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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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Saturday
Jun172017

Social Media and Students’ Freedom of Expression

The average college student is constantly online and frequently using social media.  Per the Pew Research Center, the use of social media by American adults has risen from 5% in 2005 to 69% in 2017.  Eight six percent of adults in the 18 to 29 age range use some form of social media on a regular basis, making them the highest percentage of users.  A Harvard public opinion poll found that among college students Facebook, Instagram, and Twitter showed the highest usage, at 88%.  So what happens when these constantly connected students post messages or images that violate policies, a school’s code of conduct, or are out of line with professional standards, and schools become aware of these posts?  What role does freedom of speech play in these situations?

Social media companies such as Twitter, Facebook, and other platforms, have attorneys engaged as “freedom of expression” lawyers to make sure that Internet speech remains free from censorship.  While higher education has long been a proponent of freedom of speech as well, recently they are having to balance these freedoms with issues of concern raised by social media, such as what speech is considered protected, what is unprotected, and what can be prohibited and sanctioned.  The availability of social media has led to an increased awareness of students engaging in questionable activities.  The question of how to balance freedom of speech with regards to higher education and social media is a recent one that is still playing out in the courts.

When discussing freedom of speech in relation to higher education, Tinker v. Des Moines Independent Community School District, (1969) is generally considered a benchmark case.  The U.S. Supreme Court ruled that neither students or teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  This case led to the “Tinker Standard” and established students’ rights to free speech, provided it was not disruptive to the work and discipline of the institution.   Recent cases involving social media and higher education institutions have referenced Tinker and the fact that posts, whether made on-campus or off-campus, could be disruptive to the educational setting.

  • In Tatro v. University of Minnesota (2012), Amanda Tatro appealed disciplinary actions taken against her by the University of Minnesota based on posts made on her Facebook page.  Tatro asked the court to review whether a public university violated a student’s free speech rights by disciplining a student for Facebook posts.  The court upheld the school’s decision and determined that the university did not violate her freedom of speech rights by imposing sanctions for Facebook posts that violate academic program rules.
  • In Yeasin v. Durham (2016), Navid Yeasin appealed his expulsion from the University of Kansas for non-academic misconduct that violated the student code of conduct.  The expulsion was based in part on comments made on his Twitter account that were considered harassing.  Yeasin argued that he exercised his First Amendment rights by posting on Twitter.  The United States District Court dismissed the case.
  • In Keefe v. Adams (2016), Craig Keefe was removed from the nursing program and Central Lakes College for unprofessional behavior and transgression of professional boundaries based upon Facebook posts.  Keefe filed a lawsuit against the dean of the college and other administrators stating that they violated his First Amendment rights.  The U.S. District Court of Minnesota dismissed his case and the United States Court of Appeals, Eighth Circuit upheld the appeal.  The Supreme Court declined to hear the case.

In each of these cases students argued that the actions taken against them were based on evidence obtained from social media and that this was a violation of their First Amendment rights.  While these cases demonstrate that institutions have successfully defended these actions in courts, each of the decisions included lengthy discussion and cited multiple precedents in order to determine if the students’ First Amendment rights had been violated.  At this time there is no definitive legal answer as to what rights colleges and universities have to sanction students based on posts made on social media.  As freedom of speech and social media continue to collide in higher education, this is a legal area that both institutions and individuals should give more consideration. 

This post was co-authored by Ms. Sherry Lawdermilt and Dr. David Nguyen. Ms. Lawdermilt is the Director of Technology for the UND Vice-President of Finance and Operations and a doctoral student in the UND Higher Education program.

Saturday
Jun172017

Tread on This: Developing Policy While Protecting Students' Freedom of Expression

Freedom of speech and freedom of expression have been longstanding issues on higher education campuses. However, it seems that more and more recently administrators at public institutions of higher education are faced with increasing challenges when trying to address the issue of free speech on campus. These issues stretch in every corner of a college campus, from the open spaces, and invited guests, to student protests, and more recently viral social media. Balancing the rights of students on college campuses, while still upholding missions that often include commitment to inclusion and diversity is a minefield that demands respect as college administrators build policy and practice on campuses nationwide.

While not directly related to higher education, Tinker v. Des Moines Independent Community School District, et. al. lays the legal ground work for freedom of speech and has regularly been cited in other free speech cases since its ruling in 1969. In this case, students were protesting the Vietnam War by both fasting and wearing black armbands to school. As the school board found out about the armband protest, they threatened to suspend any student who wore an armband to school. When a student did so, the school suspended the student. The Supreme Court held that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  This case makes clear that students still carry their rights with them while they are in school, with the exception that it does not cause a disruption.

Even in Healy v. James, the court held that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.” Students in this case won the right to have a recognized student organization on their campus. Administrators again failed to silence the rights of students.

Where institutions have some ability to regulate is the “when,” “where,” and (sometimes) “how” students can assemble. Institutions can require that organizations submit a request to assemble and disseminate information in locations on campus. Though this is even contested such as in Shamloo v. Mississippi Board of Trustees where students were disciplined for not following requirements in the student handbook in regards to notifying the institution of a demonstration. The courts here indicated that the students were disciplined because of an unconstitutional policy. The court held that while other cases Bayless v. Martine have upheld policy that requires prior approval of demonstrations, the “one critical distinction between the regulation examined in Bayless and the Jackson State regulation… [t]he former made no reference to the content of the speech that would be allowed in the ‘Student Expression Area” (Shamloo v Mississippi Board of Trustees; 620 F. 2d 516, at 523). The policy at Jackson State required that demonstrations be “wholesome in nature,” thus the court argued that this was over vague, and a regulation of “content” not time, place, or manner. Further, Jackson State failed to provide any evidence that the demonstration caused a material disruption of classwork, or that the demonstration had substantial disorder or infringed on the rights of others.

Consistently, the courts have ruled in favor of students’ freedom of expression leaving institutions challenged to effectively combat discourse amongst a melting pot of beliefs and ideas. Where bringing a speaker to campus is recently resulting in violence, and those wanting to hear the speaker are left unheard. While the students causing unrest are being held accountable, institutions are left wondering what to do when bringing in an “unpopular” opinion turns to violence.

While the divide in opinion in this generation is more heated now than it has been in sometime, it is important for institutions to protect students freedom of speech and be involved with advancing the dialogue. Administrators at public institutions must recognize that the right to freedom of expression is a vital right for all students’, faculty, and staff, and that these rights can be protected while still upholding the mission and vision of the institution. However, navigating the policy minefield is more a challenge now than it has ever been with the emergence of social media and the 24 hour news cycle, like in 2015 when a fraternity’s “racist chant” was caught on camera and quickly went viral through social media, local and national news outlets. Where to draw the line on what is free speech and what is not, continues to be blurry. However for college administrators it is important to reflect on the rich lessons learned from history as they move into a challenging future.

This post was co-authored by Mr. Devin McCall and Dr. David Nguyen. Mr. McCall is Residence Life Director at Minot State University, Minot, North Dakota, and a doctoral student in the UND Higher Education program.

Monday
Jun122017

Guest Post: Bullying, Cyberbullying, and Title IX

When bullying takes place in a technological environment it is known as cyberbullying and is defined by the Cyberbullying Research Center as "willful and repeated harm, inflicted through computers, cell phones, and other electronic devices." The U.S. Department of Education Office for Civil Rights (OCR) further indicates bullying through electronic technology "can include offensive text messages or emails, rumors or embarrassing photos posted on social networking sites, or fake online profiles."

While all bullying is harmful, most authorities agree that cyberbullying may be more damaging than traditional bullying. Although many believe that bullying is only a K-12 concern, the OCR reports that the legal principles addressed in their guidance documents apply equally to postsecondary institutions. In fact, in 2011, 22% of college students reported being cyberbullied.

As such, colleges and universities have the same legal obligation under Title IX to address cyberbullying as physical or sexual harm. In fact, according to the OCR "if the abusive behavior [bullying] is on the basis of race, color, national origin, sex, or disability, and creates a hostile environment, a school is obligated to respond in accordance with the applicable federal civil rights statutes and regulations enforced by OCR. In addition, most states have enacted bullying laws requiring schools to develop policies regarding traditional and cyberbullying.

Clearly, according to Hinduja and Patchin, student affairs professionals "have a legal obligation (notwithstanding a moral duty) to take action when harassment (online or off) is brought to their attention." Moreover, case law which is still evolving in this area, seems to suggest that administrators may discipline (suspension, expulsion, etc.) students for inappropriate online behavior, even if it occurs off-campus. However, in order to be protected from civil liability, administrators must be able to show that the disciplined behavior caused a substantial or material disruption in learning (or a substantial disruption was reasonably forecasted), or was threatening to other students, or infringed upon their civil rights. Campus judicial involvement is also appropriate if the student's off-campus behavior negatively impacts the institution's mission.

Most importantly, along with training and education as directed by the OCR, colleges will fare much better when legal challenges may occur if they have strong and detailed policies that delineate what online behaviors are acceptable or unacceptable. This of course means that the Student Code of Conduct and Student Handbook contain up-to-date, legally sound (be sure to involve your institution's legal counsel) bullying policies that specifically address on and off-campus misconduct, and clear and consistent disciplinary procedures. 

This post was authored by Dr. Thomas V. Toglia, who is an Adjunct Professor in Law and Ethics at Lenoir-Rhyne University Center for Graduate Studies in the Community College Administration Program.  You can reach him at thomas.toglia@lr.edu.

Tuesday
Jun062017

Losing Your Mind: Concussions and the Liability of Collegiate Athletics

Concussions have been a hot topic within athletics and medicine in recent years. Lawsuits surrounding concussions have been filed against the National Football League and the National Hockey League, which have been settled out of court. Concussion litigation is not only limited to football or hockey but also in other sports, such as soccer (MU vs. Downington High School East), field hockey (Bradley vs. NCAA), and cheerleading (Baggay vs. Linfield Christian School). The National Collegiate Athletic Association (NCAA) has also been a prime target for litigation stemming from student-athletes with concussions. This should be of concern to higher education personnel since a judge recently approved a $75 million dollar settlement between the NCAA and the student-athletes.

President Obama held a Safe Sports Concussion Summit in 2014 in conjunction with the growing national concern; however, he was not the first president to deal with injuries in sports. Safety in college football was questioned in 1905 when 19 players died and hundreds were severely injured during the season. As some newspapers called for the ending of the sport, Teddy Roosevelt met with leaders from universities to try to promote safety in football. This meeting led to the start of an organization that would later become the NCAA. The NCAA cites a timeline of trying to promote safety, specifically to reduce concussions, on their website. What is missing from this timeline is the hiring of Dr. Brian Hainline in 2013. Dr. Hainline is the first Medical Director of the NCAA in 107 years since the organization was brought together by President Roosevelt. It is important to note that Dr. Hainline is a neurologist and joined the NCAA at a time when concussion lawsuits against the NCAA were becoming more frequent. Dr. Hainline has focused on the prevention and treatment of concussion. Within two years of his hiring,  NCAA Division I institutions have been given best practice in concussion management information as well as being mandated to submit a concussion management protocol to the NCAA for approval.

Public concern regarding concussion has risen to the level where concussion legislation exists in 49 of the 50 states, including North Dakota. Each state’s statutes vary greatly but focus on 3 areas: 1) training of coaches and other athletic personnel about concussions, 2) educating athletes and parents, and 3) having a concussion management plan including removal from play and evaluation by a health care professional. Seeking approval for a concussion management protocol through a state or the NCAA may give the impression health care providers know exactly what to do with every concussion. This is not always the case. More concussion research data is being collected all the time, partly due to increased funding from the previously mentioned lawsuits; however, concussion diagnosis and treatment is still far from an exact science. As much as is known about other areas of medicine, little is known about the grey matter of the brain.

Concussions are complicated injuries. Symptoms may include a wide range or one simple symptom such as headache, nausea, ringing in the ears, dizziness, blurry vision, lack of concentration, or simply feeling agitated, lethargic, or sleepy. Symptoms may be acute or have a delayed onset. Athletes may not know they have a concussion and continue to play. It is difficult for health care providers to definitely diagnose a concussion. Using x-ray or Magnetic Resonance Imaging (MRI) is not helpful because even though those diagnostic tests are normal, an athlete may have signs and symptoms of a concussion and be dysfunctional. Even after a concussion diagnosis, a recovery timeline is nearly impossible to predict.

The complexity of concussions can be seen in looking at the summary of the 5th International Conference on Concussion in Sport held in Berlin in October of 2016. Four hundred experts from around the world met to discuss the latest research and findings on concussion.  Yet in their summary, almost every section of treatment is ended with a caveat or possible exception to the proposed standard.  It is clear the growing legal implications were on the mind of these experts because the second section of the summary contains a specific disclaimer stating: “Medical legal considerations - The consensus statement is not intended as a clinical practice guideline or legal standard of care….” The inability to accurately diagnose a concussion could also be viewed as the inability to diagnose when one does not have a concussion.  Maybe this is why so many concussion lawsuits are settled prior to court.

This post was co-authored by Mr. Steve Westereng and Dr. David Nguyen. Mr. Westereng is the Director of Sports Medicine for UND Athletics, Department Chair and Assistant Professor of Athletic Training in the UND School of Medicine and Health Sciences, and a doctoral student in the UND Higher Education program.

Tuesday
Jun062017

Beyond Litigation: Exploring Comparative Pathways to Social Justice in Addressing Sexual Assault

Sexual assault and violence is not a new societal issue or concern. However, recent media attention about incident reporting has shone a spotlight on this social justice issue. The call to action for higher education to address student safety and campus responses to proactively respond in a comprehensive and holistic way to providing a safe student experience has gained prominence.

According to the National Intimate Partner and Sexual Violence Survey (NISVS) conducted in the United States, 20 to 25% of college women experience rape or attempted rape, irrespective of racial or ethnic group, sexual orientation or gender identity. Historically, marginalized and underrepresented groups have had greater rates of sexual violence. In response to this high rate of sexual violence, legislation is being introduced and discussed at both the federal and state levels to address the issue of sexual assault on post-secondary campuses. Title IX, which is federally mandated, is one of the most important statues in higher education; it must work in tandem, constitutionally or contractually, with protection from the law. At the same time FERPA also comes in to play at the margins to further complicate responses.

In Canada, according to CBC News, “An estimated 15 to 25 percent of female post-secondary students experience sexual assault or attempted sexual assault during their education.” Canadian higher education responses have leaned towards affirmative consent as a way to address this social justice issue on higher education campuses.

Legally, students are accessing a number of options in an effort to bring about systemic change and seek restitution in response to a sexual assault. Most recently, Canadian students have sought tribunals, human rights complaints and in some cases civil action as compared to litigation. “While there is no data on the prevalence of civil sexual assault complaints, which include those made to human rights tribunals as well as lawsuits and other channels, there now appears to be more awareness of those options, experts said”.

In support of an affirmative consent approach, the Manitoba government introduced the Sexual Violence Awareness and Prevention Act on April 28, 2017, to prevent sexual assault and harassment at postsecondary institutions. The new legislation applies to all publicly funded post secondary education institutions, the Manitoba Institute of Trades and Technology, and all 57 private postsecondary schools across the province. The legislation requires all schools to develop and implement campaigns that educate students on a “no means no” approach to consent. The Act expands the definition of sexual violence specifying harassment on social media, while also mandating that schools must have appropriate policies and procedures in place to respond when a student reports an incident of sexual harassment or violence.

The ACPA Beyond Compliance: Addressing Sexual Violence in Higher Education has made recommendations for educating students and professionals in higher education. One recommendation is to create  a comprehensive sexual violence prevention program that encompasses learning goals that educate students to address consent, policy and resources, healthy relationships and sexuality, roots of sexual violence, and empowering actions. Equally important is the education of higher education professionals to address the capacity building of competencies in prevention, policy, response and adjudication. In considering What The Sexual Violence Awareness and Prevention Act Means for Schools in Manitoba three key aspects of the ACPA recommendations are evident in Manitoba’s Sexual Violence Awareness and Prevention Act. The Act requires that institutions must develop both a way for students to safely report instances of sexual violence as well as develop a defined process for staff to handle these incoming complaints. The Act expressly goes beyond physical instances to deal with instances of online or digital sexual harassment. Finally, institutions must develop both a way for students to safely report instances of sexual violence and a defined process for staff to handle these incoming complaints.

Students need to know that support from their higher education institutions exists. Higher education institutions need to be responsible for raising awareness of the importance of informed sexual consent by having campaigns informing students through affirmative consent that "no means no." As well, they must have appropriate policies and procedures in place to respond when a student reports an incident of sexual harassment or violence. That means someone who comes forward with a complaint will be treated with discretion and respect and will be protected. Perhaps Canadian policy levers can inform the United States policies and practices towards informed consent and alternative forms of proceedings beyond litigation. 

This post was co-authored by Ms. Debra Radi and Dr. David Nguyen. Ms. Radi is the former policy and governance officer for the University of Winnipeg, in Manitoba, Canada, and a doctoral student in the UND Higher Education program.