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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.


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.


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. 


A Reminder to the Essence of Humanity Embedded in DACA

The emergence of Donald Trump and his rescission of The Deferred Action for Childhood Arrivals (DACA) spurred the undocumented community to push back against divisive measures within their college campus. Hector Sanchez-Perez is a first-year Sociomedical Sciences Master’s of Public Health student at Columbia University Mailman School of Public Health. As a “Mailman Dreamer” he epitomizes the resiliency and determination procured to transcend anti-immigrant rhetoric.

But the lives of undocumented students are used as bargaining chips in a political chess game revolving around immigration. Four Harvard Medical Students banded together and used the privilege of their white coats to enlighten a forgotten perspective: the essence of humanity embedded in the DACA executive order.

The Deferred Action for Childhood Arrivals (DACA) order expedited by the Obama Administration protects nearly 800,000 undocumented students, or Dreamers, from the threat of deportation while being permitted to work, apply for credit, and apply for a driver’s license. Former Secretary of Homeland Security Janet Napolitano announced that individuals who arrived in the United States as children and met certain criteria could apply for deferred action for two-year periods, subject to renewal.

The border of immigration status often prohibits undocumented students form achieving the American dream of social mobility. Throughout their entire educational careers, undocumented students have accrued the navigational and cultural capital to sustain their resiliency in higher education. Although the fate of DACA rests on impending litigation, it is imperative that universities adhere to the humanist side of the debate, highlighting the Due Process Clause of the Fifth Amendment to the United States Constitution.

In a politically charged and divisive campus climate, major universities have assumed a united front against policy-changes on immigration. Shortly after Donald J. Trump’s successful presidential campaign, the University of California declared its commitment to the undocumented student community. The University of California affirmed, “we will not release immigration status or related information in confidential student records, without permission from a student, to federal agencies or other parties without a judicial warrant, a subpoena, a court order or otherwise required by law.” The UC stance is in conjunction and protected under the Family Educational Rights and Privacy Act (FERPA).

The humanity of immigration law pertaining to Dreamers are teetering as undocumented students continue to entrust the United States Citizenship and Immigration Services (USCIS) with sensitive information without fear that the Executive Branch was using DACA as a way to find and remove undocumented immigrants when submitting renewals. President Trump stated, “[Dreamers] shouldn’t be very worried. I do have a big heart. We’re going to take care of everybody” during an ABC News interview in January.

Promptly after the rescission of DACA on September 5, 2017, Harvard University President Drew Faust issued a letter to the Trump administration emphasizing its cruelty as “recognizing neither justice nor mercy” and urged President Trump to preserve protections because like their peers, undocumented students have earned their seat at Harvard.  

Currently, the March 5th deadline is rendered insignificant as now two District Court Judges have halted parts of the DACA rescission. Regents of the University of California v. U.S. Department of Homeland Security was granted a preliminary injunction that reinstated DACA to its September 4, 2017 status, allowing USCIS to resume renewal processing. Its companion case in the Eastern District of New York, Vidal v. Nielsen confirms Regents was ruled invalid in that the rescission action was “arbitrary and capricious” in contrast to the Administrative Procedure Act, 5 U.S.C § 706(2).

As litigation ensures and the fate of Dreamers out of the hands of the Executive Branch, how deep are universities committed to undocumented students? What extra protections can universities offer students that are still in compliance within federal and state law?

This post was authored by Deon Turner, a Master’s Student in Higher Education Administration at The University of Texas at San Antonio and a Graduate Assistant for UTSA Campus Recreation.



Paying Debts to Society, but Unable to Pay for College

Prison reform in general is typically met with intense opposition by vocal anti-prisoner sentiment. Beyond the general, opposition climbs ever higher in regards to allotting federal funding to correctional education. Opponents balk at the idea of allowing incarcerated individuals access to federal funding in the form of Pell Grants – an argument that is difficult to contend with considering the rising costs of education and the stagnation of federal funding offered to the general population.

Amid what seems to be enduring “tough on crime” public sentiment, the 1994 Crime Bill withdrew eligibility for Pell Grants for any incarcerated individual. This remains the policy on Pell Grant eligibility for incarcerated individuals in effect today. Damage done by this bill meant that by 1997 only eight total programs for postsecondary correctional education remained in operation, where before there had been 350. Most of these programs were fortunate enough to have outside sources of funding. For the rest, the lack of funds to keep programs operational meant they forced to shut down. Funding remains a large obstacle to creating and sustaining correctional education programs now.

Considering the ballooning incarceration rate in the United States that currently means over 2.3 million Americans are behind bars (equal to more than one out of every one hundred American adults), the educational needs of this huge population warrants attention. Incarcerated individuals make up one of the largest demographic populations in the U.S. Furthermore, it’s important to note many of those serving sentences come from underserved backgrounds or have been funneled into prison via the school-to-prison pipeline or as a result of “tough on crime” policies like the aforementioned Crime Bill or the Reagan Administration’s “War on Drugs.” Only six percent of this 2.3 million person prison population currently have access to a correctional education program.

In 2016 President Obama initiated the Second Chance Pell Pilot Program to support postsecondary educational programs by awarding Pell Grants to just under 12,000 incarcerated students. This program is only in its second fiscal year, and the impact will be measured longitudinally so results are not yet available. The hope is that the program will provide data illustrating the benefits of correctional education as well as demonstrate increased participation in such programs when Pell Grants are available. Three separate pieces of legislation have been introduced for the consideration of the 115th Congress that will cause legislative change regarding Pell Grants for incarcerated individuals should any of them pass the current legislative session. Among these are the Restoring Education and Learning (REAL) Act, the Pell Grant Preservation and Expansion Act, and the Promoting Real Opportunity, Success, and Prosperity through Education Reform (PROSPER) Act.

The most straightforward of these is the REAL Act, which seeks solely to restore Pell Grant eligibility to incarcerated individuals. The Pell Grant Preservation and Expansion Act asks for the same, but also seeks much more comprehensive reform to the Pell Grant program. Some highlights of this Act include increasing grant maximums, reinstating eligibility to students with drug offenses, and allowing DREAMers access to Pell Grants, each of which have the ability to complicate the possibility of the Act passing. The PROSPER Act, or the Higher Education Act Reauthorization Bill, currently has no language specifically addressing incarcerated students but there appears to be tentative support for adding such language to the bill. If the language were added, it would be among an exhaustive list of amendments to the former Higher Education Act.

Regardless of the cost, correctional education has been shown to reduce recidivism rates, or the likelihood for formerly incarcerated individuals to reoffend. According to 2013 Rand Corporation findings, there is a staggering 43% reduction in the likelihood of recidivating among these individuals. The same study also estimated that per $1 invested in Pell Grants, the U.S. stands to yield a $4-5 return on amounts that would have otherwise been spent to house, feed, and provide healthcare to those who had recidivated. Students who participate in correctional education programs are less likely to engage in violence, prison politics, or self-segregate by race. They opt instead to interact with their classmates, reflect on course materials, and build productive friendships.

With these benefits, the complicated nature of American politics, and the current proposed legislation in mind, it will be interesting to see what decisions are made regarding Pell Grant eligibility for incarcerated students and how those changes impact the landscape of incarceration in the United States.

This post was authored by Sarah Borden, a master student in Higher Education Administration at The University of Texas at San Antonio and a graduate assistant in the Department of Educational Leadership & Policy Studies.


Visualizing Values: When Art Creates Controversy on College Campuses

Campaigns seeking the removal of monuments perceived as discriminatory have begun to garner significant support nationwide. The Southern Poverty Law Center (SPLC) recently identified over 1,500 monuments, buildings and symbols located in public spaces throughout the U.S. that honor the Confederacy and Confederate soldiers or leaders. In a similar vein, The New York Times published a map of monuments that are slated for, or have already been, removed. Many of the monuments listed are on or adjacent to college campuses. This movement has been spurred, in part, by increases in on-campus racial incidents, including leafletting and posting of fliers (the SPLC also documented 329 fliering incidents at 241 different campuses between March 2016 and October 2017). These incidents, along with the increase rallies sponsored by White Supremacist-affiliated groups, like the violent rally in Charlottesville last August have led to greater discussion of the significance of monuments and other public installations that may reinforce racist ideology.

            Monuments, as well as other varieties of installed art and honorifically named structures all function as a part of an institution’s identity. Given the current climate, it would be advantageous for universities and colleges to be (a) aware of relevant legal and ethical issues, and (b) proactive in their handling of controversial monuments and art installations. As institutional agents are tasked with providing an environment in which students, faculty and staff have equal opportunity to pursue their work or education in spaces that are free from discrimination, it is important that curation of these objects be thoughtful.

            Last year, Indiana University (IU) confronted controversy regarding the depiction of a KKK rally in one panel of a mural sequence by American Regionalist painter Thomas Hart Benton, titled “A Social History of Indiana” (1933). Within the context of the mural cycle, the rally depiction is anti-Klan; however, the panel is isolated from the rest of the mural panels (leaving it decontextualized from the larger narrative) and located inside a lecture hall where (among other things) freshman orientation is held. IU’s administration ultimately declined to remove the mural, but analysis of the arguments for removal, as well as the administrative response, provides an opportunity to examine the intersection of institutional policies governing anti-discrimination and freedom of expression.

            In the petition calling for the mural’s removal, former IU student Jacquline Barrie argued the depiction, even if designed to be anti-Klan, inaccurately presents racial discrimination and white supremacy as historical, while recent events indicate these problems persist. Additionally, Barrie argued the mural violates the University’s Statement on Diversity and the Code of Student Rights, Responsibilities and Conduct. These policies indicate students have “the right to study, work, and interact in an environment that is free from discrimination in violation of law or university policy”, which Barrie reasoned had been violated by requiring students and faculty to work in view of the KKK rally depiction.

            The administrative response, penned by IU Executive Vice President and Provost Lauren Robel, emphasized the importance of context: she described the history of the mural, outlined reasons why adequately informing students of the significance of the mural has presented challenges, discussed the breadth of roles art serves (including presenting controversial or challenging material) and—perhaps most importantly—validated that the image may cause students to feel offended or upset. The final decision—to leave the murals in place, but to cease using the space as a classroom—reflects a willingness on the part of the institution to respond to the concerns of their community without censoring a historically valuable work of art.

            There isn’t extensive legal precedent for this kind of issue; however, there is some indication that any legal decisions would be highly contextual. In O’Connor v. Washburn (2004), for example, the court rejected the plaintiff’s request that a statue entitled “Holier than Thou” be removed because of purported “anti-Catholic” sentiment. The decision, which denied the plaintiff’s request for removal and for nominal damages, took into consideration both subject and display context in determining there was no reason to believe a “reasonable observer” would view the sculpture as an endorsement of anti-Catholic sentiment on the part of university officials. Although the objection to this sculpture was based on religious (not racial) discrimination, the decision’s focus on the perception of a “reasonable observer” suggests that public opinion matters a great deal. Colleges and universities may, therefore, have a vested interest in maintaining an open dialogue regarding all campus art and monuments: items not perceived as discriminatory upon installation may become controversial in the future as public perceptions of prejudice and discrimination evolve.

            Solutions that simply change the viewing context of a work of art may not always be the correct response; however, the sensitivity of IU’s administrative response offers a model for upholding the ethical values presented in university policies. Attendance at a university is a contract between the student and institution, one in which the health of the community relies upon awareness of student, faculty and staff interests. The current racial climate at many campuses has underlined that racism and discrimination remain a very real part of the community. How administrators respond to and support their students on these difficult issues can reflect their commitment to supporting an equitable academic community.

This post was authored by Amelia King-Kostelac, an art historian and doctoral fellow in the Department of Educational Leadership & Policy Studies at UTSA.