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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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Educational Authority to Diminish Constitutional Rights?

College student behaviors, specifically those deemed inappropriate or a violation of policy, have always and will always continue to be a part of campus life.   Occasionally the behaviors go too far causing risk to other students and embarrassment to the image of the post-secondary institution.  In today’s world of social media and instant access to information, colleges are no longer able to address privately the behaviors to avoid public scrutiny.  Instead, the public expects explanations and for colleges to prevent the behavior from happening again.   In response to these public pressures, colleges create new regulations that bring in to question how far institutional authority can reach without infringing upon the constitutional rights of the students they serve.

One such example occurred at Indiana University.  Beginning with the 2016-2017 school year, as part of a new policy, all Greek organizations were required to sign an agreement that allows university officials, or police, to enter Greek houses when it is suspected that there is a university policy or law being violated.   During the previous year Indiana University had been dealing with Greek student behavioral concerns. One incident involved a video released on social media showing a fraternity forcing a young man to have oral sex with a female. In response to these concerns, the University enacted its new policy. According to Inside Higher Ed News Indiana University’s policy is unusual because it is a public university and most of the Greek houses are owned privately.

Fraternities and sororities consist of students who choose to associate with these organizations because of their affiliation with the college or university.  This affiliation grants authority to the college to create policies based on legitimate educational purposes, such as controlling disruptive or illegal student behaviors. It appears that Indiana University has enacted their new Greek organization agreement based on an assumption that Greek houses are affiliated in a manner similar the affiliation of residence halls with the University. 

Policy changes involving entry into student rooms or spaces raise legal questions surrounding the Fourth Amendment of the U.S. Constitution that protects against unreasonable searches by state actors. The courts, in cases, such as Healy v. James (1972) and Prostrollo v. University of South Dakota (1974), have consistently supported the university’s authority to establish rules based on legitimate educational purposes.   In Healy v. James, the court stated,

“. . . a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct.”

The authority of colleges is not without bounds, however.  In Tinker v. Des Moines Independent Community School District (1969) the court ruled that a school policy against wearing black armbands violated the fourth amendment because the school could not provide evidence that the rule had a legitimate educational purpose.  While not specifically regarding search and seizure in a post-secondary institution, courts frequently apply Tinker v. Des Moines to narrow the ability of colleges to develop policies that might infringe upon student constitutional rights .

The courts have also held that students may provide written consent to these room searches when signing residence hall agreements.  In Commonwealth v. Neilson (1996) the court supported the University’s decision to enter a student’s room based on potential safety and hazard concerns.  The court also found, however, that the University search did not grant law enforcement the authority to enter and seize student property without a warrant.

What still needs to be answered in the case of Indiana University is whether the college’s authority extends beyond the campus into the privately owned fraternity and sorority houses.  If so, by creating this policy has the university taken on a new duty to control student behaviors in the houses?  Will this duty extend beyond student behaviors and into issues regarding the condition of student living environments and facilities they live in? Finally, if a public university can establish this type of policy with a privately owned fraternity or sorority house could it also create a similar policy for students living in privately owned student-housing?  As interpretations of the universities’ scope of authority change these are the types of questions that will face campus administrators.

This post was co-authored by Mr. Troy Noeldner and Dr. David Nguyen. Mr. Noeldner is Associate Director for Housing Operations at the University of North Dakota Housing Office and a doctoral student in the UND Higher Education program.


Does EPA Plus Title IX Equal Less in Collegiate Athletics?

Equal pay in coaching intercollegiate women’s athletics has been a concern for many coaches over the years.  It is believed that title IX was the driving force to make sure that there has been parity in athletics between the sexes.  Many find it surprising to see that it’s not as clear a picture as once had been thought. There were two guiding regulations that came to the forefront when looking into this topic the Equal Pay Act (EPA), and Title IX.

The EPA is supposed to make sure people are paid the same wages for the same job and is not influenced by sex, race, or religion.  There is a common knowledge among coaches of the discrepancies in pay when comparing salaries of male and female coaches and sports at the collegiate level.  Some administrators argue that the difference of pay is due to reasons other than discrimination.  The Equal Employment Opportunity Commission (EEOC) acknowledges there are legitimate reasons for some differences in pay between the two, including more or different responsibilities.  In Weaver v Ohio State University (1999) the court ruled that different pay is justified due to differences in merit, fair market value, and seniority.  In the case Stanley v University of Southern California it was decided in favor of the University because the men’s basketball team brings in more revenue so it can pay the men’s basketball coach a higher salary and does not violate the EPA. 

Title IX is a student-centered regulation that must be met if an educational entity receives federal funding. The regulation was created to give an equal opportunity to participate in educational programs or activities.  While female student-athlete participation in NCAA division 1, 2 and 3 have increased since the creation of Title IX, the percentages of female coaches has decreased.  In the Marquette Sport Law Review it was stated that “… the number of women serving as head coaches for women’s intercollegiate teams decreased from over 90% in 1972 to 43.4% in 2014.”  Why would the number of women coaches decline while the number of female athletes has increased?  It has been suggested that, other than discrimination,  there may be a number of reasons for the low number of  female coaches ranging from, less female applicants, to women being less likely to switch jobs as frequent as their male counterparts. A number of these cases are settled out of court due to the cost of litigation, and how publicity will reflect on the university. Moshak, Mason, and Schlosser v University of Tennessee, and Johnson-Klien v Fresno State are two examples of discrimination cases settled out of court.

To prove compliance with Title IX in sport, it must be proven that one leg of three-part test are met.  The first area of concern is participation opportunities for male and females and are they equitable.  The next test is a continued expansion of female athletics.  The third part is the underrepresented sex is being fully and effectively accommodated.  If the students or coaches have been mistreated or the University has not met the standard set by the definition the university is in violation.  The EEOC states in the enforcement guidance on sex discrimination that the EPA is defensible if the criteria for a difference in pay is due to: “A seniority system, a merit system, a system that measures earnings by quantity or quality of production, differential based on any other factor other than sex.”    

The structure of employment contracts remove most cases from the purview of Title IX or the EPA.  Many of the initial contracts are very similar between male and female coaches. They start to separate when you add in other sources of income like speaking engagements, television shows, and camps.  These areas are not considered to be part of the salary package when evaluating equal pay between the two sexes. In some cases, this difference may be many tens of thousands of dollars.   

There have been several cases, in recent times that show that these regulations and more are still needed.  We still have a way to go to have equal opportunities and pay for all.  To make change permanent we will have to do more than legislate equality, society will have to decide that it is no longer acceptable and stand up for each other.

This post was co-authored by Mr. Scott Parker and Dr. David Nguyen. Mr. Parker is an assistant professor of health, physical education, and recreation at Mayville State University and a doctoral student in the UND Higher Education program.


Wa(i)ving Goodbye to Privacy in University Housing?

In fall 2016, Indiana University (“IU”) began requiring fraternities and sororities to sign an agreement which compelled those organizations, as a condition of University recognition, to consent to entry by IU Police Department officers into “common spaces and private rooms” of these off-campus private residences when there is probable cause of a crime and when the time to obtain a search warrant would either endanger health and safety or lead to the probable destruction of evidence. This is the most recent illustration of the long-standing tension between student privacy interests and institutional desire to maintain an appropriate educational environment.

The 4th Amendment to the U.S. Constitution protects people against “unreasonable” searches and seizures. Searches conducted without a valid search warrant are generally found to be unreasonable, but there are narrow exceptions to that general rule. One of those exceptions involves consent; a search warrant is not required when a person consents to the search. This consent issue often arises in college search cases within the context of residence hall contracts. Many colleges and universities include language in housing contracts and student handbooks that allow university staff to enter student rooms under certain conditions, ranging from health and safety inspections to inspections for evidence of violations of university policy. As some have noted, the case law does not provide clear and consistent guidance on this issue. For example:

  • In Morale v. Grigel (1976), a federal district court judge in New Hampshire found a housing contract provision which referenced health and safety inspections at a public university did not provide consent for searches for stolen property (and even if the contract referenced such searches, the judge noted the contract would still not allow the search because the school could not “condition attendance … upon waiver of constitutional rights”);
  • In Commonwealth v. Neilson (1996), the Massachusetts Supreme Judicial Court held a residence hall staff member’s search of a resident’s room at a public college for an unauthorized pet was permissible under a housing contract provision which authorized staff members to enter and inspect resident rooms for “hazards to health or personal safety,” but a police officer’s seizure of marijuana found by the staff member during the search was impermissible because the officer failed to first obtain a search warrant for the room;
  • In Grubbs v. Texas (2005), the Texas Court of Appeals held a student living in university housing at a public institution had waived any 4th Amendment objections he may have had to a student staff member’s entry into his room when the staff member smelled marijuana coming from the room, even though the entry was primarily to “investigate evidence of criminal activity,” because the student signed a housing contract that obligated him to “observe local, state, and federal laws” and the institution’s housing policies permitted staff to enter rooms in order to “fulfill their daily duties” (which included enforcing policies) and “in cases of reasonable suspicion of activity endangering the individual or the community;”
  • In Medlock v. Trustees of Indiana University (2013), the Seventh Circuit Court of Appeals upheld a university staff member’s search of a student room AND the subsequent warrantless police seizure of marijuana found during that search, holding the student “consented in advance, as a condition of being allowed to live in the [residence hall], to have his room searched for contraband and other evidence and violation of the health and safety code” and that the warrantless seizure by police after being contacted by the staff member were “superfluous events” and not improper; and
  • In Wagner v. Holtzapple (2015), a federal district court in Pennsylvania found that language in the student handbook authorizing entry by university staff into private rooms when there is “reasonable cause” to suspect a violation of university policy and/or state and federal law would provide “consent in advance” for such a search, determining that students agreed to be governed by those terms as a condition of living in university-controlled housing.

A somewhat consistent thread running through the cases in which the searches were upheld was the student’s choice to live in university housing; the courts indicated students agreed to be bound by the contractual terms by voluntarily agreeing to live in university housing. Would the same justification support a search of a student’s room if the student was required to live in university-owned housing? As of 2015, at least 87 colleges and universities require first-year students to live on campus; could a first-year student be said to have voluntarily consented to a search clause in a residence hall contract when the student had no other alternative to on-campus housing during that first year? Unless and until the United States Supreme Court addresses this contractual waiver issue within a university housing context, students and administrators alike are left to navigate this landscape without a clear map to guide them.

This post was co-authored by Mr. Brad Parrish and Dr. David Nguyen. Mr. Parrish is Assistant Dean for Student Life at the University of North Dakota School of Law and a doctoral student in the UND Higher Education program.


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.


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.

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