Current Legal Topics in Higher Education, including Title IX and

Campus SaVE

Thursday, July 9, 2015

Jesh Humphrey, Deputy General Counsel (x78617)Dawn Floyd, Title IX Coordinator (x76130)

Current Legal Issues for New Administrators

•Introduction •Classroom Control/Disruptive Behaviors•Promotion and Tenure•Collegiality•ADA (Americans with Disabilities Act)•Questions

Office of Legal Affairs

•Our client is UNC Charlotte - we represent the legal interests of the institution.

•We are your attorneys in your professional capacity.•http://legal.uncc.edu•We like to answer questions (preferably as far

in advance as possible)

Classroom Control•Legal Standard of Review for Classroom Policies – Rational Basis Test•Enforceable? “Yes, if…” or “No, unless” the policy:

allows different treatment for a particular student as a reasonable accommodation of a disability or religious belief

is "rationally related" to an educational purposeis not "arbitrary and capricious," in other words, it is imposed

consistently by the instructoris not imposed maliciouslyis not created, or applied, on the basis of a protected class

Classroom Control•Examples of enforceable classroom

policy subject matter:Technology-based restrictions

Cell phonesText messagingUse of laptop computers/tabletsUse of recording devices

Food and drinkNoise/conversationsLate arrivals/early departures

Disruptive Behaviors

• Faculty members have the primary responsibility for controlling disruptive classroom behavior.

• Disruptive behaviors can include:• Harassment of students or faculty• Repeated outbursts that disrupt the flow of instruction

or prevent concentration on the subject taught• Failure to cooperate in maintaining classroom decorum• Repeated or severe violations of classroom or university

policy

Disruptive Behaviors

•Disruptive behaviors should be addressed as they occur:

Consider first cautioning the entire class rather than warning a particular student.

If the behavior is irritating, but not disruptive, try speaking with the student after class.

In rare circumstances when necessary to speak to a student during class, do so in a firm, friendly manner, and say that further discussion can occur after class.

If necessary, remind the student that continued disruption may result in removal from the class.

Student Academic Freedom

•AAUP Statement on Student Academic FreedomStudents can “take reasoned exception” to views of

facultyStudents are protected from arbitrary or discriminatory

evaluationStudents are protected from disclosure of confidential

information (e.g. FERPA)Students should be free to receive information

•Students do NOT have the right to refuse to comply with reasonable direction or course assignments

Classroom Control Examples

•Student refuses to engage in a course assignment on religious grounds (e.g. dissection, reading curse words from a script).

•Students come to class unprepared. Teacher dismisses the whole class and counts each student absent.

•Student wears a t-shirt with the words "f--- racism" on the front. Instructor tells the student that she must wear the t- shirt

inside out or leave the classroom.

•Students leave the class after waiting 15 minutes for the professor. Instructor arrives five minutes after the students leave and counts all students absent for the day.

•A student says aloud in class: "This test was bulls---.” Instructor demands an apology and student refuses. Instructor

directs student to officially drop the class.

Faculty Academic Freedom

•Academic freedom comes with responsibilitiesFreedom of inquiry and research

Must conform to standards of the field and federal/state regulations

Freedom of teachingMust be relevant to the subject at hand and adhere to the AAUP Statement on

Professional Ethics

Freedom of extramural utterance and actionMust be respectful of the opinions of others and made in an individual capacity

Faculty Academic Freedom

•Protects:Unpopular subjects or points of view (e.g. “little

Eichmanns”)

•Does NOT protect:Research misconductHarassing, disrespectful, or uncollegial speech or conductClassroom speech not related to the subject matter of

the courseRefusal or failure to follow curriculum or policies

established by the department, college, or institution

Academic Freedom True/False Quiz

•Academic freedom prohibits institutions from placing restrictions on a faculty member’s off-campus consulting activities.

•Academic freedom prohibits an institution from changing a student’s grade without the permission of the faculty member who assigned the grade.

•Academic freedom prohibits an institution from firing a faculty member who refuses to sign a memorandum changing a

student’s grade.

•Academic freedom permits faculty members to determine which courses they will teach.

•Academic freedom protects a faculty member’s vulgar or offensive speech in the classroom unrelated to the course material.

•Academic freedom protects a faculty member’s vulgar or offensive speech related to the course material.

Promotion and Tenure

•Liability/challenges are usually related to:Discrimination/Personal MaliceDeviation from written proceduresUtilizing unwritten/undocumented criteria

•Reduce liability by:Professional development and mentoring programs for junior facultyCreate a culture of collaborationConsistency in application of performance criteriaPerformance plans/help

•Minimize challenges/lawsuits with:Honest(and documented) feedbackClear RPT criteriaEngaging multiple/external evaluators

Promotion and Tenure Examples

•Faculty handbook states that tenure track faculty will be assigned a mentor. Faculty member’s mentor has been on leave for the two years prior to his reappointment review, and

faculty member is denied reappointment.

•Faculty member is denied tenure on the basis of her lack of collegiality, but collegiality is not a stated criterion for tenure decisions.

•Faculty member is denied promotion on the basis of lack of publication, but has been consistently told by the department

chair that his publication level was “fine” and that promotion was a “done deal.”

A Note on Collegiality

•Poor collegiality is…Poor service (AAUP Statement On Collegiality as a Criterion for Faculty Evaluation)CumulativeVariableDisciplinable

•Poor collegiality is NOT…Protected speech (unless a matter of public concern or protected by

policy)SuddenJust a performance issue

•Minimize liability/challenges/lawsuits by:Responding promptly and communicating clearlyDocumenting uncollegial behavior and attempts to address itBeing consistent

Americans with Disabilities Act (ADA)

•Federal and state laws require institutions to provide “reasonable accommodations” for faculty and students with disabilities, unless the accommodation would be an “undue hardship.”

Association also protected (but accommodations not required)Must be able to perform “essential functions of the job” with

accommodationDirect threat - can consider health or safety of employee and

others, or health and safety of others (student)AlcoholIllegal DrugsMental Illness/Psychiatric Disorders

Do not make an assumption or diagnosisAddress behavior, not the diseaseAsk for help

Checklist of Major Do’s and Don’ts

DON’T•Attempt to cover up mistakes or misdeeds•Fail to ask your lawyer for help and advice•Neglect the importance of frequent and clear communication with your colleagues, those you supervise, and those to whom you report.•Fail to trust your instincts or inner moral compass.

DO•Suspend belief and disbelief (even crazy people tell the truth sometimes).•Remember to listen—there’s almost always more than one side to the situation, and sometimes many.•Err on the conservative side whenever the transaction involves the use of public funds or allegations of misconduct.•Take allegations of harassment seriously•Ask for help with grievances, “problem students” and “problem employees.”•Follow your own procedures.•Ask for help with anonymous reports.•Ask for help with reports of improper relationships.

Questions?

Helping UNC Charlotte Respond to

Sexual Misconduct, Relationship Violence

and Stalking

July 9, 2015

Dawn FloydTitle IX Coordinator

Federal laws require the university to:

Investigate allegations of sex discrimination, including sexual harassment/sexual violence, relationship violence and stalking

Take prompt and effective steps to . . .end the harassment/violence,eliminate the hostile environment,prevent its recurrence, andremedy its effects

Title IX & Campus SaVE

Responsible Employees:All faculty members are responsible employees and must share information about the incident with the Title IX Coordinator or a Deputy Coordinator (See Notice of Non-Discrimination)

Students need to know that you cannot keep this information confidential

Contact Dawn Floyd, Title IX Coordinator7-6130 or 7-8157Dawn.Floyd@uncc.edu

What That Means for You

(1) Sexual Misconduct (2) Relationship Violence(3) Stalking

All three are crimes under NC law (called by different names)

All three are violations of University Policy 406, Code of Student Responsibility

Incidents to report

Code of Student Responsibility

Sexual Assualt =• Sexual act without Consent• Sexual Contact without Consent

Relationship Violence =• Dating Violence• Domestic Violence

Stalking = two or more acts directed at a specific person that would cause a reasonable person to:

fear for his or her safety or the safety of others, OR suffer substantial emotional distress

Only these three places on campus can provide confidentiality:

Counseling CenterStudent Health CenterCenter for Wellness Promotion

Title IX Coordinator will keep information as private as possible, only involving those individuals who need to know

Victims are very much in control of the process even once their incident has been reported

Confidentiality

Incident Reportincidentreport.uncc.edu

Student Support ProcessResources:

counseling health or mental healthvictim advocacy

Accommodations:academicUniversity housingtransportationUniversity employmentOthers where reasonable

Student Conduct Process

Report Received

Intake with Complainant and

Respondent (separately)

Investigation begins – all

relevant witnesses interviewed

Investigation concludes and

report is drafted

Not sufficient evidence – case is

closed.

Informal Resolution (Respondent and

Complainant agree to findings/sanction)

Hearing in front of atrained hearing panel

or single administrator

Appeal rights are waived – case is

closed.

Appeal rights are intact – case is

closed.

Office of Legal Affairs3rd floor Cato Hall, 7‑5732

Title IX Coordinator (Dawn Floyd)119 King, 7-6130 or 7-8157

Dean of Students Office217 King Bldg, 7-0345

Counseling Center158 Atkins, 7-0311

Center for Wellness Promotion290 Student Health Center, 7‑7407