Legal Issues in Higher Education

By Barbara L. ShielsAssociate General Counsel

October 8, 2009

This presentation is for information purposes only and should not be construed as legal

advice or counsel.

Assuring Rights/Enforcing Obligations of Employees and Students

Creation and Dissemination of Information/Intellectual Property

Wide Array of Business Transactions

Broad Spectrumof Legal Issues

Transactions Attorneys

Counseling Attorneys

Litigation Attorneys

Office of General Counsel (OGC) addresses legal issues through

Transactions Attorneysreview and negotiate agreements

in areas of:

Research Sponsorship Technology Transfer Educational

Affiliations Real Estate

Construction Purchasing External Sales Software Licensing International

Programs

Counseling Attorneysprovide advice regarding:

Labor & Employment Student Affairs Data Practices/Privacy Equal

Opportunity/Non-Discrimination

Research Regulation Health Law Copyright/Trademark Campus

Safety/Security

Litigation Attorneysrepresent the University in

adversarial proceedings

Court Actions External Agency

Proceedings Arbitrations

Internal Grievance/Disciplinary Hearings if employee/student is represented by counsel

Faculty Performance/Discipline Department heads have authority to coach/counsel

faculty. Authority to impose minor discipline (§ 10.22

Tenure Code) or suspension/termination (§ 14) rests with dean.

Post-tenure review initiated by department head and standing peer merit review committee (§ 7a).

Dean convenes special peer review panel of five faculty (§ 7a.3).

EMPLOYMENT ISSUES

Consulting Under consulting policy (July 2006), outside

consulting/commitments cannot interfere with work duties, exceed maximum days allowed or compete with University coursework or services.

Use of University resources for consulting is discouraged; prior approval and payment of fee required for significant use of University resources.

Limitations on use of University name, trademark, stationary, facilities, etc. apply to all employees.

Dual appointments (e.g., University/VA) cannot exceed 120% total.

EMPLOYMENT ISSUES

Conflict of Interest (COI) Conflict of interest disclosures on REPA form

typically are reviewed first by department head, then dean’s office, then COI Program.

All faculty/PA employees and others responsible for research must complete REPA annually even if they have no outside professional activities to report.

Conflict review committees (Provost and AHC) review conflict cases and develop plans to manage, reduce or eliminate the conflict.

Conflicts of senior officials are handled under institutional conflict of interest policy.

EMPLOYMENT ISSUES

EMPLOYMENT ISSUESImmigration / Visa Issues Foreign Nationals must have permanent residence or

proper work authorization to be employed here. Employees awaiting receipt of visa/work

authorization may not work or volunteer. Foreign faculty must have permanent residence for

position with tenure or sign special contract. New search is sometimes needed under DOL rules

to sponsor foreign faculty for permanent residence. Employees/units using outside immigration attorney

must work through OGC for necessary approvals.

Internal Dispute / Conflict Resolution All non-unionized employees may use Office for

Conflict Resolution (formerly Grievance Office) for informal processes or formal grievances.

Employees alleging discrimination file with Equal Opportunity Office or Conflict Resolution, but not both.

Senate Judicial Committee hears complaints related to Tenure Code (e.g., tenure denial, tenure termination, academic freedom).

OGC represents unit at hearings only if employee is represented by own attorney.

EMPLOYMENT ISSUES

STUDENT ISSUESPrivacy of Student Records:FERPA and DPA

All student records are private except directory information.

Students are entitled to access their own records (with limited exceptions).

Student’s written consent generally is required to release records.

Exceptions include health and safety emergencies. Limited internal sharing of student records is

permitted on “need to know” basis.

Liability for Student Injuries on Field Trips/Clinical Sites

University likely is responsible for negligence if trip is a required part of course.

Waivers of Liability may be valid for optional trips or activities.

University must exercise reasonable care in selecting required rotation/internship sites.

For learning abroad experiences, students must sign waiver and purchase special international insurance.

STUDENT ISSUES

STUDENT ISSUES

Academic Deficiencies Students must be given notice of

deficiencies and notice of possible dismissal prior to termination for academic reasons.

Less due process is required for academic dismissals than for discipline based on student misconduct.

Courts tend not to interfere with the academic decisions of universities.

STUDENT ISSUES

Behavioral Violations All University students are subject to

student conduct code. Many U of M colleges, particularly

health science/professional schools, have established their own additional behavior codes.

Due process hearing is required before disciplining a student for behavioral violations.

STUDENT ISSUES

Students with Disabilities ADA and state law give disabled students

equal opportunity to participate. Student may succeed or fail.

Qualified student is one who is able to meet essential elements of program with or without reasonable accommodations.

If student requests accommodations, refer student to University Disability Services (DS).

Don’t grant accommodations without working through DS.

STUDENT ISSUES

Internal Dispute/Conflict Resolution Student Conflict Resolution Center is a

resource for students facing conflicts with U. Formal complaint mechanisms are Regents

Student Conflict Resolution Policy and Equal Opportunity Office.

Students charged with misconduct are entitled to one due process hearing (college or U level) and one U-wide appeal.

OGC represents unit at hearings only if student is represented by own attorney.

Know your unit/college and relevant institutional policies and follow them.

Do not be careless or too casual in your written communications, especially email.

Follow up on improprieties, suspicions of misconduct.

Hold employees accountable for misconduct/supervisors accountable for lax supervision.

PRACTICE TIPS

Utilize University resources to help you do your job (examples)

Human Resources (www1.umn.edu/ohr/) Employee Assistance (www1.umn.edu/ohr/eap)

Office of the General Counsel (www.academic.umn.edu/provost/index.html)

International Student & Scholar Services (www.isss.umn.edu)

Department of Audits (www1.umn.edu/audit/Index.html)

University Police (www1.umn.edu/police)

PRACTICE TIPS

Utilize University resources to help you do your job (more examples)

Disability Services (http://ds.umn.edu)

Office of Equal Opportunity and Affirmative Action (www.eoaffact.umn.edu)

Office for Student Conduct and Academic Integrity (www1.umn.edu/oscai)

Provost Committee on Mental Health (www.mentalhealth.umn.edu)

Vice Provost for Student Affairs (www.osa.umn.edu)

PRACTICE TIPS

When to Contact the OGC Served with a Summons and Complaint Served with a Subpoena Contacted by adverse attorney Entering into unique contract Making critical employment decision Have policy-making or interpretation issue Have information access issues Unsure if need legal assistance Would like training session from attorneys

PRACTICE TIPS