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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.

Saturday
Nov122011

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!

 

 

Friday
Nov112011

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!

Thursday
Nov032011

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.

http://uknowledge.uky.edu/kjhepp/

Wednesday
Nov022011

Interesting New Tax Case out of Ohio

Jeff Sun's and my law school alma mater made news today on an interesting property tax exemption issue. Ohio State was given property south of campus when the owner died. The testator directed that proceeds from the property be used to fund fellowships in OSU's vet school. OSU turned management of the building over to a private management company when it acquired the building. The building was then converted into private commercial and residential space. OSU claimed that because the proceeds from the building were being used for university purposes it was exempt from property tax. The Columbus School Board countered that OSU's assertion was incorrect. The administrative agency that heard the appeal found for the OSU. In its decision, a unanimous Ohio Supreme Court found that the legislature, in passing the exemption law in question, did not want courts to just look that the use of the proceeds of the building. The legislature also wanted the actual use of the building to be considered. In this case there was no evidence that the building was being used for university purposes or activities. Therefore the Ohio Supreme Court reversed and found against OSU. The actual opinion is here. Now I'm not one to be overly interested in tax law issues, however property tax payments are a significant part of "town/gown relations" and budgeting for schools that pay payments in lieu of taxes (PILOTs). More decisions like the Ohio Supreme Court's across the country could force universities to put more money into the communities, thereby perhaps inproving town/gown relations but constricting budgets...stay tuned...

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.