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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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NLRB rules on Northwestern U football, this time regarding social media

In late September (and released last week), the National Labor Relations Board regional office issued an advice memorandum striking down portions of Northwestern University's media policy governing student-athletes interactions with the media as well as their own social media postings.

Among the items that NLRB found too restrictive were the university's requirement that media interviews be pre-arranged by the athletic department, and that student-athletes were not allowed to speak of their health or grievances with the team or other players on their private social media accounts.

Finding that such restrictions were "unlawfully overbroad," the NLRB did allow Northwestern to amend its policy to restrict posting nude photos, sexual or racial epithets, and photos depicting hazing, harassment, weapons, and substance use. This was done to strike a balance between players' rights and team management.

The ruling applies only to private institutions participating in NCAA football. Public institutions would be governed by their respective state labor laws.


Status quo for the status quo in college athletics

Earlier this week, the Chronicle of Higher Education reported that the U.S. Supreme Court declined to hear the NCAA's appeal in the much-publicized Ed O'Bannon case, leaving stand an appellate court decision that upheld a district court ruling finding that the practice of utilizing players' likeness and image without compensation--even after the student-athletes' playing days were over--violated antitrust law. Those from the student-athlete camp were hoping that a Supreme Court ruling might broaden the issue so as to mandate compensation for live and archival broadcasts. (The appellate court struck down the district court's ruling that players receive in trust $5,000 per year of eligibility, citing that this went against the NCAA's historic practice of preserving the ideals of amateurism.)

The issue, however, is not dead. Slated to appear before the same California district court judge that ruled in O'Bannon is the case of Martin Jenkins, who argues the NCAA violates antitrust law by capping athletic scholarships. He argues that student-athletes should be able to compete for the best grant-in-aid, based on their desirability among college recruiters.

For more on the Jenkins case as reported by Sports Illustrated, click here. For previous coverage on the O'Bannon case on this blog, click here and here.



Tinkering with Tatro: When Social Media Posts Violate University Academic Program Standards 

In Tinker v. Des Moines Independent Community School District, the Supreme Court stated that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  The Court reinforced the importance of freedom of speech in schools in promoting citizenship and the marketplace of ideas.  However, the Supreme Court also recognized that schools need to maintain order and discipline to advance their mission. In Tinker, the court held that schools may discipline students for speech that causes, or can reasonably be predicted to cause, a “substantial disruption of or material interference with school activities.”  Although it was decided in 1969, Tinker remains a key case on student free speech. However, social media, such as on Facebook and Twitter, is causing higher education administrators to expand the bounds of the university’s authority to discipline off-campus posts. 

Tatro v. University of Minnesota is a compelling example for this need of further definition of the boundaries of student free speech on social media as it relates to violations of academic program rules.  There is danger of public universities applying the standard from the Tatro case too broadly resulting in diminished students’ rights to expression while they are off-campus.  Tatro, a mortuary science student at the University of Minnesota, posted statements on Facebook in 2009 that were found to be in violation of the university’s student code of conduct.  The posts were deemed to be threatening by the University’s Campus Committee on Student Behavior (CCSB) and in violation of the Mortuary Science academic program rules, with the latter being the more serious charge.  Sanctions were administered, including an F in a single lab course, but Tatro was allowed to continue in the program.  Tatro appealed this decision arguing that the University violated her free speech rights.  The decision of the CCSP was upheld by the provost.  Ultimately, the Minnesota Supreme Court upheld the university’s decision.

Tatro’s argument was that public university students are entitled to the same free speech rights as members of the general public.  Tatro cited Healy v. James, that “state colleges and universities are not enclaves immune from the sweep of the First Amendment” and further, that colleges and its surrounding environs are peculiarly the ‘marketplace of ideas.” However, the main charge against Tatro was the violation of the Mortuary Science program rules that required cadavers to be treated with “the utmost respect and dignity” and the conversation outside labs about human dissection should be respectful and discreet.  Blogging about the anatomy lab or the cadaver dissection was expressly prohibited.  The discipline concentrated on the following four posts:

  • ·      Amanda Beth Tatro Gets to play, I mean dissect, Bernie today.  Let’s see if I can have a lab void of reprimanding and having my scalpel taken away.  Perhaps if I just hide it in my sleeve.
  • ·      Amanda Beth Tatro Is looking forward to Monday’s embalming therapy as well as a rumored opportunity to aspirate.  Give me room, lots of aggression to be taken out with a trocar.
  • ·      Amanda Beth Tatro Who knew embalming lab was so cathartic!  I still want to stab a certain someone in the throat with a trocar though.  Hmmm., perhaps I will spend the evening updating my “Death List #5” and making friends with the crematory guy.  I do know the code.
  • ·      Amanda Beth Tatro Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next week.  I wish to accompany him to the retort.  Now where will I go or who will I hang with when I need to gather my sanity?  Bye, bye Bernie.  Lock of hair in my pocket.  

The university argued that it acted within its constitutional rights when it enforced academic program rules that are “reasonably related to the legitimate pedagogical objective of training Mortuary Science students to enter the funeral director profession,” citing the Hazelwood legitimate pedagogical concerns standard. The Hazelwood “school-sponsored” speech standard comprises “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”  Expressive activities include those that are characterized as part of the curriculum, in or out of the classroom, as long as they are supervised by faculty and designed to impart knowledge. Are a student’s private Facebook posts within the scope of the legitimate pedagogical concerns standard?  Applying this standard would give universities broad authority to constrain controversial or offensive social media activity by requiring only that a school’s actions be “reasonable related” to “legitimate pedagogical concerns.” This may be creating a slippery slope.

Ultimately, the Minnesota Supreme Court determined that Tatro’s speech was not protected because her Facebook posts violated the Mortuary Science program’s academic rules, which were narrowly tailored and directly related to professional conduct standards widely recognized in the profession.  The ACLU of Minnesota expressed disappointment with the decision stating that Tatro’s speech should have been protected, but they were pleased the court rejected applying the Tinker standard.  

Levin (2016) notes that despite the proliferation of student speech on social media, federal and state courts remain divided on how much First Amendment protection should be granted to students’ off-campus social media posts.  Beckstrom (2008) stated that the discipline of off-campus speech should be carefully considered limiting speech that can be classified as a true threat or crime.  The Tatro case highlights the need for greater definition of the boundaries of restriction on student speech in post-secondary schools.  

This post was co-authored by Ms. Shannon Jesme and Dr. David Nguyen. Ms. Jesme is Vice President for Administrative Services at Northland Community and Technical College and a Ph.D. student in the UND Higher Education program. 


When Personal Identity Expression Equals Harassment and Discrimination

Individuals within a society develop norms or social expectations of what is believed to be normal, which is then interpreted as acceptable.  These norms inform people’s perceptions and reactions to how others, as well as themselves, behave.  When the behavior or self-presentation of an individual does not conform to these societal beliefs, the individual is likely to experience a low level of acceptance.  Frequently, an individual who is gender-nonconforming faces being excluded as well as negative and sometimes detrimental experiences of harassment and discrimination.  People who do not conform to socially normed gender identities that are framed by traditional sex roles, in alignment with their sex or birth-given anatomy, are seen as resisting the socially created expectations of gender and sex, and they are given the label of transgender.

While sex has been a protected class in employment under Title VII of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972 was written specifically for the protections of individuals based on their sex to be free of discriminatory actions within educational programs receiving the benefit of federal financial aid. Gender identity has been recognized as a separate protected class by several states; however, these inclusions are not as helpful given the narrow parameters in some states. 

There are some legal cases that inform the possible inferences that may be made under Title IX, providing for the application of these protections to non-gender conforming students as well.  Notably, decisions from the United States Supreme Court are considered law of the land, and decisions involving Title IX are often informed by prior decisions involving Title VII.

In the case of Price Waterhouse v. Hopkins (1989), the United States Supreme Court heard the matter of an employee who complained that she was denied a partnership opportunity within the business due to her sex under Title VII protections. The Court’s decision included a resulting concept referred to as the sex-stereotyping principle, which provided for the plaintiff to develop her complaint by explaining how she did not conform to stereotypical behaviors as a woman. Consequently, the Court found that her lack of gender conformity behaviors resulted in discrimination based on sex when she was not offered the partnership.

In the case of Davis v. Monroe County Board of Education (1999), the United States Supreme Court heard the matter of student-to-student harassment that was directed at the complainant based on her sex under Title IX protections.  The Court decided that the harassment the student complainant experienced was severe enough to limit her from the educational opportunity.   The Court created clear standards in evaluating the harassment and application of Title IX, specifically how the behavior limited the student’s entitled equal educational opportunity.

There are additional court cases in United States District Courts in California (Ray v. Antioch Unified School District, 2000), in Minnesota (Montgomery v. Independent School District Number 709, 2000), and in Kansas (Theno v. Tonganoxie Unified School District Number 464, 2005) that have been heard as matters of sex-based harassment as protected under Title IX, referencing the prior decisions in Price Waterhouse v. Hopkins as well as Davis v. Monroe County Board of Education in evaluating the facts.  They include instances of verbal and physical behaviors towards individuals of the same sex that are based on the complainants’ sex, sex stereotypes, and the complainants’ deprivation of equitable educational opportunities.  Both the Ray and Theno cases were decided with findings for the plaintiffs

 The newest information to the topic of defining sex and gender as protected classes is the joint statement issued on May 13, 2016, from the United States Departments of Education and Justice, regarding the civil rights of transgender, or gender non-conforming, students.  In the guidance, clear expectations were set for ensuring transgender students’ civil right protections as covered by Title IX.  This guidance explicitly states relevant gender and sex related terminology and compliance matters in providing an “inclusive, supportive, safe, and nondiscriminatory [community] for all students.”  Given the newness and already stated opposition, there may be some states and educational institutions that delay in recognizing the legitimacy of transgender students.

It is important for all members of society to understand those around them.  How does the society grow and allow norms to change as individuals in the society may no longer conform to previous narrow beliefs?  How do educational institutions create the spaces for gender non-conforming students, as well as faculty and staff, to feel not only welcome but safe to participate in all of the educational programs?

This post was co-authored by Ms. Ashley Atteberry and Dr. David Nguyen. Ms. Atteberry is Director of the Office of Student Conduct and Resolution at the Minnesota State University - Moorhead.  Ms. Atteberry is also a Ph.D. student in Higher Education at the University of North Dakota. 


Reasonable Accommodations: What are they and who decides?

Federal legislation has increased access to higher education for students with disabilities. Specifically, the passage of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) in 1990 and ADA Amendments in 2008 have aided more students with disabilities applying for and admitted to higher education institutions in the United States than ever before. Estimates from the National Council on Disability suggest approximately 20% enrollment growth in higher education students with disabilities between 2003-2009. Approximately 11% of undergraduates reported having a disability according to National Center for Education Statistics during the 2011-2012 academic year.

With an increase of students with differing abilities, campus members are learning the terminology and implications of legislations for students.  For example, the ADA defines an individual with a disability as a “person who has a physical or mental impairment that “substantially limits” one or more major life activities, a person who has a record of such an impairment, or a person who is regarding as having such an impairment.”  In addition, Section 504 of the Rehabilitation Act of 1973 and the ADA define a “qualified person” as someone that is able to meet the requirements of the program, with or without reasonable accommodations. 

In addition to terminology, transitioning students from secondary education to higher education requires an understanding of different processes.  Section 504 and ADA indicate that students in higher education must self-disclose and be able to provide necessary documentation demonstrating a qualifying disability prior to receiving “reasonable accommodations.”  There is no obligation that requires disclosure if accommodations are not being sought. Issues can arise as federal statute and regulations do not define “reasonable accommodations.”  While the terminology “reasonable accommodations” is not entirely clear or objective, Zantal-Wiener (2008) offers the following definition: “Reasonable accommodation can best be defined as: a modification or adjustment to a course, program, service, job, activity, assessment, test, or facility that enables a qualified individual with a disability to have an equal opportunity to attain the same level of performance or to enjoy the same benefits and privileges that are available to an individual without a disability.” 

A number of cases have examined these issues.  In a recent case, Chin v Rutgers, the plaintiff was provided accommodations throughout her academic career, but after several medical leaves and difficulty passing national examinations the university dismissed her.  Defendants maintained the plaintiff could not show she was “otherwise qualified” for the school’s medical program.  Defendants also stated that approving further requested accommodations would have “fundamentally altered” the nature of the academic program thus posing a threat to the integrity of the medical program.  The Defendants’ motion for summary judgment was grated in full.

In Maczaczyj v State of New York, the student requested an accommodation asking to complete an in-person residency portion of an academic program using a speaker telephone instead.  Defendants argued that the pedagogical purposes of the residency program could not be met via speaker phone.  In this case, the students’ accommodations request was found to be unreasonable.  The intent of “reasonable accommodations” is not to alter the technical standards of the academic program or cause undue burden to the institution rather the intent is to level the playing field for students with disabilities, not to have any advantage over any other student. 

In D’amico v New York State Board of Law Examiners, a student with a severe visual disability requested and was awarded testing accommodations for the completion of her bar exam including large print, use of a lamp, separate exam location, and extra time.  While the defendant disagrees with the accommodations being “reasonable,” the court maintained that the Defendant had no expertise in this specific case thus the court trusted the medical opinion of the student’s treating physician.   

While the process of determining a student’s qualification for classroom accommodations is rarely clear cut, determining “reasonable accommodations” for internship placements can be even more unclear.  A recent article in the Journal of College and University Law provided a framework to apply standards and accommodations for students in clinical programs.  With the increase of students with disabilities attending higher education, naturally there has been an increase of students entering professional courses with practice placement or internship components.  It can be difficult for practice educators to fully grasp the implications of legislation when supervising a student with a disability.  There clearly needs to be an open communicative process between student, internship coordinator, practice educator, and disability support professionals.  The bottom line is that placement settings, site demands, and expectations may vary but professional standards must not be lessened.  

This post is co-authored by Ms. Cherie Graves and Dr. David Nguyen.  Ms. Graves has a masters in occupational therapy (MOT) and is a registered/licensed occupational therapist.  As a faculty member in the Department of Occupational Theapy at the UND School of Medicine and Health Sciences, Ms. Graves is advancing her education by obtaining a Ph.D. in Higher Education.