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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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Tuesday
Jul112017

Guest Post: Protecting Minors on Campus

Community colleges and universities are seeing more minors coming to campus, for example, though various summer and athletic camps, band day, dual-enrolment, and science fairs, for which they owe a duty of care. Particularly, following the large-scale abuse of minors at Penn State University, the protection of minors has become a prominent concern. In fact, in addition to the tragic consequences suffered by the young victims; the costs to Penn State related to the scandal have approached a quarter-billion dollars. This includes a fine of $2.4 million rendered by the U.S. Department of Education for violating the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). As such, it is critical that colleges and universities step up their efforts to ensure the safety and security of minors and at the same time implement policies and procedures that will help manage the risk inherent these activities.

The first step in developing a policy related to protecting minors is to take an inventory of how many activities and programs bring minors to campus. Incredibly, most colleges and universities that have sought to identify the number of minors they currently serve were surprised—even shocked—to realize that they actually served far more mi­nors than university students! While discovering where minors are on campus is the beginning of an excellent risk management strategy, it is also a critical step in the protection of children as it ensures those responsible for protecting minors know where to look.

Next, once an institution is committed to developing a course of action regarding the protection of minors there are several significant policy areas that should be considered.  Summarizing the Ten Key Measures for Protecting Minors on Campus offered by Lannon and Potter yields the following recommendations:

  1. Conduct Background Checks – all employees and volunteers that will have contact with minors should be given a complete background check. 
  2. Establish Written Guidelines and Uniform Enforcement – written guidelines for interacting with minors should be developed and procedures for identifying, reporting, and investigating suspected abuse should be implemented.
  3. Implement Two-Adults Rule – a minimum of two unrelated adults should be with minors at all times.
  4. Use Open and Well-Illuminated Spaces – programs involving minors should be held in areas that are easy to access and monitor.
  5. Report, Internally and Externally – all those involved with minors should have a clear understanding of when and how to report abuse. In most states all educators are designated as mandatory reporters (faculty, staff, administrators and volunteers) meaning it is a crime not to disclose known or suspected abuse to law enforcement and social services agencies. Abuse must also be reported to applicable campus authorities.  
  6. Apply Interim Safety Measures – policies and interim safety measures should be in place to prevent further abuse. 
  7. Conduct Prompt and Thorough Investigation – following the implementation of interim safety measures, a thorough investigation should be promptly started.
  8. Perform Audits and Assessments – abuse of minors prevention measures should be periodically audited and assessed for effectiveness.
  9. Provide Education and Training – those interacting with minors on campus should receive periodic training on how to identify situations of abuse, how to report abuse, and what actions to take to protect minors from further harm.
  10. Involve Legal Counsel – It is important to promptly involve the college or universities' legal counsel in any investigation involving the abuse of minors. This can greatly increase the effectiveness of the institutions' response and at the same time lower the risk of potential legal liability. 

At the risk of stating the obvious, even a casual review of the Penn State incident reveals that if even one of the above recommendations had been in place; it's entirely possible that the abuse would never have begun or at the very least would have been investigated and stopped in 1994 thereby sparing numerous other children from experiencing horrific exploitation and harm.

For in-depth information from a risk management perspective see Managing the Risk of Minors on Campus. This document also contains several informative appendices that include sample forms and policy statements regarding the protection of minors on college campuses.

Finally, the National Center for Campus Public Safety provides links to numerous resource materials and organizations, including sample policy documents addressing the safety of minors as well as an excellent compliance analysis regarding laws and legal issues to consider in youth-serving programs. Perhaps most importantly, the Center advises "woe to the institution that adopts policies and then fails to follow them. From a liability perspective, this is worse than not having a policy at all."

This post was authored by Dr. Thomas V. Toglia, who is an Adjunct Professor in Law and Ethics at Lenoir-Rhyne University Center for Graduate Studies in the Community College Administration Program. You can reach him at thomas.toglia@lr.edu.

Thursday
Jun292017

Call for Submissions: Laws, Special Issue

Laws -- an internationally-respected, peer-reviewed, open-access journal -- will be publishing a special issue on "Law and Higher Education."  The submission window just opened, and will remain open until December 31, 2017.  More information about the issue, including how to submit, can be located here

I encourage you to submit your work for consideration in this exciting special issue!  Submissions are not limited to tenure-stream professors, so students, adjunct professors, and others whose work involves law and higher education are actively encouraged to submit.  Please email me (rooksbyj@duq.edu) should you have any questions.

Tuesday
Jun272017

Provisions in Proposed State Campus Speech Laws Would Actually Chill Student Speech

In a piece for The Conversation, I take the position that provisions in proposed state campus speech laws to force institutions to discipline students who disrupt campus speakers would actually undercut student free speech.  The piece is available here.

Tuesday
Jun202017

Senate Judiciary Committee Free Speech Hearing

The U.S. Senate Judiciary Committee held a hearing today (June 20th) on free speech in higher education.  A link to a video of the hearing is available here.

Saturday
Jun172017

#NotJustDorms. The Fourth Amendment: Security, Privacy and Technology

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrant shall issue, but upon probable cause, supported by an Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

For over 200 years, the words of the Fourth Amendment have protected individual rights to privacy and provided safeguards against unreasonable governmental search and seizure.  On college campuses, Fourth Amendment discussions are largely centered on residence halls or student conduct processes. However, advances in technology and the prevalence of electronic surveillance and monitoring present new challenges for colleges and the courts as they attempt to balance the need to provide enhanced security against individual rights to privacy. Has interpretation of the Fourth Amendment kept pace with technology and life in a surveillance state?

Katz v. United States (1967) was a landmark decision that clarified several key points; it concluded that the Fourth Amendment “protects people not places,” that what a person “seeks to preserve as private, even an area accessible to the public, may be constitutionally protected” and finally, that unlawful surveillance need not physically penetrate a space. Foreshadowing FISA, Justices Douglas and Brennen, in concurring, further expressed concern that the ruling not be construed to offer a “green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels ‘national security’ matters.” 

Keeping Katz in mind, fast forward to the vast array of electronic monitoring, surveillance and modern technology available in everyday life.  These technological advances may force a reinterpretation of Fourth Amendment protections and legal process, particularly as it pertains to “plain view” and limited scope of search.  Digital media after all, may be stored in the ambiguous and amorphous “cloud” and its actual content may not be readily apparent by simply looking at a document or file name. A 2013 article in the Suffolk University Law Review provides an interesting overview of the challenges of “plain view” and digital evidence and discusses the impact of Rule 41 of the Federal Rules of Criminal Procedure. Rule 41 has become a flashpoint in the debate over law enforcement assertions that such intrusions are necessary in order to maintain security versus those who argue that they represent too great a threat to individual civil liberties.  

A specific example where law and regulation may be in conflict with the intended protections of the Fourth Amendment is the Stored Communications Act (SCA). While intended to bolster Fourth Amendment rights within the context of digital media, the language of the SCA was written before the creation of smart phones, social media and cloud computing its language does not take into account how these changes have changed the nature of digital content and privacy. Attempts to amend and update the SCA have failed in recent years.  The SCA has also been a factor in cases where search of cell phone data incident to an arrest has been at issue. Under established interpretation, potentially incriminating evidence or items found on the individual’s person may be allowed under “reasonable search.”  But what about the contents on a cell phone found incident to an arrest?  Confusion and contradictory rulings on this subject in People v. Diaz, State v. Smith and others, ultimately led the U.S. Supreme Court to weigh in on the matter.  In Riley v California, Chief Justice Roberts delivered the opinion, which perhaps hints at the Court’s leanings regarding future privacy and search and seizure cases related to digital communication:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans "the privacies of life," Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

Tensions between privacy and security also play out on campuses.  Recent high-profile incidents of student protest have exerted pressure on campuses to be more “transparent” and to show that they are “doing something” to address real and perceived threats. In response, there has been a proliferation of electronic surveillance and monitoring on campuses. Debate involving the use of CCTVs, electronic access, monitoring social media accounts, police body cameras and electronic or network use policies are entering into campus administrative policy debates. As the balance between security and privacy becomes more tenuous, it behooves administrators to be mindful of legal challenges to traditional interpretations of the Fourth Amendment and the implication they may have for policy and campus governance beyond residence halls and student conduct.

This post was co-authored by Ms. Connie Frazier and Dr. David Nguyen. Ms. Frazier is Executive Director of UND Housing & Dining and a doctoral student in the UND Higher Education program.