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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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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.


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.


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.


Power of the Paws: The Role of Animals on Campus & Legal Issues

Animals on college campuses are a big draw. Often students will flock to dogs when their owner is walking them on campus. But what happens when that dog is there to do a job?  There are more roles that animals can play in the world and specifically on a college campus. These roles can be divided into three main categories: service animals, emotional support/assistance animals, and therapy animals. It is important to know the differences and definitions of each role as certain laws pertain to some but not others.

Service animals are defined by the U.S. Department of Justice as “dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, or calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack; the opportunities for service are numerous. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the Americans with Disabilities Act. One example of a gap in services is the needs of veterans returning from war with PTSD. The U.S. Department of Vetrans Affairs describes some of the challenges that service men and women could utilize animal assistance to overcome.

Emotional support/assistance animal’s admissibility into housing is determined by the Fair Housing Act. “An assistance animal can be a cat, dog or other type of companion animal, and does not need to be trained to perform a service. The emotional and/or physical benefits from the animal living in the home are what qualify the animal as an assistance animal. A letter from a medical doctor or therapist is all that is needed to classify the animal as an assistance animal.” However, Service Dog Central emphasis the important differences to take note of between emotional support animals and service animals.

The final category refers to therapy animals. These animals are trained to work with their handler and respond specifically in a variety of settings. Therapy animals are trained to achieve specific physical, social and emotional goals with their participants. Some examples of environments in which therapy animals are utilized include hospitals, nursing homes, libraries, elementary schools, community centers, and colleges.

In Alejandro v. Palm Beach State College, the plaintiff alleged that actions taken by her college to prohibit her “psychiatric service animal” to accompany her to class prohibited her from being a successful student. The college contended that the plaintiff did not meet the demonstrated need or documentation required to permit the animal on campus. The standard of law in this case was based on United States v. Lambert, wherein to obtain injunctive relief, “the movant must show (1) a substantial likelihood of success on the merits; (2) irreparable injury suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; (4) the injunction, if issued, would not adverse to the public interest.” The judge first determined that the animal in question fit the definition of a service animal. Next, the judge determined that the benefit to the student outweighed the “threatened injury” to the college. Finally the court decided that it was inappropriate to intervene and rectify poor grades earned as a result of the student's absence, and it was the college’s right, as well as the individual professor’s, to grade their class as they see fit. While the judge sided with plaintiff in awarding her rights to have her service animal on campus, it is important for students to communicate need to administration before assuming policies on college campuses.

In United States of America v. University of Nebraska at Kearney, the concern was raised regarding whether university housing is considered a “dwelling” under the Fair Housing Act. A student that was prescribed a therapy animal was denied the ability to live in student housing with the animal due to a no-pet policy on campus. One of the main difficulties in this case was that the Fair Housing Act did not define the term “residence;” therefore the university argued that students were considered “transient visitors.” Using the Dwelling Test from Franchi v. New Hampton School, the court determined that university residences fell under the definition of dwelling as laid out by the Fair Housing Act. Due to this test, the court determined that the university must comply with the Fair Housing Act and allow residents who have demonstrated need an exception to the no-pet policy.

What is important to note is that while these two cases demonstrate some of the challenges faced with the emergence of animals on college campuses, they do not cover all circumstances. Colleges and universities should continue to adapt their policies as more legislation and case laws dictate future direction. Hopefully, student’s needs are kept in the forefront of administrators and legislators minds as this evolves. 

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



To Report or Not to Report: Are Universities Doing Enough for Sexual Assault Victims?

Sexual assaults on college and university campuses are an important problem for students and administrators alike. Multiple acts exist that hold institutions of higher education responsible for handling such incidents properly and ensuring they are public records. However, problems occur when schools are not forthright in reporting their crime statistics.

One law that is imperative to this issue is the Clery Act, named for Jeanne Clery, a 19-year-old Lehigh University student who was raped and murdered in her residence hall by fellow student Josoph Henry in 1986. The Clerys sued Lehigh, stating the attack on Jeanne was one of 38 violent crimes recorded at the university in three years. Her parents argued that, if the university published its crime rate, Jeanne would not have enrolled at Lehigh. The Clerys won their lawsuit and founded the non-profit group Security on Campus with the $2 million awarded from the suit.

The Clery Act, first enacted in 1990, requires colleges to report crimes that happen on or near their campuses and to warn students and employees about recurring threats to the welfare of the community. Under the act, violations leading to punishments for higher education institutions include inaccurately reporting crimes that occur on campus, not having sufficient procedures in place to handle sexual assault, and not providing timely warning to the campuses community of an ongoing threat to public safety. One case involving violation of the Clery Act involved the University of California, Santa Barbara (UCSB). In this case, six current and former UCSB students filed complaints with the U.S. Department of Education’s Office for Civil Rights (OCR), accusing the University of discouraging the reporting of sexual assault. The complaint also claimed the University did not reprimand students who admitted to sexually assaulting fellow students and created a hostile environment by allowing alleged attackers to remain in classes with their victims.

Another law requiring educational institutions to have open crime records is Title IX of the Education Amendments of 1972, which states, “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Organizations like the American Civil Liberties Union (ACLU) maintain that “when students suffer sexual assault and harassment, they are deprived of equal and free access to an education.”

According to an April 2011 letter issued by the OCR, “The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.” The letter, known informally as the “Dear Colleague” Letter, states it is the responsibility of institutions of higher education “to take immediate and effective steps to end sexual harassment and sexual violence.” The letter illustrates multiple examples of Title IX requirements as they relate to sexual violence, and makes clear that, should an institution fail to fulfill its responsibilities under Title IX, the Department of Education can impose a fine and potentially deny further institutional access to federal funds.

A case involving a freshman at Amherst College demonstrates a Title IX violation. Angie Epifano wrote an essay that was published in the school’s newspaper on her assault experiences, with other students, and her interaction with the sexual assault support system at the college. Nine months after Angie’s rape occurred in a dorm room, a friend suggested she talk to a counselor. When she eventually did seek counseling, Angie reported a campus sexual assault counselor told her she could not change dorms, pressing charges would be useless since the accused student was about to graduate, and asked if she was positive that she was raped. She described how the counseling center focused on her apparent psychological instability and placed her in a psychiatric hospital after admitting she had suicidal thoughts. Due to Angie’s frustration with Amherst College’s insignificant support system for sexual assault victims, she dropped out after her freshman year. Two years after her assault at Amherst, Angie and another female former student filed a complaint under Title IX.

Along similar lines, the Jerry Sandusky case at Pennsylvania State University violated both the Title IX as well as the Clery Act. The Title IX violation arose when a graduate assistant witnessed then assistant football coach Sandusky sexually abusing a child in a locker room on-campus, therefore creating a hostile work environment. The violation for the Clery Act stemmed from head coach Joe Paterno and several Penn State officials learning about Sandusky’s behavior, yet purposefully choosing to not report anything.

Certain laws are in place to ensure colleges and universities are honest about the safety of their campuses. Sexual assaults are still a hot-button topic for higher education institutions, and handling such situations is a difficult task to accomplish. Accordingly, higher education institutions must be more cognizant of sexual assault crimes on their campuses as well as creating a more empathetic and smoother process for victims of these crimes to report the assault through the proper channels.

This post was co-authored by Ms. Tara Lulla and Dr. David Nguyen. Ms. Lulla is a doctoral student in the criminal justice program at UND.

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