Legal issues

New Round on Affirmative Action

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Appeals court vacates decision that invalidated 2006 vote in Michigan. Full court will reconsider challenge to ban on consideration of race in admissions.

Fighting for Confidentiality

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New briefs raise the stakes in battle over oral history records at Boston College that relate to violence in Northern Ireland.

Fair Use Face-Off, Canadian Edition

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A defection from a major copyright clearinghouse by Canadian research universities echoes concerns in U.S.

The Footnote Judges Ignore

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The American Association of University Professors is trying once again to get federal judges to pay attention to a footnote.

Secondhand Rights

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Two companies that help facilitate credit transfers battle in court over who owns their clients' course catalog content.

Don't Call Them Fuddy Duddies

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A predicted wave of retirements of tenured faculty is presenting colleges with opportunities and practical and programmatic concerns -- as well as legal considerations, according to a report released today by the American Council on Education.

Dealing With the Depressed or Dangerous

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SAN FRANCISCO — How far can colleges go to stop students who are threatening to commit suicide?

It’s a fundamental question for college and university officials who work in the fields of student affairs, counseling and mental health -- and for the lawyers who may have to deal with the aftermath, and sometimes see mental health issues as a minefield of potential litigation.

View from Across the Bargaining Table

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As adjunct numbers grow, campus lawyers must be prepared to deal with their demands when negotiating contracts, two lawyers told their peers.

Duke's Poisoned Campus Culture

In response to the scandal surrounding the men's lacrosse team, Duke president Richard Brodhead has initiated a "conversation on campus culture." The first installment provided little insight. To Mark Anthony Neal, a professor of African and African-American Studies, recent events showed that "we need an innovative and brave curriculum that will allow our students to engage one another in a progressive manner." It's worth remembering that only two years ago at Neal's institution, a department chairman jokingly explained the faculty's ideological imbalance by noting, "If, as John Stuart Mill said, stupid people are generally conservative, then there are lots of conservatives we will never hire." It seems rather unlikely that Duke's curriculum lacks a sufficiently "progressive" nature.

Indeed, far from needing a more "progressive" campus culture, the lacrosse scandal suggests that a considerable portion of the Duke faculty and student body need to reread the Constitution and consider the accused -- regardless of their group identity -- innocent until proven guilty. Moreover, if, as Duke officials have claimed, Brodhead seriously desires to use this event as a "learning opportunity," he needs to explore why voices among the faculty urging local authorities to respect the due process rights of Duke's students seemed so overpowered by professors exhibiting a rush to judgment.

In early April, prior to his peculiar commentary on campus culture, Professor Neal joined 87 other Duke professors in signing a public statement about the scandal. Three academic departments and 13 of the university'ss academic programs also endorsed the statement, which was placed as an advertisement in the student  newspaper, The Duke Chronicle, and is currently hosted on the Web site of Duke's African and African-American Studies program. That 88 faculty members -- much less entire departments -- would have signed on to such a document suggests that whatever plagues Duke's campus culture goes beyond the lacrosse team's conduct and the administration's insufficient oversight of its athletic department.

Few would deny that several players on Duke's lacrosse team have behaved repulsively. Two team captains hired exotic dancers, supplied alcohol to underage team members, and concluded a public argument with one of the dancers with racial epithets. In response, Brodhead appropriately cancelled the team's season and demanded the coach's resignation. Yet the faculty members' statement ignored Brodhead's actions, and instead contributed to the feeding frenzy in the weeks before the district attorney's decision to indict two players on the team.

The 88 signatories affirmed that they were "listening" to a select group of students troubled by sexism and racism at Duke. Yet 8 of the 11 quotes supplied from students to whom these professors had been talking, 8 contained no attribution -- of any sort, even to the extent of claiming to come from anonymous Duke students. Nonetheless, according to the faculty members, "The disaster didn't begin on March 13th and won't end with what the police say or the court decides." It's hard to imagine that college professors could openly dismiss how the ultimate legal judgment would shape this case's legacy. Such sentiments perhaps explain why no member of the Duke Law School faculty signed the letter.

More disturbingly, the group of 88 committed themselves to "turning up the volume." They told campus protesters, "Thank you for not waiting and for making yourselves heard." These demonstrators needed no encouragement: They were already vocal, and had already judged the lacrosse players were guilty. One student group produced a "wanted" poster containing photographs of 43 of the 46 white lacrosse players. At an event outside a house rented by several lacrosse team members, organized by a visiting instructor in English Department, protesters held signs reading, "It's Sunday morning, time to confess." They demanded that the university force the players to testify or dismiss them from school.

The public silence of most Duke professors allowed the group of 88 to become, in essence, the voice of the faculty. In a local climate that has featured an appointed district attorney whose behavior, at the very least, has been erratic, the Duke faculty might have forcefully advocated respecting the due process rights of all concerned. After all, fair play and procedural integrity are supposed to be cardinal principles of the academy. In no way would such a position have endorsed the players' claim to innocence: Due process exists because the Anglo-Saxon legal tradition has determined it elemental to achieving the truth. But such process-based arguments have remained in short supply from the Duke faculty. Instead, the group of 88 celebrated "turning up the volume" and proclaimed that legal findings would not deter their campaign for justice.

When faced with outside criticism -- about, for example, a professor who has plagiarized or engaged in some other form of professional misconduct, or in recent high-profile controversies like those involving Ward Churchill at the University of Colorado -- academics regularly condemn pressure for quick resolutions and celebrate their respect for addressing matters through time-tested procedures. Such an approach, as we have frequently heard since the 9/11 attacks, is essential to prevent a revival of McCarthyism on college campuses.

Yet for unapologetically urging expulsion on the basis of group membership and unproven allegations, few professors have more clearly demonstrated a McCarthyite spirit better than another signatory to of the faculty statement, Houston Baker, a professor of English and Afro-American Studies. Lamenting the "college and university blind-eying of male athletes, veritably given license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain," Baker issued a public letter denouncing the "abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us." To act against "violent, white, male, athletic privilege," he urged the "immediate dismissals" of "the team itself and its players."

Duke Provost Peter Lange correctly termed Baker's diatribe "a form of prejudice," the "act of prejudgment: to presume that one knows something 'must' have been done by or done to someone because of his or her race, religion or other characteristic." It's hard to escape the conclusion that, for Baker and many others who signed the faculty statement, the race, class, and gender of the men's lacrosse team produced a guilty-until-proven-innocent mentality.

Baker's attacks on athletics added a fourth component to the traditional race/class/gender trinity. It's an open secret that at many academically prestigious schools, some faculty factions desire diminishing or eliminating intercollegiate athletics, usually by claiming that athletes are lazy students, receive special treatment, or drive down the institution's intellectual quality. In fact, with the exception of the two revenue-producing sports (men's basketball and football), the reverse is more often true at colleges like Duke, Vanderbilt, Stanford, or the Ivy League institutions.

I admit to a bias on this score: My sister was a three-year starter at point guard for the Columbia University women's basketball team. Seeing how hard she worked to remain a dean's list student and fulfill her athletic responsibilities gave me a first-hand respect for the challenges facing varsity athletes at academically rigorous institutions. In addition to the responsibilities sustained by most students (challenging course loads, extracurricular activities, often campus jobs), athletes in non-revenue producing sports have physically demanding practice schedules, in-season road trips, and commitments to spend time with alumni or recruits. They play before small crowds, and envision no professional careers. It's distressing to see that many in the academy share Baker's prejudices, and view participation in college athletics as a negative.

With the most vocal elements among Duke's faculty using the lacrosse case to forward preconceived ideological and pedagogical agendas, it has been left to undergraduates to question some of the district attorney's unusual actions --  such as conducting a photo lineup that included only players on the team, sending police to a Duke dormitory in an attempt to interrogate the players outside the presence of their lawyers, and securing indictments before searching the players' dorm rooms, receiving results of a second DNA test, or investigating which players had documented alibis. In the words of a recent Newsweek article, the lawyer for one indicted player, Reade Seligmann, produced multiple sources of "evidence that would seem to indicate it was virtually impossible that Seligmann committed the crime." To date, the 88 faculty members who claimed to be "listening" to Duke students have given no indication of listening to those undergraduates concerned about the local authorities' unusual interpretation of the spirit of due process. Nor, apparently, do the faculty signatories seem to hear what The Duke Chronicle editorial termed the  "several thousand others of us" students who disagreed that "Duke breeds cultures of hate, racism, sexism and other forms of backward thinking."

The Raleigh News and Observer recently editorialized, "Duke faculty members, many of them from the '60s and '70s generations that pushed college administrators to ease their controlling ways, now are urging the university to require greater social as well as scholastic discipline from students. Duke professors, in fact, are offering to help draft new behavior codes for the school. With years of experience and academic success to their credit, faculty members ought to be listened to." If the group of 88's statement is any guide, this advice is dubious. Even so, Brodhead has named two signatories of the faculty group to the newly formed "campus culture" committee. Given their own record, it seems unlikely that their committee will explore why Duke's campus culture featured its most outspoken faculty faction rushing to judgment rather than seeking to uphold the due process rights of their own institution's students.
 

Author/s: 
KC Johnson
Author's email: 
info@insidehighered.com

KC Johnson is a professor of history at Brooklyn College and the City University of New York Graduate Center.

The Brave New World of MySpace and Facebook

College students are flocking to social networking sites on the Internet in stunning numbers, often unaware of the potential dangers that can arise there. These dangers primarily arise from posting personal information online that can be viewed by criminals, potential employers, and school administrators, which can result in identity theft, loss of job opportunities, and violations of school rules. Campus administrators should inform their students about the potential dangers of using social networking Web sites -- but they should be cautious not to do so in ways that could make them liable if the students engage in illegal behavior.

Students view social networking Web sites as private databases that permit them to communicate using a multimedia-based approach, but many don’t realize the potential dangers that accompany this type of activity. Because of this, colleges must provide their students with information regarding three major concerns in sharing information online: (1) the threat of criminal behavior; (2) how they might be seen by potential future employers; and (3) possible violations of their institution’s student code of conduct.

Although many students believe the personal information they share on social networking sites is not viewed by others, that information can provide criminals with enough detail to identify the student.  In doing so, a student who posts personal details online can give criminals enough information to commit crimes such as stalking or identity theft.  Because of the high risk of such crimes when personal information is posted on social networking Web sites, colleges should advise their students not to share private information online, such as names, addresses, email addresses, birthdates and phone numbers.

Information that students may think is personal could be viewed by potential employers if posted on social networking sites.  As a result, colleges and universities should warn their students not to post inappropriate messages or photographs that could negatively influence an employer’s perception.  Many employers are aware of social networking Web sites, and some use these sites to check for negative attributes of an applicant.

A recent New York Times article highlighted this concern: “[N]ow, college career counselors and other experts say, some recruiters are looking up applicants on social networking sites ... where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” Because the information posted by students on social networking Web sites is often publicly viewed, colleges should remind their students that the information they post on these sites is not private, and that potential employers could use that information to form crucial first impressions about student applicants.

Much of the information that would create concern among potential employers if viewed on a social networking Web site could also violate a school’s code of student conduct. These student rules and restrictions are often found in a student handbook or similar school publication. The Syracuse Post-Standard described this issue as “a growing trend where officials nationally are paying attention to what their students are posting on the Internet.”

Students have been found guilty of violating these student regulations at numerous schools.  At Pennsylvania State University, students created a Facebook group entitled “I rushed the field,” to which students joined and posted photographs and names of people on the field after the school’s win over Ohio State in football.  After accessing the Facebook group’s Web page, university police used that information to identify more than 50 students who violated the school’s policy by rushing the field after the football game.

In addition, a growing number of universities are creating policies to regulate their athletes’ use of social networking Web sites.  Athletes present a unique public image for the university, and schools could be embarrassed if athletes post information online about participating in illegal activities.

In May 2005, students on Louisiana State University’s swim team were reprimanded after athletic administrators discovered the students belonged to a Facebook group that included disparaging comments about swim coaches. One student transferred to Purdue University to avoid being reprimanded and expressed surprise that administrators had found the postings online. Athletic administrators at Florida State University and the University of Kentucky recently warned their athletes to be careful what they post.

Challenges for Colleges, Too

Just as social networking sites pose a set of potential risks for students, they create a set of questions and potential problems for institutions as well.

Although most colleges do not currently monitor their students’ online activities, university police often investigate tips received about information posted on the Internet. As a result, university police and school administrators may learn about information posted on social networking Web sites that violates the school’s code of student conduct.

Three primary questions arise in the context of monitoring these activities. First, is the college monitoring its students’ online activities regularly? A college that doesn’t monitor its students’ online activities should analyze whether monitoring is necessary.

Second, if the institution monitors this activity, why has it chosen to do so?  If a college monitors its students’ online activities to assure that students act in accordance with its mission, such as a military or religious institution, then it may create a “duty of care” toward its students. A duty of care would obligate a college to take all reasonably practicable steps to prevent its students from harm. If a college with a duty of care toward its students does not take all reasonably practicable steps to prevent harm to its students, the college’s actions may be negligent and could expose the college to lawsuits. But colleges that do not regularly monitor their students’ online activities and only investigate tips of potential crimes online may be free to continue periodic monitoring without assuming a duty of care.

Third, has the college informed its students of its policy toward monitoring? A school that informs all incoming students of its policy of monitoring students’ online activities during orientation or posts this information prominently on campus may be more likely to assume a duty of care toward its students. If most students are not informed of a school’s policy of monitoring such activities, however, the school may be less likely to have assumed a duty of care toward its students, because there is likely a lower expectation that the school would monitor these activities.

In addition, the specificity and clarity of a school’s statements informing students of the school’s monitoring policy should be considered.  If the school’s policy statement is ambiguous or its scope is unclear, students may be less likely to rely upon schools to prevent illegal acts resulting from online activity. Statements that clearly state the school’s policy of monitoring, including its scope and application to specific online activities, such as social networking Web sites, are more likely to create a duty of care for the school.

Colleges and universities must inform students about the particular dangers they face online. But if schools actively monitor their students’ online activities and students are aware of this policy, they may have a duty of care that includes preventing any illegal acts committed as a result of information posted online.

Thus, schools should inform their students about the potential dangers of using social networking Web sites, but should also be careful not to become liable if the students engage in illegal behavior.

Author/s: 
Sheldon Steinbach and Lynn Deavers
Author's email: 
info@insidehighered.com

Sheldon E. Steinbach and Lynn M. Deavers are lawyers in the higher education practice at the Washington law firm Dow Lohnes

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