© 2014 Wiley Periodicals, Inc., A Wiley Company • All rights reservedView this newsletter online at wileyonlinelibrary.com • DOI: 10.1002/say.20077

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Volume 17, Issue 2 may 2014

SnapShotSGENERATING OPPORTUNITIES

Develop a self-funded, affordable program to prepare students for success in the workplace. Page 6

MANAGING YOUR OFFICENip office gossip at its

source. Page 7

YOU BE THE JUDGEDid mandatory drug-

testing policy violate students’ rights? See how the court ruled in this month’s legal case. Page 8

LAW & CAMPUS Review summaries of

court cases and agency rulings. Pages 9–11

LEADERS & INNOVATORSMatt Gregory, associate

dean of students at Louisiana State University, shares advice for teaching students how to embrace differences. Page 12

Writing SerieS

Risk ManageMent

Protect minors in your programs while reducing departmental liability

By Claudine McCarthy, EditoroRlaNDo, Fla. — Pipelines, outreach, summer camps, recruiting

sleepovers, campus tours, and other special programs that bring minors to your campus usually have the best intentions. But any of those situations could end up as a prime breeding ground for child abuse.

your student affairs unit probably runs, hosts or plays a role in many pro-grams involving minors. and even though those programs have many positive outcomes, they also have significant potential to expose your department and institution to the risk and liability of child abuse claims.

“all the wonderful work you’ve done is at stake when an incident happens,” said Candace Collins, an attorney and safety analyst with Praesidium, Inc.,

student success

Follow practical strategies, best practices for boosting student persistence

By Claudine McCarthy, EditorBalTImoRe, md. — maybe your institution just named you its chief

retention officer. or student persistence and success became one of your multiple responsibilities. In any case, it’s highly likely that parents, stu-dents and staff expect you to keep retention rates high — and when rates drop, they probably look to you for explanations and quick fixes.

While quick fixes don’t exist, practical steps can increase student per-sistence at your institution, even if it’s a small college.

That’s according to sandra K. olson-loy, vice chancellor for student affairs at the university of minnesota in morris, and maggie Balistreri-Clarke, vice president for student development/dean of students at edgewood College in

Continued on pages 4–5.

Continued on page 3.

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Copyright © 2014Wiley Periodicals, Inc., A Wiley Company. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400, fax 978-646-8600. Requests to the Publisher for reprint permission should be addressed to the Permissions Department, c/o John Wiley & Sons, Inc., 111 River St., Hoboken, NJ 07030-5774; 201-748-6011, fax 201-748-6326, www.wiley.com/go/permissions.This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is provided with the understanding that the publisher and editor are not engaged in rendering legal counsel or other professional service. If legal advice is required, the service of a competent professional should be sought.

2

College settles free speech case

Think twice before you ban dis-tribution of materials by students on your campus.

modesto Junior College in California agreed to settle a First amendment lawsuit filed last oc-tober by a student. The college had prevented Robert Van Tuinen from handing out copies of the Consti-tution on Constitution Day in a grassy area by the student center.

as part of the recent settlement, mJC revised its policies to allow free speech in open areas across campus and agreed to pay Van Tuinen $50,000. The revised poli-cies abolish the requirement that students and faculty seek mJC’s permission to speak. ■

Group seeks reversal of court decision

Before you expel students for campus protests, consider First amendment implications.

eleven organizations joined the Foundation for Individual Rights in education in an appeal to reverse a federal district court’s september 2010 ruling dismissing former Valdosta state university

ASSeSSment Advice

Assessment Advice is a monthly Q&A column that offers tips to help you evaluate your programs and services. Do you have a question and/or answer to submit? Email the Editor at cmccarthy@wiley.com. ■

Gain insight into quantitative, qualitative data

Q How can I help staff members understand the difference between quantitative and qualitative data in our assessment program?

A Quantitative data allow for statistical analysis and, given the right set of conditions, the generalizing of findings across settings. Qualitative

data draw out the richer details of individual experiences or perceptions.Adapted from a chapter in The Handbook of College Athletics and Rec-

reation Administration, by George S. McClellan, published by Jossey-Bass, A Wiley Brand. See www.josseybass.com/highereducation.

newS

student Hayden Barnes’ First amendment claim against former Vsu President Ronald m. Zaccari.

Zaccari expelled Barnes in may 2007 for protesting Zaccari’s plan to construct two parking garages on campus. Zaccari called a col-lage Barnes posted on Facebook a “threatening document” and Barnes a “clear and present dan-ger” to Vsu. ■

Student held on bond for threatening classmatesensuring students and staff

members understand threats

against safety aren’t protected free speech could help prevent an incident like the one that re-cently occurred at the university of Illinois.

after a 19-year-old student threatened classmates, making references to the 2007 shooting at Virginia Polytechnic Institute and state university, he was promptly arrested and charged with disorderly conduct.

The student, who allegedly also made shooting gestures to his classmates, was held on a $250,000 bond while officials searched his home and computer. ■

Publisher: Sue Lewis

Editor: Claudine McCarthy

Legal Contributor: Richard H. Willits, Esq. (reelrhw@hotmail.com)

If you have a question, comment or suggestion, please contact Editor Claudine McCarthy at (561) 964-2357, or email cmccarthy@wiley.com.

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Student SucceSS

madison, Wisc. They shared the strategies that helped them increase persistence rates at their small colleges at the recent annual conference for NasPa — student affairs administrators in Higher education.

and it’s worth everyone’s while. Retaining a stu-dent typically costs a third to a fifth of recruiting a new student, and there’s increased emphasis on performance-based funding at federal and state levels, they said.

Follow their strategic approach to increasing student success:

✓ Review your current situation. Work with institutional research to see what data reveals about areas needing improvements versus what works well. Identify programs where more students enter your institution, who stays/leaves, and factors involved for dropouts. For example, is there a first-year cal-culus class that’s such a nightmare that it leads to lots of dropouts?

✓ Build capacity. Close the gap for student groups lacking a history of college going and/or college staying. Think about barriers and overlaps, such as age, gender, race and economics.

✓ Create a sense of urgency and buy-in. Bring all faculty and staff together. Display a chart of peer institutions with similar endowments, enrollment and so on, but with higher persistence rates. seeing your institution at or near the bottom of that chart serves as a valuable wake-up call. share feedback from a student focus group. Hearing that students see office staff as friendly but not helpful or vice versa becomes another wake-up call. use positive peer pressure to get faculty to become more invested in student success. ask faculty to raise hands if they turn in midterm grades, send out academic alerts, tell students they care, offer to help students, and so on. When faculty see others raising their hands, it becomes contagious.

✓ Set specific goals. Help students see they can reach their goals by staying at your institution. Require students to list alternate majors so if they don’t get admitted into a particular program they have a back-up plan. encourage student-athletes to participate in other student organizations, so if athletics doesn’t work out, they’re still connected. When new college students’ GPas dip lower than their high school GPas, they’re more likely to drop out of college, even if they have mostly Bs or Cs and aren’t on academic probation. Intercept this by sending letters from academic deans to students and parents, reassuring them that they’re doing fine, even though it might not be the GPa they expected or were used to receiving. explain and normalize the typical academic adjustment period. Increase

integration, linking academic and social aspects of student life. Invite a poet to residence halls or ar-range for the music/business club to take a field trip with a related academic class.

✓ Agree on data-driven, high-impact priori-ties. Gather staff and faculty together to create a deck of cards with about 30 different potential ways to improve persistence. Have the group sort cards into low-, medium- and high-impact piles. arrange the high-impact deck of cards into theme areas you all agree to focus working on. agree to place the other piles on hold. High-impact priorities include improving advising, mentoring programs, orienta-tion and first-year programs, and meeting specific populations’ needs.

✓ Identify resources. Find grants and other funding sources, especially those targeting lower-achieving and underrepresented students.

✓ Develop steering teams to guide the work. each team leads specific initiatives in different ar-eas or for different student groups, such as under-represented populations. meet with financial aid, business office staff, registrars, faculty and others to examine what parts of processes keep students from persisting, such as holds, failing courses or not having enough credits. one team could develop early-alert systems (for excessive absences and fall-ing grades) and work with students and parents earlier in the process to circumvent holds and failed courses. or advisors might start wearing buttons that read “15 x 8 = 120,” to inform students about how many credits they need to graduate in four years. Faculty and advisors could tell students they can withdraw from a course, so they don’t have Fs on their academic record, and enroll in a different course. staff can work together to prevent withdraw-als for nonpayment.

✓ Create an action plan. Then take action on whatever best fits your campus and available staff/faculty.

✓ Monitor progress and lessons learned. every time you crunch data, you’re likely to learn something new.

You may contact Sandra K. Olson-Loy at olsonloy@ morris.umn.edu or Maggie Balistreri-Clarke at balistr@edgewood.edu. ■

Continued from page 1

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a sexual abuse risk management company.she recently spoke at stetson’s National Conference

on law & Higher education, along with leslie Gomez and Gina smith, attorneys with Pepper Hamilton llP; and laura Rothstein, university of louisville law professor.

“The sole risk we seek to manage is sexual abuse of a child or a vulnerable adult and along with that is protecting staff from false accusations. We can have all the policies and procedures in place for reporting abuse but we want to take it a step back to prevent that,” Collins said.

access, privacy and control are all a potential perpetrator needs to commit abuse through your unit’s or institution’s programs, so controlling ac-cess is vital, she said.

although the frequency of child abuse in higher education settings is unknown, child abuse occurs

RiSk ManageMent

Continued from page 1 in one in four girls and one in six boys, or 10 percent of schoolchildren, Collins said. and 80 percent of child abuse isn’t reported, she said.

Besides the psychological, educational, behavioral, interpersonal and sexual impact on victims, Collins said institutions are also impacted by:

• Damaged reputation and mission.• lost financial resources through lawsuit awards

in the hundreds of millions.• Decreased employee productivity and morale

and increased turnover.• Jeopardized insurability.Child abuse lawsuits commonly claim the institution

had negligence in screening, training, supervision or retention, Collins said. so focus your attention on im-proving those areas of your programs involving minors.

Contact Candace Collins at CCollins@PraesidiumInc .com or go to http://www.PraesidiumInc.com. ■

Know your areas of risk, liability By Claudine McCarthy, Editor

Knowing where to look and what to keep an eye on can go a long way toward preventing child abuse involving your student affairs unit.

The potential for abuse begins with the simple reality of an open-access campus, but there’s more to it than that, said Candace Collins, an attorney and safety analyst with Praesidium, Inc., a sexual abuse risk management company.

Review her list of exposure points through which your unit could become liable for child abuse:

• Adult students, institutional employees, contractors or volunteers.

• On-campus child-care settings. • Camps and clubs. • School field trips to your campus. • Tutoring and lessons by staff or students on your

campus or out in the community. • Exchange programs, internships and practicums. • Athletics competitions, concerts or performances. • College/university-authorized contractual programs

and third parties.To lessen the risk, follow Praesidium’s step-by-step

approach:1. Assign leadership and embrace the cause.2. Establish a child-safety task force.3. Identify and assess current exposures.4. Establish policies for programs involving minors,

addressing the monitoring and supervising of the most common places for abuse: bathrooms, buses/transpor-tation, playgrounds/fields and one-on-one interactions.

5. Provide training in compliance tracking.6. Implement a reporting and responding system.

To ensure implementation of those steps, Collins sug-gested asking if your institution and programs involving minors have:

❑ Written policies that clearly define boundaries? Err on the side of caution.

❑ National criminal background and sex offender registry checks? Less than 5 percent of offenders have a record, but it’s a starting point.

❑ Screening process assessing for abuse risk? In face-to-face interviews, ask questions about past situ-ations. “Past behavior is the greatest indicator of future behavior,” Collins said.

❑ Required training for all staff and high-access volun-teers? Ensure it’s preventive, not just reactive. “We’re not supposed to give full-frontal hugs because what’s creepy to me might not be creepy to you,” Collins suggested.

❑ Specific, written procedures for managing high-risk activities and responding to suspicious behavior? Address collecting and responding to observations and reports about staff or minors crossing boundaries, such as inap-propriate jokes or bullying, before it progresses to abuse.

❑ Oversight of partnerships, collaborations, new programs and third-party vendors? For example, who supervises the buses while the driver’s eyes are on the road, or the buildings and bathrooms while other camp-ers are on the field?

❑ Awareness of incidents pending or under investiga-tion? Know what’s being done about it.

❑ Current insurance policies? Have coverage for sexual abuse/molestation and directors and officers liability. ■

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Learn more about your institution’s responsibilities for protecting minors in your programs

By Claudine McCarthy, EditorORLANDO, FLA. — It’s time to change the way you

view incidents involving minors and programs associ-ated with your student affairs unit. The well-being of minors as well as the reputation and liability of your staff members and unit are at stake.

Look at pipeline, outreach, recruiting and other special programs from the perspective of minors, recommended Leslie Gomez, an attorney with Pepper Hamilton LLP. “You’re someone they trust with their welfare,” she said. She spoke at Stetson’s National Conference on Law & Higher Education along with Gina Smith, an attorney with Pepper Hamilton LLP; and Laura Rothstein, a University of Louisville law professor.

Consider disability, privacy issuesPlan how to handle disability accommodations for

minors visiting your campus, including transportation for wheelchair users or interpreters for hearing-impaired minors, Rothstein said.

Consider the issue of students tutoring schoolchil-dren, supervising campers, giving tours or hosting pro-spective students. Before you bring minors to campus, access school records or photograph events, obtain parental release forms to prevent confidentiality/privacy violations, Rothstein said. Consider banning social-media contact between minors and your students or staff to avoid actual or perceived inappropriate interac-tion, she said.

Develop sound policies and training for staff, students and other stakeholders. Address laws, contracts, NCAA regulations, and institutional policies and procedures involving minors. Cover disability, abuse, discrimina-tion, pornography, social media, confidentiality/privacy, transportation, liability, monitoring and reporting, Roth-stein said.

Respond promptly to allegationsPrevention starts with vigilant monitoring and prompt

follow-through of suspected incidents, said Smith and Gomez, former child abuse prosecutors.

“We don’t know what we don’t know. Keep your eyes and ears open. If something doesn’t feel or look right, it’s important to speak about it,” Smith said.

“When in doubt, report it out,” Gomez said. Every state has a mandatory reporting requirement for in-cidents involving those under 18, she said. Ensure student-athletes and others with direct interaction

with minors know it’s not their job to investigate but to report information to institutional designees or investigators.

And clear up the following myths:Myth: Abuse doesn’t happen often. Reality: “It’s

prevalent. It doesn’t discriminate in any way, shape or form based on age, race, gender, socioeconomic status or where you live,” Gomez said.

Myth: Abusers are easy to spot. Reality: “We can’t make assumptions about who could be a perpetrator. We say, ‘I know so and so and he or she would never.’ It’s never the guy we think it is. It’s always the guy we’d least suspect. The perpetrator grooms the child, the parents, the community and the institution,” Gomez said.

Myth: Abuse couldn’t happen here. Reality: “It oc-curs everywhere,” Smith said.

Myth: Abuse victims will tell right away. Reality: Victims often delay reporting because abusers groom them to not tell and they fear what will happen if they tell.

Myth: Abuse can’t be proven without physical evi-dence or witnesses. Reality: This myth makes you stop listening to alleged victims and ignore other evidence, Smith said. Remove the “he said, she said” phrase from your vocabulary and replace it with “word-against-word credibility,” which frames assessment of the incident, she said. “Institutional betrayal gets tied directly to how the reporter felt they were treated when they reported the incident,” Smith said.

Myth: Children lie about abuse. Reality: “There’s nothing about getting older that makes someone more likely to tell the truth,” Gomez said.

Myth: I’m not responsible for abuse or other viola-tions committed by a student, staff member, volun-teer or third-party employee, or for child porn on a departmental computer. Reality: “You could be on the hook if your computers are used for child porn,” Gomez said. Administrators are often held criminally or civilly liable for abuse that involved their department, facilities or programs — or others will at least view you as negligent. Even if your state doesn’t have a mandatory reporter law for child porn, for example, think about your moral obligation and your mission, Smith said. “Doing nothing is always the wrong re-sponse,” she said.

Seek free training from the Internet Crimes Against Children Task Force at http://www.icataskforce.org. ■

RiSk ManageMent

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geneRating oppoRtunitieS

Program prepares students for workplace environmentas more individuals with severe disabilities look

for postsecondary opportunities, institutions like Bellevue College are stepping up to meet their needs. Bellevue created a two-year accredited, professional, technical degree program to help such individuals become more independent and employable.

a similar program at your institution could also increase enrollment and generate revenue.

Bellevue’s program originally began as an enrich-ment experience, but that changed. “offering it as an associate’s degree gives the program much more credibility and provides our graduates more lever-age when they are looking to get hired,” said marci muhlestein, program director of the institution’s associate degree in occupational and life skills.

Self-funded model equals more supportsolder individuals who have failed college courses

or been fired from their jobs are drawn to the pro-gram, in addition to recent high school graduates.

offered through the institution’s continuing educa-tion unit, the program is entirely self-supported. The Ce unit was a logical home for the program, not just because many students are older and have some life experience, but also because it’s workforce-centered. Those served by this program can easily be discour-aged by red tape and bureaucracy. The set-up allows it to be a bit pricier than traditional college programs and to have its own advisors and other support staff.

The program has postgraduation employment rates well above the national average, and many graduates earn significantly more than minimum

wage, said muhlestein.

Focus on independent living, job skillsCourses that prepare students to live more inde-

pendently include: Personal Finance, Human sexual-ity, Nutrition, Healthy Relationships and Citizenship. Those that help students prepare for the workplace include: office Procedures, Customer service and Computer applications. all classes incorporate soft-skills training in punctuality, time management, prioritization and collaboration.

small classes give students individualized atten-tion and support. service-learning opportunities and internships through local employers provide real workplace experience and job opportunities.

Program is affordableThe cost of the program is $425 per credit. That’s

a bit higher than tuition for other traditional college programs. But charging more allows the program to employ its own support staff, so ols students don’t get lost in bureaucracy and red tape.

and because ols students are eligible for state and federal financial aid, it’s actually affordable. Plus, the institution offers students in the lowest income brackets a special discount, so they pay no more than $650 a quarter to attend, whereas otherwise they would pay about $2,000 a quarter.

For more information and help starting a similar ini-tiative, go to http://www.olsatBellevueCollege.com or contact Marci Muhlestein at marci.muhlestein@ bellevuecollege.edu. ■

If you need more funds for supporting innovative programs to help students succeed, this month’s funding opportunity could help.

Funder: The Lumina Foundation is the country’s larg-est independent, private foundation with a sole focus on increasing success in postsecondary education.

Funding interest: Meeting workforce demands and closing gaps in attainment for groups not historically well served by higher education.

Deadline: Ongoing.

Award amounts: Varies. Recent grants ranged from $162,700 to $789,000.

Eligibility: Postsecondary, tax-exempt institutions within the United States and its territories.

For more information: Go to http://www.lumina foundation.org/grants.html. Scroll to the bottom of the page for information on submitting an unsolicited inquiry. ■

Grant Watch

Look for Grant Watch in every other issue

Every other month, this feature will bring you information about a competitive grant to help you supplement your shrinking budget.

GO!

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Find green fundsIf you need ideas for funding

campus sustainability projects, review how other institutions fund projects.

The Association for the Ad-vancement of Sustainability in Higher Education’s Campus Sus-tainability Green Funds Database details more than 150 funds. Search by categories, such as U.S. region or year established. Find out about student fees for sustainability efforts and other strategies.

Learn more at http://www.aashe .org/resources/green-funds. ■

Respond to assaultsInadequate responses to sexual

assaults or harassment allegations or incidents involving your staff members or students can damage your institution’s reputation and finances.

Check out the Title IX Advisory Toolkit offered by United Educators Insurance.

The toolkit clarifies steps for providing training to students and staff on preventing incidents and responding to allegations.

To find out more, go to http://titleixcompliance.ue.org. ■

Support student-vetsYou can help student-veterans

suffering from post-traumatic stress disorder by referring them to VA PTSD Coach Online.

The site offers relaxation, vi-sualization, writing and breathing exercises for coping with PTSD symptoms, including traumatic memories, sleep difficulties, and disturbing thoughts and feelings. Videos on the site address anger, worry, anxiety, stress, disconnec-tion and sadness.

Go to http://www.ptsd.va.gov and click on “PTSD Coach On-line.” ■

When “watercooler talk” turns into out-of-control office gossip in your student affairs unit, it’s important to tackle it head on.

marilou Cruz, the manager of marketing and communications at the G. Raymond Chang school of Continuing education at Ryer-son university, suggested “looking at the big picture and evaluating internal communications.”

she explained that gossip and rumors are often spurred when people don’t have the correct in-formation and are left guessing.

“are there ways that you can work with lead-ers in the organization to be more transparent and open the lines of com-munication?” she asked.

Then, delve deeper to see if other issues are at work. “are these employ-ees disengaged from their jobs? Does the culture of the organiza-tion unintentionally support gos-sip?” she asked. “once you know why it’s happening, you can create a communications strategy to curb it and stop further damage.”

Form a united frontIf the gossip is related to sensi-

tive issues, such as potential lay-offs, work with senior leadership to develop unified messages ad-dressing these issues, she added.

“you want to ensure that when staff members come to you to talk, you’re putting up a united front and you’re all on the same page,” she said.

If one person hears something from you and another hears a different message from someone else on the same issue, you can be sure gossip will ensue.

Build up trust“my first step is to reassure

my staff that any changes that

affect staffing will come from official sources. I promise them that as soon as I hear anything official, it will be communicated to them immediately. I always follow through,” said Robin Knight, reg-istrar at Georgia military College.

as a manager, she places a great deal of emphasis on build-ing trust and communication with her staff. Working as a team and building up trust allows her to ease these types of concerns because members of her staff know she’ll communicate any and

all changes with them, Knight added.

“you don’t want to overreact but you must confront it quickly, head on,” said michael George, university reg-istrar at the university of alabama.

When gossip occurs, George meets with each of his peers and suggests they meet with each of their respective offices’ staff mem-bers as a team.

“Presuming everyone is in agreement, we would meet with the respective staffs to show our solidarity and then educate them regarding the effects gossip may have, or is having, on the work-place,” George said. “We would then address the specific issues and respond to each of them in an honest and factual manner.” ■

Nip gossip with clear messagesManaging YouR office

reSourceS

MANAGING YOUR OFFICE

This feature provides the guidance you need to help you sharpen your office management skills.

CONTACT USDo you have a question

or story idea? If so, please contact:

Editor, Claudine McCarthyPhone: (561) 964-2357

Email: cmccarthy@wiley.comWebsite: www.studentaffairs

todaynewsletter.com

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You Be the Judge

Did mandatory drug-testing policy violate students’ rights?By Virginia Tee, Esq.

linn state Technical College offered many programs involving hands-on training with heavy equipment and/or live electricity.

linn adopted a mandatory drug-screening policy in 2011. The students were to receive notice of the testing and procedures. It wasn’t to be random. The testing wouldn’t reveal any medical condition other than the presence of certain drugs, and positive re-sults wouldn’t be relayed to law enforcement.

after the college implemented the screening pro-gram, several students sued the college, claiming the drug-testing policy constituted a search that violated the Fourth amendment.

The trial judge concluded the testing was overly broad and issued a preliminary injunction prohibit-ing further testing.

The college filed an appeal, arguing the testing encouraged safety on and off campus for students required to take internships.

The students argued there wasn’t evidence linn students had drug problems or drug-related ac-cidents. The students also argued a one-time, pre-scheduled drug screening wasn’t effective because students could simply abstain from drug use until after they passed the test.

Barrett, IV et al. v. Claycomb et al., No. 12-1001 (8th Cir. 01/29/13).

Did the appellate court agree with the trial court that the college’s policy was unconstitutional?

A. Yes. The appellate court didn’t review the facts because the college didn’t have grounds to appeal.

B. Yes. The college couldn’t prove the students

had a drug problem or that prescreened drug screen-ing would be effective, thereby affirming the policy unjustifiably violated students’ privacy.

C. No. students who enroll in colleges don’t have the same constitutional rights as others.

D. No. mandatory drug testing for students who plan to enter high-risk occupations and require train-ing with dangerous equipment isn’t unconstitutional. However, the testing should be required only for those students enrolled in programs involving hands-on training with heavy equipment and/or live electricity.

Correct answer: DThe panel acknowledged students not involved in

courses of study where safety was paramount might have a legitimate point. However, it said the injunc-tion was invalid because it applied to all students. It reversed the ruling of the trial judge.

The court said it was counterintuitive to require the college to await drug abuse and drug-related ac-cidents before testing. It ruled the need to prevent and deter substantial harm that could arise from a student under the influence of drugs while engaging in a safety-sensitive program justified testing.

The appellate court also said some students should have a diminished expectation of privacy due to seeking accreditation in heavily regulated industries where drug testing was the norm.

The college didn’t need to show testing’s effective-ness, because the court stated that it hadn’t found a case where the failure to adopt the most effective testing was reason enough to override a substantial public-safety interest. ■

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9Student AffAirS todAy

Vol. 17, Iss. 2DOI: 10.1002/say

© 2014 Wiley Periodicals, Inc., A Wiley CompanyAll rights reserved

ReTAlIATION

Judge ignores added reason involved in VP’s firing

Case name: Howard v. Allen University et al., No. 3:11-2214 (D.s.C. 91/07/14).

Ruling: The u.s. District Court, District of south Carolina denied a university’s motion for summary judgment.

What it means: a university or college can’t add additional reasons for firing an employee after a lawsuit has been filed.

Summary: Walter Howard became senior vice president of allen university in 2008. He was placed in charge of the College for Professional adults initia-tive. In that position, he supervised sonya melton.

at an unstated time, melton filed a sexual harass-ment charge against Charles young, au president.

In may 2009, Howard gave melton a negative per-formance review and recommended to young that she be terminated. But young allegedly told Howard he couldn’t fire her because of the harassment charge. Instead, young instructed him to make her working conditions so intolerable she would resign. Howard allegedly refused to participate in that plan.

Howard drafted a positive performance evaluation of melton in the spring of 2010, stating she’d improved in all areas. When young allegedly instructed him to rewrite it, Howard purportedly refused to complete it rather than give a negative evaluation.

A review of this month’s lawsuits and rulings

At a glanceIn august, Howard lost his staff, was taken off

the CPa initiative, and was removed from an admin-istrative leadership team. In addition, an updated organizational chart no longer reflected his position at the university.

at that time, Pamela Wilson took over as interim president, and Howard’s attorney notified the uni-versity a retaliation charge was being filed with the state. Howard also wrote a letter to the southern association of Colleges and schools charging viola-tions of saCs’ standards at the university.

according to university officials, Howard falsely claimed in writing he had secured a grant.

Howard and 14 other employees were terminated for no stated reason and were escorted from campus in December. Howard sued au and young. one of his claims was retaliation in violation of Title VII. The defendants filed a motion for summary judgment.

With respect to the retaliation claim, the defen-dants argued there was no causal link between Howard’s alleged 2009 refusal to follow young’s instructions concerning melton and his 2010 reas-signment of duties 14 months later. But the district judge found the allegations didn’t depict such a gap in time, because Howard had claimed young bad-gered him during that period to join his campaign against melton.

Defendants alternatively argued any causal con-nection between correspondence from Howard’s lawyer in august and Howard’s discharge in Decem-ber was broken by the letter to saCs and the false report about a grant.

The judge characterized that argument as an after-the-fact rationalization for terminating Howard, noting Wilson said nothing about it as a reason for firing Howard when she testified in her deposition.

Therefore, he refused to consider it and ruled the case would go to trial. ■

RetaliationA university’s additional reason for firing a VP can’t be considered because it was added after the terminated employee filed the lawsuit ................................................. 9

DiscriminationEven though the OCR dismisses a student’s complaint, the college must revise its policies and procedures ...............10

DismissalFormer student’s claims committee members didn’t follow proper procedures and discriminated against her when they dismissed her ...........................................................10

DisabilityA student fails to prove she qualifies for ADA protection because she didn’t provide enough details about her disability ...........................................................................11

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Law & caMpuS

10 Student AffAirS todAy

May 2014DOI: 10.1002/say

© 2014 Wiley Periodicals, Inc., A Wiley CompanyAll rights reserved

Law & caMpuS

DISCRIMINATION

DISMISSAl

Former student’s claims thrown out of court

Case name: Zimmeck v. Marshall University Board of Governors et al., No. 3:13-14743 (s.D. W. Va. 01/10/14).

Ruling: The u.s. District Court, southern District of West Virginia dismissed two of a former student’s claims against marshall university.

What it means: a dismissal for academic reasons doesn’t require a hearing.

Summary: stephanie Zimmeck — a medical student at marshall university — was placed on academic probation in 2010.

In october 2011, the academic and professional standards committee summoned her to a meeting about her failure to take a mandatory exam. However, the meeting covered other issues she hadn’t been warned about, including her trouble adjusting, and how she was taking an antidepressant.

a few days later, the committee wrote her a let-ter stating her academic probation would continue.

another meeting was set by the committee for De-cember 19, and a committee member told her it was a “mere formality.” However, the committee decided at that meeting to dismiss her from the university because of concerns about her professionalism.

Zimmeck filed suit against marshall university

OCR dismisses complaint, but policies must be revisedCase name: Letter re: Fort Scott Community Col-

lege, No. 07122010 (OCR 04/25/12).Ruling: A student didn’t supply sufficient evidence to

demonstrate a college discriminated against her based upon her disability, race or sex, but the Office for Civil Rights’ investigation into her complaints identified the need to revise policies and procedures.

What it means: Colleges should review all of their policies and procedures to ensure compliance with all federal laws.

Summary: A motorcycle repair student at Fort Scott Community College complained to OCR she was discriminated against based upon her sex, race and disability. She said she was subjected to sexual harassment and a racially hostile environment. However, she was unable to provide corroborating evidence to support her claims of multiple incidents.

And although she claimed the college didn’t provide

her with the academic adjustments she required based upon her disability (brain tumor), she didn’t support those claims with evidence either.

She received the accommodations she requested even though she didn’t follow the college’s policies and procedures to identify herself as a student with a dis-ability and to request accommodations.

During its investigation, however, OCR found the col-lege’s notices and written policies and procedures regard-ing reporting sexual and racial harassment and requesting disability services were deficient. The notices, policies and procedures required revisions in order to comply with Title IX of the Educational Amendments, Section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act, and Title II of the Americans with Disabilities Act.

The college entered into a resolution agreement with OCR on this issue. The student’s complaints were dismissed. ■

and others.The defendants filed a motion to dismiss.one of her causes of action was a denial of equal

protection, asserting she was treated differently from similarly situated medical students, and was held to a higher standard than her peers. she also claimed she was “blindsided” at the 2010 meeting and misled about the need to attend the 2011 meeting.

But the district judge stated Zimmeck hadn’t alleged how other students were treated in the face of pos-sible dismissal. The judge also said there were facts showing possible discriminatory intent, explaining Zimmeck had nevertheless told her story at the 2010 meeting, and it was just as plausible the committee member was mistaken about what the December 2011 meeting would entail. Furthermore, the judge said there weren’t allegations that any of the other committee members held a grudge against her.

Zimmeck also claimed the university should’ve given her a disciplinary hearing.

The judge explained that dismissal from a pub-lic education program for disciplinary reasons did require some type of a hearing, but an academic dismissal did not.

Because Zimmeck was dismissed for academic reasons, the judge said her probation in 2010 and attendance at the october 2011 meeting were suf-ficient to make her aware of serious concerns about her professionalism. He also noted there was a three-level appeal process in which she stated her case. ■

11Student AffAirS todAy

Vol. 17, Iss. 2DOI: 10.1002/say

© 2014 Wiley Periodicals, Inc., A Wiley CompanyAll rights reserved

Law & caMpuS

DISABIlITy

Student fails to prove qualifications for ADA protection

Case name: Bonneau v. State University of New York at Brockport et al., No. 11-CV-6273  (W.D. N.y. 12/17/13).

Ruling: The u.s. District Court, Western District of New york dismissed a student’s claim brought pursuant to the americans with Disabilities act.

What it means: To prevail in an aDa suit, plaintiffs must provide specifics about any claimed disabilities and how they impair a major life activity.

Summary: Tina Bonneau — a student at the state university of New york at Brockport — notified university officials in 2008 she was disabled. They provided extended test-taking time, short breaks during classes, and notes for missed class time.

Bonneau disclosed to her art professor — Debra Fisher — that she had post-traumatic stress disorder. The two became friends, and Fisher became a regular reader of Bonneau’s blog, learning personal facts about her mental health history. In the fall, Fisher allegedly started telling Bonneau her thoughts about — and the grades of — other students, a violation of the Family educational Rights and Privacy act.

In November, Bonneau posted negative comments about Fisher on her blog, including incidents in which she claimed students were treated harshly. according to Bonneau, Fisher read the posts and began to follow the blogs of Bonneau’s friends.

In December, Fisher began to harass Bonneau about her mental health treatments, saying “There must be some kind of medication you can take!” and “Therapy is not helping you.” she insisted that was

the reason Bonneau ended the friendship.after Bonneau warned Fisher she would sue, Fisher

allegedly apologized but continued harassing her.Fisher emailed administrators in march 2010,

stating she’d heard Bonneau was crazy and a “tick-ing time bomb.”

a few days later, an assistant dean told Bonneau she’d been labeled a “student of concern.” after that, Bonneau went into the building Fisher was in to speak with another professor. Fisher purportedly closed the door and discussed Bonneau with the class, allegedly implying she was a threat to campus.

after that, Bonneau stayed away from the campus and didn’t complete her academic work. as a result, her grades suffered. she sued the university and others, asserting the university violated the aDa by denying her reasonable accommodations for her dis-abilities and treated her less favorably than her peers.

suNy Brockport filed a motion to dismiss.athough Bonneau had allegedly told her art profes-

sor she had PTsD, the judge ruled Bonneau had merely alleged she was covered by the aDa, but provided no details about how her unspecified disability impaired a major life activity. He ruled the accommodations granted by the university didn’t provide a factual basis to support her allegation of a disability.

He dismissed her aDa claim. ■

Student Affairs Today Board of Advisors

Les P. CookVice President

for Student Affairs and AdvancementMichigan Technological University

Shannon E. Ellis Vice President

for Student ServicesUniversity of Nevada, Reno

Brian L. HaynesVice President for Student Affairs

California State University San Bernardino

Joan L. KindleVice Chancellor for Education and Training, Eastern Iowa Community

College District

Larry W. LunsfordVice President

for Student AffairsFlorida International University

Jeanne OrtizVice President andDean of StudentsWhittier College

Douglas R. PearsonVice President andDean of StudentsMercer University

Lori M. ReesorVice President for Student Affairs

University of North Dakota

Eugene L. Zdziarski, IIVice President for Student Affairs

and Dean of StudentsRoanoke College

LAWSUITS & RULINGSThis regular feature summarizes recent court or agency

records of interest to student affairs administrators. Lawsuit court records are summarized by Richard H. Willits, Esq. (You may contact him at reelrhw@hotmail.com.) FPCO and OCR rulings are summarized by Virginia Tee, Esq. ■

12 Student AffAirS todAy

May 2014DOI: 10.1002/say

© 2014 Wiley Periodicals, Inc., A Wiley CompanyAll rights reserved

Contribute to compliance conversationAs president of the Association for Student Conduct

Administration, Matt Gregory hears a lot of concerns about institutional compliance with the recently reau-thorized Violence Against Women Act, the Campus SaVE Act.

While he understands the concerns, he also suspects forthcoming governmental guidance could improve reporting of sexual coercion. It’s also had the added benefit of kick-starting important conversations about Title IX, Gregory said. But he recognizes the need for continued discussion to determine what compliance will look like at public versus private universities and community college versus trade/professional schools.

“While our natural tendency may be to ask the gov-ernment to ‘just tell us what to do,’ there’s an opportunity for us as professionals to help mold the future of our profession to positively impact the dialogue on sexual assault by proactively addressing our concerns and offering advice to decision-makers even at the highest level,” he said.

He also identifies with student affairs professionals’ increased concerns about governmental guidance — or what many are referring to as interference — in the student conduct process on college campuses. And that’s why he’s calling on student affairs profession-als to publicly advocate for the profession, and why he’s leading ASCA in doing the same, Gregory said.

“Government actors are making decisions that carry a significant impact on the day-to-day work we as conduct professionals do. When decisions at the state and federal level are being made through court cases or legislation, we as practitioners must speak up to preserve the educational nature of our conduct processes,” Gregory said. “We cannot sit back and allow our conduct processes to be legislated into a quasi-criminal process. The effects of such legislation would benefit the student with means, would cause a chilling effect on reporting, and would virtually eliminate the student’s voice in the process.” ■

LeadeRS & innovatoRS

MATT GReGORy, ASSOC. DeAN OF STUDeNTS, & DIReCTOR, STUDeNT ADvOCACy & ACCOUNTABIlITy, lOUISIANA STATe UNIveRSITy

Teach students how to embrace differences by your exampleBy Claudine McCarthy, Editor

six years in campus law enforcement and 12 years in student affairs administration certainly presented matt Gregory with many challenges. But he embraced those challenges as opportunities for growth and learning.

one particular challenge serves “as a reminder of the gifts we each bring to the table,” said Gregory, associate dean of students and director of student advocacy and accountability at louisiana state

university.Gregory recalled an expe-

rience from working in resi-dence life early in his student affairs career. a student with autism was being ostracized for social awkwardness and body odor. like many others at that time, Gregory knew little about autism.

“The student would ap-proach me in tears and

couldn’t understand why other floor-mates didn’t accept him and would regularly make fun of him by perpetrating childish pranks like leaving soap at his door. after numerous conversations, I began to realize how brilliant he was and started to understand his daily struggles. He taught me about autism by shar-ing his feelings and daily experiences,” Gregory said.

Together, they figured out how to share the stu-dent’s gift with the rest of the floor — through a show in which the student showcased his ability to memorize and recall campus phone directory infor-mation and perform card tricks, Gregory said. only a few residents initially showed up, but eventually almost half of the residents came to watch.

afterward, Gregory helped the student establish a schedule for showering, eating, doing laundry and going to class. “Fellow residents asked him to tutor them in subjects like math, physics, chemistry and computer science. The pranks and marginalization almost completely disappeared,” he said. When the rare prank or derogatory comment occurred, many residents defended him, Gregory said.

The experience helped him become a better student affairs professional. “Because of him, I’m forever mindful of how I treat and respond to others,” he said.

you can teach students a lot through how you handle similar situations, Gregory advised. “you

never know what gift is waiting behind the student who has been labeled as weird, smelly, odd, crazy, slow or different,” he said.

Contact Matt Gregory at mgregory@lsu.edu. ■

Word of Advice

MATT GReGORy