Legal Issues in Higher Education
Eddie Pawlawski, EVP Cumberland University SACRAO Annual Conference 2013 San Antonio, Texas
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DISCLAIMER
The information shared is not intended to be legal advice – it portrays a wide range of recent issues which are important to higher education professionals – please check with your campus legal resources.
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Legal Issues in Higher Education
•FERPA •Harassment and federal legislation •Harm to self •ADA and Section 504
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Emergency Exemption • FERPA – FERPA’s health or safety emergency provision permits such disclosures, without the consent of the parent or eligible student, if necessary to protect the health or safety of the student or other individuals. See 34 CFR §§ 99.31(a)(10) and 99.36. – “articulable and significant threat.” – http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
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Emergency Exemption “The phrase “articulable and significant threat” means that if a school official can explain why, based on all the information then available, the official reasonably believes, for instance, that a student poses a significant threat, such as a threat of substantial bodily harm to any person, including the student, the school official may disclose personally identifiable information from education records without consent to any person whose knowledge of the information will assist in protecting a person from threat.” http://www2.ed.gov/policy/gen/guid/fpco/pdf/emergency-guidance.pdf
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Emergency Exemption While the Family Educational Rights and Privacy Act (FERPA) generally requires parents or eligible students to provide educational agencies and institutions with written consent before the school discloses personally identifiable information from a student’s education records, FERPA allows schools to make necessary disclosures without obtaining prior written consent in order to address emergencies. http://www2.ed.gov/policy/gen/guid/fpco/pdf/emergency-guidance.pdf
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Emergency Exemption FERPA does not prohibit a school official from disclosing information about a student that is obtained through the school official’s personal knowledge or observation and not from the student’s education records. For example, if a teacher overhears a student making threatening remarks to other students, FERPA does not protect that information from disclosure (under 34 CFR § 99.31). http://www2.ed.gov/policy/gen/guid/fpco/pdf/emergency-guidance.pdf
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Discrimination by Type • • • • • • • • • • •
Age Disability Equal Pay/Compensation Genetic Information National Origin Pregnancy Race/Color Religion Retaliation Sex Sexual Harassment 2012 NCHERM/ATIXA All Rights Reserved
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Relationship between NonDiscrimination Legislation and Enrollment Services: A Brand New Frontier
•Title IX •Title VII •Title VI •Title IV •Title III •Section 504 •ADA
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INTERACTION BETWEEN STATUTES
Title IX •Requires investigation, even if victim requests confidentiality Clery Act •Schools can’t require victims to sign confidentiality or nondisclosure agreement in order to access disciplinary proceeding outcomes in her own case. FERPA •Campus security records not protected
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Clery Act Requirements
•Campus Security Policy •Daily Crime log •Annual Security Reporting •Published Policy Statements •Published Grievance Policy •A Designated Individual to Implement Policies •A Timely Warning System for Reporting •Clery Act Crimes to the Campus Community
•$27,500 Fines per Violation 2012 NCHERM/ATIXA All Rights Reserved
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Jurisdiction •For Sexual Misconduct/Title IX Cases •There is an expectation that you have SOME jurisdiction over off campus incidents •For all other conduct cases •Jurisdictional Limitations •Geographic •Temporal •When is a student a “student?” •Application-Admission-Registration-Attendance-Breaks
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Policies and Procedures
•Stalking •Relationship Violence •Bullying and Cyber-bullying •Sexual Harassment •Sexual Misconduct •Retaliation •The Appeals Process
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Title II • Involuntary medical withdrawals are a tempting option for colleges and universities in the wake of recent school shootings and the rise of suicidal behavior on campus. • These withdrawals are fraught with legal and policy difficulties that have the potential to harm both the student and the university. • There are key issues related to these withdrawals and alternative paths to consider. 2012 NCHERM/ATIXA All Rights Reserved
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• Following the Title II change in March of 2011, the Office of Civil Rights (OCR) has narrowed the language regarding the removal of students from “threat to self and others” to “threat to others.” • In effect, it shifts an institution’s ability to remove students from campus who are suicidal, psychotic, or experiencing another severe mental health episode through the involuntary medical withdrawal policy.
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What does this mean? As a result of the change in language in Title II of the Americans with Disabilities Act (ADA), the revised regulation now deems it unlawful to take adverse action (i.e. involuntarily separate, suspend or expel) towards a student solely on the basis of self-harmful or suicidal behaviors.
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Understanding ADA Accommodations Policy • Brett A. Sokolow, Esq., Managing Partner, NCHERM • “Section 504 gives recourse to students who are discriminated against on the basis of a recognized disability. The Americans with Disabilities Act (ADA) entitles students who are otherwise qualified to participate in the programs and activities of college to reasonable accommodations once they seek qualification with the campus disability services office...” 2012 NCHERM/ATIXA All Rights Reserved
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Understanding ADA Accommodations Policy • “Suicide and its attendant psychological distress is a qualified disability under both ADA and Section 504. The ADA requires that we provide reasonable accommodations to an otherwise qualified suicidal student.” • “Neither law requires that a suicidal student march into the disability services office to qualify as disabled. Once suicidality is clear to college officials, our obligations under these laws are in effect.” 2012 NCHERM/ATIXA All Rights Reserved
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Section 504 Scope of Covered Programs
All of the college’s operations, programs and activities subject to Section 504 requirements, including: Academics Athletics Employment Housing Events Web-based educational services
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Animals, Meal Plans and Medical Room Service Animals (narrowing definition 3/15/2011): •
Service Animals. The rule defines "service animal" as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. The rule states that other animals, whether wild or domestic, do not qualify as service animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals. The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. The rule permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations. To allow flexibility in situations where using a horse would not be appropriate, the final rule does not include miniature horses in the definition of "service animal." http://www.ada.gov/regs2010/factsheets/title2_factsheet.html 2012 NCHERM/ATIXA All Rights Reserved
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Animals, Meal Plans and Medical Room Service Animals (miniature horses): •
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“In addition to the provisions about service dogs, the Department’s revised ADA regulations have a new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. “ (Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.) Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. www.ada.gov/service_animals_2010.htm
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Animals, Meal Plans and Medical Room Therapy Animals: •
“Most animals, including but not limited to those labeled Companion Animals, Emotional Support Animals and Therapy Animals or pets are NOT service animals according to ADA’s definition, as they have NOT been individually trained to perform disability mitigating tasks. Thus their handlers do not legally qualify for public access rights. Typically these animals also lack the months of training on obedience and manners needed to behave properly under challenging conditions in places of public accommodation.” http://www.iaadp.org/iaadp-ada-training-requirements.html
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Animals, Meal Plans and Medical Room Meal Plan Exceptions • Medical or psychological needs or restrictions • The key question to consider is “Is their a reasonable accommodation that can be put in place to help the student meet their request?”
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Animals, Meal Plans and Medical Room Meal Plan Request • • • • •
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Documentation Diagnosis, last appointment Activities substantially limited by the condition Copies of test or laboratory report that support the diagnosis Must be recent in order to assess the current and substantial impact on a major life activity Should be sufficient to establish a direct link between the underlying impairment and the request 2012 NCHERM/ATIXA All Rights Reserved
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Animals, Meal Plans and Medical Room Some reasons a request isn’t granted: • • • • • • • •
I don’t finish my meals so it wastes money on the meal plan I don’t need as many meals as the school offers I eat vegan or vegetarian I’m not around (my schedule) when it is time to eat Personal convenience I don’t have enough money to participate I have a Gluten based disorder Documentation by a family member 2012 NCHERM/ATIXA All Rights Reserved
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Animals, Meal Plans and Medical Room Medical Single Room/Off Campus Housing • Allergies • Social Phobia • Insomnia, depression, anxiety • Orthopedic problems •
The issue of reasonable accommodation here for the school becomes a large one---at what point can the school create a room that can accommodate?
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Animals, Meal Plans and Medical Single Medical Single • • • • • •
Documentation Diagnosis, last appointment Activities substantially limited by the condition Copies of test or laboratory report that support the diagnosis Must be recent in order to assess the current and substantial impact on a major life activity. Why a medical single or a special housing accommodation(s) is necessary for the student's physical or mental health 2012 NCHERM/ATIXA All Rights Reserved
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Animals, Meal Plans and Medical Single Reasons requests aren’t granted (FAQ) • I like being alone • I can’t study around people • I need at least ten hours of sleep • Documentation from family member
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Questions?
Eddie Pawlawski
[email protected]
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