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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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Education Law Association Now Accepting Proposals for 2012 Annual Conference in Hilton Head

The Education Law Association (ELA) is now accepting proposals for its 2012 annual conference, which will be held in Hilton Head, South Carolina, from Nov. 7-10, 2012.  ELA continues to be really interested in having more members and conference attendees who are interested in higher education legal issues, and there were some really good offerings at the most recent conference in Chicago.  It's not too early to start thinking about getting a proposal ready!  It would be great if we could have a really strong showing of higher education law folks at the 2012 conference.


State Open Records Laws and Access to Faculty Communications

For a symposium at this past week’s annual conference for the Association for the Study of Higher Education (ASHE), Karen Miksch, Jeff Sun, and I prepared a presentation on state open records laws and requests for information and documents related to faculty work, including in relation to research.  While Jeff was unable to join us in Charlotte, he was integral in designing the session.  I thought that Karen did a really good job of providing an overview of issues related to state “sunshine” laws.  Many participants were surprised to learn things such as the fact that when someone uses a personal email account or smartphone to send a message then the communication isn't automatically exempt from an open records law. Karen also explained how the intent behind an information request also often has no bearing on an institution's responsibility to provide information. 

A key point that Karen discussed was that individuals should become aware of the legal standards in their particular states and also with the policies at their home institutions or organizations (e.g., is there a personal use exemption for email accounts).  A source that we shared during the session is the State Open Government Guide by the Reporters Committee for Freedom of the Press.  The Guide, which has an online component, is a really useful resource and can be used to examine standards in specific states and to make comparisons among states.

The idea for the symposium came from events involving attempts in several states (e.g., Wisconsin and Michigan) to engage in broad open records requests related to faculty work.  During the presentation, I discussed efforts in Virginia by the state’s attorney general and by the American Tradition Institute (ATI) to force the University of Virginia to release records and documents related to the work of climate scientist Michael Mann, who was employed at UVA before taking a position at Penn State.  I previously wrote about the attorney general’s records request on the Edjurist.  In discussing the events involving UVA, I commented on how the university appeared ready to comply broadly with the requests in both instances before deciding to take a more forceful legal stance.  In the context of litigation involving ATI, the court recently allowed Mann to intervene in the case. 

I’ve found the incident at UVA intriguing because it brings to the fore the issue of whether First Amendment rights related to academic freedom attach to the individual scholar or accrue only at the institutional level (see, e.g., Urofsky v. Gilmore).  In the ATI open records litigation, Mann has argued an academic freedom right to prohibit disclosure of at least some of the records.  To me, the case highlights the issue that if constitutional academic freedom protections only can be asserted by institutions, then problems may arise when an institution isn't particularly interested in seeking to respond to academic freedom concerns involving an individual faculty member.

Here is a pdf document with the slides from the presentation (and you don't even have to make an open records request).


Education Law Association Conference Take 2

As a new attendee at the Education Law Association conference let me start this post by sharing my impressions of the group. I was really encouraged by the diversity of backgrounds of the ELA attendees. There were professors, administrators and attorneys from all over the country. All these groups seemed to come to Chicago to learn from one another and exchange ideas in a civil and friendly way. While there was give and take in the sessions, there was a genuine desire to understand new points of view regarding education law. Education law can represent big money for law firms and consulting groups. It was refreshing to see those interests seemingly put aside in favor of intellectual growth if only for a few days.

From a content perspective three of the individual sessions struck me as important. The first was a panel discussion about changes in employment law and the impact of those changes on K-12 systems. While my area of interest is primarily higher education and the session was based on K-12 issues, the changes discussed are clearly applicable to higher education. The panelists talked about how three employment law decisions, which were all incidentally authored by Justice Scalia, broadened the rights of the plaintiffs in employment law matters. The most important take away for me from this session was how the Americans with Disabilities Amendment Act (ADAA) significantly broadened the definition of a disability in employment, education etc. The main point of this part of the presentation was that employers should no longer challenge the disability claim, but instead should focus on the reasonableness of the accommodation. Very interesting stuff...

Neal Hutchens did a very interesting presentation on the CLS v. Martinez case applying discourse analysis to the case. His thesis explored what, in the majority opinion, seemed to be the integration of the co-curricular program into academic deference given to higher education by the Surpeme Court. He compared this with the dissenting opinion with took a significantly different approach to the facts and the precedent. Hutchens, Kristin Wilson from the University of Louisville and I are working on a law review article on which this presentation was based. That will hopefully be out in the coming months.

KB Melear and Derek Savage from Johns Hopkins presented a paper on the use of collegiality in tenure decisions. KB blogged on this topic a few months ago on this blog. For people like me interested in joining the faculty ranks this session was eye opening. The presenters explored the courts deference to tenure/employment decisions based on how collegial a person is to other members of the faculty. The take away from this session was clearly, make nice with your faculty colleagues!

I presented my first scholarly poster on the research I have done on Title IX and sexual harassment. I’ve been looking at the legal history that has established the right of a victim to sue an institution for failure to respond to an incident of sexual harassment and the “deliberate indifference” standard courts use to assign liability. I also dissected the April, 2011 “Dear Colleague Letter” in an attempt to help practitioners understand and apply the new guidelines to their individual campus policies. My fundamental thesis of this part of the paper is that there does not have to be only one way to craft a compliant policy. Institutions can and should apply the fundamental guidelines in a way that meshes with their individual campus cultures. The poster seemed to be well received. Since ELA has many K-12 scholars, administrators and attorneys I really enjoyed explaining how the DCL could apply to the K-12 arena. I have posted the poster on the blog.

Sorry for the long post! I hope that my reflections are in someway useful. ELA is a great organization for anyone interested in, or working with, issues of education law. Our readers should think about joining the organization and attending the conference next year in Hilton Head, SC!




Education Law Association Conference Take 1

Just got home from the Education Law Association conference in Chicago. It was a very informative and interesting event. With me there were co-editors: Joy Blanchard, Neal Hutchens, KB Melear and Jeff Sun. I'll have some observations from the conference tomorrow. Needless to say your editors were active in presenting and presiding at the conference and I'm sure will have insights to share about the conference later this week. Cheers!


New Online Higher Education Journal

Faculty and students at the University of Kentucky and the University of Louisville have teamed up to start a new open source scholarly journal. The journal, The Kentucky Journal of Higher Education Policy and Practice is designed to publish scholarly, peer reviewed articles, practitioner briefs from practitioners doing innovative work in higher education, works by emerging scholars and book reviews. Our first issue is up and we are actively seeking submissions for our second issue. Please check out the link below for more information. Details and requirements for the specific types of articles can be found by clicking on the "Policies" link on the left side of the page.