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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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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.


Is it a court's place to determine quality of education?

Here's an interesting case out of Baltimore. The Baltimore Sun has reported extensively on the loss of accreditation by Baltimore International College (BIC). Middle States, the accrediting agency for many mid-atlantic institutions, failed to renew BIC's accreditation earlier this year citing a myriad of issues with the school. BIC, which enrolls 130 students in its culinary program, announced earlier this summer that it would merge with Stratford University in an attempt to stay open. This merger is set to take place on January 1, 2012. The problem is that BIC's current Middle States accreditation is set to expire this week. When it does, BIC will lose access to Title IV financial aid funds, just in time for the new academic year. BIC has gone to federal court to stop the removal of its accreditation. Citing the harm it would cause to students, a federal district court granted an initial restraining order. Middle States has also denied BIC an extension and the right to appeal its decision. In the end, as the article linked below says, a judge might have to decide whether BIC offers a high enough quality education to its students to remain accredited. The potential extension would be by court order. This is a very interesting issue. Incidentally, the judge assigned to the case is not inexperienced in education law. Judge Garbis supervised the Special Education Consent Decree with the Baltimore City Public School for many years. This will be an interesting case to watch. Here's a link to the article.


Welcome to HigherEducationLaw

Greetings! Thank you for stopping by HigherEducationLaw. In launching this site, we hope to build an online community for sharing ideas and news related to multiple aspects of higher education law. I'm excited about a strong group of founding contributing editors who bring diversity in terms of their professional experiences and areas of expertise related to legal issues affecting colleges and universities. In addition to the blog, we also plan to start building a resources page with content and helpful links dealing with higher education law. It will be exciting to see what different directions this site takes.  Thanks for visiting, and we hope that you visit the site often and will consider subscribing to our feed.

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