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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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Institutions & Tenure: Finding a Balance between Academic Freedom and Cost-Savings

Over the last several years, the discussion of tenure has been a hot topic. The American Association of University Professors describes tenure as an indefinite appointment that would only be terminated under extenuating circumstances; tenure helps give faculty more academic freedom with their work, but tenure can sometimes be a difficult and lengthy process for faculty. Institutions of higher education set their own standards for what their tenure process will be. Universities set guidelines that best fit the institutions’ needs. According to the National Education Association, only about one third of all college and university faculty are actually tenured. More institutions are relying on part-time or temporary faculty, which save money.

Faculty and administrators have debated about who is allowed to apply for tenure and who can grant tenure.  While most institutions only grant tenure to full-time faculty, this limits part-time faculty and administrators. In Dugan v. Stockton State College (1990), a dean made the decision that being in an unclassified staff position does not grant someone tenure.  A faculty member who switched into a staff position tried to apply for tenure but was denied. The decision was upheld by the President of the university and the appellate court of New Jersey. Another group affected by this trend is academic research librarians.   Research librarians have fought to gain faculty status and equal benefits. Some educators believe that if librarians were considered faculty and could be granted faculty status there would need to be an added sense of responsibility to what they already do.

Administraitors have wondered who has the power to determine if a faculty member can be given tenure. Most institutions either leave the decisions up to the provost or presidents. In Matthews v. Oregon State Board of Higher Education (2001), the Oregon State Board of Education and Supreme Court of Oregon ruled that presidents of universities do have enough knowledge about their faculty to make tenure decisions,. Some institutions have reviewed the tenure process and tried to determine the due process steps for appealing a decision. Can an arbitrator overrule a presidents tenure decision?  In the case of Edinboro University of Pennsylvania v. Association of Pennsylvania College (2015), it was decided that when an arbitrator is reviewing an appeal that they can let faculty who are denied tenure reapply if they see fit.

Nationally, state budgets are affecting many institutions in higher education, and this has some administrators questioning if tenure is still necessary in obtaining qualified faculty. The North Dakota University System has made structural changes to their tenure policy. The proposed changes would reduce the termination notice policy from one year to 90 days.  Administrators believed that one year termination notices are financially unsustainable; however, given the faculty hiring cycle and the unique nature of the faculty job market, many argue that 90 days is not a sufficient timeframe for faculty to be able to successfully find alternative teaching and research positions.

For some institutions, tenure can be a costly expense. While trying to pay tenured faculty, universities often must allocate their endowment funds.  Institutions could save money by using non-tenured faculty, who do not have research requirements and who handle larger course loads. Research has shown that part-time and non-tenured faculty can provide just as much support to students academic success as tenured faculty. Some of the faculty who do not have tenured status have helped the growth of graduation rates in students. While institutions see part-time or non-tenured faculty as cost-saving measures, they should enact protections that respect their contributions to our higher education experience.  Tenure is a discussion that is often debated within higher education, which will continue so long as the defunding of American higher education continues and institutions find ways for cost-savings. 

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


Fraternity Hazing and the Struggle to Find Responsibility

The first known incident of hazing dates back to 1873 at Cornell University when a student pledging a fraternity (“pledge”) was blindfolded, led off campus, and told to lead the group back; however, while navigating back to campus, the group fell over a cliff edge and the pledge suffered injuries leading to his death. Typically, hazing includes reckless behaviors, completing various tasks, and large amounts of alcohol. Recently, the topic of hazing has made its way to the big screen in an attempt to show some of the horrors associated with the ritual. Unlike the movies “Animal House” and “Old School, “Goat” depicts hazing for the true danger it presents. Hazing is defined as an initiation process involving harassment and is often under the microscope in fraternity communities. Hazing can also be defined as the perfect storm as students seek belonging while partaking in initiation rites of passage. The sense of belonging drives students to complete risky activities in hopes of crossing the boundaries set forth by older members to become members of the organization. For many years hazing has created problems for colleges and universities seeking to find consistent liability and eradicate the dangerous issue.

Throughout the years, incidents of hazing have continued to rise while the search for standard liability continues. In many states, statutes were developed as a reactionary measure, often placing liability on the student(s) and resulting in a fine, prison, or both. For example, North Carolina law states, “It is unlawful for any student in attendance at any university, college, or school in this state to engage in hazing, or to aid or abet any other student in the commission of this offense.” 

Intentional tort claims are cited frequently in hazing litigation. In seeking to defer liability through tort law, “... the hazing victim must prove that wrongdoing occurred on the part of the defendant who caused some type of damage and/or injury.  Several cases have included tort claims of negligent infliction of emotional distress, intentional infliction of  emotional distress, assault and battery, negligence, and vicarious and premise liability.” Such cases addressing tort law and inconsistent liability placement include Furek v. Delaware, Morrison v. Kappa Alpha Psi Fraternity, and Ballou v. Sigma Nu Fraternity.

Furek v. Delaware was heard in the appeals court between Jeffrey V. Furek and Sigma Phi Epsilon fraternity and Joseph Donchez following a superior court filing by Furek in 1982. “The principal dispute in this appeal concerns what, if any, duty the University owed to Furek to protect him from the hazing activities of Sigma Phi Epsilon (Sig Ep) and its members, including Donchez.” The appeals court affirmed the rulings of the superior court dismissing Furek's claim against Sig Ep, denying recovery of punitive damages and refusing to grant a directed verdict on the defenses of contributory negligence and assumption of risk.

Morrison v. Kappa Alpha Psi Fraternity emerged from a fraternity hazing incident at Louisiana Tech. On April 10, 1994, Kendrick Morrison, a freshman interested in membership in Kappa Alpha Psi, was physically beaten by Jessie Magee, president of the Tech Kappa chapter, during a gathering which took place in Magee's dorm room. Kendrick and his parents filed suit against Kappa Alpha Psi, Inc., its insurer, Jessie Magee, and the state of Louisiana through the Board of Trustees for State Colleges and Universities. Originally, the defendants were found equally guilty and Kendrick was awarded $6,000 in past medical expenses, $6,000 in future medical expenses, and $300,000 in general damages. However, the trial court findings were reversed on the basis of vicarious liability on the part of Kappa Alpha Psi, Inc., and there was a reduction of Kendrick Morrison's general damage award from $300,000 to $40,000. In all other respects the trial court's judgment was affirmed.

In Ballou v. Sigma Nu Fraternity, the appellant Sigma Nu Fraternity moved to appeal a jury verdict in favor of the respondent Sanford Ray Ballou (Ballou), the administrator of the estate of his son Lurie Barry Ballou (Barry). Sanford Ballou sued the fraternity on the grounds that his son had been psychologically manipulated to consume copious amounts of alcohol before dying of alcohol poisoning and aspirating on gastric fluids. An original jury returned a verdict against Sigma Nu in the amount of $200,000 actual damages and $50,000 punitive damages. However, the defense of contributory negligence (and other circumstances) eventually overturned the verdict.

These cases show the difficulty in pinpointing liability in instances of fraternity hazing and the severity of the issue. In addition to the legal struggle for liability, the struggle for campus administration to find the balance also remains difficult. At the University of Idaho, tensions over hazing allegations caused one dean to resign from his position. Additionally, the University of South Carolina at Columbia administration sought to eliminate the pledging process of all Greek organizations in attempt to reduce instances of hazing, which caused a massive uproar. Meanwhile, at Virginia Tech, a fraternity is facing a 10-year suspension by administration after pledging members reported being beaten during hazing rituals. Finally, in recent weeks, Penn State has cracked down on the Greek community by permanently banning one of the fraternities and setting sanctions for others. With these examples in mind, finding a standard for liability to fraternity hazing remains a mystery.

This post was co-authored by Ms. Setareh Campion and Dr. David Nguyen. Ms. Campion is a Hall Director and a Graduate Assistant for Leadership Programs at the University of North Dakota and a masters student in the UND Higher Education program.


The Cost of Free Speech: Freedom of the Student Press

Freedom of expression in the United States includes the freedom to seek, receive and impart information and ideas of all kinds. For many years, freedom of expression on college campuses has been a complex subject matter. There are many colleges and universities in the United States that attempt to regulate nearly all aspects of students’ freedom of expression, including student publications such as student newspapers. The First Amendment of the U.S. Constitution guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely, and also serves as a basis for a majority of cases involving freedom of the student press on both public and private college campuses.

Other laws have also been passed on both the federal and state levels that apply to student journalists. On the federal level, the Protection Act of 1980 prohibits the search of newsrooms by law enforcement and other government officials. The Family Educational Rights and Privacy Act (FERPA) also applies to all forms of media as this act prohibits the release of student educational records. Some states across the nation have passed New Voices Acts to uphold the First Amendment rights of students. The basis of these acts is to guarantee the freedom of expression rights of high school and college student journalists. The following states have enacted such statutes:

Many cases have been pursued due to actions taken by university administrators for their issues with the output of their respective student newspapers. A majority of these cases are brought to the courts under three topical areas: adviser firings, financial based censorship, and denial of access – all of which were repercussions of issues with the content printed by students. Universities have permanently or temporarily removed advisers to the student press and replaced them with a new, hand selected adviser, cut the student press budget for the academic year, or simply refused access to information by students and faculty. Most rulings favored the complainant stating the school was at fault for attempting to regulate content of the students’ expressions in the papers. The following cases are those who have established standards allowing for regulations on student newspapers.

In 1988, the Hazelwood School District vs. Kuhlmeier case declared that high schools could only censor student newspapers created as part of the curriculum. The case was filed due to the deletion of two full pages from an issue of the paper that included an article describing school students' experiences with pregnancy and another article discussing the impact of divorce on students at the school. The case was brought forth by former high school students who were staff of the school newspaper under the allegation that their First Amendment rights were violated by the deletion of the pages. Originally, the District Court ruled that no First Amendment rights were violated; however, the Court of Appeals reversed this decision resulting in the declaration previously mentioned.

The Hazelwood case played a role in another significant case, Hosty vs. Carter, in 2005. On November 1, 2000, the dean of student affairs at Governors State University in Chicago, Patricia A. Carter, called the printer of her schools’ student newspaper and demanded prior approval of everything in the paper due to frustrations from administrators with the papers criticism of the university. Editor Margaret Hosty then sued the university for violating the freedom of the press. The Illinois Attorney General’s office argued the 1988 Hazelwood case should apply to college newspapers. However, Carter’s action violated the standard set by Hazelwood, and judges had to rewrite the Hazelwood precedent to justify the censorship of all student newspapers and activities by eliminating the restriction to curricular-based newspapers. The court finally ended up ruling in favor of Carter under the Hazelwood standard, stating that her actions did not violate clearly established law of which a reasonable person would have known, she was protected by qualified immunity. Therefore, under the Hosty vs. Carter decision, college administrators have the right to regulate publications by their student newspapers.

It is evident with these cases that the United States has much room for improvement when addressing violations to the First Amendment in student press related areas. The regulations placed on student newspapers, if not done carefully, can end in lawsuits for university administrators, and therefore lead to a lack of trust and respect from their respective student populations. 

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


The First Amendment Debate on Free Speech v. Hate Speech on College Campuses

The First Amendment of the United States Constitution is a topic of much debate with increased concerns across campuses nationwide.  It is in fact nothing new that the lines between free speech and hate speech have become blurred.  Historically, there have been many debates and legal cases addressing freedom of speech, such as Schenk v. U.S. (1919) and Healy v. James (1973).  Furthermore it is important for institutions to recognize the role that the civil rights movement had on shaping what First Amendment law is today. In one landmark case New York Times Co. v. Sullivan (1964), the NY Times released an ad stating that the arrest of Dr. Martin Luther King, Jr., was part of a campaign to destroy his future efforts and that it defamed L. B. Sullivan.  The court upheld that the First Amendment protects publication of all statements, even false ones – setting a precedent of the power of free speech.  These examples show that the laws that protect human rights and liberty are directly affected by the current social and political climate of the nation.  Since the election of President Donald J. Trump, both public and private institutions have directly battled with either protecting the rights of individuals or allowing for critical thinking and educational learning while often forgetting the latter. 

In a recent article featured in The Chronicle of Higher Education, Ana Mari Cauce, President of The University of Washington spoke with Steve Kolowich on balancing free speech and defining a space for protest.  Cauce spoke on why Milo Yiannopoulos was allowed to speak on campus.  She clarified that the university did not invite Yiannopoulos saying “…I did not invite Mr. Yiannopoulos to speak on campus.  A registered student did that.”  She did encourage students who disagreed with his rhetoric to avoid attending the speech and think strategically if protesting the event is the most appropriate way of handling the situation and consider more effective means of sharing their concerns.

The Breitbart editor Yiannopoulos has a reputation of targeting specific racial ethnic groups and underrepresented populations.  He feeds off of disruption and protests.  During a visit at the University of California-Berkeley as part of a book tour, tension on campus grew so high in anticipation of his speech that Yiannopoulos had to be evacuated due to the increased threat of protesters.  It is certainly understandable that UC-Berkeley saw the security and safety of their students and guest as the upmost priority. All universities have a duty to protect students and guests to the best of their abilities.  However, just as ensuring that students are safe and rights of all individuals are protected, colleges and universities must strive to facilitate dialogue and civil discourse.

Higher education is thought to be an environment where students gain valuable knowledge and critical thinking skills that empower one’s ability to debate difference of opinions. In the 1859-classic On Liberty, English philosopher John Stuart Mill asserted that one should have the possibility to be wrong and the importance of liberty and the finding of truth.  Being wrong and finding truth requires the encouragement of dialogue and debate.  In a recent webcast titled Advancing Justice in Politically Turbulent Times: A Digital Panel of Higher Education Association Presidents, higher education leaders came together to discuss current political topics and the effect on campus climates. 

This panel addressed how institutions have missed opportunities for discussion before and after speakers from the alt-right and other controversial speakers have spoken on campuses.  Dr. Kevin Kruger stated, “If we can’t have constructive dialogue on a college campus around these difficult issues there is just no hope for our nation to have it.”  He also encouraged the importance of creating spaces for students to have discussions following these events because “students have to go to class the next day.” Furthermore, Dr. Shaun Harper posited that students should go to the events of speakers that are controversial and not protest because it is important to place them in a position to give a response.  Offensive and even deeply offensive speech according to Erwin Chemerinsky should not be punished but he also asserted that the best response to free speech someone dislikes is a powerful argument that reduces opposing views to nothing.  

This post was co-authored by Mr. Roy Roach, III, and Dr. David Nguyen. Ms. Roach, III, is a Graduate Assistant in the Office of Multicultural Programs & Services at the University of North Dakota and a masters student in the UND Higher Education program.


Title IX and Institutional Responsibilities under the Law

A prevalent issue on all university campuses today is sexual harassment and violence. According to the National Sexual Violence Resource Center, 1 in 5 women and 1 in 16 men are sexually assaulted while in college. Additionally, it is believed that 90% of students who are victims of violence do not report this information to their school nor the police. Due to these staggering facts, it is important that all people working in higher education know about Title IX and their related responsibilities.

Title IX of the Education Amendments of 1972 is a federal law that was signed into law by President Richard Nixon. It states, “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.”

Several landmark cases have changed what Title IX means for schools over the years. In the case Cannon v. University of Chicago (1979), Cannon sued the university under Title IX saying they denied her admission due to being a woman. Several courts dismissed the case due to their belief that Title IX did not create a private right of action for private parties to file. This case went all the way to the Supreme Court, where they decided that private parties did have an implied right of action to sue under Title IX.

In Grove City College v. Bell (1984) the Supreme Court decided that even if an institution did not directly receive federal funding, students at that institution were receiving federal financial aid which meant indirect federal funds going to the institution. Interestingly, they also decided since that money only went through the financial aid office, then that was the only part of the institution that was covered under Title IX. Just a few years later, Congress created the Civil Rights Restoration Act of 1988, which overturned this decision and ensured all offices, departments and parts of educational institutions had to comply with Title IX.

Since the Civil Rights Restoration Act, Title IX has been used in a much broader sense to protect students from sex discrimination. In Davis v. Monroe County Board of Education (1999), the Supreme Court ruled in favor of a young girl who had been harassed by a boy in school. The court decided institutions can be held liable under Title IX if the harassment is “so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit.”

In 2011, the US Department of Education’s Office for Civil Rights released a ‘Dear Colleague Letter’ making it clear that sexual harassment, including all forms of sexual violence, is a form of sex discrimination. The letter continued to describe how institutions need to change policies and practices to become compliant under these new guidelines.

Many changes exist that schools must make including taking “immediate and appropriate action to investigate” the situation. It also spells out that schools must use the preponderance of evidence as a standard for determining whether or not these acts of violence occurred.

Many observers have commented that schools should not be handling claims of sexual assault and instead should hand them over to the police. However, it is important to understand why colleges and universities are involved in this process. One of the rights of the victim is to report to both the school and police, one of these entities, or neither. One pro for survivors to report to their institution is that the administrators can help with accommodations like changing classes or residence halls. The police cannot necessarily help with those things that can help a survivor cope after an incident of sexual violence. Additionally, due to these changes, the accused students also have more rights than were previously given at many institutions including the right to present witnesses and other evidence and the same appeal rights as the accuser.

In 2014, the Obama Administration released a list of 55 schools under investigation for their handling of sexual violence reports. Just days before the Trump Inauguration, the outgoing administration released its final list, which included 223 schools. This shows that although our country has made great strides in the last few decades, there are still issues with current reporting processes and how schools are handling these cases. It will be interesting to see how the new administration deals with imperative issues such as this one.

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