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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.


Very Interesting Title IX Case Out of the 9th Circuit

Inside Higher Education is reporting about a recent decision out of the 9th Circuit concerning gender discrimination by a PhD dissertation advisor against a female PhD in the University of Oregon's College of Education. In brief, the student is alleging that her dissertation adviser resigned from that role after she filed a complaint with the institution about the lack of female tenured faculty in her department. The student claims that the professor also convinced the remaining 15 faculty members in the department not to take on the role of her dissertation advisor. As a result the student left the program and later claimed retaliation under Title IX. The district court granted summary judgment to the University. In the 9th Circuit majority opinion overturning the granting of summary judgment, the Court, applying Title VII retaliation principles found that the student had a viable enough claim to be heard by a jury.

The most interesting part of this case at, least in my opinion as a graduate student, is the first part of the dissent. The dissenting judge, in what could be considered dicta, ruminates on whether the dissertation advisor-graduate student relationship really is synonymous with an employer-employee relationship. He cautions that making that analogy sets dangerous precedent. Judge Fisher states: "we need to be cautions when transporting the doctrines that govern the workplace into the university setting, where the roles of student and teacher, especially in a PhD program, are so bound up in personal interactions and subjective judgments."  Nonetheless, he agrees that applying Title VII principles is the right thing to do. He goes on to question whether the student's "evidence" was sufficient to establish the possibility of retaliation. He concludes not and therefore dissents from the majority. 

While the dissent raises the workplace vs. educational program issue there is also the issue of deference to academic decisions vis-a-vi, the Ewing case. Could a jury view the adviser's decision to resign as an academic one thereby deserving deference by the courts? I think the dissenter in the 9th Circuit opinion would say yes. This will be an interesting case to follow should it work its way back through the courts.


Some Recent High Profile Decisions Involving Higher Education

Recently, there have been several high profile legal decisions involving colleges and universities. One of these was a jury verdict in favor of several families of victims of the shootings that took place at Virginia Tech in 2007. Here is a link about the case to an article in the Virginia Tech student newspaper and another to a Chronicle of Higher Education article. It will be interesting to see whether the university appeals the verdict. On a broader level, the decision will likely prove significant in affecting how other institutions view their potential legal liability to warn students of potentially dangerous situations (i.e., foreseeability). In response to the Virginia Tech shootings and other incidents, colleges and universities across the nation have put warning systems into place, including the use of electronic alerts, such as text messages. The decision, especially if sustained on any possible appeal, may further prompt schools to put such early warning standards into place and to make sure that they actually are able to be implemented effectively, as botching a warning during an incident could increase the potential for legal liability.

Another case that received substantial national attention was the conviction on multiple counts of a former Rutgers student, Dharun Ravi, in relation to his actions in secretly webcasting his roommate's intimate encounters. As you are probably aware, the roommate, Tyler Clementi, later committed suicide. Among the counts for which he was convicted, the jury concluded that Ravi engaged in invasion of privacy and in bias intimidation in targeting Clementi because of his sexual orientation. Clementi's parents have also reserved their right to file a civil lawsuit against Rutgers on the basis that the institution failed to do enough to protect their son (at least I believe that's still the status of a potential lawsuit by the parents against the university unless I've missed developments in that area).

The circumstances surrounding the suicide of Tyler Clementi prompt sober reflection regarding the issue of bullying others because of their sexual orientation or for other reasons. The incident also demonstrates a seeming void in some students in terms of being able to have empathy for others and also to not fully consider the potentially harmful impact of their online activities. As with the Virginia Tech shooting, the tragedy at Rutgers will also prompt institutions to consider how to better respond to issues of bullying, with some of the motivation likely coming from efforts to reduce potential legal liability.

While these cases will eventually fade to varying degrees from the headlines, both will continue to cast long shadows in terms of influencing institutional policies and practicies. Beyond the somewhat pedestrian concern of seeking to avoid possible legal liability when compared to the depth of these tragedies, hopefully colleges and universities will learn lessons that accomplish the much more important goal of helping to protect students and their families in the future from experiencing the kind of suffering and loss that took place at Virginia Tech and Rutgers.


Panel Discussion at UK on Academic Freedom

The University of Kentucky College of Law has invited Dean Robert C. Post of Yale School of Law to campus in April. As part of his visit, I'm excited to be able to moderate an informal panel that will be held at the UK College of Education.  In addition to Dean Post, panelists will include UK distinguished scholars Joseph Fink of the UK College of Pharmacy and John Thelin of the UK Department of Educational Policy Studies and Evaluation. The panel will be on April 12th, from 11:45 until 1 pm, in 109 Dickey Hall (Faculty Lounge).

If you are in the Lexington area, make plans to attend what should be a great discussion of academic freedom issues. Dean Post will also be making other presentations on campus during his visit, so you could check the University of Kentucky College of Law calendar as the date approaches to see about his other speaking engagments on campus.


Use of Arbitration Clauses by For-Profits in Student Enrollment Agreements

In reviewing some cases, a couple of decisions involving the use of arbitration agreements by for-profit postsecondary institutions caught my attention. For example, in one case, Brumley v. Commonwealth Business Coll. Educ. Corp., 945 N.E.2d 770 (Ind. Ct. App. 2011), students alleged that the school fraudulently induced them to enroll due to misrepresentations of accreditation. The school required students to sign an arbitration agreement as part of the larger enrollment agreement that students agreed to. The trial court and the Indiana Court of Appeals held that the arbitration agreement was binding. In the future, I'll likely have some thoughts regarding the propriety of arbitration agreements in relation to students, especially by proprietary institutions. But the case made me wonder if any not-for-profit colleges and universities require students to ever sign arbitration clauses. If anyone has any thoughts or insight on the issue please share.


University of Kentucky's Ambitious Public-Private Partnership for Student Housing

A topic that has created buzz at my home university, the University of Kentucky (UK), as well as in other circles, is a tentative plan to allow a private firm to construct and manage the facilities side of all (or most) residence halls at the institution.  As I understand it, the initial agreement calls for the construction of one new residence hall, but the goal is for a much broader arrangement to cover all (or most) on-campus housing at the university.  With the plan, my cash strapped and infrastructurally-challenged university hopes to update badly outdated housing facilities with new construction and to expand overall residence hall capacity.  While the employees in charge of building maintenance and upkeep would be employees of the private firm, Education Realty Trust, the university and its employees would maintain control over the student affairs duties related to residence life.  Public-private partnerships aren’t new.  What’s intriguing (disturbing to some) is the potential scope of the agreement in terms of encompassing all or the overwhelming majority of student housing. 

One of the issues that the project has made me consider involves the extent to which a university can outsource or contract out its various functions and still retain its intrinsic nature and identity.  Many institutions long ago outsourced their bookstores and campus dining operations.  Functions like parking services have also been left to private firms.  Institutions have also increasingly farmed out teaching duties to part-time adjuncts.  Especially with the advent of online instruction, it would seem easy enough to take the next step and fill adjunct needs through a private contractor.  Similarly, just as many for-profits already do, couldn’t a lot of advising and financial aid services be outsourced?  A governing board could even bring in an outside management agency to administer a lot of institutional functions (as it is, it seems colleges and university already seem to rely on consulting firms for many big decisions so why not just formalize the arrangement). 

I actually think these possible targets of outsourcing or contracting out aren’t all that outlandish in terms of whether the functions actually could be delegated to private firms or to individuals working on a contract basis.  We already have institutions, especially noticeable in the for-profit sector, that provide a model for keeping full-time employees to a minimum, including instructional staff.  Again, my question involves at what point a college or university outsources or contracts out so many functions that its fundamental identity changes.  Where does the tipping point occur?  Given the increasingly difficult financial conditions and choices faced by many colleges and universities, I think that many schools are going to be wrestling with this issue more and more in coming years.