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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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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.


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.

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