Legal Update 2012 SACSA Annual Conference

1. Legal Update 2012SACSA Annual Conference Steven M. Janosik Associate Professor Virginia Tech Dennis E. Gregory Associate Professor Old Dominion University

2. Campus Safety – Duty to Warn • Peterson/Pryde v. Commonwealth, 2011 Va. Cir. LEXIS 148 (Va. Cir. Ct., Apr. 25, 2011) Virginia Tech and the Commonwealth of Virginia were held responsible for failing to warn members of the University community of a foreseeable danger resulting from a reported shooting in Ambler-Johnston Hall where two students were killed. The Judge dismissed claims against individuals and limited the award to $100,000 per family in accordance with Virginia law (but these decisions are being appealed). 2012 SACSA Conference

3. Clery Act – Timely Warning • Virginia Tech’s Clery Act Violation The March 2011 timely warning Finding against Virginia Tech stemming from the April 16th shootings resulted in $55,000 in fines for two violations. Tech appealed to the Department of Education’s administrative law judge who overturned the finding and the fines. The Secretary of Education, Arne Duncan reinstated ½ of the fines in September 2012. Virginia Tech’s President and the Commonwealth’s Attorney General are contemplating an appeal. 2012 SACSA Conference

4. Clery Act – Fine Adjusted • Maximum fines raised to $35,000 DEPARTMENT OF EDUCATION, 34 CFR Part 36 Adjustment of Civil Monetary Penalties for Inflation Federal Register / Vol. 77, No. 191 / Tuesday, October 2, 2012 / Rules and Regulations 2012 SACSA Conference

5. Contracts & Benefits • Hill v. Galliher, 65 So. 3d 362 (Ala. 2010) The Alabama State Board of Education passed a policy that required two-year college system employees who engaged in outside employment activities during their normal working hours to request personal, annual, or unpaid leave. An employee refused to comply and sued. The Supreme Court of Alabama held that (a) the board acted within its authority, (b) the policies did not violate state law, (c) the policies did not violate Alabama’s constitution, and (d) the policies did not violate Alabama’s Fair Dismissal Act. 2012 SACSA Conference

6. Discrimination - Admissions • Fisher v. University of Texas at Austin, 631 F. 3d 213 (5th Cir. 2011) Fisher challenged the use of race in undergraduate admissions at the University of Texas at Austin. The Federal Circuit court found that the University’s race-conscious admissions was adequately supported by the "serious, good faith consideration" required by Grutter. Fisher appealed to the U.S. Supreme Court. . 2012 SACSA Conference

7. Discrimination - Disability • Dickerson v. Board of Trustees, 657 F. 3d 595 (7th Cir. 2011) A part-time custodian for a community college had applied for full-time work but was rejected. The school’s job performance evaluation indicted that he was deficient in three of seven measured categories. He claimed discrimination based on his mental disability (low IQ). While the claim was pending he was fired. The court dismissed his claims of discrimination and retaliation based on documented poor performance. . 2012 SACSA Conference

8. Dismissal, Nonrenewal, RIF • John C. Calhoun Community College v. King, 90 So. 3d 174 (Ala. Civ. App. 2011) Calhoun was dismissed without cause from his job as a computer programmer. While there was some confusion about his employment status, he argued he was entitled to a hearing and to be given a reason for termination. The appeals court gave deference to the College in the interpretation of its own rules and found such polices controlling. Calhoun was dismissed without cause or a hearing. 2012 SACSA Conference

9. Due Process – Student Conduct • Katz v. Board of Regents, 924 N.Y.S. 2d 210 (N.Y. App. Div. 2011) Katz was found guilty of plagiarism and sued. The court ruled that a“university’s disciplinary determination will be upheld and not be deemed arbitrary and capricious if it is based on a rational interpretation of the relevant evidence and the university substantially adhered to its own published rules and guidelines’ in arriving at the decision.” 2012 SACSA Conference

10. Employee Misconduct • United States v. Bryant, 655 F. 3d (3d Cir.2011) A state senator and a university dean were charged and convicted of honest services fraud stemming from a quid pro quo arrangement in which the dean gave the senator a “low-show” salaried job in exchange for the senator’s efforts as Chairman of the Senate Appropriations Committee to funnel state funding to the university. While this is an extreme example, hiring friends or relatives can be perilous. 2011 SACSA Conference

11. Expression – Student Press • OSU Student Alliance v. Ray, No. 10-35555 (2012) Editors of the Liberty, a conservative independent student run newspaper, appealed a lower court decision that allowed University administrators to remove 8 news bins containing their paper. Although there was a 2006 regulation that stated news bins could be limited in number, the rule had not been enforced and the Liberty had permission to distribute. On appeal the Court found that there was sufficient cause to allow the Plaintiffs to amend their claim and to allow the case to move forward. 2012 SACSA Conference

12. Expression – Religion • Ward v. Polite, 667 F. 3d 727 (2012) A graduate student was asked to provide counseling services to a gay student. She asked her supervisor to reassign the client because of her religious views on homosexuality. The graduate student was expelled after a hearing for violating her professional code of ethics. She sued. The court denied the university’s request for summary judgment because there was no policy that barred the student from asking for a referral and the code permitted values-based referrals. 2012 SACSA Conference

13. Expression – Social Media • Tatro v. Univ. of Minn., 816 N.W. 2d 509 (Minn. 2012) Tatro, a mortuary science student at the University of Minnesota, sued after she was disciplined for Facebook posts degrading the donated cadaver she used as part an anatomy laboratory class. The state supreme court upheld the previous rulings but instead of using the substantial disruption standard found that an academic program may narrowly tailor its social media policies to reflect established professional conduct standards. 2012 SACSA Conference

14. Expression – Speech • Sadid v. Idaho State Univ., 265 P. 3d 1144 (Idaho, 2011) An engineering professor appealed a summary judgment dismissing his complaint that Idaho State University had retaliated against him for his exercise of his freedom of speech through comments critical of the university administration that had been published in a local newspaper. On appeal the court agreed with him that his writings dealt with a plan to move engineering to the University of Idaho so that Idaho State University could create a medical school, the court held that this speech was of public concern (See Pickering). 2012 SACSA Conference

15. Expression – Speech • D.J.M. v. Hannibal Public School District, 647 F. 3d 754 (8th Cir. 2011) A student sent emails from home to a classmate saying he was going to shoot someone at school. The classmate reported this to the principal who suspended the student. The parents sued claiming the threat was not real and the speech was protected. The court disagreed on the First Amendment issue and ruled the school did not have to wait until something happened but could discipline what it found to be substantial disruption. 2012 SACSA Conference

16. Expression – Speech Zones • University of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 1:12-cv-155 (S.D. Ohio Aug. 22, 2012) Rules that required demonstrations, pickets, and rallies to be held in a free speech zone, required that all expressive activity in the free speech zone be registered with the university ten working days in advance, and placing violators on noticed that they may be charged with trespassing were unconstitutional and permanently enjoined. 2012 SACSA Conference

17. FERPA – Student Records • State ex rel. ESPN, Inc. v. Ohio State Univ., 970 N.E. 2d 939 (Ohio 2012) ESPN sought records from Ohio State University related to events that led to the university’s football team being placed on probation by the NCAA. The university claimed that records related to student athletes were protected from disclosure by FERPA. The Supreme Court of Ohio rejected ESPN’s arguments that FERPA should not prevent disclosure of the requested records with identifying information but did hold that ESPN was entitled to the requested information in redacted form. 2012 SACSA Conference

18. File Sharing (update) • Capitol Records v. Thomas, 2012 U. W. App. LEXIS 19040 (8th Cir. Minn., Sept 11, 2012) The judgment of the district court reduced the original fine to $54,000. On appeal the ruling was vacated, and the case was remanded with directions to enter a judgment for damages in the amount of $222,000, and to include an injunction that precludes the infringer from making any of the companies' recordings available for distribution to the public through an online media distribution system. 2012 SACSA Conference

19. Financial Affairs, Fee Collection • City of Key West v. Florida. Keys Community College 81 So. 3d 494 (Fla. Dist. Ct. App. 2012) The public college sued claiming that it had sovereign immunity from the city’s mandate to pay storm water utility fees. The college operated its own system and did not use the city’s system. The court ordered the city to refund the college for fees collected under protest (note efforts to collect sales taxes and requests to refrain from offering related business services on campus). 2012 SACSA Conference

20. Financial Affairs, Use of Tax Dollars • Saine v. State of North Carolina, 709 S.E. 2d 379 (N.C. Ct. App. 2011) Money was allocated to Johnson and Wales University. The plaintiffs alleged that the allocation of funds did not service a public purpose. The court found that educating citizens of the state and thereby permanently enhancing the infrastructure to support long-term economic growth and prosperity of the state to be a public purpose. The court ruled that the appropriations were not in violation of the state constitution. 2012 SACSA Conference

21. Guns on Campus • Mitchell v. Univ. of Ky., 366 S.W. 3d 895 (Ky. 2012) After a thorough review of conflicting laws in Kentucky, the court found the laws providing rights to individuals with valid concealed carry licenses took precedent over those laws pertaining to institutions of higher education. Therefore, the court found that plaintiff’s discharge was contrary to a fundamental and well-defined public policy and therefore was inappropriate. 2012 SACSA Conference

22. Public Records Laws • Ochsner v. Elon University, 725 S.E. 2d 914 (N.C. 2012) A student reporter requested documents regarding the arrest of a student by the campus police under the NC public record law. Campus police declined to provide the complete report. The student reported sued. On appeal, the court ruled that campus police officers at private institutions were not subject to the North Carolina Public Records Act and the dismissal of the plaintiff’s claim was appropriate. 2012 SACSA Conference

23. Torts, Assault & Safe Premises • Walton v. Mercy College, 93 A.D. 3d 460 (N.Y. App. Div. 2012). After being assaulted in his residence hall, a student filed suit against the college and the private company contracted to provide security services. The appeals court upheld the lower court’s decision to grant summary judgment, finding that though there was a history of crime near the residence hall, the attack was not foreseeable, as it was carried out by invited guests of another resident. 2012 SACSA Conference

24. Torts, Athletics & Intramurals • Bukowski v. Clarkson University, N.Y.S. 2d 369 (N.Y. App. Div. 2011) The plaintiff sought damages for injuries he sustained after being hit in the face while on the pitcher’s mound during practice for Clarkson University’s baseball team. The coach had decided not to use an “L-screen” to protect the pitcher. The court upheld the previous summary judgment, finding that his assumption of the risk superseded the fact that practicing without a protective screen was not voluntary. 2012 SACSA Conference

25. Torts, Team Building • Morrison v. Northwest Nazarene University, 273 P. 3d 1253 (Idaho 2012) As a team building exercise, Morrison’s employer asked the plaintiff and his coworkers to participate in a program that included a climbing wall activity. The employer had all workers sign a “hold harmless” waiver. Morrison was injured and sued. On appeal, the court found that there was no obvious “bargaining-power inequality” nor did he show that he was forced to participate in the wall climbing activity. 2012 SACSA Conference

26. Torts, Off-Campus Events Mynhardt v. Elon University, 725 S.E. 2d 632 (N.C. Ct. App. 2012) A university student was injured after being forcibly removed by a fraternity member at an off-campus party. The plaintiff sued the university and the national. The trial court ruled in favor of the defendants. On appeal, the appeals court affirmed, holding that the student was not owed a duty of care for actions occurring off-campus, even though the university was aware of prior infractions by this same fraternity chapter and had enacted policies to discipline fraternity conduct (remember Furek). 2012 SACSA Conference 26

27. Question & Answers For additional information or to arrange staff development activities surrounding these legal issues on your own campuses, please contact Dr. Steve Janosik (sjanosik@vt.edu) or Dr. Dennis Gregory (dgregory@odu.edu) Nothing in this presentation should be construed as legal advice. Those who have concerns about specific legal issues should seek guidance from competent legal counsel. 2012 SACSA Conference