Chapter 19 Understanding The Legal Implications of Student Affairs Practice

1. Chapter 19Understanding The Legal Implications of Student Affairs Practice EDHE 6730 Dr. Baier Fall 2008 Dayanna Carson

2. Chapter Goals: • To provide information regarding factors to support that the law is in a constant state of change • To create a familiarization with current laws and regulations • To provide information regarding the judicial system and the institutional relationship with students • To provide a discussion related to the following legal concepts: torts, contracts, statutes, and constitutional issues • To educate administrators on best practices regarding the law

3. Student/Institutional Relationship • Administrative leaders of educational institutions must acquire knowledge regarding the most current laws, rules, regulations, and judicial interpretations as a method to understand parameters in regard to students and legal rights.

4. Key Points Relating To Students & The Law • Students have rights guaranteed by the federal constitution. • Students have rights due to their status as residents of specific states protected by state constitutions. These rights may apply to student affairs policies however; constitutional protections differ from public to private institutions.

5. Analyzation of Student Legal Relationships • Specific state and federal laws are often general in nature. • Rules and regulations are written to enforce the law.

6. Students may have both explicit and implicit contracts defining their relationship with a college or university. Students have a right to be free from intrusion upon their person, property, and their reputation. Student rights are defined by judicial precedent. Students and The Law

7. Torts:Definition & Classification • Tort- A violation of minimum standards. Derived from the Latin word meaning twist. A civil wrong other than a breach of contract for which the courts will provide a remedy. • The 4 classifications of primary relationships between students and their institutions are as follows: • Torts • Contracts • Statutes • Constitutions

8. State Courts Decide on the constitutionality of state laws Decide disputes between state residents Interpret laws Have limited jurisdiction to the laws of that specific state and the geographic area Federal Courts Decide questions pertaining to federal laws Settle disputes between citizens of different states Have jurisdiction over a particular geographic area The decision of the court is only binding in certain geographic locations Only cases decided by the U.S. Supreme Court are binding overall The Judicial SystemThe Function: To settle controversies, decide the constitutionality of the law, and interpret the law

9. Implications to Administrators • Administrators must understand that various state laws and implications may differ.

10. Compensatory Designed to put the injured person back to where they were previously before the injury Punitive Assessed where the injury is caused by willful acts without regard for another person’s property or reputation and serve as punishment The 2 Types of Tort Remedies(Remedy- monetary damages)

11. NegligenceDefined: A breach of duty owed Four elements must exist to be found liable for negligence: • A duty must be present • An injury must occur • A duty must have been breached • The breach of duty must be the proximate cause of injury

12. Institutions of Higher Education’s 3 General Duties: • 1. To provide proper supervision • 2. To furnish proper instruction • 3. To maintain equipment in a reasonable state of repair

13. Related Cases and Implications

14. ViolenceColleges & Universities are generally under no duty to protect students from the violent acts of a third person

15. The Law& Implications To Universities • The courts generally agree that colleges and universities do not exercise control over adult students. • One jurisdiction held that when students elect to live in campus housing, they yield control of their own protection. • Students cannot protect themselves with weapons or dogs and are not allowed to modify door hardware. • Due to surrendered control of the institution, the university has a duty to protect the students from foreseeable violence. • Colleges are responsible for providing their student with protection from criminal acts of third parties. Adequate security is an indispensable part of services.

16. Alcoholic Beverages • Administrators should know the laws of their states pertaining to violent acts related to alcoholic beverage statutes. • The 2 alcohol-related liabilities are dramshop and social host liability. • Both are similar however, dramshop liability applies to licensed vendors. • Social host liability applies to those who are not licensed but provide alcohol to others. • According to these theories, the injured person may sue the provider of the alcoholic beverages for negligence.

17. DefamationDefinition: False statements about others that may hold them to ridicule or disgrace. There are 2 types: libel(written) & slander(spoken) Conditions of defamation: • The statement must be a false statement that is made by one person to another about a third person that ridicules or disgraces a third person. • The false statement must injure the third person’s reputation.

18. Student editors are accountable for what they publish. Institutions should provide students and faculty with training in the law of defamation before issuing accounts to use the university server for computer/technological purposes. As long as the university is a conduit and not a publisher of a defamatory statement, liability is not an issue if the university is not aware of the circulation of the statements/material. Implications for School Administrators:

19. Tort Liability Defenses • The best defense is to fulfill all duties. The courts will not generally attach liability when students engage in activities that places them at risk(Gehling v. St. George University School of Medicine, 1989,). • Students who contribute to their own negligence may be barred from recovering damages. • Damages may be assessed based upon the degree of fault(Zavala v. Reagents of University of California, 1981).

20. Two Types of Immunity Sovereign & Governmental Immunity • Insulates public officials from suit when carrying out their duties • This should generally not be relied upon as a defense • This type of immunity only applies to public institutions • Many states have abrogated the concept • The best defense against tort liability is knowledge about the legal duties and fulfillment of them

21. Contract Law • Definition of a contract- a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes a duty. • A contract must consist of the following: a promise/set of promises, an offer and an acceptance, an agreement of what is to be gained and what is to be given up to gain it, and an agreement between the parties to create a common understanding. • Contract law is a civil matter that may result in damages.

22. Contracts • The types of contracts are as follows: explicit, implicit, written, and oral. • Example of an implicit contract applied to higher education: If a student pays tuition and meets the established academic and social requirements, they will receive a degree. • Explicit contracts are created with housing and other services for admission into the institution. • Explicit contract implications: The terms and conditions of contracts found in brochures, handbooks, and other documents published by the institution is binding.

23. Court Cases /Implications Related to Contracts

24. Contracts • The courts have recognized disclaimers published in institutional catalogs. These disclaimers allow the institution more flexibility.

25. The best practice is to provide everything that is promised and not to promise anything that cannot be provided. Catalogs, brochures, and handbooks should be review with input from legal counsel. Administrators should always sign both their names and their official titles to protect themselves against individual liability. Administrators should be careful not to use legal terminology in their code of conduct. Implication to School Administrators

26. Statutes • State and federal laws provide students with specific rights in their relationships with institutions. These laws affect student affairs programs, policies, and practices. • Violation of these rights may lead to criminal action as well as civil liability. • Campus libraries can serve as a source of state statutes. • Statutes are authorized by the power of the Congress to regulate interstate commerce and to provide for the general welfare. • The law must be implemented by the appropriate agency of the executive branch. • Statutes are sometimes interpreted by the judicial branch. • Student affairs practitioners must have a knowledge regarding judicial interpretations and regulations.

27. History of The Law and Higher Education • The federal government has been making laws affecting higher education since before the 1862 Morrill Act. • The most direct impact was The Civil Rights act of 1964 • Title VI of The Civil Rights Act states the following: “ No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

28. History of The Law and Higher Education • Title IX of the Education Amendment of 1972 prohibits sex discrimination. • Section 504 of The Rehabilitation Act of 1973 prohibits discrimination on the basis of handicap.

29. Implications of Statutes to Higher Education • The Civil Rights Restoration Act of 1987 defined a program or activity under all 3 statutes(Title VI, Title IX, and Section 504). • Implications: Whether a specific program receives federal funding is irrelevant. If a student attending the institution receives federal funding, the institution must conform to the statutes including noncredit and non degree courses.

30. Cases and Implications

31. Implications for Higher Education Administrators • Regulations implementing Title VI(34 C.F.R.100), Title IX(34 C.F.R.106), and Section 504 (34 C.F.R. 104) each provide a mechanism for administrative procedures against those who violate the law. • The Department of Education must seek the approval of Congress to revoke the institution’s federal funding as a penalty for violation if the institution’s attempts are unsuccessful. • Students may initiate their own legal action without waiting on the government.

32. Title IX • Originally enacted to provide an equal opportunity for women in programs and activities. • It has been held to also prevent sexual harassment by faculty and staff. • This includes quid pro quo(something for something) and hostile environment sexual harassment. • A student may recover damages for sexual harassment. • In order for an institution to be liable for the sexually harassing actions of employees, someone with power over the offending employee must be notified. This person in power must act with “deliberate indifference”in failing to take action. • Issues regarding student-to-student sexual harassment is unclear. • Regulations implementing Title IX(C.F.R.106) also have specific sections dealing with campus rules, athletics, student organizations, and the provision of housing, counseling, and placement services.

33. Section 504 • Prohibits the discrimination against “ otherwise qualified handicapped” persons. • Institutions are required to make reasonable accommodations for disabled students but are not required to eliminate courses essential to the nature of the degree. • Several judicial decisions have indicated that auxiliary aids are to be paid for by the state rehabilitation agencies and not colleges and universities. • In disease related cases, administrators should seek medical advice regarding the potential risk to third parties. • According to The Civil Rights Restoration Act of 1987, a handicapped person does not include an individual with a contagious disease.

34. FERPA • The Family Educational Rights and Privacy Act provides that no funds should be made available to any institutions of higher education which has a policy of denying, or which effectively prevents the parents of students attending the right to inspect and review any and all official records. • The rights of the parent revert to the student when the student attains eighteen years of age or enters a postsecondary institution unless the child remains financially dependent on the parent for tax purposes.

35. Implications to Higher Education Administrators • The Higher Education Amendments of 1998 amended FERPA to allow institutions to notify parents or legal guardians of any student who is under twenty-one years of age and has committed a disciplinary violation governing the use of alcohol or a controlled substance(Higher Education Amendment of 1998, Sec. 952). • This law is permissive and allows institutions to withhold information under institutional policy. Any policies should be written and available to everyone. • Students may not sue to enforce their FERPA rights and must rely on the government for implications regarding compliance. • Police reports are not protected under FERPA. • Campus disciplinary records have been interpreted differently by different courts. • Administrators should read the law and acquire counsel regarding the disclosure of certain information regarding violence acts or sexual offenses.

36. Other Statutes Influencing Student Affairs Programs, Policies, and Practices • The Drug Free Schools and Communities Act of 1989(20 USC 1145)- mandate that institutions annually distribute to each student and employee information regarding federal standards of conduct surrounding the unlawful possession, use, and distribution of drugs and alcohol and health risks associated with the illicit use of drugs and alcohol. A description of rehabilitation programs and institutional sanctions and violations must be provided in writing. • The Student Right-To- Know and Campus and Security Act(20 USC 1092)- requires institutions to report graduation rates for athletes and others , revenues and expenses for men’s and women’s teams, and crime statistics. A security report must be issued to each student, employee, and prospective students may request a copy. This act also mandates that a victim of sexual offenses must receive information regarding the outcome of any disciplinary hearings against the perpetrator(s). Institutions may change the living and academic conditions of alleged victims of sexual offenses.

37. The Civil Rights Act of 1871- creates civil liability for public officials who violates the constitutional or statutory rights of others

38. Constitutional Issues The United States Constitution: • Considered to be the highest law in the land • Describes the 3 branches of government • No state may grant fewer rights than the federal constitution • Many states choose to grant more rights than the federal constitution • Only if private colleges are shown to be engaged in “state action” are they required to conform to the guarantees found in the Constitution • The courts determine state action by “ sifting facts and weighing circumstances” • The courts are generally reluctant to find state actions

39. The First Amendment • Provides that “ Congress shall make no laws respecting the establishment of religion or prohibiting the free exercise thereof: or abridging the freedom of speech or of the press; or of the press; or the right of the people peacefully to assemble;and to petition the Government for a redress of grievances.” • The First Amendment permeates every aspect of student affairs administration. • The Establishment and Free Exercise of Religion – This prohibition is involved primarily in situations in which federal or state assistance of some type is provided to religiously affiliated institutions. The determination of violation rests upon a three pronged test established by The Supreme Court. • (Lemon v. Kurtzman, 1971)- The test asks whether the aid reflects a clearly secular purpose, has a primary effect which neither advances nor inhibits religion, and avoids excessive entanglement between the church and government.

40. The First Amendment Freedom of Speech and Press: • The freedom of speech and press guaranteed is not absolute. • The Supreme Court held that institutions may regulate speech and expression that would “ materially and substantially disrupt the work and the discipline of the school.” • Institutions must bear the burden of proof to show that the speech would be disruptive(Molpus v. Fortune, 1970). • Colleges and universities may impose reasonable time, place, and manner restrictions on the exercise of freedom of expression(Bayless v. Martine, 1970). • Several cases regarding publications, restriction of speeches, and internet communications are in the history of higher education institutions. • Any rule designed to regulate speech will bear a heavy burden of showing that it is narrowly tailored to serve a compelling governmental interest.

41. The First Amendment The Right to Peacefully Assemble • Institutions are not required to provide any sort of official recognition or endorsement of student organizations; however, after they open the door to recognition they must treat all who request it equally and may not determine recognition on the basis of the goals or philosophy as long as they are lawful. • The right to assemble cannot be denied on the basis of content. • Court cases have refined how activity fees may be used.

42. The Fourth Amendment • Provides that “ the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, no warrants shall issue, but upon probable cause, supported by an oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” • When there are “reasonable grounds” for suspecting that a search will turn up evidence that the student has violated law or rules a warrantless search may be allowed. • “Reasonableness” would be determined by age. • The Supreme Court has yet to address a case pertaining to college students. • College officials may not delegate the lower standard of “reasonable cause” to police who seek criminal evidence. • Contraband observed in “plain view” may be seized and used for disciplinary purposes(State v. Kappes, 1976).

43. The Fourteenth Amendment • The Amendment provides in part: “ …nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws.” • Due process rights must be afforded to students facing disciplinary charges.

44. Standards for Due Process The following should be provided when students face serious consequences: • Students should receive a specific notice of charges and grounds that, if proven would lead to expulsion. • The notice should include the nature of the incident. • The circumstances of a specific case would influence the type of hearing to be held. • Students should be given the names of witnesses and an oral or written report of their testimony. • Students should be provided an opportunity to present a defense, including written or oral testimony of a witness. • The hearing must be held before an impartial individual or board.

45. Implications for Administrators • Administrators should read the following book for information regarding standards: The General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education(1968).

46. Procedural Requirements • Students should be given a written notice of the charges in enough detail to allow them to prepare a defense. • Students may not hinder the process by moving or failing to provide the university with a current address. • There is no requirement that witnesses may be cross examined. • Special circumstances regarding legal counsel applies and should be reviewed by administrators. • Administrators should always consider the safety of individuals first when individuals pose a threat.

47. The Fourteenth Amendment • Implies that individuals must be treated equally. • Cases regarding situations concerning age restrictions, gender restrictions, and classification of students for admissions are all regulated by The Fourteenth Amendment.

48. Legal Implications Of Administrators • Legal guidelines should be followed. • Administrators must stay current regarding developments of the law. • Competent legal advice is necessary and should be sought.

49. References • Barr, M. , Desler, M., & Associates,(2000).The Handbook of Student Affairs Administration (Second Edition).California: Jossey-Bass.