages for an individual without one. U.S. News highlighted a 2013 income gap study by Pew Research Center (PRC), revealing individuals between the ages of 25-32, holding bachelor’s degrees working at least 35 hours weekly, made on average $17,500 more annually when compared to individuals within the same demographic holding only high school diplomas. PRC also found jobless rates among ages 25-32 with only high school diplomas were around 12.2%, compared to those with bachelor’s degrees at 3.8%. A college degree is no longer a way to ensure an individual’s survival, but an element to survival.

Courts have historically bestowed great deference to colleges when regulating off-campus conduct negatively impacting the mission of the college. In Kusnir v. Leach, Kusnir faced on-campus charges because of alleged disorderly conduct off-campus. Kusnir challenged the college’s authority to discipline for off-campus conduct, the court finding colleges have a vital interest in the character of its students, and may regard off-campus behavior as reflecting upon a student’s fitness. However, courts have not always upheld a college’s authority to discipline students for off-campus conduct. In Paine v. Board of Regents of the University of Texas System, Paine was put on probation through the criminal courts for possession of marijuana off-campus. The college automatically suspended him, only to have the suspension invalidated by the court, citing the off-campus behavior posed no threat to the institution.

Colleges have responsibilities, and students have rights. Given the heightened value of a college degree, should students receive greater protection? If so, how does due process apply? 

This post was co-authored by Tyler Hedin and Dr. David Nguyen.  Mr. Hedin is a 2nd year (2L) law student at the UND School of Law.  

Tuesday
Apr192016

Campus Protests for Equality: Using the First Amendment to Demand Fourteenth Amendment Rights

In a throwback to the 1960’s and the days of the grassroots protest movements, students of color throughout the U. S. have answered the “call to action,” to stand up and demand accountability.  Students of color want to feel included on their college and campuses and today’s rhetoric highlights how students are balancing two of their constitutional protections to combat discrimination.  

At the University of Missouri, 30 Black football players announced they would not participate in team activities until the University of Missouri System’s President was removed for ignoring incidents of racism on campus.  For months African American student groups had brought attention to racial slurs and other micro-aggressions on the predominately white, 35,000-student flagship campus, but they were continually being ignored by the administration and the four-college system.

Members of the University of Oklahoma’s chapter of the Sigma Alpha Epsilon Fraternity were recorded singing racist lyrics about Blacks joining their fraternity.  At the University of Mississippi a noose was hung around the neck of the statue of James Meredith, the first admitted African American student to the university.  At the same university alcohol and racial slurs were hurled at an African American student as she walked near the campus.  Students have embraced their First Amendment rights to engage in protest against these incidents as expressions of solidarity with African American and other underrepresented students across the country. 

Symbolic speech is protected by the First Amendment as recognized by Tinker v. Des Moines Independent Community School District and Edwards v. South Carolina.  The Constitution is aimed at protecting and furthering certain values. The First Amendment protects us from government suppression of speech, including speech that is offensive, repugnant and even hateful.  The Fourteenth Amendment's Equal Protection Clause guarantees the right to freedom from discrimination on the basis of a protected status: in this case, it is race and ethnicity.  Students of color around the country are utilizing their First Amendment free speech rights to protest about their unfair treatment on campuses.  Under the Equal Protection Clause, similarly situated students should be treated similarly.  Unfortunately, this is not always the case.

On some campuses, students are staging walkouts or protests to force out Presidents or to dismiss controversial professors.  On others, African American students have gone online to share information about their experiences at predominantly white institutions.  And it’s not only students; even faculty and administrators of color have offered their own testimonies of marginalization and exclusion that echo the students’ expressions of dissatisfaction.  While students continue to invoke their First Amendment right to protest what they consider unequal treatment too many college campuses fail to embrace diversity regardless of the equal protections afforded them by the fourteenth amendment as recognized in Plyler v. Doe.

Changing that narrative is the challenge for most institutions. There is not a one-size-fits-all and no magic wand to promote and facilitate inclusion.  There has to be a defined game plan to ensure that diversity translates into inclusion and not just pseudo attempts at looking inclusive for the college’s brochure.  Providing staff and resources are an important part of addressing race and equity issues and creating inclusive, justice-centered campus environments.  However, at the same time, we should remind ourselves that issues of equity and inclusion around race and ethnicity are the responsibility of all staff and faculty.

This post was co-authored by Lee Edward Brockington and Dr. David Nguyen.  Mr. Brockington is a 3rd year law student (3L) in the joint JD/MBA program at the UND School of Law and College of Business and Public Administration and serves as a law clerk in the University’s Office of Diversity and Inclusion.  

Tuesday
Apr052016

Graduate Assistants: Are They Students or Employees for Purposes of Health Insurance?

At many institutions a graduate assistantship stipend may include a partial or full subsidy for health insurance. However, institutions that subsidize health insurance offered through a student individual plan rather than an employee group plan are now finding they are not in compliance with regulations of the Affordable Care Act (ACA).

Notice 2013-54, addresses the use of a Health Reimbursement Arrangement (HRA) with individual market plans. Referencing the ACA FAQs, the notice states that an employer-sponsored HRA cannot be used or integrated with an individual market plan. Any HRA that does so will fail to comply with the annual dollar limit prohibition of Public Health Service Act (PHS Act) section 2711. As reported by Forbes, failure to comply with these regulations will result in a fine of up to $36,500 a year per employee (or student assistant).

This interpretation of the law has affected many institutions and their graduate assistants. The University of Missouri’s decisions regarding student health insurance and their graduate assistantships have been the most widely discussed as they announced their decision to not cover health care, reversed their decision, and then raised stipends to continue with the original decision to not cover health care to be in compliance with the ACA. Louisiana State University also stopped covering health insurance for graduate assistants in fall of 2015 without raising stipends.

These regulations have affected many graduate schools across the United States, but not all. Some universities and systems such as the University of California and University of Florida, have group plans in place for their students. If a university has enough students requiring health insurance that they can set up a group plan, they can subsidize health insurance the same as they do for full time employees. This is not an option though for many schools who do not have enough students requiring coverage.  

Patricia Moran, an employee benefits and compensation lawyer, brings up the question of why the insurance subsidy is provided. If the insurance is subsidized as part of an employee benefit, as it is for many graduate assistants, then the insurance provided must be part of a group plan. What if the insurance is provided as part of the student’s financial aid package? If the insurance subsidy is being provided because of their status as a student, and not their status as an employee, it appears that it would be permissible to subsidize an individual plan.

Because of the current law, universities can only provide health insurance subsidies in limited cases and the interpretation of the law seems to vary across various institutions. It is clear that guidance is needed from the IRS and Department of Labor to clarify these laws. The general sense across campuses is that they are being affected by a law that is aimed at small businesses, not universities. Clarity is needed to move forward so that universities can return to providing complete assistantship packages for their graduate students. 

This post was co-authored by Laura Look and Dr. David Nguyen.  Ms. Look is a masters student in the higher education program at UND and director of admissions and assistant to the dean for the School of Graduate Studies.

Tuesday
Mar292016

Academic Fraud & Student Athletes: An Academic Advisor’s Legal Responsibility

At the core of academic advising is service to students; it should be the number one priority for academic advisors. When any student enters an advisor’s office, they come with an expectation that questions will be answered, plans will be made, and they will be guided to resources and services needed for the student to be academically successful. These expectations are the core values of an academic advisor. Academic success can be gauged in higher education through a few tools, such as annual retention rates, overall graduation rates, and years to completion, with a focus on all students (including student athletes) graduating within four years. As a professional academic advisor, it is not enough to only know the institution’s academic course catalogs and the code of student conduct and have a strong foundation in student development theory and advising theory. Advisors, professional and faculty alike, must also have knowledge of the National Collegiate Athletic Association (NCAA) policies and regulations regarding our student athletes’ remaining eligible to play.

While the pressure intensifies to reduce the cost of higher education by graduating students within four years, this mandate can be very challenging for any student, especially a student athlete, due to the demands and regulations surrounding athletic and academic eligibility. This eligibility struggle actually begins much earlier than when a freshman student athlete arrives on campus in the fall as new policies come into play for incoming freshmen.

The NCAA further tightens policies related to student athletes’ remaining eligible to play as more cases of academic fraud come to light. Some say that academic fraud is on the rise. Between the years of 2001-2010 there were 64 cases of academic fraud reported to the NCAA. Many, if not most, did not rise to the level like those of UNC-Chapel Hill, but instead are litigated within the NCAA’s inner enforcement process via an investigation of the accused infraction.

As institutions struggle to comply with NCAA’s regulations on students remaining eligible to play, others cross the line by unethically helping athletes. Recently, the NCAA took a bold stand declaring that they  hold no legal responsibility for institutions committing academic fraud.  The McAdoo lawsuit moves through the appeals process since each court thus far has ruled that there were no justiciable claims as McAdoo was able to complete his education and had a career with the NFL. What these most recent accusations and cases (Notre Dame, UNC-Chapel Hill, and Syracuse University) shed light on are the delicate balance between the rules and questionable ethics surrounding the interpretations of these rules to keep their athletes eligible to play.

Upcoming in 2016, NCAA legislation is slated to be voted on in April to adopt more stringent academic integrity policies. Considering both the academic rigor of a four year higher education institution and the requirements of student athletes on and off the field or court, what would you do if a student came to you in crisis and told you that they needed to receive a certain grade or they would lose all funding that they relied on to pay for school and support their family? It’s easy to say “I would never,” but when responding to a fellow student that you have been serving, can you decide based on a case-by-case? 

This post was co-authored by Kayla Hotvedt and Dr. David Nguyen.  Ms. Hotvedt is a masters student in the higher education program at UND and an academic advisor for the College of Arts & Sciences

Monday
Mar072016

Bankruptcy and Student Loan Debt Relief

There are many legal issues facing today’s college students and alumni; however, one aspect that is often not discussed is what happens after graduation. Specifically, what happens when it is time for graduates to pay back tens of thousands of dollars of their student loans.

The cost of higher education has increased exponentially over the last several decades. In fact, the cost of higher education has outpaced inflation by nearly 250%. Statistically, college graduates out-earn their less educated counterparts; however, the current state of the economy and job market have made for a challenging climate for college graduates. These factors have created a trillion-dollar debt cloud. In addition to the pressure to secure full-time jobs that utilize their education expertise, recent graduates also face the pressure of paying back their student loans. As of June 2014, reported United States student loan debt is $1.3 trillion, and reports suggest that over 7 million of debtors are in default. Despite being one of the largest consumer debt categories, student loan obligations are not as easily discharged in bankruptcy as other forms of consumer debt.

Under the current law, discharging student loan debt in bankruptcy is not a patent impossibility, but it is incredibly difficult. Bankruptcy law exempts education loans from eligibility for discharge unless doing so would cause the consumer undue hardship (in some cases due to death, disability or in even in some cases public service). While “undue hardship” does not have a codified definition, courts often rely on the Brunner test to determine if the burden has been met. The Brunner test requires three criteria: (1) continuing to pay the loan must cause the borrower to be unable to sustain a minimum standard of living; (2), the borrower's financial situation must be unlikely to change in the future; (3), the borrower must have made a good-faith effort to pay his or her loans.

In one example, In re Walker, the court sided with the debtor and found that she had established an “undue burden” because she was able to prove that repayment of her student loans would prevent her from adequately providing for her family. The court took into account the debtor’s financial resources (both present and future), reasonable and necessary living expenses, and other life-situation factors that contributed to the hardship.

Last month, the Supreme Court declined to review Tetzlaff v. Educational Credit Management Corp., which posed the issues of whether the Brunner test is the proper standard for determining “undue hardship” or whether the test should be modified. The Supreme Court’s pointed refusal to address this issue lends support to the notion that courts do not favor the current standard. Furthermore, the Supreme Court’s lack of interference with the issue shows that Court is the not proper venue to make this determination. Congressional modification of the bankruptcy code is likely the best route for reframing the position on discharging student loan debt through bankruptcy. 

This post was co-authored by Morgan Wagner and Dr. David Nguyen.  Ms. Wagner is a 2nd year law student (2L) at the UND School of Law and a member of the UND Law Review