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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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An Email Policy (or Police): A Debate Clouded by Many Factors

In today’s issue of Inside Higher Ed, Scott Jaschik illustrates the difficulties that public colleges/universities face when developing E-mail policies.  The article reports on the specific tensions at the University of Illinois at Urbana-Champaign as a great “case study”.  Jaschik delineates some of the arguments with respect to privacy, free speech, and university policies prohibiting political campaigning on the university dime (which the latter are usually outgrowths of state law).  By the way, just last year, a Washington state appellate court ruled that a public college had sufficient grounds to terminate a faculty member when an instructor at a public community college in Washington when she sent e-mails to other faculty members urging them to contact legislators about approving two legislative bills that would afford tenure-like protections to part-time public college faculty. See Knudsen v. Wash. State Executive Ethics Bd., 235 P.3d 835 (Wash. Ct. App. 2010).

Now that I just pointed out the challenges surrounding the construction of a university e-mail policy, I have to raise the next e-tech issue, which is whether there should be a social media policy, and if so, what language might it include.  This policy is likely to generate much more debate in the legal and educational communities than the e-mail policies.


Please deposit urine here ... and attend classes there ...

According to a Sioux City Journal article, Linn State Technical College, a 2-year public college in Missouri, has a policy allowing the school to drug test all its students.  As the article noted, this policy might be the widest reaching mandatory drug-testing policy. 

I checked out the information on the College website.  The College justifies its drug testing program in pursuit of its mission.  Specifically, it states: “This program supports the LSTC mission to ‘prepare students for profitable employment and a life of learning,” by guiding students in the development of safe workplace habits.”  Thus, the College believes that it is preparing its students for the workplace, which in many instances also requires drug testing. 

So what happens when a student fails to participate?  The student is withdrawn from the school.  What happens when a student has a positive test?  The student is placed on probation, and the school requires an educational component – either an online program, which the student must pay for, or learning activities.  Then, the student is subject to a follow-up test.  Failing the second test leads to withdrawal.   

The Linn State Technical College drug testing policy is a Fourth Amendment issue.  In Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), the U.S. Supreme Court expressed: “it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable …, and … these intrusions must be deemed searches under the Fourth Amendment” (Id. at 617).  Generally speaking, that informs us the policy is subject to the Fourth Amendment.  The next step is to determine the rule directing us on the parameters of a drug testing policy.  The Court in Skinner did.  The Court indicated that “[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion” (Id. at 625).

Since Skinner, two U.S. Supreme Court cases (i.e., Veronia Sch. Dist. v. Acton, 515 U.S. 646 (1995) and Bd. of Educ. of Indep. Sch. Dist. v. Earls, 536 U.S. 822 (2002)) addressed students’ challenges of drug testing policies.  In both cases, the students were in high school and the policy only applied to students participating in competitive extracurricular activities such as athletic teams.  The Courts in both cases found the policies not in violation of the Fourth Amendment.  In Veronia, the policy instituted random drug testing of student athletes.  The Court articulated three factors to examine to determine the reasonableness of the search – (1) “the privacy interest upon which the search here at issue intrudes” (Id. at 654); “the character of the intrusion that is complained of” (Id. at 658); “the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting … the governmental concern at issue” (Id. at 660).  The Earls case followed the test outlined in Veronia to conclude that a school policy that subjected all students who participated in competitive extracurricular activities. 

The testing at Linn State Technical College involves all students who opt for an education at that institution – not just students who voluntarily participate in co-curricular activities such as intercollegiate athletics.  That type of policy has not been presented to us as a case controversy.  Since the events are very recent, it’s not clear whether anyone will challenge the policy based on the Fourth Amendment.  Further, it’s possible that the policy may violate a state privacy law. 

Right now, what is clear is that the policy seems to reach much further than the typical drug testing policy at U.S. colleges and universities.  

I doubt this policy publicity will go away, so stay tune for more discussions!

While we wait to hear more, let's hope that Linn State has some established administrative practices surrounding record-keeping as well as ensuring the limited use of the urine samples for its stated purposes. 


Settlement reached in high school football hazing case

An interesting and disturbing news article came across the wire today about a settlement reached in a Las Vegas high school case in which seven football players sued after being sodomized and hazed by teammates. The case also involved coaches and the district superintendent, who knew about this and other incidents yet failed to act.

A lot of my research has focused on the liability that institutions face when it comes to the safety and well-being of students (e.g., sexual misconduct, alcohol abuse, mental health issues). I recently completed a manuscript that compared legal trends in the K-12 and higher education sectors involving negligence suits brought by student-athletes and their families for injuries sustained as a result of interscholastic competition. In the course of that research, I looked at the emerging issue of “culture” in the dialogue of the courts. At every level, students are sacrificing their safety to be part of the team. Recently PBS’ Frontline series aired “Football High,” a case study set in Arkansas that illustrated the dangers of competitive and aspirational interscholastic sports. Players, coaches, trainers, and administrators alike reiterated culture as a central force in their decisions. The reward system values prestige and winning, not safety.

Whether it is a culture of hazing, a culture of winning, or a culture of self-sacrifice for the sake of the team, I think administrators and educators need to look at athletics in a way that courts, the NCAA, and university presidents have continued to fall short—and that is by changing culture.

As culture within and among groups are formed, norms are not taught but inferred as members are socialized into the group. Shared values and assumptions become validated by shared experiences of the group. Groups learn from external forces and pressures; how they deal with them are imposed and taught by the leader (E. Schein, “Organizational Culture and Leadership,” 1992).  

The recent scandals at the University Miami and Ohio State University, for example, provide ripe discussion. Though it is easy enough for us to identify the problem, I unfortunately do not see a lasting solution on the horizon.


Private College Conduct Hearings

Here's a quick link to an interesting issue. Sewanee: the University of the South was ordered to pay about $26,500 in damages to a student. A federal jury found that the institution was partly negligent in how it handled a sexual misconduct hearing in which the plaintiff was the accused student. Both the Chronicle and Inside Higher Ed have reported on this case. The Chronicle's article is here. Moral of the story: private institution policies and procedures are often looked at by courts as contracts with students. If an institution has policies and procedures for conduct hearings, those procedures need to be fundamentally fair and followed consistently. Deviation from the procedure can, as this case shows, lead to damages.


Collegiality in Higher Education Employment Decisions…

Defining collegiality in the workplace inevitably ends with a nebulous rendering of the concept.  After all, unless you live in Valhalla, we’ve all encountered the ghastly, the curmudgeonly, the selfish, or the just plain mean.  People who make students cry, for example, and seem to think that is acceptable or even laudable.

But haven’t we all dabbled in behavior on which we look back with a certain amount of regret?  Of course we have (if you haven’t, you’re a better person than I am, but that is hardly a stretch).

However, I refer here to those employees who are consistently problematic in the work environment, those who despite their recurring positive evaluations are actually poisonous to your institution, students, and community.

So what is to be done with them? 

Embrace the collegiality standard that has been regularly upheld by courts across the country.

I recently co-authored an article on this subject with Mary Ann Connell, former university attorney at the University of Mississippi and currently of counsel with Mayo Mallette in Oxford, MS, and Derek Savage, general counsel at Johns Hopkins University.  They co-authored an article on this score a decade ago in the Journal of College and University Law, and we recently updated the study, focusing on collegiality cases filed during the past ten years.  The article was published in the summer 2011 edition of the Journal (volume 37, number 3).

There were some interesting changes in how collegiality is approached by courts and by institutions over the last ten years.  For example, tenure and promotion decisions are no longer the exclusive province of collegiality discussions.  Our review yielded numerous cases in which collegiality has been used a criterion in faculty employment decisions outside of the tenure process. 

For example, cantankerous adjunct faculty applicants for tenure track positions have been successfully denied by using collegiality as one basis for the denial.  The idea is that the full-time faculty noted that they found a particular adjunct unpleasant to work with on a part-time basis and didn’t want to extend an opportunity for a lifetime appointment. 

Courts have roundly upheld the use of collegiality, as long as it is not employed as a veil for unlawful discrimination, and the number of institutions including collegiality statements in faculty or employee handbooks has increased.  To be collegial is not the same as to be congenial, and courts have regularly endorsed that position.   A person needn’t necessarily be nice to be a team player.

I encourage those who are responsible for evaluating faculty employees to do so honestly and with vigor.  If you have hired someone who refuses to abide by the rules of polite society, then make that clear in evaluations.  This saves valuable time and precious resources by stemming the tide of litigation that results when those who exhibit poor collegiality are allowed to reach point at which they stand for tenure or promotion (or other concerns) and are denied for various reasons.