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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.

Wednesday
Apr182018

College Justice, Where Are You? 

Imagine being a college student who has falsely been accused of sexual assault; then imagine you were suspended or expelled from college simply because of these allegations. No hearing, no courts, no due process. College is supposed to be a new and exciting time but for a third of male college students this is not the case. It is estimated that 1 in 3 male college students will suffer this fate.  False accusations are occurring more than they should and the sad part is these students will be failed by a system which should be equally protecting them.

Under Title IX of the Education Amendments of 1972, campuses are required to prevent and remedy sexual assault cases or they face losing federal funding. In the past, campuses have had a reputation for not taking students’ complaints of sexual assault seriously; so, federal mandates have been put in place beginning with the Obama administration reinterpreting Title IX to the U.S. Department of Education’s Dear Colleague Letter. These mandates have put pressure on campus to find more accused students responsible, instead of the truth of the allegations. According to the Department of Education’s regulations, state schools must have a “prompt and equitable” procedure for resolving sexual assault complaints. These mandates also included adopting a “preponderance of evidence” standard. Under the preponderance of evidence standard due process is non- existent, meaning a hearing is not required, the accused does not have the right to appeal or have an attorney, and campuses are discouraged from permitting cross-examinations. Because of these mandates and regulations, the accused students are being suspended and expelled without the protections they would normally receive in the criminal justice system.

Secretary of Education Betsy DeVos announced she is moving to end the sexual assault procedures on campus set forth by the Obama administration. DeVos mentioned the current Title IX policies often denied due process to the accused, and that is what they are looking to change. Some feel this allows campuses to weaken their procedures for handling sexual assault cases and makes it more difficult for victims to seek justice. While others feel it will allow the accused a fair investigation.

There are detrimental effects for those who have been falsely accused of sexual assaults. In the case of  Andrew Doe v Ole Miss, a third party, who is unnamed, claimed “Andrew Doe” sexually assaulted “Bethany Roe.” Although Roe and Andrew both claimed they had consensual sex, Doe was never formally charged with a crime and Roe never filed a complaint. The University Judicial Council found Andrew guilty and expelled him from the university. The charge is permanently on his record. In Zackary Hunt vs. Denison University and Sophia Celeste Lee,  Zackary Hunt lost a $30,000 scholarship and his place on the University’s football team when he was falsely accused of sexual assault. In Joshua Strange v Auburn University, a grand jury failed to indict Joshua Strange in criminal court but Auburn University found him in violation of the student code of conduct and expelled him from the University. 

Over the last eight years more students are starting to sue colleges when they feel campuses violated their rights under Title IX.  In the case John Doe v. Swarthmore the college was accused of violating “John Doe’s” student rights after he was falsely accused of sexual misconduct. John Doe won and the suspension was lifted. This is not the norm; however, as cases seldom win in criminal court, but the costs for colleges to defend themselves is adding up. Nothing can replace the reputation lost or the mental and emotional toll false accusations take on accused students. With the help from lawyers, parents, and advocacy groups falsely accused students can fight back. While these students believe, their rights have been taken away, anti-rape advocates see it a different way. Anti-rape advocates believe that colleges are now paying more attention to sexual assaults on campuses and offenders are starting to cry foul. They believe most people who are accused of sexual assault would contend that they are innocent. 

Sexual assault on campus is a serious problem. There are not many educational issues debated more than how colleges should deal with sexual misconduct. Of course, Title IX has its challenges, all policies do, but regardless, protocols should be clear that ALL students are protected equally. Have efforts to protect sexual assault victims lead to policies that infringe on the civil right of men?  

This post was authored by Jessica Sherwood, a masters student in Higher Education Administration at The University of Texas at San Antonio. 

Monday
Apr162018

The University is to Blame for My Child’s Death

Student suicide is a topic that needs further discussion considering suicide is the second leading cause of death among college students. Student suicide received national attention when universities made attempts at suicide prevention by placing physical barriers that close access to common suicide locations. The popularity of the Netflix show “Thirteen Reasons Why” also brought a lot of attention to the issue, so much so that universities made dedicated websites to address students’ concerns. A large factor for these high suicide rates are all the pressures college students face, both inside and outside of the classroom. Since college students often live on campus and are seen as members of the campus community, some feel that universities are to blame when students take their own life.

Historically, colleges have not been held responsible for the suicides of their students. For a college to be held liable for their student’s suicide, they need to have had a duty to prevent the suicide. For an organization, such as a college, to have a duty to prevent a suicide they need to have a “special relationship” with the student and have knowledge of the student’s suicidal tendencies. Colleges were not believed to have a “special relationship” with students since this was typically reserved for professionals, such as doctors and psychiatrists, who are directly involved in a person’s health. In Jain v. The State of Iowa and White v. University of Wyoming, the courts reaffirmed this notion when they found that colleges had no legal responsibility to prevent suicide since they are not viewed as healthcare providers. However, future court cases challenged what constitutes a “special relationship” between students and the schools they attend, which have created a dilemma for colleges.

In Schieszler v. Ferrum College the courts changed the finding that colleges do not have a duty to protect students from suicide when they ruled that Ferrum College was guilty of negligence in their student’s death. The school knew about the student’s mental health issues and did not do enough to provide care to the student. Shortly after this case, in Shin v. Massachusetts Institute of Technology, the school was placed in the same situation due to the knowledge the counseling service staff had of the student’s suicidal tendencies. The courts found that the counseling staff had a duty to protect the student, but the school decided to settle the case out of court instead of going to trial. These cases, among others, set a precedence that schools who have knowledge of a student’s likelihood to commit suicide can be held responsible if the student does take their own life.

Liability for student suicide puts schools in a tough situation when trying to formulate ways to prevent student suicides. Some colleges have policies that allow them to prevent students from attending school or living on campus to avoid the risk of having students commit suicide on campus noting that they are a danger to themselves or others. This type of policy can be difficult since dismissing students for suicidal behavior has been challenged in the courts as a violation of the Americans with Disabilities Act (ADA). Colleges could refer students to outside resources instead but this might make it more difficult for students to receive adequate help or make them less likely to pursue assistance. On the other hand, colleges might want to have a very active role and provide comprehensive services to students. In doing so, they then accept the responsibility of having a duty to protect the student. If the student does commit suicide, the college runs the risk of facing lawsuits for not protecting the student.

Should schools take a hands-on approach or leave severe mental health issues to outside services? There is no standard answer to this question but as suicide garners more national attention, hopefully school practices will get more attention and their efforts will find a happy medium.

This post was authored by Carlos Velez, a masters student in Higher Education Administration at The University of Texas at San Antonio and is an advisor at Northwest Vista College. 

Monday
Apr162018

Fraternity pledge gone fatal

Join a fraternity or sorority it will give you a social network, everlasting bond, brother hood, strong lifelong friendships and career advancements they say. Obviously, students can accomplish all these things without pledging and being part of an organization. A big part of pledging is becoming familiar with the fraternity: learning about every single member and learning about the history of the fraternity and the Greek system. The other big part of pledging is proving oneself worthy to be a brother. Will the pledge uphold the ideals of the fraternity? Will he be someone they are proud to call a brother? What happens when you pledge?

Hazing in college has been around since 387 B.C, at Plato’s Academy. In some cases, it has been around as long as the organizations themselves were established. More people have taken notice of the extreme college hazing occurring at universities. Some are rituals and others considered as hazing. Hazing, is any intentional, knowing, or reckless act occurring on or off the campus of an educational institution, directed against a student, that endangers the mental or physical health or safety of a student for the purpose of pledging, being initiated into, affiliating with, holding office in, or maintaining membership in an organization. What is the difference between hazing and bullying? Is it illegal?

At this time, there are no federal laws that look at the issue of hazing. Federal anti-hazing law has been proposed but never made it to the floor of the House of Representatives or US Senate. Most states have laws regarding hazing, 44 out of 50 states have laws . Alaska, Montana, South Dakota, Hawaii, Wyoming, and New Mexico do not have anti-hazing laws. The University of New Mexico, has a zero tolerance policy for hazing but the state of New Mexico does not have a law prohibiting hazing. States have different definitions and punishments for hazing there is no commonality among universities on how they handle hazing incidents that occur on campus. Without laws is there no violation? Is it not a crime?

Some of the organizations blur the lines between hazing and torture. For example, a TCU sophomore of Kappa Sigma consented to some of the branding of his backside. After the student fell into a heavy, alcohol-induced sleep, his "brothers" took liberties with his earlier consent. The Kappa Sigma members pulled his shorts down and continued the branding process, targeting another area of the young man's rear while knocked out without consent.  Question is, off-campus house/chapter events governed by University policies. A University of Texas Lambda Phi Epsilon pledge died from acute alcohol poisoning. Six pledge brothers were required to chug a handle of Bacardi rum while more than 30 fraternity brothers chanted along, challenging the pledges' manhood and loyalty to Lambda Phi Epsilon. His face was then marked numerous anti-gay epithets and obscene drawings.

Universities prefer to turn a blind eye to hazing because they want to avoid the public scrutiny that comes with being at the center of a major campus crime. To help avoid public scrutiny, some universities use the Family Educational Rights and Privacy Act ("FERPA") as a shield to avoid reporting hazing incidents that occur among university. In the Texas Education Code in  to Section 37.153 , if an organization commits an offense under this section, hazing is a misdemeanor. Is the cost of a life a misdemeanor charge and a $5,000 fine? What is the difference between bullying and hazing? Who is to blame? 

This post was authored by Jessica Redwine, a masters student in Higher Education Administration at The University of Texas at San Antonio and a Pre-K teacher in the Edgewood Independent School District. 

Monday
Apr162018

Just for the record, It’s not a pet: Emotional support and service animals on college campuses

When students think of college the first thing that comes to mind is the responsibility of living on their own, and all that comes with that new-found freedom. As young adults, living on campus can be a bit overwhelming and exciting. Students who are adjusting to having freedom and limited housing rules and policies can struggle with this new challenge. For students living in on-campus housing it is very important they understand the housing rules and policies, the university student code of conduct policy, the Fair Housing Act, Title XI, and their rights as a student. Every student attending a public institution has rights under the U.S. Constitution. Policies may vary based on if the institution is public, but over the years college housing has seen a growth in students and their furry little friends joining the community. From my experience working in student housing, students are struggling to submit documentation for their emotional support and service animals. With the new-found focus on emotional support and service animals it is best to educate both students and housing professionals on such issue.

Many students with disabilities and mental health concerns are encouraged by their doctors to apply for an emotional support or service animal to aide them with their everyday life. Students in need of such animal requirements have every right to have their support animal join them in on-campus housing under the federal Fair Housing Act. It is very important that the university housing program has an emotional support and service animal policy in place to better support the students with disabilities. Failure to do so will violate the Fair Housing Act, as what happened in the United States of America v. Kent State University, et al. case. The issue many housing professionals see with emotional support animals and service animals is the student’s ability to alibied by the university and on-campus housing policy in regard to such animals. For example, The University of Texas at San Antonio requires individuals with disabilities who are requesting an ESA/SA in UTSA housing to provide appropriate documentation to the Documentation Review Committee in Student Disability Services. Typically, on-campus housing requires the student to provide proper documentation that supports both student and animal. For example, student must provide the animal’s most recent shot records, a photo or photo I.D. of the animal, a completed copy of the university addendum for Emotional Support Animals, and supporting documentation from a doctor stating that there is a need for the student to have a support animal or service animal. Once the ESA/SA is approved to live in on-campus housing, the student has to maintain their living space.

Although both ESA/SA are supported by most institutions, it is important that students understand the difference between the two types of animal requirements. The September 2010 Department of Justice ruling defined a recognized service animal as a dog. Universities and housing professionals are not allowed to ask any questions pertaining to the student’s disability or the type of training the service animal has undergone. In the Alejandro v. Palm Beach State College case, the university over stepped their boundary when they asked the student to describe her need for the service animal, how the dog had been trained to signal an attack, and when a professor found out the student’s disability, he advised the student not to bring the service animal to class. Of course, the court ruled in the student’s favor due to the violations to Title II of the American with Disabilities Act.  Universities and higher education professionals have no such right to make such call.

Emotional Support Animals are defined as an animal that provides emotional and therapeutic support to individuals suffering from emotional issues, psychiatric problems, or anxiety. A cat or dog is normally recognized as an ESA, but other animals like snakes, pigs, etc. can also be a registered ESA. Universities and housing professionals should never rely on their own judgment to determine if a student should be approved or is in need of an ESA. In the United States v. University of Nebraska Kearney case the university inquired about the student’s need for the ESA and refused to accommodate. No matter the university or housing professional’s personal opinion on ESAs, the laws and policies in place for ESA trumps any opinion, personal belief, or values. 

Now that you have been informed about Emotional Support and Service Animals, how would you handle or approach when faced with such challenges?

This post was authored by Trenshaé Gilbert, a masters student in Higher Education Administration at The University of Texas at San Antonio and an assistant director of residence life at UTSA for Campus Living Villages

Wednesday
Apr112018

Fifty Shades of FERPA: How Universities and Athletic Programs Use FERPA as Their Personal Loophole

FERPA is the Family Educational Rights and Privacy Act. It places significant limitations on colleges’ disclosure and handling of student records. These limitations and regulations apply to all public and private colleges or any institution that receives federal funding. FERPA dives deeper when we look into collegiate athletes. The NCAA (National Collegiate Athletic Association) requires all collegiate athletes to fill out a consent form, agreeing to disclose educational records to the association that are covered by FERPA. Manipulation becomes a problem with FERPA since there are so many vague shades to it. In recent years, athletic programs and universities use the many “shades” to find a loophole or try to use FERPA to protect its reputation and cover up scandals.

In 2011, The Ohio State University Football Coach Jim Tressel received an email about his football players exchanging football jerseys, rings, and signatures for tattoos. Tressel decided to only email his mentor and keep it concealed. Once this information leaked, ESPN requested information regarding Tressel’s emails and he denied them three times. ESPN then filed a case against The Ohio State University. The court ruled siding with The Ohio State University that Tressel’s emails were deemed “educational records” and exempt from disclosure to ESPN.

In 2013, Knightnews.com filed to obtain public records from The University of Central Florida. However, when they received the records, The University of Central Florida had redacted records on fraternities’ disciplinary hearings, amongst other matters, claiming they had the right to redact the information under FERPA. Knightnews.com sued The University of Central Florida because they thought redacting this information was illegal.  In 2014, a circuit court judge agreed with The University of Central Florida that the redactions were legal. This case was used to show how state open records laws yield to FERPA. This resulted in KnightNews.com losing six out of the seven counts that were filed.

In 2016, the University of Kentucky filed a suit to appeal that the university violated the Open Records Act in the investigation of former associate professor James Harwood. The University of Kentucky provided Harwood’s settlement but failed to mention any of the accusations the Kentucky Kernel was looking for. The University of Kentucky claimed they could not release any information about the investigation because the information were “educational records” under FERPA. Before the case could reach a hearing, Harwood resigned. Hardwood’s victims will not have a chance to appeal and this case will not inform future employers if he applies elsewhere.

These cases show how some universities are using federal law to hide their scandals and as a way to save their reputations. In 2018, an article by Zach Greenberg mentions the more universities use FERPA to hide damaging information about their athletic program or about their university, the seriousness of student safety consequences increases. If these agencies think they can hide a rape case from “getting out,” this can lead to an increase in sexual assault on campuses because students then think they can get away with it. Just the same with the athletes from The Ohio State University. Since they got away with exchanging collegiate goods and memorabilia for tattoos, what is to stop other student athletes from thinking they can do something that is on par or worse? FERPA needs to be more clearly defined, as the many “shades” can provide a loophole to those interpreting it. Once FERPA is clearly defined, no longer will members of athletic programs and universities get to escape scandals unscathed. No longer do athletic programs and universities get to hide behind FERPA. We can finally end the trend of these reoccurring loophole cases involving FERPA.

This post was authored by Roberto Moya, a masters student in Higher Education Administration at The University of Texas at San Antonio.