Contributor Tweets
Other Tweets
Search Site
Disclaimer

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.

Subscribe to blog's feed

Add to Google Reader or Homepage

Enter your email address:

Delivered by FeedBurner

Thursday
Mar232017

Call for Submissions: Special Issue on Legal Issues in College and University Student Housing

Call for Submissions

The Journal of College and University Student Housing

Special Issue: Contemporary Legal Issues in College & University Student Housing

Campus housing professionals work in an environment that requires a heightened understanding of the law. Comprehension of the law is also paramount to preserving students’ rights and managing institutional liability. Legal issues have an impact on most, if not all, of the ACUHO-I Core Competencies (Cawthon & Schreiber, 2012), and it is argued that “[t]here is no question that campus housing professionals must be increasingly knowledgeable about legal and legislative issues” (ACUHO-I, 2015).  Because of significant and meaningful developments in a number of areas in recent years, including the Affordable Care Act (ACA), Fair Housing Acts, Title IX, etc., coupled with a rapidly evolving regulatory environment, this special issue seeks to address these issues.

In this special issue of The Journal of College and University Student Housing, we seek manuscripts that explore various legal implications to college and university student housing. Submissions may be empirical or theoretical, and we welcome manuscripts from a broad range of perspectives.

Dr. David H. K. Nguyen from the University of North Dakota, LaWanda Ward, JD, from Ohio University, and Dr. John Wesley Lowery from Indiana University of Pennsylvania have been selected as the editors for this special issue. The call for submissions, review of selected manuscripts, and coordination for the issue will be the responsibility of the editing team.

Potential special issue topics might include:

  • Legal liability in college and university student housing
  • First Amendment and neutral-content policies
  • Concealed carry issues with student housing
  • American with Disabilities Act issues
  • Fair Housing Act issues
  • Transgender student access to public facilities
  • College housing and campus crime; compliance with Clery Act and Title IX
  • The Fourth Amendment and student housing

For consideration in the special issue, an initial one-page abstract of the manuscript should be submitted electronically in MicrosoftWord to JCUSHlegalissues@gmail.com no later than April 13, 2017. Please do not send material that has been published or is being considered by for publication elsewhere.

The Journal of College and University Student Housing follows the style of the sixth edition of the Publication Manual of the American Psychological Association.  Manuscripts should generally not exceed 4,000 words (approximately 14 pages, including abstract, references, tables, and figures), but each will be considered on a case-by-case basis.  All articles should include an abstract of no more than 250 words.  General guidelines for submission to the Journal are available at http://www.acuho-i.org/resources/publications/journal/board-submissions-contactus

Notification of selection in the special issue will be made by April 30, 2017, and the first draft of the full manuscripts will be due July 30, 2017.  Selected manuscripts will be featured in the 2018 special issue of The Journal of College and University Student Housing. Specific questions regarding the special issue should be directed to David Nguyen, University of North Dakota, david.hk.nguyen@und.edu.

Monday
Mar202017

2017 Texas Higher Education Law Conference features national speakers

The 21st Annual Texas Higher Educaction Law Conference hosted by the Higher Education program at the University of North Texas will feature national speakers on a wide-variety of issues.  This is a perfect opportuntiy to hear from some of the experts in the field while networking with other higher education professionals.  

The line-up includes: 

-Kim Novak: Creating good relationships among students and campus police departments.

-Brian Van Brunt and Amy Murphy: Detecting radicalization among students. 

-David Nguyen: Institutions and undocumented students, and legal issues and internatlonal students.

-Mari McGowan: Regulation of student social media.

-C. Aaron LeMay: Current ethics issues for campus attorneys.

-Gentry McCreary and Scott Lewis: Advice on conducting investigations on “closed groups”—Greek organizations, athletic teams, bands, etc.

-Neil E. Sanchez: Federal government’s efforts to combat fraud and corruption at postsecondary institutions.

-John Wesley Lowery: Legislative and regulatory action in a time of great political turmoil.

-A panel will discuss the upcoming implementation of concealed carry on community college campuses and what has been learned from the university experience.

For more information and a detailed agenda, please visit: https://www.coe.unt.edu/conferences/higher-education-law-conference

Tuesday
Mar072017

ADA: Ensuring Equitable Higher Education Experiences For All

Access to higher education for students with disabilities has been a priority for students, institutions, and legislatures. Access has increased thanks to the passing of several key pieces of legislation. The Rehabilitation Act of 1973 ensures that qualified people, regardless of disability, shall not be excluded from any program or activity receiving federal financing. The Americans with Disabilities Act (ADA) of 1990, and subsequent amendments in 2008 and 2016, prohibit discriminatory acts against people with disabilities in regards to employment, transportation, public accommodation, communication, and government activities. Together, these pieces of legislation provide contextual rules and practices that all colleges and universities should follow.

ADA is enforced by the Department Of Labor with the Office of Disability Employment Policy providing research, publications, and assistance on basic ADA requirements. Only four additional federal agencies have the power to enforce the ADA:

●      The Equal Employment Opportunity Commission

●      The Department of Transportation

●      The Federal Communications Commission

●      The Department of Justice

ADA defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” In a 2016 amendment that the Attorney General supported and signed into law, the understanding of ADA and its role expanded in two major ways. Firstly, it established that the definition of disability should be taken broadly, in order to make it easier for individuals to establish that they have a disability. Secondly, it emphasized that the main objective of cases brought before ADA should be whether entities have complied with their obligations to provide reasonable accommodations, not to extensively analyze if an individual’s impairment qualifies for accommodations.

There have been several important ADA cases and settlement agreements in regard to employment, transportation,  healthcare,  accessibility design and accessible technology. Many common ADA cases relate to business practices, public works, and companies however there have been cases brought against colleges and universities. Cases in recent years prove that higher education is still not compliant in all ADA accommodations, particularly in areas of technology and facility accessibility. Many cases have resulted in settlement agreements with the college or university reluctant to bring cases though the court system. The following cases represent the diverse needs of students at colleges and universities.

In 2009, United States v Lesley University resulted in a settlement agreement. The United States Department of Justice received a complaint alleging Lesley University violated ADA by failing to make necessary reasonable accommodations in regards to food allergies. The complaint alleged that Lesley did not modify policies, practices, or procedures to permit students with celiac disease or similar food allergies to fully and equally enjoy the privileges and advantages of its food service system. An investigation was launched and it was found Lesley in violation. As a result of the agreement, Lesley agreed to amend their disability policy, provide advising for students with food allergies in the disability service office, and modify their food service, including posted nutritional information, allergen free areas, and pre-order options.

In a 2014 case, United States v Quinnipiac University, a complaint filed with the United States Attorney’s Office alleged that Quinnipiac University discriminated against an individual with a disability. The individual claimed that Quinnipiac failed to make necessary reasonable accommodations to its policies, practices and procedures when they placed the individual on a mandatory medical leave of absence from the University because of the person’s depression. The individual claims the University placed them on mandatory medical leave without considering other options for their continued enrollment. Quinnipiac denied all allegations, but agreed to resolve the dispute. As a result, Quinnipiac was required to draft a new non-discrimination policy, provide ADA training to University staff, and pay the individual a set amount of money.

Recent cases have revolved around the issue of technology accessibility. Miami University in Ohio agreed to overhaul its accessibility policies as part of a settlement with a blind student who was not given access to course materials and trained assistants during a course. The University of California, Berkeley may eliminate their free, online edX courses and videos on YouTube and iTunes after complaints from two deaf individuals over the lack of captioning on videos resulted in a Department of Justice investigation.

The Departments of Justice and Education released a joint "Dear Colleague" letter in 2010, along with a list of Frequently Asked Questions to provide institutions with guidance on how to best meet the requirements of ADA in today’s world. Institutions of higher education have been given resources, examples, and suggestions on how to best comply with ADA. It is their responsibility to be well educated on reasonable accommodations and best practices in order to best meet the needs of their students and ensure an equitable educational experience for all. 

This post was co-authored by Ms. Katie Fulmer and Dr. David Nguyen.Ms. Fulmer is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.

Tuesday
Mar072017

Hate Speech on Campus: A Constitutional Paradox

Hate speech on college campuses across the United States has been receiving major media coverage throughout the past year. With controversial figures such as Milo Yiannopoulos at the forefront of the coverage, many universities are scrambling to find the answer to the question is hate speech free speech? Some universities have placed a ban on Yiannopoulos, who has already been banned from Twitter for a racist campaign against actress Leslie Jones, but many universities such as University of California-Berkeley have quoted the First Amendment of the United States Constitution expressing it is unconstitutional to ban a speaker based on their speech topics. Even though these incidences seem to be becoming more prevalent at college campuses, there has been a controversial history of universities, students, and hate groups battling in the courts to protect their right to freedom of speech.

To begin, let us define what hate speech actually entails. Hate speech is rhetoric that threatens, insults, or offends groups based on characteristics such as race, religion, sexual orientation, disability, and other traits.  The First Amendment of the United States Constitution protects much of this hate speech, which is why the Supreme Court has never seen a case involving college hate speech. Many cases brought into court are actually based around universities trying to regulate speech through codes in their university policy. One famous case surrounding this issue was Doe v. University of Michigan from 1989, where the court found that creating policies surrounding the suppression and punishment of hate speech was unconstitutional and vague.

Although the court system in the United States continually stands firm on the side of ones’ right to freedom of speech, there are many critics that argue that hate speech is unconstitutional. There have been some calls to outlaw hate speech because it infringes on the Equal Protection Clause of the 14th Amendment by suppressing or interfering with individual rights through societal construction of unrestricted bigoted speech and devalued ideas. This constitutional paradox has been a never-ending argument of morality and equality, which is the reason many of these cases have never before reached the Supreme Court. One such case that did reach the Supreme Court, which is pertinent to freedom of expression on college campuses, is Texas v. Johnson. The Supreme Court ruled that burning the American flag falls under freedom of expression and most cases of hate speech on campuses, if not threatening or unreasonably disruptive, fall under freedom of expression as well.

So if the courts rule on the side of freedom of speech, and hate speech is protected under that right, how can universities navigate this issue for their students? Universities with the most success with handling hate speech have been ones that do not ban it, but use it as an opportunity to call attention to university values and mission against hateful action. The University of Illinois at Springfield has been proactive in this regard by even inviting notorious hate speaker Matt Hale to speak at a public forum on their campus. This gave an opportunity for the university to not only recognize the importance of free speech, but also show its commitment to the counteracting the ideals through discussion and not suppression. It is important to note that many of the laws and amendments set in place that allow for hate speech to happen on college campuses are the same laws and amendments that prevent disenfranchised and marginalized students from being silenced. A fight on college campuses for freedom of expression may be on the horizon, and hate speech will continue to initiate the controversy it aims to create.  

This post was co-authored by Mr. Jeff Benike and Dr. David Nguyen. Mr. Jeff Benike is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.

Tuesday
Feb282017

Religious Exemptions from Title IX Compliance: One Step Forward, Two Steps Back

The progress attained in protecting transgender individuals from sex-based discrimination through Title IX may be usurped through another aspect of the federal statute in which educational institutions can claim that compliance with the requirements of Title IX are inconsistent with the religious beliefs of their institution. According to a list posted on the U.S. Department of Education’s (DOE) website, close to one hundred universities and colleges have requested religious exemptions.

Title IX of Educational Amendments of 1972 was established as a federal law to remove barriers for people, based on sex, from participating in educational opportunities and careers by stating,  “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

An educational institution controlled by a religious organization may apply for and acquire a religious exemption from any Title IX regulations. Recent cases at George Fox University and California Baptist University demonstrate that religious exemptions could become a trend in providing religious institutions the ability to discriminate against transgender students while still receiving federal funding.  At George Fox, a transgender student who had medically and socially transitioned, and was in the process of a legal transition from female to male was denied the right to live in male student housing.  The university stated it could not support the student’s request as it was in conflict with the school’s religious principles.  His Title IX complaint to the DOE was rejected citing a religious exemption by the university.  In the California Baptist case, the student filed a lawsuit based on the Unruh Civil Rights Act . It was decided that the university was within its rights to expel a transgender student based on a prior ruling, that an organization was exempt from the law due to its primary mission of instilling a specific set of values and its members need to abide by "a strict moral code."

Two prominent cases regarding Title IX litigation and transgender rights spawned the Dear Colleague letter, created and issued by the DOE’s Office of Civil Rights and the U.S. Department of Justice’s (DOJ) Civil Rights Division.  The letter’s intent is to clarify a school’s Title IX obligations regarding transgender students, and how the DOE and DOJ would evaluate a school’s compliance with obligations. The letter provides guidance on a school’s responsibility to provide an educational environment that is free from sexual harassment, as well as remaining consistent with the definition of a student’s gender identity relative to: the educational environment, use of identification documents, preferred names and pronouns, segregated activities and facilities, and privacy of educational records. Recently, President Trump rescinded this guidance taking away protections for transgender students and their equal access to public facilities in schools.  

While President Trump may have rescinded the federal guidance, these issues have not been swept under the rug.  In the case of  G.G. v. Gloucester a seventeen-year-old student at Gloucester High School who was assigned the identity of a girl at birth but now identifies as a boy was initially allowed to use the boy’s restroom but the county school board then enacted a policy that requires students to use the restrooms and locker rooms that match their genders as assigned at birth.  G.G. challenged the policy in a federal district court, that it violated both the Constitution’s equal protection and Title IX.  The case went to federal court, where G.G. lost however prevailed in appeal.  The Virginia school board asked the Supreme Court to examine the decision by the federal appeals court. The case is now scheduled in the Supreme Court on March 28, 2017.  

In the case of Johnston v. University of Pittsburgh a transgender man sued the University of Pittsburgh for violating Title IX and the Equal Protection clause of the 14th Amendment on the basis of banning him from male locker rooms. The case has been settled between the plaintiff and the university with an amicable outcome in which the school has adopted changes concerning transgender students.  These and other cases will continue to be litigated in courts as our legal system tries to figure out these issues of equity.        

Advocates for transgender rights and legal analysts argue that religious exemptions under Title IX undermine the protection for transgender students from discrimination in educational institutions initially afforded by the law. There is a call for more stringent guidelines in the approval of these religious exemptions, especially when these institutions receive federal funding.  The number of students coming out as transgender continues to grow, as do the needs of transgender individuals in institutions of higher education.

Religious exemptions aside, the latest revocation of “guidance” for schools on transgender students’ rights is taking precedence. The newest “dear colleague” from the Trump Administration offers little guidance to institutions, leaving preservation of transgender students’ rights up to state governments or the Supreme Court.  

This post was co-authored by Ms. Heather Helgeson and Dr. David Nguyen. Ms. Helgeson is the Director of the Nonprofit Leadership Program at the University of North Dakota and a masters student in the UND Higher Education program.