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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.

Monday
Apr162018

Just for the record, It’s not a pet: Emotional support and service animals on college campuses

When students think of college the first thing that comes to mind is the responsibility of living on their own, and all that comes with that new-found freedom. As young adults, living on campus can be a bit overwhelming and exciting. Students who are adjusting to having freedom and limited housing rules and policies can struggle with this new challenge. For students living in on-campus housing it is very important they understand the housing rules and policies, the university student code of conduct policy, the Fair Housing Act, Title XI, and their rights as a student. Every student attending a public institution has rights under the U.S. Constitution. Policies may vary based on if the institution is public, but over the years college housing has seen a growth in students and their furry little friends joining the community. From my experience working in student housing, students are struggling to submit documentation for their emotional support and service animals. With the new-found focus on emotional support and service animals it is best to educate both students and housing professionals on such issue.

Many students with disabilities and mental health concerns are encouraged by their doctors to apply for an emotional support or service animal to aide them with their everyday life. Students in need of such animal requirements have every right to have their support animal join them in on-campus housing under the federal Fair Housing Act. It is very important that the university housing program has an emotional support and service animal policy in place to better support the students with disabilities. Failure to do so will violate the Fair Housing Act, as what happened in the United States of America v. Kent State University, et al. case. The issue many housing professionals see with emotional support animals and service animals is the student’s ability to alibied by the university and on-campus housing policy in regard to such animals. For example, The University of Texas at San Antonio requires individuals with disabilities who are requesting an ESA/SA in UTSA housing to provide appropriate documentation to the Documentation Review Committee in Student Disability Services. Typically, on-campus housing requires the student to provide proper documentation that supports both student and animal. For example, student must provide the animal’s most recent shot records, a photo or photo I.D. of the animal, a completed copy of the university addendum for Emotional Support Animals, and supporting documentation from a doctor stating that there is a need for the student to have a support animal or service animal. Once the ESA/SA is approved to live in on-campus housing, the student has to maintain their living space.

Although both ESA/SA are supported by most institutions, it is important that students understand the difference between the two types of animal requirements. The September 2010 Department of Justice ruling defined a recognized service animal as a dog. Universities and housing professionals are not allowed to ask any questions pertaining to the student’s disability or the type of training the service animal has undergone. In the Alejandro v. Palm Beach State College case, the university over stepped their boundary when they asked the student to describe her need for the service animal, how the dog had been trained to signal an attack, and when a professor found out the student’s disability, he advised the student not to bring the service animal to class. Of course, the court ruled in the student’s favor due to the violations to Title II of the American with Disabilities Act.  Universities and higher education professionals have no such right to make such call.

Emotional Support Animals are defined as an animal that provides emotional and therapeutic support to individuals suffering from emotional issues, psychiatric problems, or anxiety. A cat or dog is normally recognized as an ESA, but other animals like snakes, pigs, etc. can also be a registered ESA. Universities and housing professionals should never rely on their own judgment to determine if a student should be approved or is in need of an ESA. In the United States v. University of Nebraska Kearney case the university inquired about the student’s need for the ESA and refused to accommodate. No matter the university or housing professional’s personal opinion on ESAs, the laws and policies in place for ESA trumps any opinion, personal belief, or values. 

Now that you have been informed about Emotional Support and Service Animals, how would you handle or approach when faced with such challenges?

This post was authored by Trenshaé Gilbert, a masters student in Higher Education Administration at The University of Texas at San Antonio and an assistant director of residence life at UTSA for Campus Living Villages

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.