I.
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Introduction
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A.
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Overview
of Course
Objectives
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II.
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Review of
Basic Legal Concepts
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A.
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Public/Private
Distinctions
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B.
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Federal/State
Law
Relationships
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III.
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Current
Issues: Student/Institutional Relationships
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A.
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In
Loco Parentis
Revisited
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1.
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Two
views of current student rights and responsibilities and the
student/institutional relationships: Robert Bickel and Peter Lake, The
Rights and Responsibilities of the Modern University (Carolina Academic
Press 1999); Gary Pavela, “Today’s College Students Need Both Freedom
and Structure,” The Chronicle of Higher Education, July 29, 1992, p.B1.
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2.
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“Facilitator” university -- recognizes
that traditional age students do
not become adults overnight; posits that safety and security are part
of services students and parents expect. See, Furek v. University of
Delaware, 594 A.2d 506 (Del. 1991)(university’s policy against hazing,
“like its overall commitment to provide security on its campus” was an
assumed duty to student injured in hazing incident; it was part of “an
indispensable part of the bundle of services which colleges ... afford
their students.”)
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3.
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Non-custodial institution -- colleges and
universities are educational
institutions not custodians of adult students. Bradshaw v. Rawlings,
612 F.2d 135 (3rd Cir. 1979) (college policies against underage
drinking did not create a legal duty to protect a student who was
injured while riding in the car of an intoxicated fellow student, after
attending a sophomore class picnic.) See also, Booker v. Lehigh
University, 800 F.Supp. 234 (E.D. Pa. 1992)(policy statements guide
adult behavior and do not create responsibility for poor judgment).
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4.
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Courts may be moving from “no duty” rule
to a more nuanced look at
university/college liability for harm to students on and off-campus.
See, e.g., Mullins v. Pine Manor College, 449 N.E.2d 331 (Mass. 1983)
(college argued no duty to protect student from criminal acts by third
party criminal intruder who abducted student from dorm and raped her;
court held that college that requires students to live on campus has a
duty to provide reasonable security); but duty to exercise reasonable
care does not make university an insurer, Eisman v. State, 518 N.Y.S.2d
608 (Ct.App.N.Y. 1987) (university not liable for rape and murder of
student by a fellow student who was a convicted felon on parole where
there was no notice to university of unreasonable behavior by parolee
and no evidence murdered student was at risk). Pending case: Nova
Southeastern University v. Gross, 2000 WL 329234 (Fla. Sup. Ct. March
30, 2000) (duty of reasonable care re: off campus internship).
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B.
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Student
Discipline/Due Process
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1.
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General references: E.N. Stoner and K.
Cerminara,
“Harnessing the ‘Spirit of Insubordination’: A Model Student
Disciplinary Code,” 17 Journal of College & University Law 89
(1990); E.N. Stoner and Sheldon E. Steinbach, “The Truth About College
Discipline,” The Chronicle of Higher Education, Dec. 13, 1996 (see,
www.rssm.com/pubs/other/stoner1.htm).
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2.
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Fundamental requirement of due process is
the opportunity to be heard
at a meaningful time and in a meaningful matter. Matthews v. Eldridge,
424 U.S. 319 (1976). Key requirements: notice, impartial
decision-maker, no right to counsel, no right to cross examination,
some form of record (need not be verbatim), no right of appeal.
Standard of proof: substantial evidence.
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3.
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Deference to private college decision
making challenged: Schaer v.
Brandeis University. “Brandeis Lawsuit Puts Campus Courts in the Dock,”
The Chronicle of Higher Education, July 21, 2000, p. A33.
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4.
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Pending Criminal Investigations. Internal
disciplinary proceedings need
not be postponed.
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a)
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No threat to right against
self-incrimination because
testimony in internal proceedings is voluntary. Hart v. Ferris State
College, 557 F. Supp. 1379 (W.D. Mi. 1983).
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b)
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Internal
proceedings serve a legitimate educational and remedial purpose; no
double jeopardy attaches. Sate of Maine v. Sterling, 685 A.2d 432 (Me
1996).
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5.
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Important
to distinguish academic from disciplinary matters. See generally, Board
of Curators of the University of Missouri v. Horowitz, 435 U.S. 78
(1978); Regents of the University of Michigan v. Ewing, 474 U.S. 214
(1985). Courts look at the institution’s treatment of the situation,
after the fact rationales will be unconvincing if the institution has
treated the matter as a disciplinary issue. Factors to consider: does
the issue require the application of academic expertise? Will the
student be subject to some kind of stigmatizing label (guilty)? Is the
matter cummulative or does it involve a single issue? An academic
dismissal meets the requirements of due process if there is notice, an
opportunity to improve (where appropriate), careful decision-making and
informal meeting to discuss dismissal.
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6.
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Campus Sexual Assault Visitors Bill of
Rights, 20 U.S.C. 1092
(f)(8)(B)(iv) – on-campus disciplinary proceedings must allow accused
and accuser the same opportunities to have support persons present,
both are informed of the outcome.
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7.
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Application to off campus behavior okay
when: conduct was criminal;
conduct was directly related to campus mission and welfare, conduct
code says off campus behavior is covered.
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C.
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Mandatory
Student Fees
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1.
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In Rosenberger v. University of Virginia,
515 U.S. 819 (1995), Justice
O’Connor warned that mandatory fees might be susceptible to “a Free
Speech Clause challenge by an objecting student that she should not be
compelled to pay for speech with which she disagrees.”
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2.
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In
Board of Regents v. Southworth, 120 S.Ct. 1346 (2000), the Supreme
Court looked at the question whether the First Amendment is offended by
a policy or program under which a public university student must pay
mandatory fees that are used in part to support organizations that
engage in political speech.
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3.
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In Southworth, the Supreme Court held that
a university may determine
that its educational mission warrants support of a broad range of
groups and organizations, and for that purpose may collect mandatory
fees even if some of the fees go to organizations to which students
object. Union and state bar cases not applicable. Proper constitutional
standard is viewpoint neutrality.
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4.
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Open issues: must the board make factual
findings and adopt policies
expressing mission; what might make a mandatory fee program not
viewpoint neutral; can the university use referenda to decide which
groups receive fees; can the university restrict use of fees for
political and partisan purposes; what is status of using fees for
direct lobbying; would a refund or rebate procedure make a difference?
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D.
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FERPA
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1.
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Access
to Disciplinary Records
United States v. Miami University, 91 F.Supp.2d 1132 (S.D.Ohio
2000)(“The Chronicle’s argument that Ohio public policy favors openness
and disclosure of disciplinary records has no bearing on the Court’s
interpretation of FERPA.” “[T]he Court finds that university
disciplinary records fall within the definition of ‘education records’
as stated in 20 U.S.C. § 1232g. ... As the Court stated in its
Order granting a preliminary injunction in this case: ‘It is abundantly
clear the disciplinary records that are the subject of the instant case
satisfy both prongs of the statutory definition of education records.’”
Enjoining implementation of State ex rel. The Miami Student v. Miami
University, 680 N.E.2d 956 (Ohio) cert. denied, 522 U.S. 1022 (1997).
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2.
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New
Congressional authorization for disclosure of final results of
disciplinary proceeding to victim of a crime of violence or a
nonforcible sex offense, 20 U.S.C. § 1232g(b)(6)(A); disclosure to
the public of final results of disciplinary proceeding against a
student alleged to be perpetrator of crime of violence or nonforcible
sex offense if the institution determines that the student violated the
institution’s rules or policies, 20 U.S.C. § 1232g(b)(6)(B); and
disclosure to parents information regarding any violation by the
student of any federal, state, or local law or any rule or policy of
the institution governing the use or possession of drugs or alcohol if
student is less than 21 and has been determined to have committed a
disciplinary violation (unless state law would prohibit disclosure).
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3.
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Internet resource: www.ed.gov/offices/OM/fpco
(adminstrative agency website). Free on-line course, http://counsel.cua.edu/Ferpa/FERPA/default.htm.
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E.
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Criminal Records/Admissions
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1.
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Colleges may deny or revoke admission
because of an applicant’s prior
criminal conviction. See, Stokes and Groves, “Rescinding Offers of
Admission When Prior Criminality is Revealed,” 105 Ed. L. Rep. 855
(1996).
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2.
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olleges should determine as a matter of
policy whether to ask and if
so what to ask for, when to ask and how to use. See, “Use of Criminal
Convictions in College Admissions,” Presentation by Derek Langhauser,
General Counsel, Maine Technical College System, NACUA Annual Meeting,
June 28, 2000.
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a)
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Yes -- necessary
to evaluate character, maturity and responsibility; helps further safe
environment; helps determine whether student should get dorm space;
helps advising re: future licensure, etc; and helps compliance with
federal law barring aid to students with drug convictions. No -- state
law may limit right to request or compel, Va. Code § 19.2-392.4
(can’t ask for arrest record or expunged records); may create issues
re: discrimination; unfair penalty for those who have “paid debt,”
especially re: juvenile offenses; no way to verify with criminal
background checks; college shouldn’t assume a duty where none now
exists.
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b)
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When -- general
admissions application; specific application for program where
licensure or internship issues may arise; financial aid; residence hall
request.
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c)
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What --
convictions/guilty pleas for crimes other than traffic offenses; when;
where; terms or conditions of parole, plea, sentence; details of
offense; continuing duty to disclose. Vakas v. Kansas Board of Healing
Arts, 808 P.2d 1355 (Kan. 1991).
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d)
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How to
use --
weigh interests of college against facts of case, Arrocha v. Board of
Education, 677 N.Y.S.2d 584 (1998). There must be a rational
relationship between adverse action against student and interest of
institution. Should community be notified? Education record? State
notice laws.
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F.
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Campus Security Act.
The Student Right to Know and Campus Security Act (Pub.L. 101-542,
1990) now called the Jeanne Clery Disclosure of Campus Security Policy
and Campus Crime Statistics Act. Implementing rules, 34 C.F.R. 668.46.
Must report policies and crime statistics for last three years by
October 1 each year.
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G.
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Unionization of Students.
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1.
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Boston Medical Center Corp., 330 N.L.R.B.
No. 30 (Nov. 26, 1999)
(interns and residents are employees for purposes of the NLRA) and New
York University, 332 N.L.R.B. No. 111 (Oct. 31, 2000) (graduate
assistants are employees for purposes of the NLRA.) Applies to private
teaching hospitals and private colleges and universities nationwide.
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2.
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Watch for FERPA conflicts – records
regarding teaching assistants are
“education records.” Need to designate “status as teaching assistant”
as directory information in order to make a list available to union.
Cannot release social security number, rate of pay and bargaining unit
status without consent. Would violate FERPA. August 21, 2000 letter
from LeRoy S. Rooker, Director, Family Policy Compliance Office,
Department of Education to AFT, www.ed.gov/offices/OM/Omltrs/aft.html.
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IV.
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Current Issues: Americans
with
Disabilities Act
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A.
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Definition of Disability
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1.
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Eyeglass wearing pilots with correctable
vision held not disabled.
Supreme Court said, “if a person is taking measures to correct for, or
mitigate, a physical or mental impairment, the effects of those
measures -- both positive and negative -- must be taken into account
when judging whether that person is ‘substantially limited’ in a major
life activity and thus ‘disabled’ under that Act.” Sutton v. United Air
Lines, Inc. 527 U.S. 471 (1999). Person whose blood pressure controlled
by medication not disabled. Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999). Extends to self-accommodation. Albertson’s, Inc. v.
Kirkinburg, 517 U.S. 516 (1999) (“no principled basis for
distinguishing between measures undertaken with artificial aids, like
medications and devices, and measures undertaken, whether consciously
or not, with the body’s own systems”). Popko v. Pennsylvania State
Univ., 84 F.Supp.2d 589 (M.D.Pa.2000)(on remand for further
consideration of whether plaintiff’s epileptic condition was a
“disability” in light of recent Supreme Court decisions. Pacella v.
Tufts Univ. School of Dental Medicine, 66 F. Supp.2d 234 (D.Mass.
1999)(as corrected vision does not substantially limit a major life
activity). Tangires v. The Johns Hopkins Hospital, 79 F.Supp.2d 587
(D.Md. 2000)(employee with asthma not disabled where asthma was
treatable with medication that she refused to take).
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2.
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ADD/ADHD disabilities?
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