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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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Friday
Jun022017

To Train or Not to Train? For Student Conduct Administrators, There Isn’t a Question

While there isn’t one specific set of standard job requirements for a student conduct administrator, the Council for the Advancement of Standards in Higher Education in the area of student conduct programs indicates the skills these individuals need to possess and the knowledge areas they need to have are vast.  In order to stay out of the courtroom, student conduct administrators need to be skillful in the areas of writing and interpreting student codes of conduct, adhere to due process rights and follow campus procedures while adjudicating and sanctioning student conduct cases, and in some instances, interact with a student’s personal advocate or attorney during the student conduct process.  In addition, student conduct administrators need to know the specifics about many federal mandates that include following FERPA guidelines, maintaining reporting compliance with the Clery Act and Violence Against Women Act, adhering to the Drug Free Schools and Communities Act, and following Title IX guidance.

Writing student codes of conduct and developing processes for adhering to these codes has many nuances that a student conduct administrator must know and be able to apply to their work.  When it comes to writing the policies, student conduct administrators need to understand the language they can use in these policy statements.  For example, in the case of DeJohn v. Temple, the courts ruled that the wording cannot be too broad and at the same time, it cannot be too restrictive.  When it comes to determining if an alleged policy violation has occurred in a location in which the code applies, student conduct administrators need to understand the specifics of their code’s jurisdiction and whether or not off-campus behaviors can be considered for policy violations.  In cases such as Wallace v. Florida A&M and Tatro v. University of Minnesota, the courts have sided with universities whose codes cover off-campus conduct and conduct posted on social media, so long as the code specifically outlines these clauses.

The right to due process for students involved in student conduct processes was established through Dixon v. Alabama State Board of Education when Alabama State College expelled nine black students without notice or a hearing.  The ruling of the Fifth Circuit Court of Appeals indicated that students needed to be given notice and afforded a hearing before being expelled from a tax-supported institution of higher education.  Since that time, many cases involving allegations of due process rights being violated have been heard by the courts, including a number of cases related to students involved in sexual misconduct incidents.  When adjudicating student conduct cases, student conduct administrators need to make sure they adhere to due process rights along with the specific policies and procedures established by their individual universities.

While the student conduct process is not meant to be reflective of a courtroom, attorney participation in student conduct proceedings and the amount of interaction student conduct administrators have with attorneys is changing as more cases are heard by the courts and different states develop new laws.  Many cases have brought forth the issue of counsel not only being present, but also able to participate during student conduct proceedings.  One specific court case was Osteen v. Henley.  In the ruling on the right to counsel participation, the court stated, “we don’t think he is entitled to be represented in the sense of having a lawyer who is permitted to examine or cross-examine witnesses, to submit or object to documents, to address the tribunal, and otherwise to perform the traditional function of a trial lawyer.”  Even though the preceding case was an example of not allowing attorneys to participate, some states, such as Arkansas, North Carolina and North Dakota, are allowing attorneys to participation during some proceedings that take place as a result of the student conduct process.  Student conduct administrators in these states need to be well trained on their campus procedures for the amount of participation attorneys can have throughout the student conduct process.

In addition to being knowledgeable about writing policies and determining jurisdiction areas for student codes of conduct, affording students due process rights, and interacting with attorneys during hearings, student conduct administrators also need to be able to comply with numerous federal mandates.  In this regard, student conduct administrators should receive extensive and on-going training.  This training can come in many forms and from many different venues including, but not limited to, on-campus sessions led by senior administrators, attending annual conferences such as The National Conference on Law and Higher Education, the ASCA Annual Conference, the annual NASPA Conference, and the annual ACPA Convention, or going to more focused training such as the National Association of Clery Compliance Officer and Professionals training, the Association of Student Conduct Administrators Gehring Academy, or The Clery Center training workshops and online modules.

This post was co-authored by Ms. Megan Thomas and Dr. David Nguyen. Ms. Thomas is Assistant Director for Administrative Operations at the University of North Dakota Housing Office and a doctoral student in the UND Higher Education program.

Tuesday
May302017

Appearance On Matt Townsend Show To Discuss Speech Issues On Campus

I enjoyed appearing on the Matt Townsend show recently to talk about speech issues on campus.  A recording of our discussion is available here.

Monday
May082017

Free Speech Issues On Campus Op-Ed

I and Brandi Hephner LaBanc, Vice Chancellor of Student Affairs at the University of Mississippi, have an article out (available here) in The Conversation about free speech and activism and protests on campus.

Tuesday
Apr252017

Higher Education’s Hidden Cost: Sexual Violence across College Campuses

Sexual violence is a widespread problem for college communities. Colleges and universities are spending more time, effort and finances on harassment and sexual assault concerns than ever before.  Higher education related claims of harassment, discrimination, and sexual violence cost colleges and universities millions of dollars.  For smaller colleges in particular, losing a lawsuit can be catastrophic.  Sexual violence across college campuses persists across all racial and ethnic groups, sexual orientations, and gender identities. 

The manner in which colleges and universities handle allegations of sexual assault has been the subject of increasing attention and controversy as shown in Doe v. Brown University.  Typically, when you hear about sexual assault cases, the discussion centers on victims and the rights of the accused. However, campus leaders are growing increasingly concerned about the financial impact on institutions. United Educators reviewed 1,000 incidents of campus sexual assault and found that, in cases with litigation, the claims can cost institutions an average of $350,000.

In 2008, the American College Health Association (ACHA) recognized sexual violence as a “serious campus and public health issue.”  The ACHA developed a toolkit, Shifting the Paradigm: Primary Prevention of Sexual Violence, to provide facts, ideas, strategies, conversation starters, and resources to everyone on campus.  The emphasis is to encourage prevention activities before sexual violence has occurred as there is a plethora of information, tools and resources currently available for intervention after sexual violence. Strategies to raise awareness of this growing concern are ever increasing with the addition of conferences and forums such as the 2017 NASPA Sexual Violence Prevention and Response Conference: A NASPA Strategies Conference, that was held in January 2017. 

Most legislative efforts are mandates requiring campuses to put considerable resources towards responding to reports of sexual violence and adjudicating them. We call on postsecondary institutions to move beyond reactionary, compliance focused mandates to innovative and inclusive initiatives to prevent sexual violence.  A study conducted at Indiana University demonstrates that sexual assault is a predictable outcome of a synergistic intersection of both gendered and seemingly gender neutral processes operating at individual, organizational, and interactional levels. 

Students, faculty and staff across campuses have also become increasingly involved in prevention efforts.  Sustainable prevention of sexual violence requires organizational and cultural change that is supported by senior leadership, including presidents, boards, vice-presidents, and deans. Many institutions have implemented a strategy of violence prevention called Green Dot.  The primary mission of Green Dot is the reduction of power-based personal violence. Bystander intervention, which empowers students to take action when they observe behaviors related to sexual violence, can engage the larger campus community in sexual violence prevention.

Title IX of the Education Amendments Act of 1972 requires schools to combat sex discrimination in education.  The Department of Education explicitly warns institutions that they must investigate any claims of sexual misconduct on campus, regardless of if a criminal investigation has not reached a conclusion. This also allows colleges and universities to act quickly to protect students, ensure a safe campus and also respond to survivors’ needs that go unaddressed by the criminal justice system under Title IX.  For many survivors, campus reporting is their only option.  They do not want to go through a trial, fear retaliation or face skepticism from the public, or parties involved in the legal process.  In order to protect themselves and avoid costly legal implications, institutions need to competently investigate allegations of sexual assault.

All students have the right to learn in environments that are free from sexual violence. Each and every one of us within a campus community have an ethical responsibility to create and maintain safe and equitable learning environments for all students.  Sexual violence is a social justice issue that requires a holistic and comprehensive approach.  Campuses should provide varied and layered opportunities for education to increase awareness, knowledge, and skills when it comes to sexual violence prevention. Positive and developmentally appropriate messaging should be integrated throughout a comprehensive prevention effort.   Effective prevention education reaches students through multiple entry points throughout the student experience.

This post was co-authored by Ms. Naomi Hansen and Dr. David Nguyen. Ms. Hansen is Director of Marketing and Communications at the University of North Dakota School of Graduate Studies and a masters student in the UND Higher Education program.

Monday
Apr242017

Students First: Graduate Students and Unionization (Or Not)

The unionization of students has recently become a hot topic in higher education.  In particular, graduate students serving as teaching and research assistants have made large coordinated efforts in recent decades to receive collective bargaining rights.  Some have been successful, others less successful.  These efforts have looked differently at private and public institutions and have been shaped by history.  

The Taft-Hartley Act of 1947, or better known as the Labor Management Relations Act, gave the states jurisdiction over state and local employees’ collective bargaining, thus excluding student employees from federal collective bargaining rights.  While the federal government did not protect graduate students, multiple states created their own collective bargaining laws.  As a result, there are currently more than 20 graduate employee unions at public American universities.  Many states, however, provide no protection for collective bargaining among their student employees.  Why is this, you ask? For most of the last 70 years, graduate students at public universities have not been seen as employees.  They were viewed solely as students, and their work for the university was considered part of their education.  

In theory this might make some sense.  But over time, graduate students became utilized as teaching and research assistants more heavily.  As a result, their workloads increased.  Meanwhile, as higher education costs remained high, students had less time for additional jobs, which provided supplemental income.  Graduate students, many of whom had families to support and student debt to pay off had less time to earn outside income.  These students were left without a voice in the matter and saw unionization as the next logical step.  But of course this was not an option in many states. 

While students at public universities have consistently found themselves at the mercy of their states’ governments, students at private schools have had quite a different experience.  In 1951, the National Labor Relations Board (NLRB), a panel of Presidentially-appointed members that hears cases concerning labor, ruled that the educational focus of graduate work denied students coverage under the National Labor Relations Act.  This ruling was reversed in 1970 in Cornell University v. NLRB.  The Board stated that, the lines between business and education were beginning to blur, and it would be most beneficial for the NLRB to gain jurisdiction over private educational institutions.  Over time the NLRB’s decisions on whether students were considered employees or not hinged on two criteria: (1) whether the “primary purpose” of the work was educational or economical, and (2) whether they are compensated for services in a way which closely resembles employment.  In Adelphi University (1972), the NLRB utilized this “primary purpose” criterion to rule that graduate students should be classified differently than faculty.  In Leland Stanford (1974), the NLRB stated that graduate students’ work was primarily educational.  The ruling also stated that the stipends graduate students received were not given to compensate for work done but were merely efforts to financially support students.  This precedence was used for the next twenty-five years.

In 2000, the NLRB made a landmark ruling in favor of graduate students at New York University (NYU), stating that they were indeed statutory employees.  It was determined that the students were providing services and receiving compensation in a way which resembled an employer-employee relationship. The NLRB also granted graduate students collective bargaining with this ruling.  Unfortunately, this precedence did not last.  In 2004, a newer NLRB reviewed the earlier ruling in Brown University II.  This NLRB reversed the NYU ruling by returning to the “primary purpose” doctrine.  It is worth noting that the vote was 3-2 with the minority in strong opposition to the majority position.  Finally, in Columbia University (2016), the NLRB reversed its position once again and allowed for students at private institutions to unionize.  

It seems that regardless of whether students should be considered employees or not, keeping them from unionizing prevents them from adequately supporting themselves and their families.  Working or “studying” conditions are not what they should be and allowing them to bargain collectively would be the best way to take the student-first approach many universities claim to take.   Students need a voice, whether that is granted by the federal government or the individual states.  At this point it is difficult to say for sure what will come next.  While private universities’ graduate students now have the opportunity to unionize, it seems unlikely that students at public institutions will be granted the same rights on a federal level.  While that seems like a certainty, the ever-changing nature of the NLRB creates an element of uncertainty for future graduate students at private universities.

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

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