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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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Ensuring a safe environment for campus protests

I stumbled across this news story recently about a northern California school district that forced student-athletes to take off tshirts with the message "I Can't Breathe" or risk forfeiting the contest. Enough of the male players agreed for the game to continue, but one school had to forfeit its contest because not enough female basketball players complied with the demand.

The term "I Can't Breathe" has been linked to the case of Eric Garner, who died from a chokehold utilized by NYPD during an arrest. That incident, along with the acquittal of a police officer involved in the fatal shooting of teenager Michael Brown, has sparked protest across the country and promises to continue to stay at the heart of the movement to reform police protocol and curb police brutality.

This event in northern California seems like a modern-day version of Tinker, the 1969 case that affirmed that students--even in the K-12 setting--have the Constitutional right to peacable and symbolic protest. In Tinker, a group of students were disciplined for wearing black armbands to protest the Vietnam War. The Supreme Court ruled that such expression was protected UNLESS is caused a substantial disruption. Fast forward to 2014, the California school district claimed that its actions were a safety precaution "should someone get upset and choose to act out."

Public universities have even less latitude in fostering and promoting the free speech and expression of all viewpoints--no matter how offensive, unpopular, or divisive. Recently I had the privilege to write a piece for the National Association of Student Personnel Administrators (NASPA) Leadership Exchange related to open forums and designated free speech zones. As the new year begins, it is imperative that each university and college campus reevaluate not only its policies regarding speakers and protests but also collaborate with campus security to provide safe and open venues for dialogue to occur within the campus community. The heckler's veto or the mere fear of disruption do not trump Consitutional rights.


Ground Hog Day with Federal Financial Aid

Last week, the U.S. Department of Education issued more guidance on the treatment of competency based education programs using Title IV federal financial aid. 

You’ll notice that this guidance is fairly consistent with an audit report of the U.S. Department of Education’s handling of direct assessment (or limited direct assessment) programs.

The Department of Ed should be announcing (or maybe it has announced recently) its experimental sites for Title IV funding and processes (e.g., financial aid disbursements) for competency based education, direct assessment, and prior learning assessment.  These learning delivery formats have become abundantly clear that Title IV and the accompanying regulations don’t conform with new delivery models. 

This whole discussion is reminiscent of a Title IV Ground Hog Day (back to the late 1990s and early 2000s when higher education faced difficulties with Title IV when rolling out distance education programs). 

For now, let’s sit and see.


Faculty unionization ... for today

Happy holidays! 

Last week, the NLRB issued a new decision on faculty rights to collective bargaining.  According to a regional office of the NLRB, contingent faculty at a private, religiously owned university may organize.  This review consists of two important issues. 

  • First, the NLRB raised the issue of whether it has jurisdiction over “faculty members at self-identified religious colleges and universities” particularly in light of a 1979 U.S. Supreme Court case that declined to recognize jurisdiction under the National Labor Relations Act over religious institutions.  That case was about lay Catholic school teachers in Chicago – not college professors.
  • Second, the NLRB addressed the issue of whether faculty members at the private university (i.e., Pacific Lutheran University) are “considered managerial employees, whose rights to engage in collective bargaining are not protected by the Act.”  This inquiry requires consideration of a well established U.S. Supreme Court case (i.e., NLRB v. Yeshiva), which recognized faculty who are engaged in the institutional governance as managerial.  Thus, they are not covered under the Act.

The short version of the responses is that the NLRB may have jurisdiction over faculty members at religious institutions and the concept of managerial is not reflective of all faculty members.  At least, those are the rules we have right now.  It's possible that the private, religious university may contest this decision.  In the meantime, it might wait to see what happens with the organizing as the faculty may not have enough support.

To learn more about the events, the Chronicle of Higher Education and Inside Higher Ed offer great summaries featuring the extensive review and the NLRB’s analysis (e.g., what constitutes “religious work” for institutions and “managerial employees” for faculty).  Also, if you’re interested in seeing the full collection of amici and other relevant decision sources, check out the NLRB site.




Is College Football 'Fixed'?*

After years of controvery regarding how a "national champion" would be named in Division I-FBS football (as it is the only NCAA-sanctioned sport, out of 88, to not have a tournament decide its champion), this year the much anticipated College Football Playoff will be implemented. This new system features two "semi final games", paring the #1 and #4 teams and the #2 and #3 teams, respectively. The winner of each matchup will square off in a national championship game.

The bowl system has undergone many tweaks and amendments. From 1946 to 1991 the top two collegiate football teams in the country played one another at the end of the season a mere nine times. (This was primarily because many of the bowls had "conference tie-ins," such as the Rose Bowl which traditionally featured the champions of the Big Ten and Pac-10 (now Pacific 12) conferences.) It started off with the Bowl Coalition in 1992, morphed into the Bowl Alliance in 1994, and then the Bowl Championship Series (or BCS as it came to be known) in 1998. The BCS matchups were decided by a complex algorithm that took into account "human polls" and strength of schedule.

Over the years, as "mid major" teams with undefeated records (e.g., Marshall University in 1999 and Boise State University in 2004) were shut out from the BCS party (and its incredibly lucrative payoffs) in favor of teams from powerhouse conferences that, per contract, were guaranteed bids because they were "automatic qualifiers" (some of which had 2 or 3 losses on the season), lawmakers began to take notice. Congress convened several hearings to discuss the legality of the BCS system. In 2011 the U.S. Department of Justice wrote to NCAA President Mark Emmert questioning why there was no football playoff.

Perhaps fearing that this could be the next antitrust challenge, the NCAA and its member institutions succumbed and approved this new playoff system (which had been rejected when suggested for many years prior). But I wonder--does this new system solve any antitrust concerns? Do the powerhouse conferences still impose a monopoly? Will it be possible for "mid major" teams to break into the top tier, like many "Cinderella teams" during March Madness have done through the democratic tournament of 64 teams? Is this the least restrictive means to achieving a national champion?

Some may argue "no." In the inaugural year of the College Football Playoff, we already have controversy. Texas Christian University, member of the Big 12 conference, was ranked #3 going into the final week. (They had only one loss--a last-minute heartbreaker to now-#5 ranked Baylor.) After a quality win against Iowa State, TCU somehow fell to #6--and out of contention for a major bowl game. Selected to play in the more prestigious New Year’s Day Orange Bowl were Mississippi State University and Georgia Tech, with two and three losses, respectively. Number 10-ranked University of Arizona, with three losses, and number 20-ranked Boise State University, member of the Mountain West Conference and with two losses for the season, were selected to play in the Fiesta Bowl.

How did this happen? Well, gone are the polls and the complex BCS algorithm. A 13-member selection committee, comprising athletic directors from the five most resourced conferences and other officials, are the sole deciders in these lucrative bowl matchups. (And as an interesting aside, Condoleeza Rice, in her capacity as former provost of Stanford University, has been invited as the sole woman on the panel.)

Instead of the CFP systeam,  I propose a 16-team playoff, comprising four brackets of four teams each. The number one and four ranked teams and number two and three ranked teams in each bracket would play a quasi-semifinal; the winners would play in a deciding contest to determine the winner of that bracket. From there, the winners of each bracket would play each other in a national semifinal. The final remaining teams would play in the national championship game.This would result in a team playing a maximum of four additional games during the postseason—adding only two more than the existing system employed in the College Football Playoff.

Some might argue that this proposed playoff system would extend the season too long and expose the student-athletes to greater risk of injury. To counter that, I would also propose that the regular season be cut short by two games, to make up for these added games. As mentioned earlier, antitrust law is designed to protect consumer interests and safeguard the quality of the product (in this case, producing the best competitive matchups). Many of the nation’s best college football teams schedule games with teams from a much lower-ranked conference or even from outside of Division I-FBS in order to pad wins. In 2013 16 games featured a top 25-ranked team defeating a team by 45 or more points, such as the blowout between Ohio State University and Florida A&M 76-0 or University of Louisville and Florida International University 72-0. In 2014, the University of Alabama, ranked number 1, played Florida Atlantic University from Conference USA, which finished with a 3-9 record for the season, and the University of Southern Mississippi, also from Conference USA, which finished the season with a 3-9 record as well.

If the system cannot be fixed this way, several groups and ahtletic commentators, such as the Drake Group, propose a Congressional antitrust exemption for college football that would, in turn, negotiate greater federal oversight of the big business of college football as well as provide due process for student-athletes--which to this day is not given, as the NCAA is a private voluntary membership organization.


*Some parts of this post are excerpts from a manuscript I have under review titled "Flag on the Play: A Review of Antistrust Challenges to the NCAA. Could the New College Football Playoff Be Next?"




Review of Ed Law Assoc conference

Last week, along with some of my fellow bloggers, I attended the 60th annual meeting of the Education Law Association. This organization is unique in that it brings together those interested in both K-12 and higher education law and policy, as well as three distinct constituencies: faculty, administrators, and attorneys.

My time there was hectic but incredibly informative. (Here is a link to the list of presentation topics.) A particular treat was attending the seminar given by Professor Michael Olivas of the University of Houston Law Center. Olivas was awarded the Steven S. Goldberg Award for Distinguished Scholarship in Education Law for his 2013 book "Suing Alma Mater." (Here is a link to my review of that book.) Olivas' text utilizes a quasi-case study approach to illustrate in-depth some of the legal challenges recently brought before the courts to combat discrimination and disparity. His concluding chapter about the role of purposive organizations is worthy of note and a must-read.

Olivas' inclusion fit seamlessly with the theme of the conference, "The Resegregation of Education in America," as did some of the other keynote speakers. At the conference I was introduced to the work of Erwin Chemerinsky, dean of the University of California, Irvine School of Law, and Dr. Raynard Sanders, host of the New Orleans Impeative broadcast. Both received standing ovations for their moving and passionate remarks, arguing that modern-day movements in education have reverted American schools to the racial separation and inequity that the Brown case sought to end nearly 60 years ago.

Chemerinsky, for whom his incredibly articulate and well researched address I cannot do justice, argued that our political AND personal divestiture in neighborhood schools has led to the very movement that has caused the general public to lose faith in this basic American institution. Sanders, who at the time of Katrina was working as a school principal, went through a thorough account of the events immediately after the devasting hurricane that led to the abolishment of the Orleans Parish School Board and COMPLETE transition to a charter school system. He outlined how federal funds requested by the state board of education were not spent in the way there were intended, and thousands of community teachers were fired. The narrative regarding the success of NOLA schools is somewhat skewed, as the previously failing schools that are now being touted as "turned around" by this new charter system are being evaluated by a new and lowered assessment model.** Both Chemerinksy and Sanders made rousing arguments that both the education and legal communities must take up figurative arms to combat the political attack on education and public sentiment that it is a defunct system.

Other sessions of note included a presenation by Mark St. Louis and Brian Mistler on the legal and psychological concepts related to conflict managment and employee negotiation. Mistler, a counselor himself, provided some useful tools for those working in education (and beyond) to use conflict as an opportunity to learn both sides of any position and to redirect organizational power to achieve harmony. Mercy Roberg took an interesting look into the potential legal issues involved when high school students dual enroll on college campuses. Jermaine Johnson provided a well-researched overview of OCR guidance regarding direct threats and suicidal students. In that same session, I enjoyed a presentation by John Dayton regarding workplace bullies.

Hopefully this BRIEF recap of the conference has piqued your interest and that you may consider joining us in Cleveland in 2015. (If you have not visited the city before, you are in for a treat. Truly a hidden gem of the Midwest!)

**Footnote: Any discussion of the racial inequity in New Orleans schools would be remiss to not mention the active role the Catholic Diocese of New Orleans played in the 1960s to thwart the desegration movement.