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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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“Reunited” (literally speaking)

Last week, I blogged about a recently filed case against the University of Michigan and several other research universities.  The Universities involved in this joint project were digitizing “orphaned” copyrighted works.  Apparently, on Friday the 16th, the University of Michigan announced that they mistakenly classified some works as orphaned.  It’s now suspended the project.  Read more here.

These events still raise several questions.  First, what are the proper protocols for deciding whether a copyrighted work is truly an orphaned one?  What’s the legal standard to follow (e.g., is good faith sufficient and what constitutes good faith?)?  Second, if the works had been orphaned, could libraries digitize them under fair use?  Should there be a difference between for-profit and non-profit usage?  Third, should Congress get involved and how should they proceed?  Perhaps, alternatively (or in addition to Congress), should there be a board consisting of representative parties to help construct a series of guiding principles?


ELA Preconference Session on Student Online Speech Issues

I just wanted to put in a little shameless plug for an Education Law Association (ELA) annual meeting preconference event that Jeff Sun has taken the lead in organizing that may especially be of interest to higher education and student affairs professionals in or near the Chicago area. The session is entitled "Managing College Students' Social Networking and Other Online Postings" and will be held on Wednesday, November 9, 2011, from 1:00-4:15 pm at the Westin River North in Chicago. Participants will include student affairs professionals, faculty, and lawyers. Despite my participation in the session, I think it will be an informative and interactive (and fun) event that will provide a lot of useful information to attendees. I also encourage you to consider attending the ELA general conference.


Drug testing controversy turns into a case filing

On September 8th, we blogged about the Linn State Technical College policy of drug testing all incoming students.  Well, the ACLU filed suit on-behalf of a class of students at Linn.  I’ll continue to post updates on this case.


For the first part of September, we have a judicial kerfuffle in Michigan 

The University of Michigan has had a challenging month so far.  CASE #1: Last week, the U.S. Court of Appeals for the Sixth Circuit decided that it wanted to review the July 1, 2011 federal appellate court decision, which ruled that “Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.”  Proposal 2 was the voter-initiated, constitutional referendum prohibiting affirmative action for state contracts, employment decisions, and college admissions.  The Sixth Circuit will review the case en banc – all together, except for two recusals.  In the meantime, the appellate court vacated the July 1, 2011 decision.   

CASE #2: Steve Kolowich of Inside Higher Ed reported on another issue in Michigan.  The Authors Guild and other plaintiffs are suing Michigan, the University of California, the University of Wisconsin, Cornell University, Indiana University, and another entity based on allegations that they conspired with Google to illegally scan copyrighted materials.  According to the article, Michigan and the other universities scanned in orphan works, which are copyrighted materials without identifiable and/or locatable copyright holders.  The defendants claim that they digitized orphan works “only make the digital versions available to their own students and faculty” and they argue that practice qualifies as fair use.  The plaintiffs are unconvinced and want the works impounded until Congress acts and articulates the extent of digitized works.  In other words, we have a judicial impound and congressional nudge to act on the copyright law as some publishers have been asking for quite some time.  I actually have a lot to say about this and related matters of fair use, but I’ll spare you the information until we read more about this case (assuming it gets that far). For now, let cite some good references to walk our copyright neophytes through this fairly complex set of laws.  First, I recommend the University of Texas at Austin’s Georgia Harper’s great lessons on copyright.  Second, NC State also has a very user friendly summary of fair use concepts within the TEACH Act, which governs concepts of fair use for non-profit educational institutions using copyrighted material via electronic media.  Third, Kenneth Crews of Columbia put together an easy to follow Fair Use Checklist (i.e., to determine if your use of the copyrighted work can qualify as fair use).  Finally, during my “spare” time, I like to review university policies, and I really like the simplicity, accuracy, and organization of Duke’s policy.

Well, I’m hoping that the two case filings give you a heads-up about this fall line-up of Michigan-based cases (which are better than any daytime drama) will likely be fleshed out and give us legal and policy guidance.


Of Cadavers and Facebook . . . Institutional Regulation of Students' Online Speech

Part of my recent scholarship has focused on issues involving college and university regulation of students’ online speech. One of the recent cases, one that many of you may have heard about, encapsulates some of the emerging issues in this area; the case is Tatro v. Univ. of Minnesota, 800 N.W.2d 811 (Minn. 2011). The case involved a mortuary science student, Tatro, who made various postings on her Facebook page, such as assigning a nickname to a cadaver used in completing classroom assignments. She also posted about wanting to use a mortuary device to stab someone in the throat, saying “Hmm . . . perhaps I will spend the evening updating my ‘Death List #5’ and making friends with the crematory guy. I do know the code . . . .”

Upon learning about the postings, university officials, in addition to asking the police to investigate (they determined that no threat existed and that no crime had been committed), charged the student with (1) violating the student conduct code in relation to engaging in harassing or assaultive conduct and (2) with violating rules governing student behavior in the mortuary science program. A hearing panel determined that the student had violated student conduct rules as well as professionalism standards for mortuary science students. The panel imposed sanctions on Tatro that included receiving a failing grade for the course and a requirement that she enroll in a clinical ethics course.

In addition to dismissing arguments that the school impermissibly sought to extend its authority over student conduct to off-campus activity, the court also rejected Tatro’s contentions that it was “irrational” to interpret the postings as representing any kind of legitimate threat. Interestingly, in considering the ability of the university to impose sanctions, the court focused on the impact that the comments had on those who learned about the postings. That is, rather than the student’s intent, what mattered most to the court involved whether members of the campus community legitimately appeared to feel threatened by the online speech. Because the court determined that the school demonstrated that individuals on campus had indeed felt threatened, it was permissible to punish Tatro under the student conduct code.

Similarly, except on one issue, the court concluded that the university demonstrated sufficient evidence showing that the student had violated classroom rules and conduct standards applied to mortuary science students. The hearing panel, for instance, had determined that Tatro had violated standards related to demonstrating respect for human remains. In upholding the university’s actions, it is interesting to note that the court applied the substantial disruption standard from Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969)Tinker dealt with independent student speech rather than speech sponsored by school officials (e.g., in-class speech), but Tinker involved student speech that occurred on campus. In looking to the Tinker standards, it shows how courts are struggling with what standards exactly to apply to online speech cases involving higher education students (and secondary students for that matter). 

In Tatro, even though the student's speech took place off campus, the court implied that Tinker should apply because of both the threat issues raised by the online speech at issue and because of the student violating pre-professionalism standards. Especially if a threat issue hadn’t been raised, it seems that Tinker would have represented a poor choice to apply in Tatro. Instead, standards governing the authority of educators to evaluate a student’s academic fitness would seem more appropriate. 

In previous online speech cases, such as Snyder v. Millersville University and Yoder v. University of Louisville (this is a link to the federal district court opinion in Yoder), courts have applied differing standards to evaluate students’ out-of-class, online speech that implicates their ability to adhere to pre-professionalism standards. The Tatro case further shows that courts are struggling with the issue of student online speech outside of the formal instructional context but that implicates pre-professionalism standards applied to students as part of fulfilling academic requirements. 

For student affairs professionals and faculty, I think cases like Tatro demonstrate the need to really educate students how, through various legal standards, courts are often permitting institutions to apply professionalism standards to students' out-of-class, online speech. Another important lesson, at play in Tatro at least, dealt with the court placing a heavy emphasis on how others interpreted the speech as a justification to permit the university to take disciplinary action against Tatro. Such a standard requires the student to consider the potential impact of his or her online speech on others and not just the student's intent with the speech.