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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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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.

Friday
Jun022017

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.

Friday
Jun022017

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.