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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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Wednesday
Aug142019

Police Presence on Campus: Examining Safety for Students of Color 

In recent years, there have been several critiques on the use of force by campus law enforcement officers, also called campus police. These reports range from claims of excessive forceand claims of lack of force. In 2015, the Bureau of Justice Statistics released a 2011-2012 academic year analysisthat compares campus law enforcement statistical data to the 2004-2005 academic year. The findings show the following: 

  • 75 percent of campuses used armed campus law enforcement officers during the 2011-2012 academic year while 68 percent of campuses used armed campus law enforcement officers in 2004-2005;
  • Out of the campuses using campus law enforcement officers, 92 percent of public campuses used sworn police officers, and 38 percent of private campuses used sworn police officers;
  • 94 percent of the sworn officers used were authorized to use a sidearm (oftentimes a firearm) and pepper spray, and 93 percent were authorized to carry a baton.

It is important to note that campus police typically have jurisdiction that extend beyond campus parameters. With this in mind, consider what happens when you have locked-and-loaded officers who can wield power on and off campus and who are ill-trained to interact with people. A likely and dangerous end result is police enforcing their authority on non-students on the campus. Even with technology, such as body cameras, police behavior can be and often is upheld because “[people will] have to make [their] own determination about that [they] saw in the video because we can clearly see one hand – we can’t see the other.” Whenever this is the case, officers will always be given gift of presumed innocence, so even if there is nothing in the other hand, the victim still must prove that there was nothing in that hand. Even after proving that there is nothing in the hand, the victim still falls short for making the officer feel like something was in the hand. All in all, that presumption of innocence for officers trumps all else.

The list above contains data that is especially concerning for people of color. Even in spaces, such as college and university campuses, where students are supposed to be safe, students of color are still not able to be safe because there are officers who may shoot them for the wrong moves. The Clery Actrequires that all colleges and universities report data pertaining to campus safety and security. The 38 percent of private institutions, though, as indicated in the short list of data above, may not always follow these reporting guidelines. Note that private police are not obligated to respond to FOIA(Freedom of Information Act) requests, and because of this, there may be difficulty with verifying information reported, if was reported. Further, because jurisdiction is not limited to college/university campuses, this means that people in the community are also in dangerbecause they may encounter campus law enforcement officers. 

The ideas of safety and protection have to be re-evaluated. Trusting the police to protect all students when only 40 percent of Black Americans (compared to 68 percent of White Americans) have favorable perceptions of policebecause they feel unprotected by them is a flawed system; arming police officers and letting them run loose in presumably safe spaces without proper training and effectivity assessment further endangers students and the community. Reporting data—as required under the Clery Act—is not going to bring back lives, end harassment, or improve the learning experience for students of color. It is clear that there is no uniformity in the expectations on addressing student concerns, and that is grossly dangerous (Word to University of Utah). All in all, officers need more training, not more weapons. Because they’ll already be on the college/university beat with readily available classrooms, they are already in the place with style and grace. Let’s sign them up! 

Sharanda Norman is a mother, a faculty advisor for Oregon State University’s student government, and a PhD student at OSU studying Adult and Higher Education with a concentration on Leadership in Higher Education. Her areas of research and interests are Black women scholars, college success narratives, and equity in student affairs.

Sunday
Jul282019

Uncharted Waters: Using Social Media in Educational Institutions’ Decision-Making

The Internet has drastically changed the way individuals in society interact with each other. As social media sites are evolving, they are increasingly used around the world, and millions of individuals engage in online activity daily. While some use social media to stay connected with world news, others use social media as a platform for expression, sharing photos, videos, and communicating ideas with others. Social media has become so integral to society that the US Supreme Court ruled unanimously in 2017 in Packingham v. North Carolina that access to social media is a fundamental right protected by the First Amendment under the free speech clause. As one of the first cases that addressed the connection between the Internet and the First Amendment, the Justices claimed that cyberspace, and specifically social media sites, are public spaces where ideas should be communicated and freely exchanged. More recently, the United States Court of Appeals for the Second Court, ruled unanimously that the First Amendment prohibits officials using social media for official government purposes cannot exclude people from online dialogue. 

With the rise in social media use, especially among teenagers and young adults, more educational institutions are requesting access to social media usernames and passwords. While the majority of college staff and prospective students believe that using social media in admissions decisions is “fair game,” many others claim viewing students’ social media and using the information to rescind acceptances is an invasion of privacy. In the name of privacy protections, at least sixteen states have created and passed social media privacy laws to protect students from educational institutions requesting access to their username and/or password for personal social media accounts. Students using social networking sites may “expose them to legal liability or the loss of a degree, job or scholarship” and can cause complications if universities attempt to discipline based on social media postings.

While accessing social media may be a fundamental right as ruled by the United States Supreme Court and privacy of online content is protected in some states, posting online has not proven to be free of consequences. Most recently in June 2019, Harvard University used information obtained from online and social media sites to review and rescind an admission offer to a well-known Parkland school shooting survivor citing racist posts as the rationale to rescind admission. The prospective student claimed he changed, and what he posted a year prior does not indicate who he is as a person as he looks to transition to college. This is not the first time an admissions office has used online posts to rescind offers. Harvard has previously withdrawn acceptances from other students based on online behavior. Additionally, another student’s admission was revoked when a social media postexposed a web of lies used to gain acceptance to the University of Rochester. 

Questions concerning individuals’ First Amendment rights in concern with social media continue to rise. As courts have yet to face issues all-encompassing of free speech and social media, a review of previous court rulings will be important. Bradenburg v. Ohio confirmed that speech that does not present a clear danger should not be prohibited or penalized. Open dialogue, including social media postings, even with those that one most disagrees with is within the spirit and protection of the First Amendment’s freedom of speech clause. While many school officials may not find online social media posts in good taste or supportive of a welcoming campus environment, students’ have a right to access social media and speak freely. However, while prohibiting or punishing individuals’ based on speech for public institutions is not allowed, private educational institutions, as are the institutions above, have different abilities to preclude individuals from enrolling based on moral character established in social media posts. Public or private, educational institutions should craft clear policies on social media and students’ behavioral expectations to prepare for a new era of online public forums, the First Amendment, and challenges to campus civility. 

This guest post was authored by Jamie Storey, Interim Associate Director of Academic Advising and Assistance and doctoral student in Educational Leadership at Central Michigan University. 

Friday
Jul262019

Should free college be a legal right in the United States?

Free college tuition is a hotly debated topic especially as we edge toward another election.  In many states, community colleges have already become tuition free. Some politicians have argued that this is not enough.  Senator Bernie Sanders and Elizabeth Warren, both 2020 presidential candidates, have included tuition free higher education as part of their presidential platform. This post will explore some of the current political arguments for free higher education including some specifics of the proposals, look at the legal argument for making changes to current tuition policies, and conclude by examining how the proposal of free higher education lines up with prior rulings on education.      

Warren and Sanders are not the only ones proposing free higher education, but they have had loud voices in the fight.  Both have proposed legislative changes to make free higher education possible.  According to a piece in the Atlantic, Warren is calling for universal free public college which will be paid for with an “‘ultra-millionaire tax’ - an annual 2% tax on families with $50 million or more in wealth.” She particularly points to higher education and the subsequent debt that it results in for many families as being a burden on black Americans and sees current tuition as undercutting civil rights. As described on Sander’s webpage, he has also proposed a need for higher education, saying it is essential to compete in the global economy.  He has proposed legislation that would provide $70 billion a year in assistance for higher education tuition.  Two-thirds would come from the federal government and one-third from states.   

Some legal scholars have also taken up the argument for changes to current college tuition policies.  Heidi Gilchrist, an Assistant Professor of Legal Writing at Brooklyn Law School, has written a law review article saying that higher education is a human right.  She argues that “although the right to higher education may sound lofty or like a luxury at first glance, it is not. To deny someone with capacity access to higher education is to deny them their full dignity and potential as a human being.” She sites international law as well as civil rights and education laws including Brown v. Board of Education(1954)Plyer v. Doe(1982), and Tayyari v. New Mexico State University(1980) as support for free higher education.  In each case, the decisions included an argument that education was a right that should not be denied. 

John R. Brooks, an Associate Professor of Law at Georgetown University Law Center calls higher education “quasi-public good.” He makes a case not for free higher education but for subsidizing it through taxes and creating more income-driven repayment plans.  He argues higher education is now essential and has a direct connection to social mobility, so therefore needs to be attainable and currently is not for many people.  

As discontent grows over the cost of higher education in the U.S., the words of the U.S. Supreme Court Justices in Brown v. Board of Education, “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms,” will need to be further examined. The new question proposed by politicians and legal advocates seems to be is K-12 education enough anymore or is higher education essential? Most seem to agree that current tuition trends mean that the opportunity of higher education is not equally available to all.  

This is a guest post from Leah Arambel; she has been a professor of English for the last fourteen years and coordinator of the Reading Across the Disciplines program for the last six years at American River College in Sacramento, California, and a doctoral student in the Higher Education Leadership program at Oregon State University.     

Tuesday
Jul232019

Reasonable Expectations About Reasonable Accommodations: Transitioning to College

If you are one of the nearly 70% of high school seniors expected to enroll at a college or university immediately after high school (per the National Center for Education Statistics), it never hurts to have some idea of what to expect during your first term. And if you are among the 14% of all K-12 public school students in the United States receiving special education services under the Individuals with Disabilities Education Act (IDEA), knowing if (and how) you qualify to receive assistance is critical.

Thankfully, the laws and regulations, primarily the Americans with Disability Act (ADA), the Americans with Disability Act Amendments Act of 2008 (ADAAA), and Section 504 of the Rehabilitation Act of 1973,were designed to require most colleges and universities to provide “reasonable accommodations” for students with a disability or impairment. According to 34 CFR § 104.4, any recipients of federal financial assistance, which very likely includes your college or university, must ensure that “no qualifying handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination…” 

In order to qualify to receive assistance at a college because of a disability or impairment, an individual must meet the definitions of 34 CFR § 104.3,“(j)(1)Handicapped persons means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” Because of the ADAAA individuals with impairments that are substantially limiting when present but only experience these impairments episodically, now meet the definition of an individual qualifying for reasonable accommodations. By design, these definitions cast a wide net. 

You should note that the requirements of ADA and Section 504 are different than those required by IDEA; the goal is to prevent discrimination on the basis of an individual’s disability, not to, for example, provide specifically designed instruction or an Individualized Education Program (IEP) for students with a qualifying disability. The courts have been very deferential to the expertise of colleges and universities so long as they follow their documented processes. As such, the accommodations provided to you by the college may not be what you are expecting, nor what you have received in high school.

For example, colleges are required to provide auxiliary aids and services (i.e. notetakers, assistive listening systems, screen readers, and other devices or services, or qualified interpreters, readers, or equipment) for students with impaired sensory skills. Regulations also require colleges to provide modifications to academic requirements for things like degree timelines, additional testing time, and course adaptations. 

College are not required, however, to “fundamentally alter the service, program, or activity” in order to accommodate an individual with a disability or impairment. Reasonable accommodations are, by and large, reasonable. For example, in a 1988 case heard by the Seventh Circuit Court of Appeals, a law student was not allowed to continue with his enrollment due to his failing to meet the law school’s academic standards; although he claimed discrimination due to his disability (alcoholism). Additionally, there is some burden on the student to actually utilize the accommodations provided or the student risks the invalidity of future claims of discrimination based on disability. In Ladwig v. Board of Supervisors of Louisiana State University, a student filed a discrimination case based on the claim that the university did not provide an accommodation because it denied a retroactive withdrawal that was sought due to a recurrent depression and head injury. The student failed to utilize letters of accommodation provided to her by the university’s disability service office.

The U.S. Department of Education’s Office of Civil Rights, which enforces college compliance with the requirements of Section 504 of the Rehabilitation Act of 1973, notes that “students with disabilities who know their rights and responsibilities are much better equipped to succeed in postsecondary school. We encourage you to work with the staff at your school because they, too, want you to succeed.” As a student transitioning to college, I encourage you to get to know the compassionate professionals in your college’s disability services office. They are there to help!

This is a guest post from Mr. David Larsen, a husband, father, doctoral student at Oregon State University, and a Dean of Students at Green River College in Auburn, Washington.

Monday
Jul222019

When Do Students Pose a Threat and What are the Institutional Mandates and Authority to Respond?

The intersection of student welfare and student responsibility that exists between Behavioral Intervention Teams and student conduct offices is a complex proving ground for balancing several legal and ethical issues in the rights of individual students. Decision makers in these spaces must consider the mandate for higher education institutions to protect the safety of the broader community. Recent cases, such as Regents of the University of California v. Katherine Rosen,have made national news and have garnered significant interest in higher education circles regarding the duty to protect based on the special relationship that exists between students and the institution where they are enrolled. In the Rosencase, the California Supreme Court affirmed that “universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities”. At the same time, Barnes v. Zachary affirms that institutions of higher education cannot suspend or expel a student without due process even if officials consider the student to be a “clear and present danger”. 

Where does this leave institutions of higher education when balancing the rights of individual students and the safety of the broader community? The 2011 changes to Title II of the Americans with Disabilities Act defines a direct threat as “A significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services” and defends adverse actions taken against students who pose such a threat against the health or safety of others. This change in provisions has allowed higher education institutions to take adverse action regarding students who present a direct threat without a heightened risk of a discrimination lawsuit provided that their polices are focused on conduct rather than disability, ensure that an individualized assessment is made, consider reasonable accommodations, and ensure due process to a student even if such due process is granted following immediate removal in exigent circumstances. Importantly, the direct threat definitions have only been applied to a threat to others and not a threat to self. 

Given the special relationship, limited duty to protect, and the need to protect the due process rights of individual students, institutions of higher education will continue to need to invest significant time and infrastructure into finding the proper balance. There are already a multitude of federal regulations that place the onus of safety on colleges and universities (see Clery ActTitle IXDrug-Free Schools ActHigher Education Opportunity ActCampus Sex Crimes Prevention Act, etc.). It is likely that as in the Rosen case, courts will continue to defer towards institutional responsibility for campus safety and that “public colleges should focus more on preventing violence than getting sued.”Where the lines will be drawn on when a direct threat exists and when circumstances are clear and present enough to warrant delayed due process will likely continue to be a subject of debate in higher education circles and the court of law. What should take precedent? Student rights to due process, student rights to protection from students who pose a threat, or some combination of the two?

This guest post was authored by Mr. Eric Scott,  Dean of Students and Campus Life at the University of Alaska Southeast in Juneau, Alaska, and is currently a doctoral student in the Oregon State University Adult and Higher Education Program.