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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.

Wednesday
Apr112018

Fifty Shades of FERPA: How Universities and Athletic Programs Use FERPA as Their Personal Loophole

FERPA is the Family Educational Rights and Privacy Act. It places significant limitations on colleges’ disclosure and handling of student records. These limitations and regulations apply to all public and private colleges or any institution that receives federal funding. FERPA dives deeper when we look into collegiate athletes. The NCAA (National Collegiate Athletic Association) requires all collegiate athletes to fill out a consent form, agreeing to disclose educational records to the association that are covered by FERPA. Manipulation becomes a problem with FERPA since there are so many vague shades to it. In recent years, athletic programs and universities use the many “shades” to find a loophole or try to use FERPA to protect its reputation and cover up scandals.

In 2011, The Ohio State University Football Coach Jim Tressel received an email about his football players exchanging football jerseys, rings, and signatures for tattoos. Tressel decided to only email his mentor and keep it concealed. Once this information leaked, ESPN requested information regarding Tressel’s emails and he denied them three times. ESPN then filed a case against The Ohio State University. The court ruled siding with The Ohio State University that Tressel’s emails were deemed “educational records” and exempt from disclosure to ESPN.

In 2013, Knightnews.com filed to obtain public records from The University of Central Florida. However, when they received the records, The University of Central Florida had redacted records on fraternities’ disciplinary hearings, amongst other matters, claiming they had the right to redact the information under FERPA. Knightnews.com sued The University of Central Florida because they thought redacting this information was illegal.  In 2014, a circuit court judge agreed with The University of Central Florida that the redactions were legal. This case was used to show how state open records laws yield to FERPA. This resulted in KnightNews.com losing six out of the seven counts that were filed.

In 2016, the University of Kentucky filed a suit to appeal that the university violated the Open Records Act in the investigation of former associate professor James Harwood. The University of Kentucky provided Harwood’s settlement but failed to mention any of the accusations the Kentucky Kernel was looking for. The University of Kentucky claimed they could not release any information about the investigation because the information were “educational records” under FERPA. Before the case could reach a hearing, Harwood resigned. Hardwood’s victims will not have a chance to appeal and this case will not inform future employers if he applies elsewhere.

These cases show how some universities are using federal law to hide their scandals and as a way to save their reputations. In 2018, an article by Zach Greenberg mentions the more universities use FERPA to hide damaging information about their athletic program or about their university, the seriousness of student safety consequences increases. If these agencies think they can hide a rape case from “getting out,” this can lead to an increase in sexual assault on campuses because students then think they can get away with it. Just the same with the athletes from The Ohio State University. Since they got away with exchanging collegiate goods and memorabilia for tattoos, what is to stop other student athletes from thinking they can do something that is on par or worse? FERPA needs to be more clearly defined, as the many “shades” can provide a loophole to those interpreting it. Once FERPA is clearly defined, no longer will members of athletic programs and universities get to escape scandals unscathed. No longer do athletic programs and universities get to hide behind FERPA. We can finally end the trend of these reoccurring loophole cases involving FERPA.

This post was authored by Roberto Moya, a masters student in Higher Education Administration at The University of Texas at San Antonio. 

Wednesday
Apr112018

Protecting Free Speech vs. Protecting Our Students

Today students on college campuses are protesting on numerous topics happening around the country.  These protest have led to acts of violence on campus, such as the University of Virginia and the University of California Berkeley.  These events challenge college administration to make tough decisions of either protecting free speech or their students. Texas A&M University, for example, has cancelled alt-right speakers on campus to protect the safety of the students, but is this impeding students’ freedom of speech?

In the Bill of Rights, the First Amendment states that everyone has the right to freedom of speech.  During the 1960s, most college campuses were not allowed to have freedom of speech but many still protested about civil rights and war issues, this lead to the Free Speech Movement. In 1968, the Court in Tinker v. Des Moines Independent Community School District ruled that students do not lose their First Amendment rights to freedom of speech when they are on school property.  After this ruling, college campuses began to regulate freedom of speech on campus, for example where can students protest, Bowman v. White, and when to stop a protest, People v. Uptgraft. Having this freedom on campus students were able to express their beliefs and were exposed to different points of views.  Free speech was unconformable but it gave students a chance to learn a diversity of viewpoints.

Today, some claim there are multiple issues caused by freedom of speech.  On campuses, speakers come and sometimes espouse hate.  Students then protest and feel unsafe.  Institutions begin to question balance between students’ First Amendment rights and their rights to an equal education.  This is why some limit free speech on campus.  However, denying speakers may influence the different values that make students feel uncomfortable and serve as a learning opportunity.  A student from Williams College was denied a conservative speaker because the college administrations assumed the speaker would promote hate speech.   If free speech is one of our rights, so why should students have to be limited on what they can say or do on campus? 

Students and administrations will need to balance free speech with student safety and determine safe venues for speaking events. With this hot issue on their minds, college presidents fear what will happen to their campus. How are college campuses going to keep their students safe?

Some schools are preparing their campus police and cancelling class to ensure that safety is maintained on campus.  Other college campuses are trying to be proactive by having students continue to protest but not to interrupt until Q&As.  Some campuses cancel the speakers from coming on campus.

College administrations are stuck in the middle between protecting their students and affording freedom of speech on campus.  While they want their students to feel safe on campus, they also want to afford free speech and diversity of viewpoints on campus.  So what should college campuses worry more about?  Supporting their students to express their freedom of speech or wanting the students to feel safe on campus?

This post was authored by April Vasquez, a masters student in Higher Education Administration at The University of Texas at San Antonio, and a pre-K teacher in the San Antonio Independent School District (SAISD). 

Wednesday
Apr112018

The Apparatus of Responsibility: Post-In Loco Parentis American University World  

The late legal philosopher Ronald Dworkin wrote in his book, Justice for Hedgehogs, that “[r]esponsibility is an indispensable concept across our intellectual life.” Dworkin reasoned that there are two forms of responsibility, one concerning personal virtue and the other related to liability. Though distinct, Dworkin and other leading legal philosophers have argued the need to not ignore either when applying legal and political interpretations. Dworkin, like many others, believed that morality has a place in our legal and political framework. Though people differ on many bracing issues of the day, take to heart the need to apply a moral lens. In this case, applying a moral lens to higher education in terms of that personal virtue of responsibility in a post-in loco parentis (in the place of a parent) world.

In American colleges and universities today, students are suffering. This is not merely an alarmist quip about the harsh realities of life when in fact problems are not as bad as they would seem. Indeed, they could be worse, but people ought not to wait for things to get worse before taking actual notice to problems. Take one example, suicide. The CDC has reported that from 1999 through 2014 the suicide rate, for all ages (10-74) and for males and females, has increased by 24%. While suicides committed by college students are significantly lower than the general population, there has been a growing trend called “cluster suicides” on campuses which is when one suicide occurs and others follow. Yet, according to a CBS News report, most public colleges do not even track suicides. But this is more than just about suicides, as disheartening as it is, but about the responsibility of college students, parents, and the institutions themselves. It is about moral responsibility when it comes to drug and alcohol use, rape and sexual assault, and other immoral behaviors or unfortunate events that often cascade and affecting other individuals, including parents of other students and the colleges and universities who are or are not responsible.

In loco parentis, a common law doctrine whose origins can be a bit murky, is generally attributed to the English judge Sir William Blackstone who in 1769 wrote, in what is known as Blackstone’s commentaries, “[The father] may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge…” In loco parentis would be adapted to the then more autonomous, early American universities as the new nation adopted its English Common Law principles along with its new found liberties via rebellion against the British Empire and the creation of the nation’s newly formulated constitution. It was clearly understood by the courts that colleges by right had the authority to discipline, tutor, and dictate the lives of their students pre-1960. Several cases illuminate the views of the nation’s courts concerning students and their respective colleges.

In People v. Wheaton College (1866), a student at Wheaton College, Edwin Pratt, joined a secret society and was suspended by the college for doing so. The Supreme Court of Illinois ruled in favor of the college finding that, “discretionary power has been given [to college authorities] to regulate the discipline of their college in such a manner they deem proper,… .

In North v. Trustees of University of Illinois (1891), the University of Illinois expelled a student for refusing to attend chapel and again the Supreme Court of Illinois ruled in favor of the college stating, “By voluntarily entering the university, or being placed there by those having the right to control him, he necessarily surrenders very many of his individual rights.”

This common law practice remained until the 1960s court case, Dixon v. Alabama State Board of Education (5th Cir. 1961), where the 5th Circuit Court of Appeals ruled in favor of Black students who had been expelled by Alabama State College for participating in civil rights demonstrations. The 5th Circuit ruled that public university students were obligated a 14th amendment right to due process, therefore in context, a prior notice and hearing concerning expulsion. Dixon signaled the end of in loco parentis. The responsibility of moral discipline by higher education ironically became sterilized in the process of newer, nontraditional liberties recognized to adult college students. How a practice that lasted decades ended so matter of factly without consideration of making increment adjustments is worth further review. By losing the parental authority of in loco parentis, the balance and clarity of responsibility has tilted.

Since the Dixon decision, new programs like FERPA and HIPPA sought to serve and protect students and their parents in various capacities in hope of filling the hole of in loco parentis. Nevertheless, parents have felt the need to know more in situations where their children, even as young adults, are facing dangerous or problematic issues. A revised, responsible doctrine of in loco parentis could be the solution. But should colleges handover information about their students’ private lives when they harm themselves or others? What is harm? What about adulthood? What are the responsibilities and consequences concerning actions as an adult? So many questions need to be asked and reconsidered before making long-term decisions. What is certain, however, is that college students and the institutions that serve them have a responsibility of great importance.   

This post was authored by Edward "Kyle" Richey, a masters student in Higher Education Administration at The University of Texas at San Antonio. 

Wednesday
Apr112018

Dear, student. Congrats! You’re admitted. As an employee?

Graduate assistants, either research or teaching, are in positions which could be seen as one of two roles, as graduate students or employees of the institution. According to the Bureau of Labor Statistics, graduate teaching assistants perform teaching or teaching-related duties. Due to the required duties, there have been constant debates as well as legal cases that have changed whether they are to be considered students or employees. Students at private institutions were able to take the debate to the National Labor Relations Board since the National Labor Relations Act applies to most private sector employers, which include private institutions.

Prior to the 21st century, graduate assistants at private institutions were classified solely as students. In New York University, 332 NLRB 1205 (2000), New York University stated that these students were not employees because their primary duty to the institution was being a student. The National Labor Relations Board found no basis that would exempt graduate assistants from being classified as statutory employees or denying them collective-bargaining rights. Under 2(3) of the National Labor Relations Act, graduate assistants at private universities were to be classified as employees. The same principles had been applied the previous year, in Boston Medical Center, 330 NLRB 152 (1999) which permitted interns, residents, and fellows to collectively bargaining.

Graduate assistants were only considered employees for about four years until Brown University, 342 NLRB 483 (2004) stated that the student assistants were not employees. It specified that these students had been admitted into the university to study, not hired to teach or conduct research. Any teaching or research components that the students took on were part of their academic development, rather than economic. Graduate students at Brown University, as in many other institutions, are expected to teach throughout their graduate program. Then-Brown University Provost Robert Zimmer stated, “Teaching undergraduate students and conducting research are an integral part of the academic development for graduate students.” Given that some programs have certain teaching/research requirements in order to obtain their degree, these students were considered primarily “students” and nothing more. 

Other students that attempted to unionize were Northwestern University’s scholarship football players. The Chronicle of Higher Education shows a comparison between graduate student assistants and scholarship athletes. In plain, simple questions it demonstrates the difference how one group is seen only as students fulfilling the requirements for their degree and the other group is seen as employees of their institution. In 2015, the NLRB denied the claim for Northwestern’s football players to unionize and consider them university employees.

Shortly after, a new case was brought forward to once again determine the fate of graduate assistants. The NLRB invited students, universities, and unions to take part by submitting briefs. Even though many schools believed that it was a waste of time and it would be a lengthy process, the NLRB proceeded. The following year in The Trustees of Columbia University in the City of New York, 364 NLRB No. 90 (2016), the NLRB overruled Brown in a 3-1 decision and determined that graduate assistants working in private institutions could in fact be employees of their institution and be permitted collective bargaining.

Given the constant back and forth within the National Labor Relations Board and the three frameworks of: 1) are they classified as students or employees, 2) are they perceived primarily as students or employees, and 3) do they have a right to collective bargaining, do you believe that they are to be considered students and that the teaching/researching aspects are part of their graduate degree requirements? Or should the students also be considered statutory employees with the option to unionize?

This post was authored by Manuelita "Nelly" Reyes, a masters student in Higher Education Administration at The University of Texas at San Antonio, and a student service specialist for the Graduate School at UTSA.

Wednesday
Apr042018

Out of Bounds: Hazing in Athletics

When you think of the word hazing, the first thing to come to mind is Greek organizations. We have seen a flurry of news stories all around the nation of hazing allegations or deaths involved with hazing. What happens when we change the scope to intercollegiate athletics? Would you believe me if I said that hazing in college sports is just as present?

According to the National Collegiate Athletic Association, or the NCAA, hazing is the active or passive participation in such acts and occurs regardless of the willingness to participate in the activities. Such activities include acts that are humiliating, intimidating or demeaning, or endangers the health and safety of a person. According to St. John’s Law Review, athletic hazing in the past was as simple as carrying an older athlete’s equipment. In the 1999-2000 school year, the incoming athletes of the University of Vermont’s hockey team reportedly laid down on the floor of a basement while veteran players spit on them and had a pie-eating contest in which the pies were, “a seafood quiche doctored with ketchup and barbecue sauce”. In this case, the institution was at fault and paid a total of 80,000 dollars to the student, Corey LaTulippe, who filed the lawsuit. If anti-hazing policies are to go into effect, we cannot overlook intercollegiate athletics.

We cannot assume that these things are contained to college campuses. Athletic hazing starts as early as high school. According to the National Federation of State High School Associations, hazing is not a new trend; however, it is increasing in public schools. In the case of Doe v. Maine Township High School District 207, four students at Maine West High school, located in Des Plaines, Illinois, were victims of physical and sexual assault from both the soccer and baseball teams. These were hazing rituals in which coaches ordered older players to assault the varsity recruits and witnessed on the sidelines. After being hit with a lawsuit and going to court, the court dropped the charges against the defendants, the students faced disciplinary actions by the school, and the firing of the coaches followed. This lead to an anti-hazing policy and training policies for staff and students to respect at the school district.

On the opposite side of the spectrum, not all athletic teams are guilty of hazing. In a particular case, Cameron v. Univ. of Toledo, a freshman football player injured himself after participating in something the upperclassman athletes called, “The Olympics” in which freshman participated in silly, child-like games after practice to build a bond between the team. No one forced a player to do anything degrading or harmful, and there was no evidence that if the students did not participate they would lose their spot on the team or worse. The plaintiff proceeded to participate, climbed on another student’s back to “dunk a football over the goal,” and injured himself after missing, falling to the ground, and hitting his head. The plaintiff proceeded and filed a lawsuit against the university claiming allegations of hazing. After listening to the plaintiff, the court ruled that coercion did not take place, initiation of ritual did not occur, and the plaintiff took assumption of risk after he decided to climb the student’s back with no direction from his teammates. The University of Toledo’s football team remained in the confines of team building and the plaintiff could not accuse the team for hazing in any form.

In the Jeffrey S. Moorad Sports Law Journal, the author mentioned how different states criminalize hazing. Some states consider hazing as just a misdemeanor involving mental or social harm, while other states add on to a misdemeanor by adding failure to report, third-party liable, inchoate liability (in which there is a form of conspiracy) and other approaches on rulings. In the case of Hunt v. Radwanski et al, Ms. Haley Ellen Hunt experienced emotional harm and permanent physical damage after her soccer teammates at Clemson University blindfolded Ms. Hunt and told her to run without knowing where she was going. The teammates that were there encouraged Ms. Hunt to run faster and without being able to see, Ms. Hunt ran into a brick wall at full speed. Under South Carolina law, her case could “only face criminal liability for the physical injuries, as hazing only includes acts which have a foreseeable potential for causing physical harm to a person.”

Hazing by no means is a form of team building no matter how you dress it up. Concurring with NCAA’s national data, about seventy-four percent of student-athletes experience one form of hazing while on an athletic team. This is seventy-four percent too many. Policymakers should analyze the most reported activity involved in hazing in college sports and make sure they enact policies and procedures to make sure this does not happen and the numbers do not increase.

This post was authored by Marcos Villarreal, a masters student in Higher Education Administration at The University of Texas at San Antonio, and a graduate assistant in the Office of Student Life Initiatives.