Office of Legal Affairs website, under Legal Topics:

Classroom Policies and Practices: The Legal ContextAmy S. Kelso, Senior Associate General CounselJeffrey N. Jensen, Senior Associate General CounselSarah O. Edwards, Assistant General CounselOctober 30, 2013

Office of Legal Affairs website, under Legal Topics: http://legal.uncc.edu/legal-topics/classroom-policies-and-practices

Topics We’ll Cover • Basic Legal Guidelines • Civility in the Classroom • Suggested Syllabus Policies • Academic Freedom and Related Case Law • Questions (or Scenarios)

Basic Legal Guidelines ‘[T]he four essential freedoms’ of a university— to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. Justice Frankfurter, 1957.

Basic Legal Guidelines The Rational Basis Test A classroom policy established by faculty members will likely be upheld in court if it is • reasonable, • not arbitrary and capricious, • not based on malice, and • not based on illegal discrimination.

Basic Legal Guidelines • To be enforceable, a classroom policy should be supported by a rational justification. • For example, if certain classroom behavior would be disruptive to the teaching or educational process, a ban on such behavior will likely pass the rational basis test.

Basic Legal Guidelines Grading • Courts generally leave grading policies to the discretion of faculty, within the academic standards established by the institution. • A grading policy will be enforceable if it is based on the students’ performance and other standards relevant to the educational process. • A grading policy that is arbitrary, discriminatory, or malicious will be unenforceable.

Basic Legal Guidelines Illegal Discrimination in General • Faculty members should make sure that their classroom policies do not have the effect—intentional or unintentional—of illegally discriminating on the basis of a protected status (e.g., based on race, gender, religion, disability, or national origin).

Basic Legal Guidelines Special Consideration – Disability • The ADA requires the University provide reasonable accommodations to those students who identify themselves as disabled and request such accommodation. • Students are not required to disclose a disability and faculty should not ask a student about their disability.

Basic Legal Guidelines • When a student self-identifies a disability and requests an accommodation, faculty should refer the student to the Office of Disability Services (ODS). • ODS will register the student and provide assistance, including information on reasonable accommodations specific to the student’s disability.

Basic Legal Guidelines • Classroom policies should be flexible enough to accommodate disabilities. Examples of policies and practices that might involve ADA protections are: • Attendance, absences, or tardiness policies • Classroom participation expectations • Tests/exams, papers and projects

Basic Legal Guidelines Special Considerations – Religious Accommodation • University Policy 409 requires a student be provided reasonable accommodation for a sincerely held religious belief. • Faculty must make a good faith effort to accommodate a student’s religious practice or belief, unless it would create an undue hardship.

Basic Legal Guidelines • Faculty required to authorize a minimum of two excused absences each academic year for religious observances required by a student’s sincerely held religious belief. • Students must be provided the opportunity to make up tests or missed coursework due to an excused absence for a religious observance.

Basic Legal Guidelines • Classroom policies should be flexible enough to accommodate student absences for religious observances or other religious accommodations • Policies impacted by religious accommodations might include: • Attendance policies • Tests/exams, papers and other assignments • Appropriate dress • Classroom participation (e.g., requirement to engage in classroom conduct might be forbidden by a religious belief)

Basic Legal Guidelines Special Consideration – Pregnancy • Title IX of the Education Amendments of 1972 prohibits sex discrimination in postsecondary education, including discrimination on the basis of pregnancy, childbirth and parental status. • In June of 2013, the U.S. Department of Education (DOE) issued guidance on supporting the academic success of pregnant and parenting students under Title IX.

Basic Legal Guidelines • DOE’s new guidance states that it is illegal under Title IX to exclude pregnant students from participating in any part of an educational program, including extracurricular activities. • University officials must treat a student’s pregnancy as it treats other medical leave situations.

Basic Legal Guidelines • A student returning after a pregnancy leave must be reinstated to the status she held when her leave began. • University must excuse a student’s absences because of pregnancy or childbirth for as long as the student’s doctor deems the absences medically necessary.

Basic Legal Guidelines • University should offer the student reasonable alternatives to simply making up missed work. For example, student might be allowed to: • retake a semester course • take part in an on-line course recovery program, or • have additional time in a program to continue at the same pace and finish at a later date (especially after a prolonged period of leave)

Basic Legal Guidelines • Bottom line: A pregnant student should be allowed to choose how to make up missed work or to otherwise proceed with her course of study without excessive penalty following her medically required leave.

Civility in the Classroom • Faculty are responsible for management of the classroom environment • Faculty should exercise authority with a sense of fairness: • focus on relevant issues • set reasonable time limits • assess the quality of ideas and expression • make sure students are heard in an orderly manner

Civility in the Classroom • Policies on classroom disruption cannot be used to punish lawful classroom dissent: • The lawful expression of a disagreement with the teacher or other students is not in itself "disruptive" behavior. • Rudeness, incivility, and disruption are often distinguishable, even though they may intersect. • In most instances, it’s better to respond to rudeness by example (e.g. advising a student in private that he or she appears to have a habit of interrupting others). • Rudeness can become disruption when it is repetitive, especially after a warning has been given.

Civility in the Classroom • Strategies to prevent and respond to disruptive behavior: • Clarify standards for the conduct of your class. • Serve as a role model for the conduct you expect from your students. • First consider a general word of caution, rather than warning a particular student. • If the behavior is irritating, but not disruptive, try speaking with the student after class. • In rare circumstances when necessary to speak to a student during class, do so in a firm, friendly manner, and say that further discussion can occur after class.

Civility in the Classroom • A student who persists in disrupting a class may be asked to leave the classroom for the remainder of the class period. • Tell the student the reason(s) for such action; • Give the student an opportunity to discuss the matter ASAP; • Prompt consultation with the Department Chair; • Suspension for more than one class period requires appropriate disciplinary action through the DOS office. • If disruption is serious, and other reasonable measures have failed, call Police & Public Safety, and dismiss class. • See University Policy 601.13, Interference with University Operations (http://legal.uncc.edu/policies/up-601.13)

Suggested Syllabus Policies • Suggested syllabus policies to help faculty: • highlight potential classroom issues and • develop the classroom environmentthey wish to achieve • By including clear policies in the syllabus: • Faculty can clearly set forth expectations for classroom behavior, and • students will be duly notified of those expectations at the outset of the course. • Syllabus should be in writing, either on paper and/or on class/faculty website

Suggested Syllabus Policies • Syllabus Policy Examples: • Clearly notify students of classroom expectations (academic and behavioral) • Encourage orderly and productive classroom conduct • Enable revision of the syllabus during the semester • Clearly set forth a policy on instructor’s absence or tardiness • Clearly set forth a policy on student absenteeism or tardiness

Suggested Syllabus Policies • More Syllabus Policy Examples: • Notify students of rights and responsibilities to obtain accommodations: disability, religious, pregnancy • Prohibit academic integrity violations, including plagiarism (see University Policy 407, Code of Student Academic Integrity) • Clearly set forth the policy on credit hours and student work for a course • Clearly set forth the policy on credit hours and student work for a lab

Suggested Syllabus Policies • More Syllabus Policy Examples: • Prohibit or regulate use of cell phones, smart phones, tablets, or other mobile communication devices in the classroom • Prohibit or regulate computer use in the classroom • Prohibit sexual harassment in web-based or web-assisted courses • Notification if you plan to use Turnitin.com(or another plagiarism detection program)

Academic Freedom • Various components of academic freedom • the University’s insulation from state interference in making academic decisions • individual professors’ protection from administrative or political interference • students’ right to receive and express ideas in academic environment

Academic Freedom • No clear “academic freedom” in constitution or in case law; instead, courts use First Amendment freedom of speech analysis • Two elements: • Is the topic a matter of public concern? • If yes, weigh the professor’s interest in his/her speech against the university’s interest in efficiently delivering education

Academic Freedom • Language • Hardy v. Jefferson Community College • Sixth Circuit, 2001 • First Amendment protected professor who used N-word and other derogatory terms in class discussion regarding how language is used to marginalize minorities and other oppressed groups in society • Martin v. Parrish • Fifth Circuit, 1986 • First Amendment did not protect economics professor’s “inveterate use of profane language” in class even after multiple verbal and written warnings from administrators

Academic Freedom • Insults/degrading behavior • Keen v. Penson • Seventh Circuit, 1992 • First Amendment did not protect professor’s numerous letters to a student, which demanded apologies for her calling his classroom policies “unfair” and demeaned her comprehension abilities and occupational goal. The professor eventually failed her in his class because she did not respond to 26 questions in his final letter, including “Is it fair or unfair for a student to make unsupported accusations/assertions?” and “Is it a fair or unfair assumption that a university sophomore can read and understand handouts such as those at the beginning of 226 last spring?”

Academic Freedom • Sexual harassment • Hayut v. State University of New York • Second Circuit, 2003 • First Amendment did not protect professor who referred to student as “Monica” (during Monica Lewinsky scandal) during every class and asked her suggestive questions (“How was your weekend with Bill?” and “Be quiet, Monica. I will give you a cigar later.”) even though student never complained directly to him

Questions

Amy S. Kelso • Senior Associate General Counsel • amy.kelso@uncc.edu • Jeffrey N. Jensen • Senior Associate General Counsel • jeffrey.jensen@uncc.edu • Sarah O. Edwards • Assistant General Counsel • sarah.edwards@uncc.edu

Scenario #1 • Policy – “There is no such thing as an excused absence, including involvement in an official sports event or a religious holiday.” • Enforceable?

Scenario #2 • A teacher has been asked to find a student in class to assist a disabled student with note-taking. After identifying the disabled student, the teacher appoints the student sitting next to her as note-taker. • Issues?

Scenario #3 • Students come to class unprepared. Teacher dismisses the whole class and counts each student absent. • Issues?

Scenario #4 • A student wears a t-shirt with the words "f--- racism" on the front. The instructor tells the student that she must wear the t-shirt inside out or leave the classroom. • Issues?

Scenario #5 • Students leave the class after waiting 15 minutes for the professor. The professor arrives five minutes after the students leave and counts all students absent for the day. • Issues?

Scenario #6 • A student says aloud in class: "This test was bulls---." The instructor demands an apology and that the student leave the class. The student refuses. The teacher tells the student to officially drop the class. • Issues?

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