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Friday
Jul292016

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. 

Friday
Jul292016

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.  

Thursday
Jul282016

The Nation’s Bathroom Debate: Equity for Transgender Students in our Public Schools

Transgender student use of sex-segregated restrooms and locker rooms in the nation’s public schools and universities has certainly caught the attention of the education community and the general public.  The question has been raised whether or not the word “sex” as stated in the Title IX Educational Amendments of 1972 refers to both biological sex and gender identity.  While the interpretation of the courts remain inconclusive, a number of states have passed legislation supporting transgender student use of public facilities that match their gender identity. 

For example, the state of California enacted the “School Success and Opportunity Act.”  This act allows transgender students to participate in sports and use restrooms/locker rooms of their chosen gender identity.  Also, the Colorado Civil Rights Division became the first governmental body in the United States to rule that a six-year old transgender girl be allowed to use the girls’ restroom at school.  And finally, the Maine Supreme Court heard the case Doe v. Regional School Unit (2014).  The high court became the first state court in the United States to rule that a transgender girl has the right to use the girls’ restroom. 

Contrary to the aforementioned states, a number of states are not in alignment.  Unlike the states that have employed legislation on this issue, many states, like North Dakota, have not acted legislatively nor judicially on this matter.  In addition, many of these states feel that Title IX’s definition of “sex” refers to biological gender not gender identity.  These states have sued the Obama administration over the recent Dear Colleague Letter.

The recent letter issued by the U.S. Department of Education’s Office of Civil Rights in May 2016 ordered schools to accommodate transgender students with the choice of using restrooms and locker rooms that match their gender identity.  North Dakota, including eleven other states, believe that the U.S. Department of Education’s unilateral decision is a direct overreach by the federal government.  The plaintiffs involved in this lawsuit feel that threatening to withhold federal funds from schools denying transgender students the right to use the restroom of their choice is unconstitutional since the dictated requirements by the U.S. Department of Education’s Office of Civil Rights did not go through the proper process of law making. In this situation, these states believe that that it is the job of the U.S. Congress or the federal courts to interpret the application of Title IX and transgender bathroom usage, not the executive branch.

The U.S. Department of Education’s Dear Colleague letter followed a 4th Circuit ruling permitting a transgender boy to use the boys’ restroom and locker room.  Previously, the majority of the cases that involved transgender individuals were employment issues under the Title VII of the 1964 Civil Rights Act.  These rulings laid the foundation for courts to recognize sex not as just a set of chromosomes but also gender identity (e.g. Schroer v. Billington (2008), and Macy v. Holder (2012)).  

G.G. v. Gloucester County Board (2016) is the first case that a court in the United States ruled that Title IX does in fact protect the rights of transgender students to use facilities based on their gender identity.  On June 11, 2015, G.G. sued the Gloucester County Board of Education in federal district court.  G.G. was seeking an injunction from the court allowing him to use the boys’ restroom.  In addition to the injunction, G.G. claimed that the school board discriminated against him, which was a violation of Title IX’s Education Amendments Act of 1972 and the Equal Protection Clause in the 14th Amendment of the U.S. Constitution.  The district court denied his request for an injunction and dismissed his claim that a violation of Title IX occurred.  The court held that Title IX prohibits discrimination on the basis of sex and not the other concepts such as gender identity and sexual orientation.  Moreover, the district court ruled that G.G.’s gender was female and that requiring him to use the female restrooms was not discrimination on the basis of sex under the provisions in the Title IX Education Amendments of 1972.  In addition, the court ruled that the board requiring G.G. to use unisex restrooms pending the decision of the court was not burdensome and caused less hardship from other students being uncomfortable with G.G.’s presence in the restroom. 

G.G. appealed his case to the federal 4th Circuit Court of Appeals.  The court determined that Title IX is black and white when it discusses the creation of segregated male and female restrooms in schools.  However, the statute is silent in how schools should respond to transgender students. Moreover, the regulations are unclear on which facilities transgender individuals who had completed sex-reassignment surgery or individuals who lost genitalia in an accident should use. The 4th Circuit ruled in favor of G.G. indicating that Title IX does in fact protect the rights of transgender students to use sex segregated restrooms based on their gender identity.   

Although this interpretation only applies to the 4th Circuit, it does indeed establish precedence when a case similar to this reaches the U.S. Supreme Court.  Until then, while twelve states have differing opinions on the transgender issue than the federal government, public schools and universities are to comply with the DOE’s Dear Colleague Letter until any ruling from the courts.

This post is co-authored by Mr. Scott Klimek and Dr. David Nguyen.  Mr. Klimek is a 5th grade teacher in Fargo Public Schools and an adjunct professor at Minnesota State University - Moorhead.  Mr. Klimek is also a Ph.D. student in the Department of Educational Leadership at the University of North Dakota

Thursday
Jul282016

On Penalties, a “Hail Mary,” and College Receiver(ship): An Update on St. Catharine College

Forgive me. With football season around the corner, I couldn’t resist the headline, but a story out of Kentucky—involving regulatory law, financial aid, a college founded by the Sisters of St. Dominic, and the federal courts—has been making national headlines. With a rare federal court order for the receivership of a college out this week, the story bears discussion on our blog. But first, a bit of backstory.

In June, St. Catharine College, a non-profit, Catholic college located near Springfield, Kentucky, announced that it would close at the end of July, due to capital construction deficits and its ongoing dispute with the U.S. Department of Education over student aid that it claimed the Department withheld. In fact, the college had been in a protracted battle with the Department for the last few years, which imposed its strictest sanction—heightened cash monitoring status—on the college one year ago over concerns about the college’s management of federal financial aid funds.

While most schools with cash monitoring status are for-profit colleges, St. Catharine College was one of 103 private, non-profit colleges on the list of 528 schools, as of March 2016, sanctioned by the Department with some form of cash monitoring. The college’s closure highlights the existential threat posed by the monitoring status not just to for-profits, but also to non-profits.

Although the college sued to block its sanctioned status, its “Hail Mary” legal volley did land come in time to save the college. However, a federal court released an order this week that the college’s property and assets will be placed in receivership. The court-appointed receiver in this case has been charged with managing the existing college property and assets and preserving college property where feasible. 

While Rule 66 orders appointing a receiver are more commonplace for settling company wind-up and personal estates, this order involving the disposition of college property is unique. It is akin to the court acknowledging that the Catholic college—or at least its physical plant—is entitled to the equitable remedy of life after death. What management in receivership ultimately means for the college and its property is anyone’s guess, but the federal court’s order maintains the hope that the college’s property may yet be put to use for higher learning in rural Kentucky.

Friday
Jul222016

Educational Malpractice: Holding Higher Education Accountable

Many have heard the horrors of life altering medical malpractice lawsuits. Who can forget the well-known case of Willie King, the man who had the wrong leg amputated? Education, like other industries, has also been subject to malpractice lawsuits. Educational malpractice questions accountability and responsibility in an educational setting. Essentially, a claim of educational malpractice asserts that an institution or its employees breached their duty to educate adequately. How are institutions of higher education held directly responsible when educational malpractice comes into question?

The first reported cases of educational malpractice arose in the early 1970s from Louisiana and California. Donahue’s 1979 historical case from New York was the first in the US to use the phrase “educational malpractice.” In this case, Donahue received a state high school graduation certificate, though he allegedly could not read or write well enough to complete an employment application. The plaintiff alleged that the defendant failed to comply with accepted standards which constituted educational malpractice. The judge dismissed the complaint, citing the previously mentioned California case. This opinion of the New York Court of Appeals, the court that heard Donahue’s case, is generally considered the leading case on why courts do not recognize educational malpractice as a tort. Since the 1970s, cases concerning educational malpractice have been presented more frequently and have been the subject of scholarly commentary; however, nearly all educational malpractice cases continue to be rejected in court.

Educational malpractice suits filed specifically against colleges and universities have not seen better success. For example, in Blane v. Alabama Commercial College, Blane alleged that college officials offered a course to provide the needed skills to compete in the computer and clerical job market, but upon completion, she was unable to find relevant employment. The court ruled in the defendant’s favor stating that there was no evidence the college guaranteed employment upon course completion. Further, in Ross v. Creighton University, a student from an “academically disadvantaged background” was accepted on a basketball scholarship to play and study at Creighton University. Ross alleged that Creighton wrongfully admitted him with lower than average entrance exams and failed to provide promised academic support. The court ruled in the defendant’s favor stating that it would not assume a regulatory role of enforcing implied institutional contractual terms and duties and dismissed the case for lack of jurisdiction.

In 2001, the Iowa Supreme Court became the first court in the US to recognize the validity of educational malpractice. In 1996, Bruce Sain, was awarded a basketball scholarship to Northern Illinois University, but was later notified that he did not meet NCAA incoming freshman standards, he lost his scholarship and was unable to attend the university. Sain held his PK-12 school district and the school counselor as guilty of negligence given they provided advice on courses that did not qualify him for NCAA eligibility.

The state Supreme Court found that the “negligent misrepresentation” claim possibly had merit and should not have been dismissed by the lower court. The Iowa Supreme Court reversed the lower court’s decision and remanded the case to trial, but it was settled out of court before it was heard again. This was the first time any court had considered the liability of a school counselor for negligent misrepresentation without relying on an immunity statute that protected schools. The Iowa Supreme Court explained that like other professions that gain financially from giving accurate advice, school counselors do as well. Therefore, negligent misrepresentation may be applied to the school counselor-student relationship when erroneous advice means a student loses a scholarship. Though this case specifically concerns educational malpractice in a K-12 realm, the implications could reach far beyond.

What does this mean for the future of higher education and educational malpractice law suits? As the Iowa Supreme Court referenced in Sain’s 2001 case, industries outside of education have been held accountable for not fulfilling their core missions. Public demand in recent years has called for greater accountability from colleges, fulfillment of their core missions, and demonstrable value, results, and efficiency. Smith and Fleming (2007) warn “when other businesses establish industry-wide standards, deviation from those standards can be used as evidence of negligence. If higher education adopts universal standards, deviation from those standards, can (and probably will) be used against colleges and universities in court.” Given the results of the 2001 Iowa case, could higher education be entering an era where educational malpractice will be recognized or could higher education see a day where mandated industry-wide standards promote accountability and performance and welcome educational malpractice claims? Only time will tell, but accountability and responsibility seem to remain a topic of high importance. 

This post was co-authored by Kaylyn Bondy and Dr. David Nguyen.  Ms. Bondy is Vice President for Student Affairs at Williston State College and a Ph.D. student in the UND Higher Education Program.