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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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Wednesday
Oct262011

Perhaps Garcetti was not the death knell

Chronicle story today reported that a US District judge in Louisiana ruled that LSU could not fire a scientist because of his criticism of the New Orleans levee system.

After Garcetti v. Ceballos apparently restricted a lot of the free speech rights of public employees, many scholars worried about the deleterious effects for academic free speech rights.

Last year the Fourth Circuit ruled in Adams v. UNC Wilmington that a professor could not be denied promotion because of the evangelical comments he made as a pundit.

Tuesday
Oct252011

Dear Professor: Give Me an "A" or Else . . .

Today’s Inside Highered Ed had a snippet about a business professor at Utah Valley University, a public institution, who asserts that he was dismissed from his position, following a one year probationary period, for being too tough with students in his teaching.  The Salt Lake Tribune’s story states that the professor's lawyers contend that his dismissal was justified by the university “based on student complaints that his 'capstone' course in business strategies was too rigorous and his Socratic style intimidated them.” 

I found the story especially timely on a personal level as one of the cases my higher education law class has assigned for today is Lovelace v. Southeastern Massachusetts University, 793 F.2d 419 (1st Cir. 1986).  In Lovelace, the professor claimed that he was not renewed because he refused to lower his grading standards or expectations of student performance, which resulted in students complaining that his courses were too hard and required too much work.  The First Circuit, assuming that this was a motivating reason for Lovelace’s dismissal, rejected that any violation of the professor’s First Amendment rights or academic freedom had taken place.  According to the opinion, “Whether a school sets itself up to attract and serve only the best and the brightest students or whether it instead gears its standard to a broader, more average population is a policy decision which, we think, universities must be allowed to set.”  This case is sometimes contrasted with Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989), where the court held that a professor possessed a First Amendment right in assigning a grade and could not be ordered to change a grade (though a school still possessed the administrative authority to change a grade).

I haven’t seen the complaint in the Utah Valley University case but the story prompted me to think about the growing reliance on student evaluations as a component of faculty evaluations.  According to the news account, the professor alleges breach of contract and fair dealing and violation of state constitutional standards.  The issue of reliance on student evaluation seems especially important in light of consumer trends in higher education and increasing use of non-tenure track faculty members.  If you’ve followed events in Texas, there is also a push by some in that state to rely more on student evaluations in assessing faculty performance.  As some institutions have moved (or are thinking about moving) to place more weight on student evaluations in relation to faculty performance, it will be interesting to see the types of legal challenges that might emerge to challenge their use (and misuse) in faculty evaluations.

Saturday
Oct152011

Does your policy comply with Title IX?

Thank you Jason Block for your October 11, 2011 entry!  This matter of college policies regarding sexual harassment is a particularly timely one as higher education administrators have been recently reviewing their student conduct and grievance policies.  Here’s why – on April 4, 2011, the Department of Education’s Office of Civil Rights issued a Dear Colleague Letter (DCL) regarding administrative requirements to comply with Title IX.  Title IX of the Education Amendments of 1972 prohibits colleges that receive federal financial assistance from discriminating based on sex in educational programs or activities (e.g., academic and co-curricular settings). Under this law, colleges must protect students from peer sexual harassment, which includes sexual violence through actions such as rape, sexual assault, and sexual coercion. The general rule is as follows: when officials at a college know or reasonably should know about student-on-student harassment that creates a hostile environment on their campus, pursuant to this law, school officials must “take immediate action to eliminate the harassment, prevent its recurrence, and address its effects” (U.S. Department of Education, 2011, p. 4).  However, does your institution adhere to the agency interpretations of Title IX?  Let me highlight four key items that the DCL emphasized because they clarify or reinforce what we know about Title IX sexual harassment standards.

First, while Title IX applies to a student’s harassing conduct that occurs during an educational program or activity, the college’s obligation may also involve harassing conduct that initially arose off-campus and was not affiliated with the school. This obligation occurs when the student conduct in question interfered with or limited another student’s ability to participate in or benefit from an educational program or activity. Quite possibly, the conduct in question could have originated at a campus pool hall, off-campus during a group meeting, or over social media (e.g., Facebook). Thus, college conduct codes and grievance policies should indicate protections to students who are harmed by harassing conduct that creates a hostile environment in connection with an educational program or activity--not just during an educational program or activity. 

Second, the DCL recommended and, at times, instituted firm statements to keep the complainant and alleged perpetrator separated as to not perpetuate the possible power differential between the two parties; for example, the DCL recommended the college provide the complainant information, so he or she can avoid contact with the alleged perpetrator. The letter also emphasized that the complainant and perpetrator should not be forced to resolve the disputes themselves such as a mediation process. The DCL also advised against parties cross-examining each other. Thus, these provisions inform colleges to ensure mechanisms in which trained professionals participate in the process--particularly to protect the parties and maintain a power balance, to the extent possible, between and complainant and alleged perpetrator.

Third (and possibly the most significant statement in the DCL), the letter indicated that the standard of review for student conduct proceedings of sexual harassment must apply a “preponderance of the evidence” standard (i.e., it is more likely than not that sexual harassment or violence occurred).  According to the DCL, some schools had used the “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred). The DCL observed that the “clear and convincing” standard is a higher standard of proof, which is inconsistent with Title IX.  Put simply, colleges should make sure that their policies adhere to the “preponderance of the evidence” standard for conduct proceedings involving allegations of sexual harassment.

Fourth, when it comes to reporting the outcomes of these disciplinary proceedings, the college may inform the alleged victim about the outcome, including information about the alleged perpetrator’s sanctions. Further, a college may inform anyone (e.g., the media and other members of the public) about the outcome of the grievance proceeding if the college’s adjudicating body concludes that the alleged perpetrator is in violation of the sexual harassment policy. In these two instances, the college does not violate FERPA. Further, the DCL does not require colleges to inform these various people—it simply states that they may do so. Thus, colleges should spell out their position regarding whether they wish to inform alleged victims and other parties such as the media, so they have procedures in place and maintain a consistent practice. 

            I should note that these rules from the DCL serve as legal guidelines for colleges and universities in terms of administrative enforcement of Title IX and as the legal standard for alleged victims seeking injunctive relief.  The legal standard is different if the alleged victim seeks money damages through a private right of action under Title IX.  In such case, the plaintiff must demonstrate that college had actual knowledge of the sexual harassment.  The college had substantial control over the harasser and the context of the situation, and the harassment was severe, pervasive, and objectively offensive leading to the victim’s deprivation of educational programs and activities.  Further, the college acted with deliberate indifference through its response (or failure to respond). 

            Ultimately, we must ask: in light of these standards, does your institution have policies that comply with the April 2011 Dear Colleague Letter?  Then, we should inquire whether your institution stuck by its policy.

 

U.S. Department of Education (2011). Dear colleague letter: Sexual violence. Washington, D.C.:

U.S. Department of Education, Office for Civil Rights. Retrieved from

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html

Tuesday
Oct112011

Interesting News Story

Here's an interesting news story reported on originally by Bloomburg and picked up by Inside Higher Ed. Brown University has been ordered to turn over fundraising records regarding an alumnus who's daughter was allegedly sexually assaulted. The young man (McCormick) is suing Brown alleging he was railroaded and forced to leave Brown “under duress and under the implied threat of false criminal rape charges.” McCormick is alleging that the charges and Brown's reaction were due in part to the alumnus' donations to the University. This case is in its nascent stages so we don't know if Brown did anything wrong. However, what can we take from this lawsuit on its face?

1. Make sure your sexual harassment policy is clear and compliant with the requirements of Title IX.

2. Follow your policy to the letter!

3. Treat all parties equally.

4. Present all parties with their options making sure that the alleged respondent knows that he/she is not-responsible unless proven responsible by a preponderance of the evidence.

Ultimately the decision to leave before a hearing is the responsibility of the student and his/her family. However, as this case shows, institutions do not want to leave the impression that they forced a student to leave.

Monday
Oct102011

Advisory Committee on Student Financial Assistance's Report on Higher Education Regulations

I haven't had the chance to review the report indepth, but the Advisory Committee on Student Financial Assistance recently issued preliminary findings for its study of higher education regulations.  The report identified 15 regulations as reported by respondents as overly burdensome and in need of "streamlining, improvement, or elimination."  Especially for those involved in financial aid issues, it would be interesting to get their perspective on this report.  It will be interesting to see how this initiative plays out in terms of attempting to streamline the regulatory process for colleges and universities.