Chapter 19Chapter 19Understanding The Legal Understanding The Legal Implications of Student Implications of Student

Affairs PracticeAffairs Practice

EDHE 6730 EDHE 6730

Dr. BaierDr. Baier

Fall 2008Fall 2008

Dayanna CarsonDayanna Carson

Chapter Goals:Chapter Goals:

To provide information regarding factors to support To provide information regarding factors to support that the law is in a constant state of changethat the law is in a constant state of change

To create a familiarization with current laws and To create a familiarization with current laws and regulationsregulations

To provide information regarding the judicial To provide information regarding the judicial system and the institutional relationship with system and the institutional relationship with studentsstudents

To provide a discussion related to the following To provide a discussion related to the following legal concepts: torts, contracts, statutes, and legal concepts: torts, contracts, statutes, and constitutional issuesconstitutional issues

To educate administrators on best practices To educate administrators on best practices regarding the lawregarding the law

Student/Institutional Student/Institutional RelationshipRelationship

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

Key Points Relating To Key Points Relating To Students & The LawStudents & The Law

Students have rights guaranteed by the Students have rights guaranteed by the federal constitution.federal constitution.

Students have rights due to their status as Students have rights due to their status as residents of specific states protected by residents of specific states protected by state constitutions.state constitutions.

These rights may apply to student affairs These rights may apply to student affairs policies however; constitutional policies however; constitutional protections differ from public to private protections differ from public to private institutions.institutions.

Analyzation of Student Legal Analyzation of Student Legal RelationshipsRelationships

Specific state and federal laws are Specific state and federal laws are often general in nature.often general in nature.

Rules and regulations are written to Rules and regulations are written to enforce the law.enforce the law.

Students and The LawStudents and The Law

Students may have Students may have both explicit and both explicit and implicit contracts implicit contracts defining their defining their relationship with a relationship with a college or university.college or university.

Students have a Students have a right to be free from right to be free from intrusion upon their intrusion upon their person, property, person, property, and their reputation.and their reputation.

Student rights are Student rights are defined by judicial defined by judicial precedent.precedent.

Torts:Definition & Classification Torts:Definition & Classification

Tort- A violation of minimum standards. Tort- A violation of minimum standards. Derived from the Latin word meaning twist. Derived from the Latin word meaning twist. A civil wrong other than a breach of contract A civil wrong other than a breach of contract for which the courts will provide a remedy.for which the courts will provide a remedy.

The 4 classifications of primary relationships The 4 classifications of primary relationships between students and their institutions are between students and their institutions are as follows:as follows:

A.A. TortsTortsB.B. ContractsContractsC.C. StatutesStatutesD.D. ConstitutionsConstitutions

The Judicial SystemThe Judicial SystemThe Function: To settle controversies, decide the The Function: To settle controversies, decide the constitutionality of the law, and interpret the lawconstitutionality of the law, and interpret the law

State CourtsState Courts Decide on the Decide on the

constitutionality of state constitutionality of state lawslaws

Decide disputes Decide disputes between state residentsbetween state residents

Interpret lawsInterpret laws Have limited jurisdiction Have limited jurisdiction

to the laws of that to the laws of that specific state and the specific state and the geographic areageographic area

Federal CourtsFederal Courts Decide questions Decide questions

pertaining to federal lawspertaining to federal laws Settle disputes between Settle disputes between

citizens of different statescitizens of different states Have jurisdiction over a Have jurisdiction over a

particular geographic areaparticular geographic area The decision of the court The decision of the court

is only binding in certain is only binding in certain geographic locationsgeographic locations

Only cases decided by the Only cases decided by the U.S. Supreme Court are U.S. Supreme Court are binding overallbinding overall

Implications to AdministratorsImplications to Administrators

Administrators must understand that Administrators must understand that various state laws and implications various state laws and implications may differ.may differ.

The 2 Types of Tort RemediesThe 2 Types of Tort Remedies(Remedy- monetary damages)(Remedy- monetary damages)

CompensatoryCompensatory Designed to put Designed to put

the injured person the injured person back to where they back to where they were previously were previously before the injurybefore the injury

PunitivePunitive

Assessed where Assessed where the injury is caused the injury is caused by willful acts by willful acts without regard for without regard for another person’s another person’s property or property or reputation and reputation and serve as serve as punishmentpunishment

NegligenceNegligenceDefined: A breach of duty owedDefined: A breach of duty owed

Four elements must exist to be found Four elements must exist to be found liableliable

for negligence:for negligence:

1.1. A duty must be presentA duty must be present

2.2. An injury must occurAn injury must occur

3.3. A duty must have been breachedA duty must have been breached

4.4. The breach of duty must be the The breach of duty must be the proximate cause of injuryproximate cause of injury

Institutions of Higher Institutions of Higher Education’s 3 General Duties:Education’s 3 General Duties:

1. To provide proper supervision1. To provide proper supervision 2. To furnish proper instruction2. To furnish proper instruction 3. To maintain equipment in a 3. To maintain equipment in a

reasonable state of repairreasonable state of repair

Related Cases and ImplicationsRelated Cases and Implications

CasesCases ImplicationsImplications(Bradshaw w. Rawlings, 1979; (Bradshaw w. Rawlings, 1979; University of Denver v. Whitlock, University of Denver v. Whitlock, 1987; Smith v. Day, 19871987; Smith v. Day, 1987

Unless a “special relationship” Unless a “special relationship” exists, there is no custodial duty to exists, there is no custodial duty to control the conduct of students.control the conduct of students.

(Furek v. University of Delaware, (Furek v. University of Delaware, 1991)1991)

In Delaware, The Supreme Court In Delaware, The Supreme Court recognized that the university does recognized that the university does exercise some control over the exercise some control over the lives of students and may be held lives of students and may be held liable for failing to exercise liable for failing to exercise supervision over fraternity hazing supervision over fraternity hazing activities.activities.

(Potter v. North Carolina School of (Potter v. North Carolina School of Arts, 1978)Arts, 1978)

Student affairs practitioners must Student affairs practitioners must provide careful information on the provide careful information on the operation of equipment.operation of equipment.

(Shetina v. Ohio University, (Shetina v. Ohio University, 1983)/(Drew v. State, 1989; Henig 1983)/(Drew v. State, 1989; Henig v. Hofstra University, 1990).v. Hofstra University, 1990).

Institutions are required to inspect Institutions are required to inspect its premises for defects and make its premises for defects and make necessary repairs.necessary repairs.

Inspection of sports playing Inspection of sports playing surfaces is required.surfaces is required.

ViolenceViolenceColleges & Universities are generally under no duty to Colleges & Universities are generally under no duty to protect students from the violent acts of a third personprotect students from the violent acts of a third person

CasesCases ImplicationsImplications

(Kline v. Massachusetts Avenute (Kline v. Massachusetts Avenute Corp.,1970 at 481)Corp.,1970 at 481)

The landlord is no insurer of his The landlord is no insurer of his tenant’s safety.tenant’s safety.

(Houck v. University of (Houck v. University of Washington, 1991)Washington, 1991)

A university is a common carrier A university is a common carrier when it operates elevators when it operates elevators therefore, the institution is therefore, the institution is required to protect them from required to protect them from unreasonable risk of harm.unreasonable risk of harm.

(Bearman v. University of Notre (Bearman v. University of Notre Dame, 1983;Schultz v. Gould Dame, 1983;Schultz v. Gould Academy, 1975)Academy, 1975)

A university has a duty to protect A university has a duty to protect invitees from unreasonable risks.invitees from unreasonable risks.

(Duarte v. State,1978)(Duarte v. State,1978) Universities have a duty to Universities have a duty to protect resident students. protect resident students.

The Law& Implications To The Law& Implications To UniversitiesUniversities

The courts generally agree that colleges and The courts generally agree that colleges and universities do not exercise control over adult universities do not exercise control over adult students.students.

One jurisdiction held that when students elect to live One jurisdiction held that when students elect to live in campus housing, they yield control of their own in campus housing, they yield control of their own protection.protection.

Students cannot protect themselves with weapons or Students cannot protect themselves with weapons or dogs and are not allowed to modify door hardware.dogs and are not allowed to modify door hardware.

Due to surrendered control of the institution, the Due to surrendered control of the institution, the university has a duty to protect the students from university has a duty to protect the students from foreseeable violence.foreseeable violence.

Colleges are responsible for providing their student Colleges are responsible for providing their student with protection from criminal acts of third parties. with protection from criminal acts of third parties. Adequate security is an indispensable part of services.Adequate security is an indispensable part of services.

Alcoholic BeveragesAlcoholic Beverages Administrators should know the laws of their Administrators should know the laws of their

states pertaining to violent acts related to states pertaining to violent acts related to alcoholic beverage statutes.alcoholic beverage statutes.

The 2 alcohol-related liabilities are dramshop The 2 alcohol-related liabilities are dramshop and social host liability.and social host liability.

Both are similar however, dramshop liability Both are similar however, dramshop liability applies to licensed vendors.applies to licensed vendors.

Social host liability applies to those who are Social host liability applies to those who are not licensed but provide alcohol to others.not licensed but provide alcohol to others.

According to these theories, the injured person According to these theories, the injured person may sue the provider of the alcoholic may sue the provider of the alcoholic beverages for negligence.beverages for negligence.

DefamationDefamationDefinition: False statements about others that may Definition: False statements about others that may

hold them to ridicule or disgrace. hold them to ridicule or disgrace. There are 2 types: libel(written) & There are 2 types: libel(written) &

slander(spoken)slander(spoken)

Conditions of defamation: Conditions of defamation: The statement must be a false statement The statement must be a false statement

that is made by one person to another that is made by one person to another about a third person that ridicules or about a third person that ridicules or disgraces a third person.disgraces a third person.

The false statement must injure the third The false statement must injure the third person’s reputation. person’s reputation.

Implications for School Implications for School Administrators:Administrators:

Student editors are Student editors are accountable for what accountable for what they publish.they publish.

Institutions should Institutions should provide students and provide students and faculty with training in faculty with training in the law of defamation the law of defamation before issuing before issuing accounts to use the accounts to use the university server for university server for computer/technologiccomputer/technological purposes.al purposes.

As long as the As long as the university is a conduit university is a conduit and not a publisher of and not a publisher of a defamatory a defamatory statement, liability is statement, liability is not an issue if the not an issue if the university is not aware university is not aware of the circulation of of the circulation of the the statements/material.statements/material.

Tort Liability DefensesTort Liability Defenses

The best defense is to fulfill all duties. The The best defense is to fulfill all duties. The courts will not generally attach liability courts will not generally attach liability when students engage in activities that when students engage in activities that places them at riskplaces them at risk(Gehling v. St. George (Gehling v. St. George University School of Medicine, 1989,).University School of Medicine, 1989,).

Students who contribute to their own Students who contribute to their own negligence may be barred from recovering negligence may be barred from recovering damages.damages.

Damages may be assessed based upon Damages may be assessed based upon the degree of faultthe degree of fault(Zavala v. Reagents of (Zavala v. Reagents of University of California, 1981).University of California, 1981).

Two Types of ImmunityTwo Types of Immunity

Sovereign & Governmental ImmunitySovereign & Governmental Immunity Insulates public officials from suit when Insulates public officials from suit when

carrying out their duties carrying out their duties This should generally not be relied upon as This should generally not be relied upon as

a defensea defense This type of immunity only applies to This type of immunity only applies to

public institutionspublic institutions Many states have abrogated the conceptMany states have abrogated the concept The best defense against tort liability is The best defense against tort liability is

knowledge about the legal duties and knowledge about the legal duties and fulfillment of themfulfillment of them

Contract LawContract Law

Definition of a contractDefinition of a contract- a promise or set of - a promise or set of promises for the breach of which the law gives promises for the breach of which the law gives a remedy or the performance of which the law a remedy or the performance of which the law in some way recognizes a duty.in some way recognizes a duty.

A contract must consist of the following: a A contract must consist of the following: a promise/set of promises, an offer and an promise/set of promises, an offer and an acceptance, an agreement of what is to be acceptance, an agreement of what is to be gained and what is to be given up to gain it, gained and what is to be given up to gain it, and an agreement between the parties to and an agreement between the parties to create a common understanding.create a common understanding.

Contract law is a civil matter that may result Contract law is a civil matter that may result in damages.in damages.

ContractsContracts The types of contracts are as follows: explicit, The types of contracts are as follows: explicit,

implicit, written, and oral.implicit, written, and oral. Example of an implicit contract applied to Example of an implicit contract applied to

higher education: If a student pays tuition and higher education: If a student pays tuition and meets the established academic and social meets the established academic and social requirements, they will receive a degree.requirements, they will receive a degree.

Explicit contracts are created with housing and Explicit contracts are created with housing and other services for admission into the institution.other services for admission into the institution.

Explicit contract implications: The terms and Explicit contract implications: The terms and conditions of contracts found in brochures, conditions of contracts found in brochures, handbooks, and other documents published by handbooks, and other documents published by the institution is binding.the institution is binding.

Court Cases /Implications Related to ContractsCourt Cases /Implications Related to Contracts(Behrend v. State, 1977)(Behrend v. State, 1977) The implied contract contemplates that The implied contract contemplates that

the degree awarded will be an accredited the degree awarded will be an accredited one if that is required for licensure one if that is required for licensure examination.examination.

(Lidecker v. Kendall College, 1990)(Lidecker v. Kendall College, 1990) Failure to inform students regarding non Failure to inform students regarding non -accredited degrees does not constitute a -accredited degrees does not constitute a breach of contract.breach of contract.

(Warren v. Drake University, (Warren v. Drake University, 1989;Delta School of Business, Etc. v. 1989;Delta School of Business, Etc. v. Shropshire, 1981)Shropshire, 1981)

The terms and conditions of contracts The terms and conditions of contracts found in brochures, handbooks, and found in brochures, handbooks, and other documents published by the other documents published by the institution is usually interpreted by the institution is usually interpreted by the courts by applying the normal meaning of courts by applying the normal meaning of the words.the words.

(Krawez v. Stans, 1969 at 1235)(Krawez v. Stans, 1969 at 1235) Oral statements can constitute promises Oral statements can constitute promises offered.offered.

(Jones v. Vassar,1969)(Jones v. Vassar,1969) The terms and conditions of a contract The terms and conditions of a contract may be changed by the institution may be changed by the institution without breaching the contract.without breaching the contract.

ContractsContracts

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

Implication to School Implication to School AdministratorsAdministrators

The best practice is The best practice is to provide to provide everything that is everything that is promised and not to promised and not to promise anything promise anything that cannot be that cannot be provided.provided.

Catalogs, Catalogs, brochures, and brochures, and handbooks should handbooks should be review with input be review with input from legal counsel.from legal counsel.

Administrators Administrators should always sign should always sign both their names both their names and their official and their official titles to protect titles to protect themselves against themselves against individual liability.individual liability.

Administrators Administrators should be careful should be careful not to use legal not to use legal terminology in their terminology in their code of conduct.code of conduct.

StatutesStatutes State and federal laws provide students with specific rights State and federal laws provide students with specific rights

in their relationships with institutions. These laws affect in their relationships with institutions. These laws affect student affairs programs, policies, and practices.student affairs programs, policies, and practices.

Violation of these rights may lead to criminal action as well Violation of these rights may lead to criminal action as well as civil liability.as civil liability.

Campus libraries can serve as a source of state statutes.Campus libraries can serve as a source of state statutes. Statutes are authorized by the power of the Congress to Statutes are authorized by the power of the Congress to

regulate interstate commerce and to provide for the regulate interstate commerce and to provide for the general welfare.general welfare.

The law must be implemented by the appropriate agency The law must be implemented by the appropriate agency of the executive branch.of the executive branch.

Statutes are sometimes interpreted by the judicial branch.Statutes are sometimes interpreted by the judicial branch. Student affairs practitioners must have a knowledge Student affairs practitioners must have a knowledge

regarding judicial interpretations and regulations.regarding judicial interpretations and regulations.

History of The Law and Higher History of The Law and Higher EducationEducation

The federal government has been making laws The federal government has been making laws affecting higher education since before the 1862 affecting higher education since before the 1862 Morrill Act. Morrill Act.

The most direct impact was The Civil Rights act of The most direct impact was The Civil Rights act of 19641964

Title VI of The Civil Rights Act states the following: Title VI of The Civil Rights Act states the following: “ “ No person in the United States shall, on the grounds No person in the United States shall, on the grounds of race, color, or national origin, be excluded from of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be participation in, be denied the benefits of, or be subjected to discrimination under any program or subjected to discrimination under any program or activity receiving federal financial assistance.”activity receiving federal financial assistance.”

History of The Law and Higher History of The Law and Higher EducationEducation

Title IX of the Education Amendment Title IX of the Education Amendment of 1972 prohibits sex discrimination.of 1972 prohibits sex discrimination.

Section 504 of The Rehabilitation Act Section 504 of The Rehabilitation Act of 1973 prohibits discrimination on of 1973 prohibits discrimination on the basis of handicap.the basis of handicap.

Implications of Statutes to Implications of Statutes to Higher EducationHigher Education

The Civil Rights Restoration Act of 1987 The Civil Rights Restoration Act of 1987 defined a program or activity under all 3 defined a program or activity under all 3 statutes(Title VI, Title IX, and Section 504). statutes(Title VI, Title IX, and Section 504).

Implications: Whether a specific program Implications: Whether a specific program receives federal funding is irrelevant. If a receives federal funding is irrelevant. If a student attending the institution receives student attending the institution receives federal funding, the institution must federal funding, the institution must conform to the statutes including conform to the statutes including noncredit and non degree courses.noncredit and non degree courses.

Cases and ImplicationsCases and Implications(Reagents v. Bakke, 1978)(Reagents v. Bakke, 1978) The Supreme Court held that an The Supreme Court held that an

admissions quota violated Title admissions quota violated Title VI. Institutions cannot consider VI. Institutions cannot consider race as one of several factors in race as one of several factors in their admissions decisions.their admissions decisions.

(Uzzell v. Friday, 1979)(Uzzell v. Friday, 1979) When race is the sole factor in When race is the sole factor in making an admissions decision, making an admissions decision, it probably violates Title VI.it probably violates Title VI.

(Podberesky v. Kirwan, 1994) and (Podberesky v. Kirwan, 1994) and (Hopwood v. University of Texas,1996)(Hopwood v. University of Texas,1996)

Both cases rejected using race Both cases rejected using race as a factor in the distribution of as a factor in the distribution of financial aid and admissions .financial aid and admissions .

Implications for Higher Implications for Higher Education AdministratorsEducation Administrators

Regulations implementing Title VI(34 Regulations implementing Title VI(34 C.F.R.100), Title IX(34 C.F.R.106), and C.F.R.100), Title IX(34 C.F.R.106), and Section 504 (34 C.F.R. 104) each provide a Section 504 (34 C.F.R. 104) each provide a mechanism for administrative procedures mechanism for administrative procedures against those who violate the law.against those who violate the law.

The Department of Education must seek the The Department of Education must seek the approval of Congress to revoke the approval of Congress to revoke the institution’s federal funding as a penalty for institution’s federal funding as a penalty for violation if the institution’s attempts are violation if the institution’s attempts are unsuccessful.unsuccessful.

Students may initiate their own legal action Students may initiate their own legal action without waiting on the government.without waiting on the government.

Title IXTitle IX Originally enacted to provide an equal opportunity for women Originally enacted to provide an equal opportunity for women

in programs and activities.in programs and activities. It has been held to also prevent sexual harassment by faculty It has been held to also prevent sexual harassment by faculty

and staff.and staff. This includes quid pro quo(something for something) and This includes quid pro quo(something for something) and

hostile environment sexual harassment.hostile environment sexual harassment. A student may recover damages for sexual harassment.A student may recover damages for sexual harassment. In order for an institution to be liable for the sexually In order for an institution to be liable for the sexually

harassing actions of employees, someone with power over the harassing actions of employees, someone with power over the offending employee must be notified. This person in power offending employee must be notified. This person in power must act with “deliberate indifference”in failing to take action.must act with “deliberate indifference”in failing to take action.

Issues regarding student-to-student sexual harassment is Issues regarding student-to-student sexual harassment is unclear.unclear.

Regulations implementing Title IX(C.F.R.106) also have Regulations implementing Title IX(C.F.R.106) also have specific sections dealing with campus rules, athletics, student specific sections dealing with campus rules, athletics, student organizations, and the provision of housing, counseling, and organizations, and the provision of housing, counseling, and placement services.placement services.

Section 504Section 504 Prohibits the discrimination against “ otherwise qualified Prohibits the discrimination against “ otherwise qualified

handicapped” persons.handicapped” persons. Institutions are required to make reasonable Institutions are required to make reasonable

accommodations for disabled students but are not required accommodations for disabled students but are not required to eliminate courses essential to the nature of the degree.to eliminate courses essential to the nature of the degree.

Several judicial decisions have indicated that auxiliary aids Several judicial decisions have indicated that auxiliary aids are to be paid for by the state rehabilitation agencies and are to be paid for by the state rehabilitation agencies and not colleges and universities. not colleges and universities.

In disease related cases, administrators should seek In disease related cases, administrators should seek medical advice regarding the potential risk to third parties.medical advice regarding the potential risk to third parties.

According to The Civil Rights Restoration Act of 1987, a According to The Civil Rights Restoration Act of 1987, a handicapped person does not include an individual with a handicapped person does not include an individual with a contagious disease.contagious disease.

FERPAFERPA

The Family Educational Rights and Privacy The Family Educational Rights and Privacy Act provides that no funds should be made Act provides that no funds should be made available to any institutions of higher available to any institutions of higher education which has a policy of denying, or education which has a policy of denying, or which effectively prevents the parents of which effectively prevents the parents of students attending the right to inspect and students attending the right to inspect and review any and all official records. review any and all official records.

The rights of the parent revert to the student The rights of the parent revert to the student when the student attains eighteen years of when the student attains eighteen years of age or enters a postsecondary institution age or enters a postsecondary institution unless the child remains financially unless the child remains financially dependent on the parent for tax purposes.dependent on the parent for tax purposes.

Implications to Higher Education Implications to Higher Education AdministratorsAdministrators

The Higher Education Amendments of 1998 amended FERPA The Higher Education Amendments of 1998 amended FERPA to allow institutions to notify parents or legal guardians of to allow institutions to notify parents or legal guardians of any student who is under twenty-one years of age and has any student who is under twenty-one years of age and has committed a disciplinary violation governing the use of committed a disciplinary violation governing the use of alcohol or a controlled substance(Higher Education alcohol or a controlled substance(Higher Education Amendment of 1998, Sec. 952).Amendment of 1998, Sec. 952).

This law is permissive and allows institutions to withhold This law is permissive and allows institutions to withhold information under institutional policy. Any policies should be information under institutional policy. Any policies should be written and available to everyone.written and available to everyone.

Students may not sue to enforce their FERPA rights and Students may not sue to enforce their FERPA rights and must rely on the government for implications regarding must rely on the government for implications regarding compliance.compliance.

Police reports are not protected under FERPA.Police reports are not protected under FERPA. Campus disciplinary records have been interpreted Campus disciplinary records have been interpreted

differently by different courts.differently by different courts. Administrators should read the law and acquire counsel Administrators should read the law and acquire counsel

regarding the disclosure of certain information regarding regarding the disclosure of certain information regarding violence acts or sexual offenses.violence acts or sexual offenses.

Other Statutes Influencing Other Statutes Influencing Student Affairs Programs, Student Affairs Programs,

Policies, and PracticesPolicies, and Practices The Drug Free Schools and Communities Act of 1989(20 The Drug Free Schools and Communities Act of 1989(20

USC 1145)- mandate that institutions annually distribute to USC 1145)- mandate that institutions annually distribute to each student and employee information regarding federal each student and employee information regarding federal standards of conduct surrounding the unlawful possession, standards of conduct surrounding the unlawful possession, use, and distribution of drugs and alcohol and health risks use, and distribution of drugs and alcohol and health risks associated with the illicit use of drugs and alcohol. A associated with the illicit use of drugs and alcohol. A description of rehabilitation programs and institutional description of rehabilitation programs and institutional sanctions and violations must be provided in writing.sanctions and violations must be provided in writing.

The Student Right-To- Know and Campus and Security The Student Right-To- Know and Campus and Security Act(20 USC 1092)- requires institutions to report Act(20 USC 1092)- requires institutions to report graduation rates for athletes and others , revenues and graduation rates for athletes and others , revenues and expenses for men’s and women’s teams, and crime expenses for men’s and women’s teams, and crime statistics. A security report must be issued to each statistics. A security report must be issued to each student, employee, and prospective students may request student, employee, and prospective students may request a copy. This act also mandates that a victim of sexual a copy. This act also mandates that a victim of sexual offenses must receive information regarding the outcome offenses must receive information regarding the outcome of any disciplinary hearings against the perpetrator(s). of any disciplinary hearings against the perpetrator(s). Institutions may change the living and academic conditions Institutions may change the living and academic conditions of alleged victims of sexual offenses. of alleged victims of sexual offenses.

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

Constitutional IssuesConstitutional Issues

The United States Constitution:The United States Constitution: Considered to be the highest law in the land Considered to be the highest law in the land Describes the 3 branches of governmentDescribes the 3 branches of government No state may grant fewer rights than the federal No state may grant fewer rights than the federal

constitution constitution Many states choose to grant more rights than the Many states choose to grant more rights than the

federal constitutionfederal constitution Only if private colleges are shown to be engaged in Only if private colleges are shown to be engaged in

“state action” are they required to conform to the “state action” are they required to conform to the guarantees found in the Constitutionguarantees found in the Constitution

The courts determine state action by “ sifting facts The courts determine state action by “ sifting facts and weighing circumstances”and weighing circumstances”

The courts are generally reluctant to find state actionsThe courts are generally reluctant to find state actions

The First AmendmentThe First Amendment Provides that “ Congress shall make no laws respecting the Provides that “ Congress shall make no laws respecting the

establishment of religion or prohibiting the free exercise establishment of religion or prohibiting the free exercise thereof: or abridging the freedom of speech or of the press; thereof: or abridging the freedom of speech or of the press; or of the press; or the right of the people peacefully to or of the press; or the right of the people peacefully to assemble;and to petition the Government for a redress of assemble;and to petition the Government for a redress of grievances.”grievances.”

The First Amendment permeates every aspect of student The First Amendment permeates every aspect of student affairs administration.affairs administration.

The Establishment and Free Exercise of Religion – This The Establishment and Free Exercise of Religion – This prohibition is involved primarily in situations in which federal prohibition is involved primarily in situations in which federal or state assistance of some type is provided to religiously or state assistance of some type is provided to religiously affiliated institutions. The determination of violation rests affiliated institutions. The determination of violation rests upon a three pronged test established by The Supreme Court.upon a three pronged test established by The Supreme Court.

(Lemon v. Kurtzman, 1971)-(Lemon v. Kurtzman, 1971)- The test asks whether the aid The test asks whether the aid reflects a clearly secular purpose, has a primary effect which reflects a clearly secular purpose, has a primary effect which neither advances nor inhibits religion, and avoids excessive neither advances nor inhibits religion, and avoids excessive entanglement between the church and government.entanglement between the church and government.

The First AmendmentThe First AmendmentFreedom of Speech and Press:Freedom of Speech and Press: The freedom of speech and press guaranteed is not absolute.The freedom of speech and press guaranteed is not absolute. The Supreme Court held that institutions may regulate The Supreme Court held that institutions may regulate

speech and expression that would “ materially and speech and expression that would “ materially and substantially disrupt the work and the discipline of the substantially disrupt the work and the discipline of the school.” school.”

Institutions must bear the burden of proof to show that the Institutions must bear the burden of proof to show that the speech would be disruptivespeech would be disruptive(Molpus v. Fortune, 1970).(Molpus v. Fortune, 1970).

Colleges and universities may impose reasonable time, place, Colleges and universities may impose reasonable time, place, and manner restrictions on the exercise of freedom of and manner restrictions on the exercise of freedom of expressionexpression(Bayless v. Martine, 1970).(Bayless v. Martine, 1970).

Several cases regarding publications, restriction of Several cases regarding publications, restriction of speeches, and internet communications are in the history of speeches, and internet communications are in the history of higher education institutions. higher education institutions.

Any rule designed to regulate speech will bear a heavy Any rule designed to regulate speech will bear a heavy burden of showing that it is narrowly tailored to serve a burden of showing that it is narrowly tailored to serve a compelling governmental interest.compelling governmental interest.

The First AmendmentThe First Amendment

The Right to Peacefully AssembleThe Right to Peacefully Assemble Institutions are not required to provide any sort of official Institutions are not required to provide any sort of official

recognition or endorsement of student organizations; recognition or endorsement of student organizations; however, after they open the door to recognition they must however, after they open the door to recognition they must treat all who request it equally and may not determine treat all who request it equally and may not determine recognition on the basis of the goals or philosophy as long recognition on the basis of the goals or philosophy as long as they are lawful.as they are lawful.

The right to assemble cannot be denied on the basis of The right to assemble cannot be denied on the basis of content.content.

Court cases have refined how activity fees may be used.Court cases have refined how activity fees may be used.

The Fourth AmendmentThe Fourth Amendment Provides that “ the right of the people to be secure in their Provides that “ the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, no warrants shall searches and seizures, shall not be violated, no warrants shall issue, but upon probable cause, supported by an oath or issue, but upon probable cause, supported by an oath or affirmation, and particularly describing the place to be affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”searched, and the persons or things to be seized.”

When there are “reasonable grounds” for suspecting that a When there are “reasonable grounds” for suspecting that a search will turn up evidence that the student has violated law search will turn up evidence that the student has violated law or rules a warrantless search may be allowed. or rules a warrantless search may be allowed.

““Reasonableness” would be determined by age.Reasonableness” would be determined by age. The Supreme Court has yet to address a case pertaining to The Supreme Court has yet to address a case pertaining to

college students.college students. College officials may not delegate the lower standard of College officials may not delegate the lower standard of

“reasonable cause” to police who seek criminal evidence. “reasonable cause” to police who seek criminal evidence. Contraband observed in “plain view” may be seized and used Contraband observed in “plain view” may be seized and used

for disciplinary purposesfor disciplinary purposes(State v. Kappes, 1976).(State v. Kappes, 1976).

The Fourteenth AmendmentThe Fourteenth Amendment The Amendment provides in part: “ …nor shall any State The Amendment provides in part: “ …nor shall any State

deprive any person of life, liberty, or property, without due deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction process of law; nor deny to any person within its jurisdiction equal protection of the laws.” equal protection of the laws.”

Due process rights must be afforded to students facing Due process rights must be afforded to students facing disciplinary charges.disciplinary charges.

Standards for Due ProcessStandards for Due Process

The following should be provided when students face The following should be provided when students face serious consequences:serious consequences:

Students should receive a specific notice of charges and Students should receive a specific notice of charges and grounds that, if proven would lead to expulsion.grounds that, if proven would lead to expulsion.

The notice should include the nature of the incident.The notice should include the nature of the incident. The circumstances of a specific case would influence the The circumstances of a specific case would influence the

type of hearing to be held.type of hearing to be held. Students should be given the names of witnesses and an Students should be given the names of witnesses and an

oral or written report of their testimony.oral or written report of their testimony. Students should be provided an opportunity to present a Students should be provided an opportunity to present a

defense, including written or oral testimony of a witness.defense, including written or oral testimony of a witness. The hearing must be held before an impartial individual or The hearing must be held before an impartial individual or

board.board.

Implications for AdministratorsImplications for Administrators

Administrators should read the Administrators should read the following book for information following book for information regarding standards:regarding standards:

The General Order on Judicial The General Order on Judicial Standards of Procedure and Standards of Procedure and Substance in Review of Student Substance in Review of Student Discipline in Tax Supported Discipline in Tax Supported Institutions of Higher Institutions of Higher Education(1968).Education(1968).

Procedural RequirementsProcedural Requirements

Students should be given a written notice of the Students should be given a written notice of the charges in enough detail to allow them to prepare a charges in enough detail to allow them to prepare a defense.defense.

Students may not hinder the process by moving or Students may not hinder the process by moving or failing to provide the university with a current failing to provide the university with a current address.address.

There is no requirement that witnesses may be cross There is no requirement that witnesses may be cross examined.examined.

Special circumstances regarding legal counsel Special circumstances regarding legal counsel applies and should be reviewed by administrators.applies and should be reviewed by administrators.

Administrators should always consider the safety of Administrators should always consider the safety of individuals first when individuals pose a threat.individuals first when individuals pose a threat.

The Fourteenth AmendmentThe Fourteenth Amendment

Implies that individuals must be Implies that individuals must be treated equally.treated equally.

Cases regarding situations Cases regarding situations concerning age restrictions, gender concerning age restrictions, gender restrictions, and classification of restrictions, and classification of students for admissions are all students for admissions are all regulated by The Fourteenth regulated by The Fourteenth Amendment.Amendment.

Legal Implications Of Legal Implications Of AdministratorsAdministrators

Legal guidelines should be followed.Legal guidelines should be followed. Administrators must stay current Administrators must stay current

regarding developments of the law.regarding developments of the law. Competent legal advice is necessary Competent legal advice is necessary

and should be sought.and should be sought.

ReferencesReferences

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