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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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Students First: Graduate Students and Unionization (Or Not)

The unionization of students has recently become a hot topic in higher education.  In particular, graduate students serving as teaching and research assistants have made large coordinated efforts in recent decades to receive collective bargaining rights.  Some have been successful, others less successful.  These efforts have looked differently at private and public institutions and have been shaped by history.  

The Taft-Hartley Act of 1947, or better known as the Labor Management Relations Act, gave the states jurisdiction over state and local employees’ collective bargaining, thus excluding student employees from federal collective bargaining rights.  While the federal government did not protect graduate students, multiple states created their own collective bargaining laws.  As a result, there are currently more than 20 graduate employee unions at public American universities.  Many states, however, provide no protection for collective bargaining among their student employees.  Why is this, you ask? For most of the last 70 years, graduate students at public universities have not been seen as employees.  They were viewed solely as students, and their work for the university was considered part of their education.  

In theory this might make some sense.  But over time, graduate students became utilized as teaching and research assistants more heavily.  As a result, their workloads increased.  Meanwhile, as higher education costs remained high, students had less time for additional jobs, which provided supplemental income.  Graduate students, many of whom had families to support and student debt to pay off had less time to earn outside income.  These students were left without a voice in the matter and saw unionization as the next logical step.  But of course this was not an option in many states. 

While students at public universities have consistently found themselves at the mercy of their states’ governments, students at private schools have had quite a different experience.  In 1951, the National Labor Relations Board (NLRB), a panel of Presidentially-appointed members that hears cases concerning labor, ruled that the educational focus of graduate work denied students coverage under the National Labor Relations Act.  This ruling was reversed in 1970 in Cornell University v. NLRB.  The Board stated that, the lines between business and education were beginning to blur, and it would be most beneficial for the NLRB to gain jurisdiction over private educational institutions.  Over time the NLRB’s decisions on whether students were considered employees or not hinged on two criteria: (1) whether the “primary purpose” of the work was educational or economical, and (2) whether they are compensated for services in a way which closely resembles employment.  In Adelphi University (1972), the NLRB utilized this “primary purpose” criterion to rule that graduate students should be classified differently than faculty.  In Leland Stanford (1974), the NLRB stated that graduate students’ work was primarily educational.  The ruling also stated that the stipends graduate students received were not given to compensate for work done but were merely efforts to financially support students.  This precedence was used for the next twenty-five years.

In 2000, the NLRB made a landmark ruling in favor of graduate students at New York University (NYU), stating that they were indeed statutory employees.  It was determined that the students were providing services and receiving compensation in a way which resembled an employer-employee relationship. The NLRB also granted graduate students collective bargaining with this ruling.  Unfortunately, this precedence did not last.  In 2004, a newer NLRB reviewed the earlier ruling in Brown University II.  This NLRB reversed the NYU ruling by returning to the “primary purpose” doctrine.  It is worth noting that the vote was 3-2 with the minority in strong opposition to the majority position.  Finally, in Columbia University (2016), the NLRB reversed its position once again and allowed for students at private institutions to unionize.  

It seems that regardless of whether students should be considered employees or not, keeping them from unionizing prevents them from adequately supporting themselves and their families.  Working or “studying” conditions are not what they should be and allowing them to bargain collectively would be the best way to take the student-first approach many universities claim to take.   Students need a voice, whether that is granted by the federal government or the individual states.  At this point it is difficult to say for sure what will come next.  While private universities’ graduate students now have the opportunity to unionize, it seems unlikely that students at public institutions will be granted the same rights on a federal level.  While that seems like a certainty, the ever-changing nature of the NLRB creates an element of uncertainty for future graduate students at private universities.

This post was co-authored by Mr. Isaac Hale and Dr. David Nguyen. Mr. Hale is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.


Power of the Paws: The Role of Animals on Campus & Legal Issues

Animals on college campuses are a big draw. Often students will flock to dogs when their owner is walking them on campus. But what happens when that dog is there to do a job?  There are more roles that animals can play in the world and specifically on a college campus. These roles can be divided into three main categories: service animals, emotional support/assistance animals, and therapy animals. It is important to know the differences and definitions of each role as certain laws pertain to some but not others.

Service animals are defined by the U.S. Department of Justice as “dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, or calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack; the opportunities for service are numerous. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the Americans with Disabilities Act. One example of a gap in services is the needs of veterans returning from war with PTSD. The U.S. Department of Vetrans Affairs describes some of the challenges that service men and women could utilize animal assistance to overcome.

Emotional support/assistance animal’s admissibility into housing is determined by the Fair Housing Act. “An assistance animal can be a cat, dog or other type of companion animal, and does not need to be trained to perform a service. The emotional and/or physical benefits from the animal living in the home are what qualify the animal as an assistance animal. A letter from a medical doctor or therapist is all that is needed to classify the animal as an assistance animal.” However, Service Dog Central emphasis the important differences to take note of between emotional support animals and service animals.

The final category refers to therapy animals. These animals are trained to work with their handler and respond specifically in a variety of settings. Therapy animals are trained to achieve specific physical, social and emotional goals with their participants. Some examples of environments in which therapy animals are utilized include hospitals, nursing homes, libraries, elementary schools, community centers, and colleges.

In Alejandro v. Palm Beach State College, the plaintiff alleged that actions taken by her college to prohibit her “psychiatric service animal” to accompany her to class prohibited her from being a successful student. The college contended that the plaintiff did not meet the demonstrated need or documentation required to permit the animal on campus. The standard of law in this case was based on United States v. Lambert, wherein to obtain injunctive relief, “the movant must show (1) a substantial likelihood of success on the merits; (2) irreparable injury suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; (4) the injunction, if issued, would not adverse to the public interest.” The judge first determined that the animal in question fit the definition of a service animal. Next, the judge determined that the benefit to the student outweighed the “threatened injury” to the college. Finally the court decided that it was inappropriate to intervene and rectify poor grades earned as a result of the student's absence, and it was the college’s right, as well as the individual professor’s, to grade their class as they see fit. While the judge sided with plaintiff in awarding her rights to have her service animal on campus, it is important for students to communicate need to administration before assuming policies on college campuses.

In United States of America v. University of Nebraska at Kearney, the concern was raised regarding whether university housing is considered a “dwelling” under the Fair Housing Act. A student that was prescribed a therapy animal was denied the ability to live in student housing with the animal due to a no-pet policy on campus. One of the main difficulties in this case was that the Fair Housing Act did not define the term “residence;” therefore the university argued that students were considered “transient visitors.” Using the Dwelling Test from Franchi v. New Hampton School, the court determined that university residences fell under the definition of dwelling as laid out by the Fair Housing Act. Due to this test, the court determined that the university must comply with the Fair Housing Act and allow residents who have demonstrated need an exception to the no-pet policy.

What is important to note is that while these two cases demonstrate some of the challenges faced with the emergence of animals on college campuses, they do not cover all circumstances. Colleges and universities should continue to adapt their policies as more legislation and case laws dictate future direction. Hopefully, student’s needs are kept in the forefront of administrators and legislators minds as this evolves. 

This post was co-authored by Ms. Abbey Lane and Dr. David Nguyen. Ms. Lane is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.



To Report or Not to Report: Are Universities Doing Enough for Sexual Assault Victims?

Sexual assaults on college and university campuses are an important problem for students and administrators alike. Multiple acts exist that hold institutions of higher education responsible for handling such incidents properly and ensuring they are public records. However, problems occur when schools are not forthright in reporting their crime statistics.

One law that is imperative to this issue is the Clery Act, named for Jeanne Clery, a 19-year-old Lehigh University student who was raped and murdered in her residence hall by fellow student Josoph Henry in 1986. The Clerys sued Lehigh, stating the attack on Jeanne was one of 38 violent crimes recorded at the university in three years. Her parents argued that, if the university published its crime rate, Jeanne would not have enrolled at Lehigh. The Clerys won their lawsuit and founded the non-profit group Security on Campus with the $2 million awarded from the suit.

The Clery Act, first enacted in 1990, requires colleges to report crimes that happen on or near their campuses and to warn students and employees about recurring threats to the welfare of the community. Under the act, violations leading to punishments for higher education institutions include inaccurately reporting crimes that occur on campus, not having sufficient procedures in place to handle sexual assault, and not providing timely warning to the campuses community of an ongoing threat to public safety. One case involving violation of the Clery Act involved the University of California, Santa Barbara (UCSB). In this case, six current and former UCSB students filed complaints with the U.S. Department of Education’s Office for Civil Rights (OCR), accusing the University of discouraging the reporting of sexual assault. The complaint also claimed the University did not reprimand students who admitted to sexually assaulting fellow students and created a hostile environment by allowing alleged attackers to remain in classes with their victims.

Another law requiring educational institutions to have open crime records is Title IX of the Education Amendments of 1972, which states, “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Organizations like the American Civil Liberties Union (ACLU) maintain that “when students suffer sexual assault and harassment, they are deprived of equal and free access to an education.”

According to an April 2011 letter issued by the OCR, “The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.” The letter, known informally as the “Dear Colleague” Letter, states it is the responsibility of institutions of higher education “to take immediate and effective steps to end sexual harassment and sexual violence.” The letter illustrates multiple examples of Title IX requirements as they relate to sexual violence, and makes clear that, should an institution fail to fulfill its responsibilities under Title IX, the Department of Education can impose a fine and potentially deny further institutional access to federal funds.

A case involving a freshman at Amherst College demonstrates a Title IX violation. Angie Epifano wrote an essay that was published in the school’s newspaper on her assault experiences, with other students, and her interaction with the sexual assault support system at the college. Nine months after Angie’s rape occurred in a dorm room, a friend suggested she talk to a counselor. When she eventually did seek counseling, Angie reported a campus sexual assault counselor told her she could not change dorms, pressing charges would be useless since the accused student was about to graduate, and asked if she was positive that she was raped. She described how the counseling center focused on her apparent psychological instability and placed her in a psychiatric hospital after admitting she had suicidal thoughts. Due to Angie’s frustration with Amherst College’s insignificant support system for sexual assault victims, she dropped out after her freshman year. Two years after her assault at Amherst, Angie and another female former student filed a complaint under Title IX.

Along similar lines, the Jerry Sandusky case at Pennsylvania State University violated both the Title IX as well as the Clery Act. The Title IX violation arose when a graduate assistant witnessed then assistant football coach Sandusky sexually abusing a child in a locker room on-campus, therefore creating a hostile work environment. The violation for the Clery Act stemmed from head coach Joe Paterno and several Penn State officials learning about Sandusky’s behavior, yet purposefully choosing to not report anything.

Certain laws are in place to ensure colleges and universities are honest about the safety of their campuses. Sexual assaults are still a hot-button topic for higher education institutions, and handling such situations is a difficult task to accomplish. Accordingly, higher education institutions must be more cognizant of sexual assault crimes on their campuses as well as creating a more empathetic and smoother process for victims of these crimes to report the assault through the proper channels.

This post was co-authored by Ms. Tara Lulla and Dr. David Nguyen. Ms. Lulla is a doctoral student in the criminal justice program at UND.


Institutions & Tenure: Finding a Balance between Academic Freedom and Cost-Savings

Over the last several years, the discussion of tenure has been a hot topic. The American Association of University Professors describes tenure as an indefinite appointment that would only be terminated under extenuating circumstances; tenure helps give faculty more academic freedom with their work, but tenure can sometimes be a difficult and lengthy process for faculty. Institutions of higher education set their own standards for what their tenure process will be. Universities set guidelines that best fit the institutions’ needs. According to the National Education Association, only about one third of all college and university faculty are actually tenured. More institutions are relying on part-time or temporary faculty, which save money.

Faculty and administrators have debated about who is allowed to apply for tenure and who can grant tenure.  While most institutions only grant tenure to full-time faculty, this limits part-time faculty and administrators. In Dugan v. Stockton State College (1990), a dean made the decision that being in an unclassified staff position does not grant someone tenure.  A faculty member who switched into a staff position tried to apply for tenure but was denied. The decision was upheld by the President of the university and the appellate court of New Jersey. Another group affected by this trend is academic research librarians.   Research librarians have fought to gain faculty status and equal benefits. Some educators believe that if librarians were considered faculty and could be granted faculty status there would need to be an added sense of responsibility to what they already do.

Administraitors have wondered who has the power to determine if a faculty member can be given tenure. Most institutions either leave the decisions up to the provost or presidents. In Matthews v. Oregon State Board of Higher Education (2001), the Oregon State Board of Education and Supreme Court of Oregon ruled that presidents of universities do have enough knowledge about their faculty to make tenure decisions,. Some institutions have reviewed the tenure process and tried to determine the due process steps for appealing a decision. Can an arbitrator overrule a presidents tenure decision?  In the case of Edinboro University of Pennsylvania v. Association of Pennsylvania College (2015), it was decided that when an arbitrator is reviewing an appeal that they can let faculty who are denied tenure reapply if they see fit.

Nationally, state budgets are affecting many institutions in higher education, and this has some administrators questioning if tenure is still necessary in obtaining qualified faculty. The North Dakota University System has made structural changes to their tenure policy. The proposed changes would reduce the termination notice policy from one year to 90 days.  Administrators believed that one year termination notices are financially unsustainable; however, given the faculty hiring cycle and the unique nature of the faculty job market, many argue that 90 days is not a sufficient timeframe for faculty to be able to successfully find alternative teaching and research positions.

For some institutions, tenure can be a costly expense. While trying to pay tenured faculty, universities often must allocate their endowment funds.  Institutions could save money by using non-tenured faculty, who do not have research requirements and who handle larger course loads. Research has shown that part-time and non-tenured faculty can provide just as much support to students academic success as tenured faculty. Some of the faculty who do not have tenured status have helped the growth of graduation rates in students. While institutions see part-time or non-tenured faculty as cost-saving measures, they should enact protections that respect their contributions to our higher education experience.  Tenure is a discussion that is often debated within higher education, which will continue so long as the defunding of American higher education continues and institutions find ways for cost-savings. 

This post was co-authored by Mr. Dylan Ruffra and Dr. David Nguyen. Mr. Ruffra is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.


Fraternity Hazing and the Struggle to Find Responsibility

The first known incident of hazing dates back to 1873 at Cornell University when a student pledging a fraternity (“pledge”) was blindfolded, led off campus, and told to lead the group back; however, while navigating back to campus, the group fell over a cliff edge and the pledge suffered injuries leading to his death. Typically, hazing includes reckless behaviors, completing various tasks, and large amounts of alcohol. Recently, the topic of hazing has made its way to the big screen in an attempt to show some of the horrors associated with the ritual. Unlike the movies “Animal House” and “Old School, “Goat” depicts hazing for the true danger it presents. Hazing is defined as an initiation process involving harassment and is often under the microscope in fraternity communities. Hazing can also be defined as the perfect storm as students seek belonging while partaking in initiation rites of passage. The sense of belonging drives students to complete risky activities in hopes of crossing the boundaries set forth by older members to become members of the organization. For many years hazing has created problems for colleges and universities seeking to find consistent liability and eradicate the dangerous issue.

Throughout the years, incidents of hazing have continued to rise while the search for standard liability continues. In many states, statutes were developed as a reactionary measure, often placing liability on the student(s) and resulting in a fine, prison, or both. For example, North Carolina law states, “It is unlawful for any student in attendance at any university, college, or school in this state to engage in hazing, or to aid or abet any other student in the commission of this offense.” 

Intentional tort claims are cited frequently in hazing litigation. In seeking to defer liability through tort law, “... the hazing victim must prove that wrongdoing occurred on the part of the defendant who caused some type of damage and/or injury.  Several cases have included tort claims of negligent infliction of emotional distress, intentional infliction of  emotional distress, assault and battery, negligence, and vicarious and premise liability.” Such cases addressing tort law and inconsistent liability placement include Furek v. Delaware, Morrison v. Kappa Alpha Psi Fraternity, and Ballou v. Sigma Nu Fraternity.

Furek v. Delaware was heard in the appeals court between Jeffrey V. Furek and Sigma Phi Epsilon fraternity and Joseph Donchez following a superior court filing by Furek in 1982. “The principal dispute in this appeal concerns what, if any, duty the University owed to Furek to protect him from the hazing activities of Sigma Phi Epsilon (Sig Ep) and its members, including Donchez.” The appeals court affirmed the rulings of the superior court dismissing Furek's claim against Sig Ep, denying recovery of punitive damages and refusing to grant a directed verdict on the defenses of contributory negligence and assumption of risk.

Morrison v. Kappa Alpha Psi Fraternity emerged from a fraternity hazing incident at Louisiana Tech. On April 10, 1994, Kendrick Morrison, a freshman interested in membership in Kappa Alpha Psi, was physically beaten by Jessie Magee, president of the Tech Kappa chapter, during a gathering which took place in Magee's dorm room. Kendrick and his parents filed suit against Kappa Alpha Psi, Inc., its insurer, Jessie Magee, and the state of Louisiana through the Board of Trustees for State Colleges and Universities. Originally, the defendants were found equally guilty and Kendrick was awarded $6,000 in past medical expenses, $6,000 in future medical expenses, and $300,000 in general damages. However, the trial court findings were reversed on the basis of vicarious liability on the part of Kappa Alpha Psi, Inc., and there was a reduction of Kendrick Morrison's general damage award from $300,000 to $40,000. In all other respects the trial court's judgment was affirmed.

In Ballou v. Sigma Nu Fraternity, the appellant Sigma Nu Fraternity moved to appeal a jury verdict in favor of the respondent Sanford Ray Ballou (Ballou), the administrator of the estate of his son Lurie Barry Ballou (Barry). Sanford Ballou sued the fraternity on the grounds that his son had been psychologically manipulated to consume copious amounts of alcohol before dying of alcohol poisoning and aspirating on gastric fluids. An original jury returned a verdict against Sigma Nu in the amount of $200,000 actual damages and $50,000 punitive damages. However, the defense of contributory negligence (and other circumstances) eventually overturned the verdict.

These cases show the difficulty in pinpointing liability in instances of fraternity hazing and the severity of the issue. In addition to the legal struggle for liability, the struggle for campus administration to find the balance also remains difficult. At the University of Idaho, tensions over hazing allegations caused one dean to resign from his position. Additionally, the University of South Carolina at Columbia administration sought to eliminate the pledging process of all Greek organizations in attempt to reduce instances of hazing, which caused a massive uproar. Meanwhile, at Virginia Tech, a fraternity is facing a 10-year suspension by administration after pledging members reported being beaten during hazing rituals. Finally, in recent weeks, Penn State has cracked down on the Greek community by permanently banning one of the fraternities and setting sanctions for others. With these examples in mind, finding a standard for liability to fraternity hazing remains a mystery.

This post was co-authored by Ms. Setareh Campion and Dr. David Nguyen. Ms. Campion is a Hall Director and a Graduate Assistant for Leadership Programs at the University of North Dakota and a masters student in the UND Higher Education program.