RISK MANAGEMENT IN STUDENT AFFAIRS

RISK MANAGEMENT IN STUDENT AFFAIRSFoundations for Safety and Success

THOMAS E. MILLER AND ROGER W. SOROCHTY

Cover design by WileyCover image : ©Chad Baker/Jason Reed/Ryan McVay | GettyCopyright © 2015 by John Wiley & Sons, Inc. All rights reserved.

Published by Jossey-BassA Wiley BrandOne Montgomery Street, Suite 1200, San Francisco, CA 94104-4594www.josseybass.com/highereducationConsulting editor: John Schuh

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400, fax 978-646-8600, or on the Web at www.copyright.com. Requests to the publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, 201-748-6011, fax 201-748-6008, or online at www.wiley.com/go/permissions.

Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. Readers should be aware that Internet Web sites offered as citations and/or sources for further information may have changed or disappeared between the time this was written and when it is read.

Jossey-Bass books and products are available through most bookstores. To contact Jossey-Bass directly call our Customer Care Department within the U.S. at 800-956-7739, outside the U.S. at 317-572-3986, or fax 317-572-4002.

Wiley publishes in a variety of print and electronic formats and by print-on-demand. Some material included with standard print versions of this book may not be included in e-books or in print-on-demand. If this book refers to media such as a CD or DVD that is not included in the version you purchased, you may download this material at http://booksupport.wiley.com. For more information about Wiley products, visit www.wiley.com.

Library of Congress Cataloging-in-Publication data is on file.

ISBN: 978-1-118-10091-2 (hb)ISBN: 978-1-118-79151-6 (ebk)ISBN: 978-1-118-79130-1 (ebk)

Printed in the United States of Americafirst edition

HB Printing 10 9 8 7 6 5 4 3 2 1

v

contents

Preface viiAcknowledgments xi

PART ONE FRAMEWORK 1Chapter 1 Differences Between Public and Private Institutions 3Chapter 2 Personal Versus Institutional Risk Management 11

PART TWO THE U.S. CONSTITUTION 17Chapter 3 The First Amendment 19Chapter 4 The Second Amendment and The Fourth Amendment 29Chapter 5 The Fifth Amendment 37

PART THREE REGULATORY CHALLENGES 43Chapter 6 Federal and State Regulations 45Chapter 7 Discriminatory Practices 57Chapter 8 Private and Voluntary Organizational Regulations 63

PART FOUR TORT ISSUES 69Chapter 9 Student Activities and Events, Risk Levels, Supervision 71Chapter 10 Hazing and Student Organizations 83Chapter 11 Alcohol and Drugs 95

vi contents

Chapter 12 Counseling and Helping Services 107Chapter 13 Providing a Safe Environment 115

PART FIVE CONTRACTS 127Chapter 14 Off-Campus Incidents and Behavior 129Chapter 15 Contract Management 135Chapter 16 Employment Issues 145Chapter 17 Staff Development and Training 157Chapter 18 Student Discipline Systems 165

PART SIX RESOURCE PROTECTION 175Chapter 19 Information Technology: Data Protection 177Chapter 20 Facilities 187Chapter 21 Money Management Practices 197Chapter 22 Physical Environment: Disasters and Crises 209

PART SEVEN SUMMARY 219Chapter 23 Promising Practices and Conclusion 221

Annotated Resources 233About the Authors 235Index 237

vii

preface

The law as it relates to higher education will continue to develop in its complexity, and student affairs professionals will need to be alert to

practices and activities that manage risk. Our society has become increas-ingly immersed in legal issues, and student affairs staff members at both public and private institutions must be equipped to help manage risk and protect their institutions, the students they serve, and their resources from unintended consequences. There is every reason to believe that the management of those risks will become an increasingly central aspect of the work in student affairs in the future.

This book is intended to present risk management concepts and relevant legal issues in a way that student affairs administrators, who are generally not trained in the law, can readily understand and apply. The need for such a resource is significant, as evidenced by the growth in the number of conferences, programs, and special workshops that are associated with risk management and legal issues in student affairs and higher education. The profession of student affairs does not need another complex, techni-cal book on legal and risk management issues associated with student affairs. The best materials that are already published in these topical areas are serving that purpose. The profession does need, in our view, a resource written by practitioners in the field for practicing professionals, while still addressing the full context of the law and of risk management.

The contribution of this text is less about new information than about organization and tone, which is suited to the audiences for which it is intended. The book is organized around general areas of risk, including

viii preface

issues associated with legal risks, as well as risks associated with resource management. The tone of the book is intended to be more informal than many books related to the subject, with a focus on discussion and views about risk from a general and broad view, rather than pressing into court decisions and the complicated nuances of law. Hence, the reader will find very few footnotes and legal citations, as would be appropriate for other more technical books on the topic. Instead, we provide an annotated reference list of useful general sources for perspective about law, so those interested in more details or context about a matter discussed in the text can conduct further research.

The primary target population for this book is student affairs profes-sionals, principally those who are in the earlier stages of their careers or in middle management in their organizations. A secondary audience is students in graduate programs designed to prepare students to serve as student affairs professionals.

This book is intended to help practitioners understand the sources of risk in their work and the practices and strategies that they can employ to manage risk. The institutions that employ them will derive a sec-ondary benefit, because good practices will help them avoid risk and the associated consequences, which can range from actual losses to increased costs of insurance. In other words, if student affairs profes-sionals can be proactive and help manage risk in what they do, it is more likely than not that the negative consequences of poor risk management will be reduced.

It is clear that student affairs professionals must be aware of how decisions and practices can create risk for themselves and their institu-tions, and they should be informed about strategies for addressing risk. The work of student affairs has become very complicated, and expo-sure to risk is much more evident than it was a decade ago. Our intent in producing this book is to provide a framework for understanding and managing risk, and we hope the readers find the text useful as a general guide to decision making as it relates to legal and resource risk management.

Another factor associated with discussing risk management is the vari-ation between states. The culture of a state in New England is rather different from one of a state in the Southwest. The people in those states elect very different sorts of legislators, who write different kinds of laws and select unlike sorts of judges. They also form different juries. Therefore, there is not one uniform approach to managing risk. The con-text in which a student affairs professional works, including the state and even the local government and norms, can set the tone for the best approach. We wrote this book to help student affairs professional see the

preface ix

basic principles of risk management from high above the clouds, not at street level, because we are all on different streets.

The book is organized into seven parts. Each focuses on an area of law or practice that is a source of risk. The chapters within each part focus on specific ways in which risk presents itself and the strategies student affairs professionals can employ to manage the identified risks.

Part One discusses the framework for the consideration of risk man-agement, detailing the substantial differences between public institutions and private ones and also presenting the factors that may discern between the risk that an individual administrator may face and risk taken by the employing institution.

Part Two covers risk associated with the United States Constitution, specifically principles associated with freedom of expression, weapons policies, search and seizure, and due process. Part Three addresses regula-tory challenges that institutions and individuals working in higher educa-tion must manage. This part largely covers federal regulatory oversight, but it also addresses private organizations with which institutions may have relationships and obligations.

Part Four covers tort issues, those circumstances under which an indi-vidual or a group may feel that a wrongful act has caused them harm and they seek redress. Part Five addresses contract issues, those which institu-tions have with students, with organizations, and with employees. Part Six covers risk issues associated with resources, from technology and data to physical facilities to finances. Part Seven provides a summary of the mate-rial covered.

This book describes risks that student affairs administrators face. Risk comes in many forms. The most obvious of them is risk of litigation in the form of liability for perceived wrongful acts or broken promises. The book explains the sources of liability risk and the management strategies that student affairs administrators can take to reduce risk of this form. Another form of risk is that associated with loss of or damage to prop-erty. Part One is dedicated to identifying the nature of risk of this type and the steps that student affairs administrators can take to manage it. A third form of risk is associated with the risk of damaging the reputation of the institution through negative through public relations or damaging publicity. Risk of this form runs throughout this text and can be found in every part. Another form of risk is associated with the health or safety of students and other members of the campus community. Student affairs administrators can also find risk associated with enrollment manage-ment. Some activities or events could jeopardize student recruitment or persistence. The alert student affairs staff member will be sensitive to all of these forms of risk and the strategies for managing each.

xi

acknowledgments

The authors wish to recognize those in our lives who supported our efforts on this project and also those who gave us insight and per-

spective to clarify our writing. Anybody who works in higher education and writes for publication finds that the writing complicates the work. This was certainly true for the two of us.

As Roger took on the project, he was in the process of retiring from his senior administrative position at the University of Tulsa. He relocated his home from Tulsa to Indian Rocks Beach in Florida and began a role as an adjunct faculty member at the University of South Florida while con-tinuing to write. Before the project was completed, he began to serve an interim administrative position at California State University, Fullerton, requiring another residential move, completely across the country. His ability to complete the work was only possible because of the incredible support and understanding he received from his wife, Barbara, which is characteristic of the wonderful partner and best friend she’s been through forty-four years of marriage.

Tom’s work on the project began when he was a tenured, full-time member of the faculty at the University of South Florida, teaching in a master’s-level program in college student affairs and a doctoral pro-gram in higher education administration. Writing for publication was an appropriate activity for him in that capacity. However, as the project was hitting its stride and the pace of writing was picking up, he was asked to assume a role as interim vice president for student affairs at the university and a few months later was appointed as the permanent vice president.

xii acknowledgments

His work life changed dramatically and became much more demanding and inflexible. Like Roger, he received wonderful support and encourage-ment from his wife, Carol, as he has in every step of their forty-three years of marriage. Carol also played a significant role in editing the manuscript and used her natural skills to improve the quality of our work.

The graduate students Tom served at the University of South Florida were unflaggingly encouraging and understanding about the book proj-ect, as were his faculty colleagues and associates. As he moved into his vice president’s role, his administrative colleagues and staff were consis-tently supportive and encouraging.

We are indebted to Roger’s colleagues at the University of Tulsa, Dale Schoenefeld, vice president of information services and chief informa-tion officer, and Robert Shipley, associate vice president for operations and physical plant. They provided excellent advice and insight regarding aspects of the project and were very helpful.

Finally, we express our gratitude to the publisher’s representatives, who gave us wonderful guidance and support and showed tremendous flex-ibility and understanding as the project took a series of twists and turns. We thank Alison Knowles, Erin Null, and our good friend, John Schuh.

Thomas E. Miller Roger W. SorochtyVice President for Student Affairs Senior Associate for Higher University of South Florida Education, The Center for Conflict Dynamics Eckerd College

CONTRIBUTORS

The authors wish to recognize two persons who made specific indepen-dent contributions to this book. Dionne Ferguson generated a draft of Chapter Fifteen that was very helpful in detailing the principles associ-ated with contract management. Similarly, Joshua Cutchens produced a draft of Chapter Eighteen that helped us see the scope of what might be most useful to address about student conduct systems.

1

part one

FRAMEWORK

The two chapters in this part present the parameters for the context in which student affairs administrators approach risk. Chapter One

describes how private universities and colleges have different conditions associated with risk management than public ones do. Chapter Two explores the ways in which the issues associated with risk and its man-agement are different for the institutions that employ student affairs administrators and the individual administrators themselves.