lawsuit!!! got your attention yet?€¦ · lawsuit!!! got your attention yet? presented by: eddie...

Lawsuit!!! Got Your Attention Yet?Attention Yet?

Presented by: Eddie Pawlawski, Cumberland University

April 2, 2014, 10:30—11:30

Session ID W3.1846

Session Rules of Etiquette• Please silence your cell phone/pager

• Please complete the session evaluation using the AACRAO mobile app or the paper form in your registration packet, drop

AACRAO - Denver 2014 Session ID: W3.1846

mobile app or the paper form in your registration packet, drop boxes are available throughout the convention center.

• If you must leave the session early, please do so as discreetly as possible

• Please avoid side conversation during the session

Thank you for your cooperation!

Disclaimers

• 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.


with your campus legal resources.• Real life scenarios may be used as examples, but personally

identifiable information will not be shared.• The perspective of this presentation is from the point of

view of an administrator and practitioner.

Learning Outcomes of this session:

By the end of this presentation, participants will be able to:• identify and describe three to four major legal challenges for higher

education institutions;• utilize local, state, and federal websites to gather material about


• utilize local, state, and federal websites to gather material about specific legal issues facing higher education institution;.

• determine the actual “threat” to the institution and the most logical person or team to address the “threat;”

• articulate implications of local, state, and federal mandates and develop campus programs and procedures to prepare for action rather than reaction to situations.

Legal Issues Facing Higher Education

• FERPA and Emergency Situations

• Interaction between statutes

• Discrimination, harassment and federal legislation


• Discrimination, harassment and federal legislation

• Harm to self

• ADA and Section 504

• Service animals, meal plans, medical rooms

Emergency Situations and FERPAFERPA

http://www2.ed.gov/policy/gen/guid/fpco/pdf/emergency-guidance.pdf

FERPA• FERPA limits the disclosure of information from student “education records,” a

term that the law defines quite broadly and that is not limited to “academic” records. “Education records” include virtually all records maintained by an educational institution, in any format, that are “directly related” to one or more of its past or present students. A record is “directly related” to a student if it is “personally identifiable” to the student, and a record is “personally identifiable”


of its past or present students. A record is “directly related” to a student if it is “personally identifiable” to the student, and a record is “personally identifiable” to a student not only if it expressly identifies the student on its face but also if the student’s identity could be deduced from the demographic, descriptive, or other information the record contains, either alone or in combination with other publicly available information. Thus, “education records” include not only registrar’s office records, transcripts, papers, exams and the like, but also non-academic student information database systems, class schedules, financial aid records, financial account records, disability accommodation records, disciplinary records , and even “unofficial” files, photographs, e-mail messages hand-scrawled Post-it notes, and records that are publicly available elsewhere or that the student himself/herself has publicly disclosed.

Emergency Situations

• Although it fortunately is still rare, a student’s statements or behavior sometimes may raise concerns regarding the safety of the student or others. To prevent such harm from occurring, college and


prevent such harm from occurring, college and university administrators, faculty, and staff who become aware of such statements or behaviors may want to tell someone else – another campus employee, a parent, an outside health care professional, a law enforcement officer, or those with whom the student may interact – about what they know or believe.

Emergency Exemption

• 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


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.ht

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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


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

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


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.


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


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).


Emergency Exemption• This exception does not authorize “knee-jerk” or

(in most cases) “broadcast” disclosures, but a limited disclosure to a limited number of people, made on the basis of a good-faith determination in


made on the basis of a good-faith determination in light of the facts available at the time, and is highly unlikely to be deemed a violation of FERPA, even if the perceived emergency later turns out, in hindsight, not to have been one.


Emergency Exemption

• In general, and when reasonably possible, the initial disclosure should be made to professionals trained to evaluate and handle such emergencies,


trained to evaluate and handle such emergencies, such as campus mental health or law enforcement personnel, who can then determine whether further and broader disclosures are appropriate.


Emergency Exemption• In addition to the exceptions discussed above, FERPA

expressly permits the disclosure of information from a student's education records to officials of other institutions at which the student seeks or intends to enroll. To take


at which the student seeks or intends to enroll. To take advantage of this exception, the institution must either inform its students generally, in its annual FERPA notice, of its practice of doing so, or make a reasonable attempt to notify the individual student that it has done so. In either case, upon request, the institution also must provide the student with a copy of the disclosed records and give the student an opportunity for a hearing to challenge the content of the disclosed records.

DiscriminationDiscrimination

Types and their relationship to non-discrimination legislation

Discrimination by Type• Age• Disability• Equal Pay/Compensation• Genetic Information


• Genetic Information• National Origin• Pregnancy• Race/Color• Religion• Retaliation• Sex• Sexual Harassment

Relationship between Non-Discrimination Legislation and Enrollment Services: The New Frontier

• Title IX (discrimination based on gender in federally assisted education programs and activities)

• Title VII (discrimination based on race, color, religion, sex, or national origin)

• Title VI (discrimination based on race, color, religion, sex, or national origin)


• Title VI (discrimination based on race, color, religion, sex, or national origin)

• Title IV (administration of federal student financial aid programs)

• Title III (federal grant program to improve education, specifically English language acquisition)

• Title II (discrimination because of race, color, religion, or national origin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment)

• Section 504 and ADA (discrimination based on disability)

Interaction Between StatutesTitle IX

• Prohibits discrimination on the basis of gender in federally assisted education programs and activities. Prohibition includes sexual harassment and other sexual misconduct. Activities covered by Title IX include: academic activities, admissions, athletics, and extra-


IX include: academic activities, admissions, athletics, and extra-curricular activities

Clery Act • The Clery Act requires educational institutions to maintain crime

statistics, disclose security policies to current and prospective students and staff, issue timely warning when there is a potential for unsafe conditions and notify students of the availability of counseling and mental health services, and offer basic rights for victims and alleged perpetrators of sexual assaults on campus.

JurisdictionFor Sexual Misconduct/Title IX Cases

• There is an expectation that you have SOMEjurisdiction over off-campus incidents

Jurisdictional Limitations


Jurisdictional Limitations• Geographic (refers to a court's power over events and persons within

the bounds of a particular geographic territory)• Temporal (jurisdiction of a state or of a court of law over a legal

action as it may be affected by the effects or passage of time)When is a student a “student?”

• Application-Admission-Registration-Attendance-Breaks

Necessary Policies and Procedures to Address

• Stalking

• Relationship violence

• Bullying and cyber-bullying


• Bullying and cyber-bullying

• Sexual harassment

• Sexual misconduct

• Retaliation

• The appeals process

Harm to Self, Title II and Recent Clarifications

• 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.


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.


• 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


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.


As a result of the change in language in Title II of the Americans with Disabilities Act (ADA), the revised


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.

Understanding ADA Accommodations Policy as it Pertains to a Suicidal Student

Brett A. Sokolow, Esq., Managing Partner, NCHERM:

• “Section 504 gives recourse to students who are discriminated against on the basis of a recognized


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...”

Understanding ADA Accommodations Policy as it Pertains to a Suicidal Student

• “Suicide and its attendant psychological distress is a qualified disability under both ADA and Section 504. The ADA requires that we provide reasonable accommodations


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.”

Section 504: Scope of Covered Programs

All of the college’s operations, programs and activities are subject to Section 504 requirements, including:


including:

AcademicsAthleticsEmploymentHousingEventsWeb-based educational services

AnimalsAnimals, Meal Plans and Medical Room , 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


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


• Service Animals (miniature horses):• “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


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


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


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

AnimalsAnimals, Meal Plans and Medical Room , Meal Plans and Medical Room Meal Plan Exceptions• Medical or psychological needs or restrictions• The key question to consider is “Is there a reasonable

accommodation that can be put in place to help the student meet their request?”


their request?”

AnimalsAnimals, Meal Plans and Medical Room , Meal Plans and Medical Room Meal Plan Request• Documentation• Diagnosis, last appointment• Activities substantially limited by the condition• Copies of test or laboratory report that support the diagnosis


• 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

AnimalsAnimals, Meal Plans and Medical Room , 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


• 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


Medical Single Room/Off Campus Housing• Allergies• Social Phobia• Insomnia, depression, anxiety


• 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?


• 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

AnimalsAnimals, Meal Plans and Medical Room , Meal Plans and Medical Room Reasons requests aren’t granted (FAQ)• I like being alone• I can’t study around people• I need at least ten hours of sleep


• I need at least ten hours of sleep• Documentation from family member

Questions?


Thank You!Eddie Pawlawski

[email protected]


Please complete the session evaluation using the AACRAO mobile app or the paper form provided in

your registration packet.

Session ID W3.1846

lawsuit!!! got your attention yet?€¦ · lawsuit!!! got your attention yet? presented by: eddie...

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