Legal Update 2011 Year in Review Handout

Year in Review: Legal Issues Update 2011 CASES
William M. Fischer, J.D.

W. Scott Lewis, J.D.
Saundra K. Schuster, J.D.

The following case briefs are not intended to be a comprehensive list of all higher education
cases from 2011. They have been selected by the authors as significant based upon the
analysis, the holding or the breadth of the decision impact. These case reviews are not
intended to provide legal advice.
________________________________________________________________

ADA

Rhodes v Langston University, U. S. Ct. of App., 10
th
Cir. (October14, 2011)
Facts & Holding: In 2000 a student was a victim of a serious car accident that resulted in loss of his leg and
traumatic brain injury. In 2006 the student enrolled in the nursing program at Langston University. Prior to his
enrollment he underwent tests that showed he functioned at a high intellectual range, but was impaired regarding
his reading comprehension, writing, memory, speed of information processing, visual perception and concept
formation. He registered with disability services and sought accommodations as recommended by his physician.
The student complained that some professors refused to provide his requested accommodations and that some of
his classes were not in readily accessible locations. After failing two clinical classes he withdrew from school and
filed a lawsuit, claiming disability discrimination.

The Dist. Ct. determined that some of his claims were barred by the 2-year statute of limitations as well as that his
demonstration of a disability was not consistent as the ADA defined it prior to 2009 and therefore would not be
applied in this case.

The Ct. of App. upheld the Dist. Ct. decision because they determined that the ADA amendments constituted a
substantive change in settled law, not merely legislation clarification. As a result, the new amendments were
made applicable to the student. The particular shift in the law that was disallowed was the determination that a
disability based impairment created a significant impairment to a major life activity. The new amendments
removed the significant modifier.

Significance of the Case: This case is significant because it provides a framework in determining if an
amendment to a law is applicable in a case in which the facts occurred prior to the amendments. The Ct. used the
standard that if an amendment to a law created new substantive rights and obligations rather than merely clarify
existing law then it would not be able to be applied to the analysis of a case. If an amendment clarified existing
law it would be applicable retroactively to cases involving conduct that took place before the amendment was
passed.

Klene v Trustees of Indiana University, U.S. Ct. of App., 7
th
Cir. (March 23, 2011)
Facts & Holding: Cama Klene was enrolled as a social work student at Indiana University. She was a
qualified individual with a disability and used a wheelchair. Students enrolled in the Social Work program must
complete a practicum consisting of a semester-long placement at an agency. Klene was rejected by four different
Fischer, Lewis, Schuster
Legal Issues Update 2011 Cases
ASCA International Conference 2012
Page 2

Schuster, Lewis, Fischer, 2011 Cases ALL RIGHTS RESERVED

practicum sites (based on inappropriate self-disclosure; not enough initiative; require too much supervision;
unable to execute required physical tasks). She asked for an accommodation that would allow her to complete her
practicum from home and participating in some meetings. The school rejected this proposal stating that it would
not satisfy the courses basic purpose: to simulate the experience of a social worker by interacting with clients
and professionals in the setting. As a result of her inability to complete the outside placement requirement she
failed the practicum and was removed from the school of Social Work. She sued the school, alleging violation of
ADA and Title II. She also claimed retaliation by the school changing her grade in the practicum to an F after
she filed her complaint.

The Dist. Ct. ruled in favor of the University, and Klene appealed. The 7
th
Circ. rejected her argument and upheld
the lower Ct.s ruling. The Ct. also found no retaliation on the part of the university.

Significance of the Case: A qualified individual with a disability must still be able to meet the fundamental
requirements for a course with accommodation. Institutions do not need to make any modification that would
result in a fundamental alteration of the course or program as a part of the accommodation.

Robinson v. Tacoma Community College, U.S. Dist. Ct., W. Dist. Of Washington (September 27, 2011)
Facts & Holding: Student, Robinson, enrolled at Tacoma Community College, and near the end of April in
her first year she engaged in threatening and disorderly conduct toward other students. The College conducted a
suspension hearing and determined she violated the Code of Conduct and suspended her for a semester. The
College required documentation showing she had been medically evaluated and was pursuing an active treatment
plan for bi-polar disorder. Robinson had never self-identified as a person with a disability, nor sought
accommodation. She sued the College, claiming disability discrimination under ADA & Title II. After the suit
was filed the College dropped the requirement of the medical evaluation and substituted a requirement for
documentation that her disruptive conduct had been properly addressed.

The Ct. held that Robinson had failed to provide evidence that she had a disability and that the colleges actions
were based upon that disability. The college followed their Code of Conduct protocol in addressing her behavior
of engaging in threatening and disruptive conduct.

Significance of the Case: We need to view the analysis of this decision cautiously because the recent OCR
letter to Arbor Springs University engaged in an analysis that although the student in that case had not sought
disability based accommodation, the University, through their actions of requiring a behavior contract related to
the Universitys perception of the students mental disability created the status of disabled for the student, thus
entitling the student to the protections under Title II and ADA.

Argenyi v. Creighton University, U.S. Dist. Ct. of Nebraska (September 22, 2011)
Facts & Holding: Argenyi, a medical student at Creighton University, is hearing impaired. Even with
cochlear implants he had an impairment. When he enrolled at Creighton, he sought the same accommodation as
was provided by his undergraduate institution, Seattle University, which included undergraduate interpreters and
CART (Communications Access Real Time Transcription. This is a service in which a reporter uses a special
machine to produce a transcript thats very close to what was actually said in class. The school negotiated with
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Argenyi and his doctor and offered to provide front-row seating and an FM system (that uses microphones to
transmit sounds directly to his cochlear implant). Although the student agreed to give this a try, just prior to the
start of classes he changed his mind and sought use of the CART. The university asked for specific
documentation supporting this accommodation over what was offered. The student sued, alleging a violation of
Title III and ADA.

The Ct. upheld the actions of the university stating that the university was only required to do what is necessary to
avoid discriminating against the student.

Significance of the Case: In this case, the student failed to demonstrate and document that the
accommodations he sought were essential to his success. The ct. cited to the U.S. Sup. Ct. for the proposition that
courts should show great respect for a facultys professional judgment when an accommodation involves an
academic decision.

Adams v. Montgomery College, U.S. Dist. Ct., Dist. Of Maryland (June 30, 2011)
Facts & Holding: This is a case in which a student who alleges denial of accommodations for her disability
suffered physical injuries and sued the university for damages. Sherri Adams, a student at Montgomery College,
had multiple sclerosis, optic neuritis and back and heart problems. She provided the school with notice of her
disabilities and sought accommodations. As a result of construction on campus, Adams was unable to park close
to her classes. She was unable to use the campus shuttle because it was not accessible to people with a disability.
A college dean offered to have campus security drive her to and from her car to class until alternative
arrangements could be made, but after a few times, campus police refused to transport her any more. As a result
she had to walk. She fell and sustained injuries. Adams sued the college, the president, a dean and the campus
security director for violation of Title II and ADA. She sought injunctive relief and compensatory damages.

The Ct. determined that 11
th
Amendment immunity would not apply in this case because it would not bar a federal
discrimination action. The school argued that she was not denied accommodation, that the parking issue was only
temporary and there was no evidence of intentional discrimination. The Ct. found in favor of the student stating
that failure to provide accommodation (even if temporary) constituted discrimination. The colleges refusal to
transport her back from class represented an unlawful failure to accommodate. The Ct. decided that the claims for
damages could go forward against the college, but not against the named individual employees.

Significance of the Case: The significant part of this case is that the Ct. determined that claimants who
allege an unlawful failure to accommodate a disability can recover damages if they show the school acted with
deliberate indifference. That is, that the school acted knowingly, voluntarily and deliberately in denying the
student accommodation, even if there was no intent to discriminate. This represents an important lesson for
college and university administrators when making decisions about appropriate accommodations for a qualified
individual with a disability.

Sec of U.S Dept. Housing and Urban Development on behalf of X v. University of Nebraska at Keanery, et
al., U.S. Dept. of Housing and Urban Development Office of Administrative Law Judges (Sept. 30, 2011)
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Facts & Holding: Complainant (X) filed a complaint with the U.S. Dept of Housing and Urban
Development alleging discrimination based on disability under the Fair Housing Act (FHA). X alleged that the
university violated the FHA by refusing to make reasonable accommodations as necessary to afford a disabled
person an equal opportunity to use and enjoy a dwelling. In this case, X was diagnosed with depression and
anxiety sufficient to limit her major life activity. She took medications for the symptoms and also relied on a
comfort animal. She was denied her request to allow her dog, who served as her comfort animal, to live with her
in the residence hall. The university based this decision on the fact that under Sec. 504 and the ADA only service
animals would be allowed on campus. X was unable to provide adequate documentation that her dog provided a
service to her beyond her emotional comfort. As a result, she was unable to sleep, experienced anxiety attacks
and eventually left school. X filed a complaint with the Secretary of the Housing and Urban Development.

The Administrative Law judge for the HUD found that the University engaged in discriminatory housing practice
under the FHA (who defines a dwelling to be any building, structure, or portion thereof which is occupied as, or
designed or intended for occupancy as, a residence by one or more families). The judge issued an injunction
against the university for any discrimination against a person based on disability in any aspect of occupancy, use
or enjoyment of a dwelling; awarded her damages sufficient to fully compensate her for her damages; and issued a
$16,000.00 civil penalty against the university for each violation of the act.

Significance of the Case: This case is very significant because it pits the U.S. Department of Housing and
Urban Development against the U.S. Dept. of Educations and the U.S. Justice Department. Title II & III of the
ADA, and Sec. 504 of the Rehabilitation Act was amended in 2010 to state that therapy or comfort animals
were no longer allowed as an accommodation for a qualified person with a disability. Service animals (which
must be limited to a dog or a miniature horse) must perform an actual service other than comfort.

ON THE RADAR:

Northwestern University challenged for use of Google apps: The National Federation of the Blind has filed a
complaint with the U.S. Justice Dept., Office of Civil Rights regarding the Universitys use of Google apps, as a
violation of Title II because the Google program does not translate screen text into synthesized speech or Braille,
thus discriminating against blind and visually impaired students.
OCR Opinion to Spring Arbor University: (October 31, 2011) The OCR determined that the university violated
Section 504 by, among other things, placing conditions for readmission on a student the university perceived to be
an individual with a mental disability as established by the actions of the university in regarding the student as one
with a disability and requiring the student sign a Behavior Contract. The university did not properly determining
whether the student was a direct threat. Nor acknowledge that the direct threat standard applies only to
situations where a student poses a threat to others. This breaks with OCRs traditional standard which allowed
institutions to consider threat to self or others and tracks the Department of Justices new ADA Title II
regulation, which expressly limits the definition of direct threat to threats to others.

FREEDOM OF EXPRESSION

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Snyder v. Phelps, U.S. Sup. Ct. (March 2, 2011)
Facts & Holding: The Westboro Baptist Church has a history of picketing military funerals to communicate
its belief that god hates the United States for its tolerance of homosexuality, especially in Americas military. The
Church also pickets the Catholic Church for their scandals involving clergy. They were challenged for picketing
the funeral of a serviceman by the father. The father of the slain serviceman filed a lawsuit against the head of the
church, his daughters who participated in the picketing and the Church itself. The Ct. held Westboro liable for
millions of dollars in compensatory and punitive damage for tort claims and the Church filed an appeal under
their First Amendment right to freedom of expression.

The Fourth Circ. overturned the lower Ct. decision and the father filed cert. with the Sup. Ct.. The U.S. Sup. Ct.
upheld the decision of the Circ. Ct. stating the picketers were expressing their opinion on a matter of public
concern was not provably false and expressed their opinions solely through hyperbolic rhetoric.

Significance of the Case: This is not a higher education case, yet it has substantial implications for our
policies and practices regarding speakers on campus. This is a harsh example of protecting speech that we hate,
but the Ct. was clear that speech on matters of public concern occupies the highest rung of hierarchy of First
Amendment values and is entitled to special protection. They went on to state that a statements arguably
inappropriate or controversial character is irrelevant to the question of whether it deals with a matter of public
concern. The Ct. further stated that even protected speech is not equally permissible in all places and at all times.
It is subject to reasonable time, place and manner restrictions consistent with the type of forum in which the
speech is delivered.

Heenan v. Rhodes, et al., U.S. Dist. Ct., Middle Dist. of Ala., No. Div. (December 27, 2010)
Facts & Holding: Plaintiff, Heenan alleged that she was dismissed from the School of Nursing at Auburn
University based on retaliation for her criticism of the schools grading and disciplinary system. Consistent with
the course description and the Student Handbook, Heenans instructor gave her a disciplinary point for exhibiting
unprofessional behavior after receiving a poor rating on a skills validation test (her behavior was described as
loud, harsh verbal comments and expressive gestures). After receiving the disciplinary point she requested to be
evaluated by another instructor and to meet with the Dean. Her requests were denied. Subsequently, she was
given a point for a failure to complete a clinical preparation assignment; she failed a course; received another
point for failure to understand the critical concepts; received poor clinical reviews; received additional points for
her behavior toward instructors. Heenan was removed from the program based on lack of basic skill performance,
difficulty with appropriate communication and lacking in critical thinking. Throughout her career at school,
Heenan was outspoken about her opposition to the point system. After being dismissed, she filed a lawsuit based
on retaliation of her opposition to the institutions point system, citing the First and Fourteenth Amendment.

The Ct. found in favor of the institution.

Significance of the Case: This case is important because the Ct. applied the Hazelwood v. Kuhlmeier
standard to support the dismissal of the student. The Ct. found the institutions maintenance of a grading and
disciplinary system that allows the school to graduate competent nurses to be clearly reasonable and related to
legitimate pedagogical interests.
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Mahoney v. John Doe, . U.S. Dist. Ct., D.C. Dist. (June 21 2011)
Facts & Holding: Several individuals and a religious organization (collectively, Mahoney) notified the
Metropolitan Police Department of their intent to engage in a sidewalk chalk demonstration in front of the White
House to protest the Presidents position on abortion and the anniversary of Roe v. Wade. The police department
informed them that chalking in front of the White House was defacement of public property in violation of
D.C.law. Mahoney responded that other organizations had engaged in chalking activities there.

The police argued the sidewalk was not a public forum and that even if it was, the ban was narrowly tailored to
serve the government interest of not defacing public property and there were many surrounding areas in which
Mahoney could chalk their beliefs.

The Ct. determined that the area in front of the White House was public property, however the government had a
compelling interest in not having this property defaced, there were ample opportunities for expression nearby and
the regulation itself was content neutral.

Significance of the Case: The analysis in this case reinforces the importance of: identifying the type of form
involved in the regulation; determining if the regulation meets the appropriate standard for the type of forum (i.e.,
compelling government interest if a public forum or designated public forum, or reasonable to serve the stated
purpose if a limited public forum) and is narrowly tailored to meet that standard; the regulation leaves ample
opportunity for alternative venues for expression; the regulation is content neutral; and, the application of time,
place and manner is appropriately applied.

Williams v. West Virginia University Board of Governors, U.S. Dist. Ct., No. Dist. of WV (March 2, 2011)
Facts & Holding: The University has a policy whereby WVU police can issue a trespassing form to any
individual that an officer deems, in his/her sole discretion to have acted in a manner that would support the
individual being banned from the university property. In this case, Williams, was issued a trespassing form based
on his conduct on campus that interfered with the peaceful operations of the university. The trespass form stated
that if he returned to campus he was subject to arrest. Williams sued and argued that the policy of the university
violated his First Amendment rights by creating a policy that creates the standards of behavior for issuing a
trespassing form; the university did not train their police officers who issued the trespass forms; when Williams
was issued his trespassing form there was no protocol in place that would allow an individual to appeal the
trespass and that in the absence of an appeal there was not sufficient due process.

The Ct. found the universitys policy to be unconstitutionally vague because it failed to give sufficient and fair
notice and failed to provide ascertainable standards. The university was found in violation of Williams procedural
due process rights.

Significance of the Case: Institutions must establish content neutral, non-ambiguous, narrowly tailored and
specific behavioral guidelines for implementation of a trespass order as well as clear protocol for determining
violations. Additionally, institutions must provide an appeal as soon as reasonably possible after issuing a
trespass order.
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ON THE RADAR:
Auburn University bans Ron Paul banner: Auburn ordered a Ron Paul for President campaign banner removed
from the inside of a dorm room window while allowing students to display numerous other banners, stickers and
flags. Auburn stated that they didnt ban all speech only political or controversial speech, and they then issued a
ban on all flags, banners and posters.

Northeastern Illinois professor challenges university on right to protest: A professor at Northeastern Illinois
University has filed a lawsuit that is now on appeal with the 7
th
Circ. for engaging in protest activities. The
tenured professor alleges that as a result of her work advising the student Socialist Club and engaging in protest
activities related to U.S. foreign policy, she was denied promotion opportunities and a faculty award. This case
addresses the way in which the Circ. Ct. will apply the U.S. Sup. Ct. case of Garcetti v. Ceballos that we
reviewed several years ago that held that public agencies can discipline their employees for any statements made
in connection with their jobs.

Sinclair Community College to review ban on peaceful distribution of literature: Sinclair banned a student
from distributing literature about abortion, birth control and breast cancer to classmates after her class. The
student distributed 15 flyers to her class during breast cancer awareness month. She was summoned to the of the
department chair and told she had no right to hand out any materials. When challenged, the college said it would
review the policy. This follows a similar case at Ohio State (Solid Rock Foundation v. Ohio State University) in
which the Ct. states that absent material disorder, the distribution of literature on campus is student expression
protected by the First Amendment, even if students complain about the content of the message distributed.

FIRE alleges the Tyler Clementi Act threatens free speech: The Tyler Clementi Higher Anti-harassment act is
being considered by Congress. This bill would require colleges that receive federal aid to prohibit harassment
based on certain characteristic, including sexual orientation. FIRE challenges the act, stating that the language of
the proposed legislation could result in punishing students for engaging in protected expression. It appears that
although the bill was introduced with the best of intentions, the language of the bill is sufficiently vague and
likely unconstitutional that it will continue to be challenged.

Community College of Baltimore County bars Iraq vet for provocative essay: Iraq vet, Charles Whittington,
was barred from campus after submitting an essay for a class discussing his belief that war is a drug that
described his fixation on killing enemy soldiers. The school required him to obtain a psychological evaluation as
a condition to returning to school. The student chose not to return to school stating that, Ive done everything
they asked me to do and now they want more. The student is contemplating legal action.

FREEDOM OF RELIGION
Alpha Delta Chi-Delta Chapter at San Diego State University and Every Nation Campus Ministries v.
California State University of Long Beach, et al., U.S. Ct. of App., 9
th
Cir. (August 2, 2011)
Facts & Holding: This case follows the holding we discussed two years ago in the Hastings law school case
(Martinez) in which the U.S. Sup. Ct. held that a university can condition recognition of a student group on the
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requirement that the group accept all comers. In this case, a Christian sorority and fraternity sued San Diego State
University for denying recognition of their organizations because their membership requirements conflicted with
the schools non-discrimination policy, which recognized student organizations must include in their bylaws. The
university student organization recognition policy bars any group from discriminating based on race, religion,
ethnicity, age, gender and sexual orientation.

The student organizations alleged that their denial of recognition violated their free speech and free exercise rights
under the First Amendment. They also alleged violation of their equal protection and freedom of association.
The Dist. Ct. ruled against them and they appeal to the 9
th
Circ. Ct.

The 9
th
Circ. Ct. partially upheld the decision of the Dist. Ct., and applied the guidance from the Martinez case
and determined that the institutions student organizations were limited public forum and, as such, could exclude
organizations for membership if the exclusion was reasonable in light of its purpose and is viewpoint neutral.
There is, however, a twist in this case. The fraternity and sorority demonstrated that the school had granted
recognition to other religious groups who restricted membership. Since the school could not explain this disparity
in application of their policy, the Ct. sent this element of the case back to the Dist. Ct. for further proceedings.

Significance of the Case: As in the Martinez case, the Ct. said it was reasonable in light of the schools
student organization guidelines to take actions that promote diversity and non-discrimination. Such a policy is
viewpoint neutral because it did not target specific speech or discriminate based on content. The Ct. stated that
the school did not restrict the right of the organizations to exist and express their view point, but it would withhold
benefits from them if those viewpoints were impermissible discriminatory.

State v. Yencer, North Carolina Sup. Ct. (November 10, 2011)
Facts & Holding: Davidson College is a private, religious-based institution, although not owned nor
controlled by the Presbyterian Church. A Davidson College law enforcement officer pulled over a speeding
vehicle on campus and arrested the driver (a non-student) for reckless driving and driving while impaired. The
driver argued that the evidence was illegally gathered because the states police power at a private religious-based
school was a constitutional violation of church & state. Although she lost at the trial level, she appealed and the
Ct. of App. reversed. In an unusual move, the Ct. of App. asked for a review by the state Sup. Ct.. The S.Ct.
overturned the Ct. of App..

The Ct. applied the Lemon Test (a 1971 U.S. Sup. Ct. case) in determining that there was no Constitutional
violation (of the Establishment Clause).
Significance of the Case: The NC Sup. Ct. determined that law enforcement on a private, religious-based
campus has a secular purpose, that is to protect the higher ed. community; that the presence of campus law
enforcement neither advanced nor inhibited religion because the primary purpose of Davidson College was to
provide education rather than for a primary religious purpose. Further, the campus police are trained to only
enforce secular laws, not campus policies or religious rules.

Bloedorn v. Grube, U.S. Ct. of App., 11
th
Cir. (January 28, 2011)
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Facts & Holding: Benjamin Bloedorn, a traveling campus preacher, and several of his associates sought to
preach on the campus of Georgia Southern University. Bloedorn preached in a grassy knoll area with heavy
student traffic and his associates preached in a pedestrian mall area. The university limited public forum
activities to the area where Bloedorn was preaching, but also required the speaker seek a permit (permit required
48 hours in advance) from the university to speak. When he was told he needed a permit, he refused to obtain
one, claiming his Constitutional right to speak. After being asked three times to obtain a permit or leave, the
campus police arrested him for trespassing. He sued the university claiming a violation of his free speech rights
and the right to be free from unreasonable seizure.

The Dist. Ct. denied his request for a preliminary injunction against the university and found for the university on
the case in summary judgment. Bloedorn appealed. The 11
th
Circ. Ct. affirmed the Dist. Ct.s ruling.

Significance of the Case: The Ct. stated that the First Amendment does not guarantee access to property just
because it is owned by the government. Instead, the Ct. applied the forum analysis and stated that the degree of
access that must be provided depends on the nature of property involved. The Ct. reinforced that the grassy knoll
area Boledorn was speaking was properly classified as a designated public forum, meaning the university could
place reasonable time, place and manner restrictions on its use as long as the restrictions were content neutral;
were narrowly written to achieve a significant government interest, and left open ample alternative
communication channels, and the universitys restrictions met this test.

The Ct. further stated that the universitys permit scheme did not discriminate based on content and that the
university had a significant interest in regulating the use of the grassy knoll area to insure diverse viewpoints are
heard and adequate access is provided to all who seek to use it. Additionally, the university had a significant
interest in ensuring safety and order on its campus. The Ct. also found the other areas on the campus that the
preachers associates were speaking to be limited public forum and therefore the university only needed to apply
viewpoint neutral and reasonable standards to their limitations

Note: The Universitys permit process included: 48 hour advance permit request; disclosure of name, phone
number and e-mail address on the form; limitation of outside speakers to one and a half hours at a time and only
once a month. The Ct. found these limitations permissible.

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ON THE RADAR:

University of Wisconsin at Madison funding appeal supported by national organizations: The University,
supported by seven higher education groups, asserts that certain kinds of religious activities worship and
proselytizing, for example should not be supported by funds collected by a state college or university under the
principle of the separation of church and state. The American Council on Education, joined by six other national
higher education groups submitted a brief to the U.S. Sup. Ct. urging the Ct. to hear an appeal of the 7
th
Circ. Ct.
ruling that the University improperly denied funding for some activities of a Roman Catholic student group. The
appeal request states that the lower Ct. took away the right of Wisconsin and potentially other public colleges and
universities to support some student activities but deny funds to organizations for worship services, proselytizing
or other activities the explicitly involve the practice of religion.

University of North Carolina at Chapel Hill upholds singing groups dismissal of a gay student: The
University upheld an officially recognized student organization, the Christian Acapella Singing Groups, decision
to remove a member who is gay. The university stated that student groups are allowed to limit their membership
to students who share specific beliefs, but may not exclude others based on characteristics like age, race, or sexual
orientation. The student had been dismissed for his views on homosexuality, not his sexual orientation.

University of Montana law school agrees to adopt reforms to settle law suit with Christian Legal Society: The
University of Montana School of Law agreed to several reforms to their system of allocating funding to student
groups in return for the Christian Legal Society to withdraw a federal lawsuit. The reforms include safeguards
that will ensure that funds from student activity fees are distributed in a manner that does not unconstitutionally
discriminate on the basis of the student groups viewpoint and beliefs.

DUTY, LIABILITY & RISK MANAGEMENT

Harris v. University of South Carolina, 706 S.E.2d 45 (S.C. Ct. App., 2011)
Facts & Holding: The University of South Carolina leased and managed an island which was used for
multiple purposes including research. Groups and individuals typically pay a fee for access, but honored visitors,
family members and volunteers do not. Karen Harris came to the island to visit her son, an intern for the
university. She did not pay a fee. She stayed in the guesthouse. On her way back from the beach, she slipped
and fell on the boardwalk stairs and sustained injuries. She sued the university. At trial, the jury found for the
university. Plaintiff appealed. She raised two main points on appeal: (1) the jury should not have been allowed
to determine whether she was a licensee (she insisted she was an invitee, which creates a higher level of duty than
a licensee); and (2) the jury should not have been instructed on the law regarding a state statute limiting liability
to landowners who allow public access to their land, beach and ocean for recreational purposes.

The Ct. of App. affirmed the judgment of the trial Ct.. It found sufficient evidence to suggest that plaintiff was a
licensee and not an invitee. To be an invitee, one receives an express or implied invitation to come to the property
for the benefit of the owner, not the invitee. In this case, Harris was not able to prove that she was invited onto
the property. The facts also revealed that all of her time on the island was spent visiting her son and lounging on
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the beach (i.e., recreational purposes). Therefore the university did not benefit from her presence on the island. It
was therefore appropriate for the jury to consider whether Harris was a licensee.

The Ct. of App. also found that it was appropriate for the jury to consider the statute limiting the liability of the
landowner under these circumstances. The statute is triggered when the landowner allows individuals and the
public to use the property for recreational purposes and in instances where no fee is charged. In this case, the Ct.
determined that there were sufficient facts established to allow the jury to consider application of the statute in the
case.

Significance of the Case: A focal point of the decision in this case was reliance on a state statute which
limits liability to landowners whose property contains recreational features such as parks, oceans, beaches, and
where the public is encouraged to utilize such recreational facilities.

Matteucci v. Cleveland State University, 2011 Ohio App. LEXIS 1809 (Ohio Ct. of App., May 3, 2011)
Facts & Holding: Plaintiff was injured while working in a faulty elevator in a residence hall located on
Cleveland States campus. He filed suit against the university alleging negligence in allowing the elevator to exist
in its defective condition, failing to warn of the dangerous condition, and failing to properly maintain the elevator.
The trial Ct. granted the universitys motion for summary judgment.

The facts revealed that prior to plaintiffs injury; the building had been leased to another entity and was no longer
in possession or control of the university. Upon transfer of the facility, the lessee had the elevator inspected and
the inspection report reflected that it met all safety requirements and was in good working order. The Ct.
determined that because the elevator was not defective when the facility left the control of the university, it could
not be liable for negligence, as it breached no duty to the plaintiff. The Ct. of App. affirmed the trial Ct.s
decision in dismissing the case against the university.

Significance of the Case: Both plaintiff and the Ct. relied on a particular holding in a Ohio state Ct.
decision, stating that when the lessee has sole control/management over an elevator in a leased building, the
lessee, and not the lessor, is held responsible for any injuries sustained from a faulty elevator unless it can be
proven that prior to the transfer of the property, the elevator was defective or in disrepair. In this particular case,
the defendant university was successful in demonstrating that the defective elevator condition did not occur until
after the facility was transferred to the lessee.

Webert v. Seattle University, 2011 Wash. App. LEXIS 971 (Washington Ct. of App., April 25, 2011)
Facts & Holding: Student Catherine Webert sustained multiple injuries after she slipped and fell on cracked
pavement on a walkway while on campus at Seattle University. The walkway had been previously repaired. She
sued alleging the university failed to exercise reasonable care to protect her from the hazardous walkway and that
it created a dangerous condition. The trial Ct. granted the university summary judgment, as Weber was not able
to provide factual evidence that the university breached its duty to her.

The Ct. of App. affirmed the trial Ct.s decision. In doing so, the Ct. reviewed the evidence that the trial Ct. relied
upon in making its decision. Plaintiff offered no information supporting her allegation that the walkway created
Page 12


an unreasonable risk of harm. The fact that the walkway had been previously repaired did not establish that it was
unreasonably dangerous. Importantly, Webert testified in depositions that she was in fact able to see the patched
pavement prior to falling. Additionally, even if the condition was dangerous, plaintiff offered no evidence to
suggest that the university would have expected for her not to see the dangerous condition and take proper
precautions.

Significance of the Case: In an action for negligence, plaintiff must demonstrate that the defendant owes a
duty breached that duty, and that the breach was the proximate cause of any injuries. In this case, plaintiff was
not able to prove that the university breached its duty. Plaintiff was considered an invitee. A landlord is not
liable to an invitee if s/he is aware of a known or obvious dangerous condition, unless the landlord should
anticipate that harm could occur despite the invitees knowledge of it. In this case, plaintiff was not able to offer
the requisite facts to meet this standard.

Lees v. Carthage College, 2011 U.S. Dist. LEXIS 98368 (U.S. Dist. Ct., E.D. Wash., (September 19, 2011)
Facts & Holding: Katherine Lees was sexually assaulted in her residence hall room while a student at Carthage
College. The entrance to the hall is locked 24 hours a day and only accessible by a student ID. On weekends
there is open visitation until 2:00 a.m. Any Carthage student therefore would have had access to Lees residence
hall at the time the incident occurred. All students at Carthage are encouraged to prop their room doors when
they are in the hall to create a more open environment to converse and get to know each other. All outer doors of
Lees residence hall had prop alarms, with the exception of the basement door. At the time of the incident, Lees
who is hard of hearing was sitting in her room with her door propped when two men wearing Carthage
College shirts entered and thereafter raped her. As a result of the incident, she sustained post-traumatic stress
disorder and ultimately withdrew from the college. She filed a lawsuit alleging that the university was negligent
it breached its duty of care to Ms. Lees.

The Dist. Ct. granted the Colleges motion for summary judgment. The Ct. reiterated the standard of reasonable
care that the college had to Ms. Lees, and that the colleges duty was grounded in forseeability. To establish
negligence, Lees relied on her experts testimony. Unfortunately, in the Ct.s opinion, her expert was not able to
substantiate his opinions and conclusions based on the information and data he relied upon. His testimony was
therefore not admissible. Consequently, Ms. Lees was not able to demonstrate any issues of fact regarding the
colleges duty particularly with respect to whether the incident was foreseeable and any corresponding breach.

Significance of the Case: In this case all parties agreed that expert testimony was necessary to establish the
colleges standard of care and any corresponding breach. In such instances, it is imperative that the experts
opinions be substantiated by reliable information and data. In this particular case, the Ct. found a number of
instances where the experts opinion could not be substantiated.

ON THE RADAR:

University of Memphis student wins $4 million judgment against the school: Austin Wells sued the university
after falling down an open elevator shaft at an art gallery at a school sponsored event. The lawsuit alleged the
university was negligent in not providing proper supervision for the event. The jury found the university to be
65% at fault and the gallery to be 30% at fault and the student 5% at fault.
Page 13


University of Connecticut sued for death of student over spring weekend: The parents of a student who was
assaulted during Spring Weekend and later died of his injuries have filed suit against the university alleging a
history of problems with the Spring Weekend celebration and that the university did not take appropriate
measures to curb or curtain or end it. The parents alleged that the university promoted the weekend as a
university supported and promoted event even though the university knew or should have known that the state
police and university police would be unable to handle the large number of participants in a way that students
would be safe.

4
th
AMENDMENT/SEARCH & SEIZURE

Reyes v. Cent. New Mexico Community College, 2011 U.S. App. LEXIS 1980 (U.S. Ct. of App., 10
th
Circ.,
January 31, 2011)
Facts & Holding: Plaintiff, Paul Reyes was a student at Central New Mexico Community College.
Learning of his disenrollment from the institution, he went to campus to investigate what happened. While on
campus, by his own admission, he got into a heated argument with the financial aid office to the point where it
almost escalated into physical violence. Public safety officers and other employees stopped and detained him for
questioning. Reyes thereafter filed suit alleging infringement upon his 4
th
amendment rights for being detained
and questioned.

The Dist. Ct. dismissed his complaint, finding that Reyes failed to state sufficient facts supporting his allegation
that his 4
th
amendment rights were violated. The Ct. determined that under the circumstances the detainment and
questioning was appropriate and reasonable. The 10
th
Circ. Ct. of App. affirmed the Dist. Ct.s decision.

Significance of the Case: Courts will view the totality of the factual circumstances of an incident when
determining whether a detainment is reasonable pursuant to the 4
th
amendment.

TITLE IX

Equity in Athletics, Inc. v. Dept. of Education, U.S. Ct. of App., 4
th
Cir.,639 F.3d 91; 2011 U.S. App. LEXIS
4493. (2011)
Facts & Holding: In the 2006 fall semester, although women represented 61% of the undergraduate student
body, they constituted only 50.7% of the varsity intercollegiate athletes at JMU. JMU went on to announce that
the proposed cuts would yield a female athletic participation rate of 61%, a figure that would align more closely
with female student enrollment. It was noted that the DOE disfavors elimination of teams to achieve prong 1
and does not require eliminating mens teams to get to prong 1. The prongs for Title IX Compliance are:
(1) Whether intercollegiate level participation opportunities for male and female students are provided in
numbers substantially proportionate to their respective enrollments; or
(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes,
whether the institution can show a history and continuing practice of program expansion which is
demonstrably responsive to the developing interest and abilities of the members of that sex; or
Page 14


(3) Where the members of one sex are underrepresented among intercollegiate athletes [**6] and the
institution cannot show a continuing practice of program expansion such as that cited above, whether it
can be demonstrated that the interests and abilities of the members of that sex have been fully and
effectively accommodated by the present program.
The EIA challenged the DOE interpretative guidelines implementing the equal opportunity mandate of Title IX,
alleging that the guidelines violate Title IX, the U.S. Constitution, and the Administrative Procedure Act (APA).
They also challenged JMU's 2006 decision to eliminate ten of the university's varsity athletic teams (seven men's
teams and three women's teams), on the grounds that the elimination of those teams violates Title IX, the U.S.
Constitution, and Virginia law.

The Dist. Ct. granted defendants' motion to dismiss and dismissed the case; the Ct. of App. affirmed.

Significance of the Case: This case is a seeming extension of the 2009 decisions that were also decided
primarily in favor of the department of education. Of particular note is the breadth of claims made by Equity in
Athletics, all of which fail. These claims include: a due process claim, a state freedom of information act claim, an
APA claim, a failure to received presidential approval, and (ironically) that JMUs new athletics percentages
violate Title IX by favoring female sports by 2%the equivalent of 17 scholarships. Perhaps the only significance
of this case for student conduct professionals will be for those who may have recently been appointed Title IX
coordinators on their campuses, as it is indicative of the continuing trend of litigation designed to undermine Title
IX.

Jordan v. Corning Community College, W. Dist. Of New York, 2011 U.S. Dist. LEXIS 107289 (2011)
Facts & Holding: Jordan entered the JCCC Police Academy (Academy) in January 2007 as the only
female cadet. During that time, she was publicly called the weakest link, told that she could not make it as a
police officer, that she needed to choose between her family and the Academy, and that changing facilities for
female cadets were further away than those for male cadets (approx.) 10 miles away). She was terminated from
the Academy in February of 2007, appealed her termination, but her appeal was denied. She filed a complaint
with the division of human rights, had a public hearing, and entered into a settlement that required the Academy
to use specific language in any reference they gave her. (That she left for personal reasons and that she
excelled academically) She had an offer employment rescinded and was told by several other PDs that she
would not be considered based on information they had received from the Academy.

She then sued the Academy for violations of Title IX, 1983, and made some state law claims. The Academy
sought to dismiss all claims. The US Dist. Ct. denied their motion to dismiss under the grounds that even though
the actions taken (the references) were after she was no longer a student, the actions of the Academy could be
considered retaliatory under Title IX, and even if they were not, the actions are related to the educational
relationship she previously had with a school.

Significance of the Case: While this case may seem insignificant to some conduct officers because the
language offered as a recommendation was clearly in violation of the settlement agreement, it warrants
consideration due to the fact that all of them were made after Jordan had already left the institution. It should
Page 15


inform and remind all conduct officers, registrars, and BIT professionals to pay close attention to the employment
forms, requests, and Dean Certification forms the pass through their office, to only answer the questions asked,
and to only answer them accurately. That being said, designated institutional officers should not hesitate to offer
accurate statements regarding student status that are consistent with institutional policy. This may include sharing
with another institution (consistent with FERPA), potential employer, or potential graduate or professional school
the students pending disciplinary action. This may be reflective of a trend toward an expectation that institutions
get out of the business of passing students from one to another that they know have pending serious disciplinary
actions. (e.g., sexual misconduct).

Hyman v. Cornell University, New York, Appellate Division, New York, 2011 U.S. Dist. LEXIS 71354 (2011)
Facts & Holding: Hyman sought assistance from Prof. Greenwood to gain admission to the anthropology
program after initially being denied. Greenwood encouraged her to reapply and submitted a letter (signed by 2
additional faculty members) on her behalf. She was admitted to the program and subsequently sent an e-mail to
Greenwood wondering how best to approach this next phase of our relationship. This was followed by a series
of e-mails with discussions of love, sex (including references to her sexual relationship with her husband), and
about choices she makes with her body, etc. Greenwood immediately sent her a no contact request. Hyman later
copied Greenwood on an e-mail she was sending to the President of the institution in response to a request for
input on his review of the code of conduct. Greenwood initiated a student conduct action for violating the no
contact agreement and contacted the colleges EEO office but did not file a complaint. The EEO office notified
Hyman that a complaint had been filed. They then contacted Greenwood again who reiterated that he had not yet
in fact filed a complaint. Hyman then filed a complaint with the EEO office against Greenwood for retaliation
under Title IX. In the interim, a University review panel found Hyman in violation of the student code of conduct
and issued a letter of reprimand and a no contact order. Her appeal was denied. In December, the HR office
concluded that her complaint was fundamentally frivolous and took no action. Her appeal to that complaint was
also denied.

Cornell filed a motion to dismiss all claims, in the Dist. Ct. granted the motion to dismiss, finding no support in
fact or law.

Significance of the Case: While the student conduct process in this case seems to go as it should, the
significance of this case centers on the actions of the Title IX investigator and the parallels to the student conduct
investigator. These actions parallel those of the student conduct officer investigating an allegation of sexual-
harassment, where the victim is a reluctant victim. In this case the professor had clearly indicated that he
wished to solely pursue the violation of the no contact order (which, interestingly, appears to come from him as
opposed to an upper administrator and/or the student conduct office) and not any other complaint (as some
students are prone to do). The investigator then contacts the accused and informs her of the nonexistent
complaint, which in essence, stirs her to file a complaint (which couldve been considered retaliatory under Title
IX as well by Cornell) and contact the accuser. While the institution ultimately prevails, it is noteworthy that,
had the investigator not pursued contact with the accused when no apparent danger or risk to the institution
existed (as best practices would dictate), the cost to the institution in time and money may have been mitigated. It
is a reminder to student conduct officers to use the threshold described above or one where a pattern of behavior
is established prior to contacting the accused, and even then not to do so without contacting the initial
complainant prior to making that contact.
Page 16


Mansurian et al. v. Board of Regents of U. of California, et al. U.S. Dist. Ct., E. Dist. Calif., 2011 U.S. Dist.
LEXIS 85396 (August 8, 2011)
Facts & Holding: This is a continuation of the case sent back for reconsideration from the Ct. of App.,
which we reported on previously. In this case, the Dist. Ct. found that UCDavis was in violation of Title IX for
failing to satisfy 2nd prong of the test (see above case), and thus not effectively providing female student athletes
opportunities through appropriate program expansion. However, the cases against the individual defendants
specific to the wrestling claimswhich were grounded in equal protection, were all dismissed.

Significance of the Case: This case is more significant to Title IX coordinators and/or athletics compliance
officers and athletics directors. While on its face, it may appear to be a mixed victory for proponents of Title IX,
one could argue that the language utilized by the Dist. Ct. judge in this opinion (along with the subsequent
December denial of the motion in limine) do not bode well for the University. In essence, the damages will be left
to a jury to determine, but in limiting the action to Title IX, actual damages will have to be established.

Lees v. Carthage College, U.S. Dist. Ct., E. Dist. Wisconsin, 2011 U.S. Dist. LEXIS 98368 (August 9, 2011)
Facts & Holding: This case involves the sexual assault of a hearing impaired student in a residence hall on
campus. The student bought the claim against the college based on negligence, and the case hinges on the
forseeability of the sexual assault. The plaintiffs expert witness failed to produce sufficient evidence to indicate
the forseeability of the attack - among other things and thus the case was dismissed (and the expert testimony
was excluded).

Significance of the Case: This case is significant in that the Clery statistics of the institution were once again
utilized in a negligence action. In this case, the delineation between stranger rape and acquaintance rape was
important to the Ct. in that the increase in reported assaults were acquaintance rapes as opposed to stranger
rapes, and thus, the Ct. determined that the forseeability of a stranger rape (there had not been 1 on campus in
over 10 years) as indicated by the expert witness was not sufficient.

Jane Doe v. University of the Pacific, U.S. Dist. Ct., E. Dist. California, 2010 U.S. Dist. LEXIS 130017
(December 8, 2010)
Facts & Holding: In May of 2008, Jane Doe alleged 3 members of the mens basketball team sexually
assaulted her. On May 12 plaintiffs friends made the institution aware of the allegations. The coach immediately
called the plaintiffwho was home on breakto inquire about her well being. The next day, the coach immediately
notified the athletic director who then notified the vice president for student affairs, the director of public safety
and the director student conduct. On May 14, the university issued a campus wide Clery warning and reported the
incident to the Stockton police. They also re-contacted the victim, informed her and her parents of her options and
support mechanisms at the institution. They further informed her that, due to the seriousness of the allegations,
they intended to convene a judicial review board. Plaintiff opted not to press criminal charges but indicated she
felt reassured by the universities pursuing the campus conduct process. On June 16, the hearing was held.
Plaintiff was permitted to provide her testimony from a building across campus, but she did not answer any
questions asked by the respondents. The conclusion of the hearing was that all 3 students had committed certain
sexual related violations. 2 students were suspended for 1 and 2 semesters, respectively and the 3rd student was
dismissed. All 3 appealed the sanctions, and the plaintiff was allowed to submit a statement as well. The appeal
Page 17


was denied. As a result of both basketballs teams meeting, it was determined by the coaches that the men's and
women's teams were not to interact socially. This was designed to assist the plaintiff as well as prevent any further
potential actions.

Plaintiff filed a Title IX action filed against the University claiming that they:
(1) Did not prevent the assault (by failing to investigate a prior assault properly);
(2) Demonstrated "deliberate indifference" to sexual harassment in failing to respond appropriately to her
complaint, and
(3) Retaliated against her by instituting a policy limiting unsupervised social interaction between the men's and
women's basketball teams.

The Ct. found for the University in granting its motion for summary judgment.

Significance of the Case: This case is extremely significant for student conduct professionals and high-level
student affairs administrators. It appears (with the exception of the clear and convincing standard utilized which is
in violation of the OCR guidelines outlined in the dear colleague letter and, we believe, has since changed at UP)
that the institution followed its policies and allowed a panel that was trained (although it seemed to be a hurried
training some sexual misconduct specific training is better than none, and required under the OCRs recent
DCL) to make a determination that ultimately resulted in the separationalbeit not as long as the plaintiff wanted
of all 3 parties. It reiterates the importance of engaging in a prompt and thorough investigation while at the same
time balancing the needs of all the students and treating the accused in an appropriate and caring manner. There
are also interesting points raised regarding the introduction of prior evidence of the students nonrelated
attitudes/behaviors (womanizing) in a hearing. In short, it appears that the institution did everything according
to its policies and appropriately (earlier standard of proof notwithstanding). That being said, this outcome did not
prevent a very public and media driven response (including 60 Minutes piece that was very unflattering and
somewhat one-sided) that cost the institution time, energy, and money (and arguably reputation). The institution
also filed a subsequent motion requesting attorneys fees from Doe that was denied.

Doe v. University of the South, U.S. Dist. Ct., E. Dist. Tenn., 2011 U.S. Dist. LEXIS 35166, (March 31, 2011)
Facts & Holding: This case involves the student who was dismissed from the University for violating sexual
misconduct policies. The accused student brought claims against the institution under Title IX, contract law, and
tort law. While Title IX claims were dismissed, the contract and negligence claims were taken to a jury. In
essence, the jury did not find for the plaintiff in the breach of contract claims but did find for the plaintiff on a
negligence claim, awarding him $26,500 (seemingly meant to compensate him for actual damages in the lost
tuition). The issues raised in the case included notice to the accused, evidence introduced at a hearing, the
thoroughness of the investigation.

Significance of the Case: While the amount awarded to the plaintiff in this case may seem insignificant, the
attorneys fees, time, and reputational damage (see the University of Pacific case in this handout as well) cannot
be underestimated. Additionally it is notable that a negligence standard has been applied to the application of
student conduct process as opposed to a contracts standard. This is as important it is consistent with, what we
have been presenting regarding 1983 claims against individuals utilizing a reasonable standard in Title IX
Page 18


claims. In other words, it appears that the professional judgment exercised by student conduct professionals will
continue to be examined in ways beyond a pure contract (or deliberate indifference standard) analysis.

ON THE RADAR:

Carrington, et al. v. Duke University: Fact Opinion by Federal Judge James Beaty - the Duke lacrosse scandal
continues to be sorted out in litigation. In the latest opinion, the judge left the bulk of the claims alive against
the institution, as well as the president, the SANE, and the Dean for several of the claims. This case will be very
interesting to watch over the next 18 to 24 months. The likelihood of it ever going to trial hinges, in large part, on
the willingness of the parties to settleas is usually the case. That being said, the deep pockets are still in the
game.

G.W.U Professor files complaint against Catholic University for planning same-sex dorms: Professor John
Banzhaf filed a complaint with D.C.s Office of Human Rights alleging that Catholic Universitys decision to go
to same-sex dorms was a violation of the Human Rights Act. The complaint named C.U.s president personally,
alleging that the president aided and abetted the decision to force students into dormitories based on their sex by
using his power and influence. The professor has also threatened a lawsuit. The professor claims that requiring
same sex dorms is comparable to requiring separate parking lots or attending separate classes.

U.S. Dept. of Education Issues Dear Colleague Letter, April, 4, 2011: OCR: The DCL sent to all education
institutions receiving federal funds, serves to remind schools of their responsibility to take prompt and effective
steps to respond to sexual violence in accordance with the requirements of Title IX. The DCL provides detailed
guidance on procedural requirements under Title IX pertaining to sexual harassment and sexual violence,
including the required notice of non-discrimination, the appointment of a Title IX coordinator and guidelines for
grievance procedures for sex discrimination complaints. The DCL stated that institutions must use a
preponderance of the evidence standard, rather than a higher standard of evidence, when investigating allegations
of sexual harassment or violence. The DCL also stated that in allegations involving sexual assault, mediation is
never appropriate, even on a voluntary basis; that schools should not wait for the conclusion of any criminal
investigation or proceeding to begin their own investigation; that all persons involved in implementing grievance
procedures must have training or experience in handling complaints of sexual harassment or violence; and that
grievance procedures must include designated time frames for all major stages of the procedure. Further, the
DCL reinforced that Title IX is a civil rights law that requires equity in dealing with all matters of sexual
harassment and sexual violence.

Yale suspends Delta kappa Epsilon chapter: The DKE chapter at Yale University was suspended from
engaging in any campus activities for five years after members of the fraternity led pledges in sexually offensive
chants (shouting, No means Yes, and Yes means Anal!). The school also disciplined individual students who
participated in this event.

University of New Mexico mishandles phone sex matter: A judge rebuked the U. of N. M. over its handling of a
professor who participated with current and former students in a sadomasochistic phone-sex operation. The judge
ruled that the universitys handling of the matter resulted in another professor to leave her job after reporting he
Page 19


phone sex to university officials. The professor involved in the phone sex moonlighted as the dominatrix
Mistress Jade and posed for promotional pictures for the operation.

Central Connecticut University Diversity Officer found guilty of sexually assaulting a student: Moises Salinas,
the universitys chief diversity officer, who was charged with investigating allegations of sexual harassment and
assault at the school, was found guilty of sexually assaulting one of his students. He was sentenced to a one year
jail term that was suspended on the condition that he resigns from his job, agree not to teach again and leave the
country. His victim stated that he sought to undermine her credibility on campus after she filed the complaint.
She has filed a civil suit.

University of Notre Dame has second complaint in a year for failing to investigate a sex assault: For the
second time in 2011, the family of a Saint Marys student has filed a complaint that the university failed to swiftly
and thoroughly investigate their daughters report of being sexually assaulted in a residence hall at Notre Dame.
The family alleges the university police were more concerned about protecting the university than in helping her.
This complaint follows a similar one filed earlier from the family of a female St. Marys student who reported an
assault by a football player and killed herself nine days after filing her complaint. These cases are under
investigation by the U.S. Dept. of Education, OCR.

Brown University ordered to provide donor records to student accused of rape: A federal judge ordered Brown
University to turn over fund raising and donation documents sought by lawyers in a case involving a former
student who alleges he was falsely accused of rape and pressured to leave the university. The accused student
argued that the complainant and her father, a wealthy Brown University alumnus and donor used his financial
clout to influence the university to make a decision against him.

CAMPUS CONDUCT ISSUES

Kickertz v. New York University, 2011 N.Y. Misc. LEXIS 206 (Sup. Ct. of N.Y., February 3, 2011)
Facts & Holding: Plaintiff, Katie Kickertz was a student at NYU College of Dentistry. As part of her
graduation requirement, she needed to have a certain number of credits reflecting clinical experience by providing
actual dental treatment to patients. As she was approaching her graduation date Kickertz learned that she did not
have enough clinical experience credits. It is undisputed that Kickertz falsified patient dental treatment records to
obtain the necessary credits. After a disciplinary hearing before her peers, she was found responsible and
dismissed from the dental program. The decision was based on violation of disciplinary rules (breach of code of
ethics) and academic standards. Kickertz appealed the decision, which was denied.

Kickertz thereafter filed suit against NYU seeking to void the decision and for damages. The Ct. dismissed the
proceeding. Applying relevant precedent and the standard of review for challenging disciplinary and academic
decisions, the Ct. determined that NYU substantially complied with its rules and regulations outlining the code of
ethics and review process. It also stated that the university had the broad authority to design the academic
curriculum requiring clinical practice credits for graduation.

Page 20


The Ct. rejected plaintiffs claim that she was denied due process by not being allowed to confront witnesses
interviewed for the hearing. She was not afforded that right pursuant to the disciplinary process. It also rejected
her claim that she was denied a reasonable accommodation based on her medical condition, i.e., the presence of
her attorney at the hearing. The universitys procedures did not all for attorneys to be present at hearings.
Plaintiff was allowed to have an advisor. Finally, the Ct. denied plaintiffs claim that the sanction was excessive.
The Ct. stated that while the result was quite awful, it did not shock the conscience as defined by the New
York appellate courts.

Significance of the Case The Ct. highlighted two standards of review for disciplinary and academic
decisions. For disciplinary decisions, its review is focused on whether the institution substantially complied with
its written rules, process and procedures and whether the decision was reasonable (not made in an arbitrary or
capricious manner). For academic decisions, the Ct. noted that such review was even more restrictive than for
disciplinary decisions. Review is limited to whether the institution acted in good faith, and not in an arbitrary or
irrational manner. Courts will not substitute their judgment for academic related decisions. The Ct. also
highlighted that as a private university, NYU is not obligated to provide the wide scope of due process rights as
those afforded to public/state institutions.
Valente v. University of Dayton, Ct. of App., 6
th
Cir.; 438 Fed. Appx. 381; 2011 U.S. App. LEXIS 15640 (2011)
Facts & Holding: Valente was a law student at the University of Dayton who was accused violating honor
code by getting test questions ahead of time and sharing them with another student. The Honor Council met and
conducted a hearing much like a criminal trial and at the close of the proceedings found Valente guilty on all
counts. He was suspended for a minimum of 3 semesters. He attempted both prior and after the hearing to get an
injunction allowing him to continue school and/or to have the hearing delayed. Both attempts failed.
Valente sued Dayton for breach of contract and various torts.

Dayton prevailed in the lower Ct. and the Ct. of App. affirmed.

Significance of the Case: Perhaps the most interesting part of this case is the breadth of the pleadings
against Dayton. Valente does not lack for attempts to prevent the school from engaging in its own process. It truly
speaks to the increasingly litigious nature of our students, particularly when professional school, tuition, and their
future are seemingly on the line. Dayton's willingness to not acquiesce but instead to persist with its process is
notable. One has to wonder why the Ct. took the time to comment on the criminal trial nature of the Dayton
Law School process. This author would posit that there is a better, less adversarial, more civil rights oriented
process that could be utilizedbut clearly Dayton's Law School process passes muster.
Salus v. Nevada ex rel. Board of Regents of Nevada System of Higher Education, 2011 U.S. Dist. LEXIS
117393 (U.S. Dist. Ct., Nevada, October 10, 2011)
Facts & Holding: Plaintiff, Daniel Salus was a student in UNLVs dental program. The Dean notified him
that he was suspended because supposedly he failed two exams. Salus was denied the opportunity to appeal the
decision. He alleges that this was done in retaliation because of prior disputes he had with the Dean and faculty.
He subsequently filed a lawsuit alleging the following: (1) due process and equal protection violations under 42
U.S.C. sec. 1983; (2) breach of contract; (3) negligence and negligent hiring, training, and supervision; (4)
Page 21


intentional and negligent infliction of severe mental distress; (5) injunctive and declaratory relief; and (6)
defamation, libel and slander per se.

Defendants UNLV and Karen West (dean) filed a motion to dismiss plaintiffs complaint for failure to state
sufficient facts to support the allegations. The Ct. granted the motion to dismiss the complaint for all of plaintiffs
causes of action, except the substantive due process and breach of contract claims. The Ct. allowed plaintiff to
amend the complaint regarding some of the causes of action to include the requisite facts needed to survive
another motion to dismiss.

Significance of the Case: Based on the Ct.s analysis and decision, the following points are noteworthy: (1)
while plaintiff could not bring a cause of action under sec. 1983 against UNLV or the UNLV employees in their
official capacities, he could request injunctive relief against the individual defendants in their official capacities
but they may be enTitled to qualified immunity; (2) students have a property interest in education, which triggers
due process protections; (3) there is no enTitlement to a formal hearing when suspensions/dismissals are based
solely on academic reasons unless, as in this case, it can be demonstrated that the student was not informed of
academic requirements; (4) a substantive due process argument is viable for decisions to suspend/dismiss for
academic reasons if such decisions are considered arbitrary and capricious; (5) students have contractual rights
based on the provisions contained in a university handbook outlining process and procedures; and (6) a university
does not owe a general duty of care to students.

Oladokun v. Ryan , 2010 U.S. Dist. LEXIS 103381 (U.S. Dist. Ct., S.D.N.Y., September 30, 2010)
Facts & Holding: Plaintiff was a student at SUNY Maritime College from August 2000 March 2003.
Upon suspicion of submitting forged documentation to obtain his visa, he was detained by the U.S. Department of
State Officials. The college then initiated a disciplinary hearing to determine Oladokuns suitability as a cadet.
His hearing was originally scheduled for March 27. On March 19 his commanding officer, Smith, rescheduled
the hearing for March 24 and notified Oladokun at his off campus address via overnight courier. On March 25,
the attorney for Bureau of Immigration and Custom Enforcement inquired regarding Oladokuns status. On
March 26 the board convened in Oladokuns absence. They determined that the charges were true, without
hearing any witnesses or reviewing any documentation. He was dismissed as a cadet. Thereafter ICE was
notified of the decision and Oladokun was ultimately deported.

Plaintiff filed suit against Smith, the commanding officer, and John Ryan as President of SUNY Maritime
alleging due process violations under the 14
th
amendment of the constitution. The Dist. Ct. found that plaintiffs
due process rights were violated by (1) failing to provide sufficient notification of his hearing; and (2) by failing
to conduct the hearing in accordance with established procedures. Specifically, the board did not make their
decision based on any evidence presented, simply upon review of the charges.
.
Significance of the Case: SUNY Maritime is a state institution. As such, it is obligated to provide its
students due process in the administration of its disciplinary hearings pursuant to the 14
th
amendment. In this
instance, the college failed to provide sufficient notification to the plaintiff regarding the hearing date and did not
conduct a meaningful hearing i.e., there was no evidentiary basis provided to support the boards decision.

Page 22


Maya v. Bronx Community College, 2011 U.S. Dist. LEXIS 72997 (U.S. Dist. Ct., S.D.N.Y., July 6, 2011)
Facts & Holding: Plaintiff, Maria Maya filed suit against Bronx Community College pursuant to Title VI,
alleging discrimination (age and race) as the basis for being terminated from the nursing program. The schools
written policies and procedures stated that students who fail three required courses are dismissed from the
program unless granted a waiver. Even with a waiver, no student could fail four required courses and continue in
the program. The undisputed facts reveal that plaintiff failed three required courses. After being granted a
waiver, the plaintiff failed a required course again. She was consequently terminated and filed suit thereafter.
Plaintiff was white and of advanced years.

The Ct. found plaintiffs complaint replete with allegations with no factual basis to support them. Specifically,
she alleges that she was discriminatorily forced to wait a semester before retaking classes, learned (through
hearsay) that a student who failed three required courses was allowed to continue in the program, heard that
another student had his grades changed for invalid reasons, and other incidents she learned of reflecting
preferential treatment to students not considered in plaintiffs protected class. Because plaintiff provided no
facts to support these allegations, the Ct. granted the colleges motion for summary judgment and dismissed the
complaint.

Significance of the Case: The case sets forth the elements of a prima facie case of age or race discrimination
under Title VI of the Civil Rights Act of 1964. Plaintiff must demonstrate: (1) being a member of a protected
class; (2) has suffered an adverse action in pursuit of her education by defendant; (3) was treated differently from
similarly situated students who are not member of the protected class; and (4) was qualified to continue in her
educational pursuit. (The Ct. cites Kouymantaros v. City Univ. of New York, 2007 U.S. Dist. LEXIS 19530, as
reference.)

Peavey v. Univ. of Louisville, 2011 U.S. Dist. LEXIS 75786 (U.S. Dist. Ct., W.D. Kentucky, July 13, 2011)
Facts & Holding: Peavey entered into a three year medical residency at the University of Louisville School
of Medicine. She signed a one year resident agreement. During her first year her supervising physicians grew
concerned about her lack of interpersonal skills, inability to receive constructive criticism, completing her records
and other performance-related issues. She ultimately was placed on disciplinary probation and required to
undergo a psychiatric evaluation. Upon the expiration of her first year residency, and prior to entering her second
year of residency, Peavey needed to have her medical license. Although she had not obtained her license,
nonetheless the medical school kept her on but advised her that she needed to obtain it prior to the end of the 2008
calendar year, as well as complete her psychiatric evaluation or be in violation of her probationary status. She
neither obtained her license nor completed her evaluation, and was therefore terminated from the program.

Peavey filed suit, alleging numerous causes of action. Of most relevance to the readers is her allegation that her
procedural and substantive due process rights were violated. The Ct. found no merit to her allegations. The facts
revealed that she was fully apprised both in person and in writing of the schools decision to place her on
academic probation and the reasons why. The school also allowed her to grieve the decision which it was not
required to do. In the grievance process, Peavey was allowed to submit a written statement on her behalf, other
witness statements, as well as introduce documents and have legal counsel present. Based on this information, the
Ct. found no due process violation.
Page 23


Significance of the Case: The Ct. relied on 6
th
Circ. precedent in making its decision. When a student is
informed of the reasons for unsatisfactory academic progress, and when the decision is made in a careful and
deliberate manner, the 14
th
amendments due process requirements have been satisfied. No formal hearing is
required for such academic decisions.

Tate v. Owens State Community College, 2011 Ohio App. LEXIS 2924 (Ct. of App. of Ohio, 10
th
App. Dist.,
July 12, 2011)
Facts & Holding: Kevin Tate was a student enrolled in the Radiology program at Owens State Community
College between January 2006 and July 2007. During that period of time, he was subjected to three separate
disciplinary actions relating to his performance in the program (i.e., not staying in an assigned area, failure to
observe or participate in exams, failure to maintain professional demeanor, inconsiderate treatment and
performing procedures without supervision/permission.) There is no dispute that he had received the colleges
handbook outlining all of the rules and procedures. He was dismissed from the academic program upon receiving
his third disciplinary action. He filed suit alleging breach of contract. The trial Ct. granted the colleges motion
for summary judgment, and dismissed the case.

The Ct. of App. affirmed the trial Ct.s decision. The Ct. determined that the college followed all of the
procedures set forth in the handbook in disciplining and eventually dismissing the plaintiff from the program, and
did not deviate from any academic norms that the Ct. was aware of.

Significance of the Case: Courts will typically defer to the academic judgment of institutions unless it can
be determined that there was a deviation from accepted academic norms or the decision was made based on lack
of good judgment (also referred to by some courts as made in an arbitrary or capricious manner.)

Yu v. University of La Verne, 2011 Cal. App. LEXIS 738, Cal. Ct. of App. (June 15, 2011)
Facts & Holding: Katrina Yu was a law student at the university. She was accused of academic dishonesty
along with two other students a few days before graduation. The university entered into a plea bargain with the
other two students, but Yu did not accept. She appeared before the judicial board and was found responsible.
While the recommended sanction was suspension, the board imposed the penalty of receiving no credit for the
course. She appealed the decision to the dean of the law school. The dean not only denied her appeal, but
increased her sanction to suspension. Yu then filed a motion for a preliminary injunction (to stop the decision
from taking effect). On her motion she argued that the deans actions were in violation of a California statute
prohibiting private universities from disciplining students solely on the basis of exercising their free speech rights.
The trial Ct. denied plaintiffs motion, indicating that there was no likelihood of success on the merits of her
claim.

The Ct. of App. affirmed. In doing so, it determined that the dean articulated valid reasons in his letter decision
for denying the students appeal, having nothing to do with Yus exercising her free speech rights in submitting
the appeal. He found that the facts in the case clearly established that she engaged in plagiarism and she showed
no remorse whatsoever for her actions.

Page 24


Significance of the Case: The Universitys disciplinary appeal allows for the consideration of increasing a
sanction if the reviewer determines it was not harsh enough. From a students perspective, this raises questions
regarding the fairness of such an approach, and whether it serves as a deterrent to students who wish to exercise
their right to appeal a decision.

ON THE RADAR:

University of North Dakota refuses to reopen case of expelled student: Caleb Warner was expelled from UND
for a sexual assault that resulted in authorities charging the victim with lying to the police. As a result of a
discipline hearing Warner was banned from the campus for three years. Warner admitted to having sex with the
victim, but maintained that it was consensual. Three months after Warner was expelled the local police issued an
arrest warrant against the victim for filing a false report. When Warner asked for a rehearing from the university
based on substantial new information, his request was denied because it was not within the specified appeal
period.

STUDENT ORGANIZATIONS
Sparks v. The Alpha Tau Omega Fraternity, Inc., 2011 Nev. LEXIS 22, (Sup. Ct. of Nevada, May 26, 2011)
Facts & Holding: Roy Sparks was the victim of a physical assault by Jeff Clark. At the time of the incident,
Sparks was at a family tailgate birthday party for his son at the football stadium of UNLV-Las Vegas. At the end
of the tailgate event, Sparks saw Clark on his vehicle and told him to get off. Shortly thereafter, a fight ensued,
and Clark bit off a portion of Sparks nose. Sparks thereafter filed suit against multiple parties, including the
Alpha Tau Fraternity and its local chapters, as well as the UNLV Alumni Association. Sparks specific allegation
against ATO was negligence. The trial Ct. granted summary judgment in favor of the fraternity.

On appeal, the issue the Ct. wrestled with was whether ATO had a duty to Sparks. While generally there is no
duty to control the dangerous behavior of someone else, the Ct. recognized Nevada law which indicates an
exception to this general rule if there is a special relationship between the parties and the harm is foreseeable.
A special relationship will be found in this case if ATO had control over the parties or situation.

Regarding ATO national, the Ct. relied on legal precedent and determined that ATO national did not have a duty
to supervise the daily activities of its local chapters. The Ct. concluded that no special relationship existed
between ATO national and the locals, and therefore there was no duty. Regarding the ATO local chapters, the Ct.
rejected plaintiffs argument that there was a duty based on landlord-invitee status. The Sparks were not
invited by ATO to the tailgate or the area. Clark was also not a member of ATO. The Ct. also noted that the fight
occurred in an area not controlled by ATO. The Ct. also held that ATO is not liable for Clarks intentional acts.
Nothing was presented indicating that ATO had control over Clark or it in any way approved/condoned his
behavior. The fight began and ended quickly with no ability for ATO to do anything about it. The Ct. therefore
affirmed the trail Ct.s decision on summary judgment.

Significance of the Case: In making its decision, the Ct. relied on two concepts established by legal
precedent. First, following Pennsylvania law, national chapters generally dont have a duty to monitor the daily
Page 25


activities of its local chapters, only to discipline the chapters after an incident occurs. Such organizations dont
have the resources to engage in daily monitoring. Second, following Alabama law, national organizations are not
liable for intentional acts of its members under circumstances where they are unable to control that behavior.

ON THE RADAR:
.
Florida A & M suspends marching band performances: The University has suspended all marching band
performances in the wake of a suspected hazing death of one of the members of the band. The University as well
as local law enforcement is investigating the hazing allegations. Hazing is a felony in Florida. Check your state
laws to determine if this is a criminal act in your state.

University of Virginia launches investigation of soy sauce hazing: University police are investigating a case of
hazing involving overconsumption of soy sauce. The university alleges that Zeta Psi fraternity required pledges
to consume dog food, matzo balls and Geflite fish washed down with 12-18 oz of soy sauce during an annual
hazing ritual. One of the pledges began seizing and foaming at the mouth and was taken to a local hospital

University of Maryland sorority members facing assault charges in initiation hazing event: Ten members of
the Zeta Phi Beta sorority were charged with assault and hazing after a women seeking membership said she was
beaten, paddled and choked by the sorority members off campus. The school suspended the sorority from
campus.

University of Michigan Interfraternity Council takes action to close fraternity accused of hazing: The Sigma
Alpha Epsilon chapter at the University of Michigan was closed and suspended from recognition by the campus
Interfraternity Council after reports of hazing that included hitting pledges with broomsticks, shooting them with
Airsoft guns, making them drink regurgitated water with goldfish in it and making them pay for strippers.

University of Vermont fraternity pledge hospitalized after hazing meal: A student pledge of Zeta Psi fraternity
was in intensive care after being required to consume a meal of dog food, matzo balls and Geflite fish, then
topping it off with 18 oz of soy sauce. The student began seizing and foaming at the mouth after consuming the
meal. A fraternity member said the meal is a tradition of the fraternity. The university is investigating the
incident as a potential hazing.

Season for swim team at Middlebury College cancelled due to hazing: The Middlebury College men and
womens swim teams were suspended due to hazing activities by the two groups. The university, however, did
not notify the police, nor issue a news release explaining their actions. The university confirmed the hazing and
stated that they engaged in an internal investigation and took appropriate action.

ON-LINE SOCIAL NETWORKING

Tatro v. University of Minnesota, Minn. Ct. of App. 800 N.W.2d 811; 2011 Minn. App. LEXIS 87 (July 2011)
Facts & Holding: Amanda Tatro was a student in the mortuary science program at the University of
Minnesota. This program utilizes cadavers in its laboratory courses, and all students must sign a disclosure form
Page 26


addressing appropriate conduct with respect to the donors. In November and December of 2009 she posted
Facebook postings that included the following (not comprehensive, emphasis added):

Gets to play, I mean dissect, Bernie (the name she gave her cadaver) today. Lets see if I can have a lab
void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve
looking forward to Monday's embalming therapy as well as a rumored opportunity to aspirate. Give
me room, lots of aggression to be taken out with a trocar. (an embalming tube with a long hollow
needle).
Who knew embalming lab was so cathartic! I still want to stab a certain someone later identified as her
former boyfriend, who was aware the post was directed toward him) in the throat with a trocar though
.

Hmm..perhaps I will spend the evening updating my "Death List #5" and making friends with the
crematory guy. I do know the code
Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next
week. I wish to accompany him to the retort. Now where will I go or who will I hang with when I need to
gather my sanity? Bye, bye Bernie. Lock of hair in my pocket.
The posts were reported to the director of the mortuary science program, who then reported them to the police and
the campus conduct office. The police determined that no criminal violation had occurred. The campus conduct
process ensued, a hearing was held (where Tatros lawyer objected to the jurisdiction of the hearing body and
requested a continuanceboth denied), and Tatro was found responsible for violating policy and was sanctioned
to: a failing grade, an ethics course, a letter to the faculty regarding respect and professionalism, a psychiatric
evaluation, and probation for the remainder of her career. She appealed the decision, in the appellate body
affirmed the hearing's findings.
She sued the institution on the basis that the stations were unauthorized, arbitrary and unconstitutional. The Dist.
Ct. found for the institution, the Ct. of App. affirmed, in the case is currently on appeal to the Minnesota Sup. Ct..

Significance of the Case: Tatros claims included that the conduct was off-campus and out of the
jurisdiction of the University. The University (wisely) in its code applies it to off-campus conduct when the
conduct adversely affects a substantial University interest and indicates the student may present a danger or
threat to the health or safety of the student or others. While this is not an uncommon standard, conduct officers
would do well to check their campus standards. Additionally, the Ct. noted that the realities of our time require
that our schools and universities be vigilant in watching for and responding to student behavior that indicates a
potential for violence. The Ct. went on to reject the theory of the postings themselves being created off-campus.
Her claims that the statements were not threatening, but instead were satirical also failed.

Her First Amendment claims centered on the true threat analysis, but the Ct. applied the Tinker standard, looking
to see if her posts materially and substantially disrupted the University. The Ct. noted the fact that the
University's concerns were later assuaged does not diminish the substantial nature of the disruption that Tatros
conduct caused or the universities need to respond to disruptive expression. A school need not wait for actual
violence to occur before taking appropriate steps to ensure the safety of its community. Here, the disruption was
evidenced by the testimony and complaints made to the institution as a result of the death list and stab threats.
Page 27


There was also short discussion regarding the institutions authority to change a grade as a result of a disciplinary
hearing where the Ct. found that the policy of the institution allowed for this to occur.

Byrnes v. Johnson County Community College, 2011 U.S. Dist. LEXIS 5105 (2011)
Facts & Holding: Byrnes was enrolled as a nursing student at JCCC. After obtaining permission from her
supervisor during a clinical course, she and 3 other students took photos of a placenta specimen. When asked
what they intended to do with the photos, one of the other students reply that they were going to post them on
Facebook, which they did. As a result of that, Walsh summarily dismissed Byrnes and the other 3 students from
the nursing program in a very informal process where he shut down their attempts to raise any points in their
defense. He did introduce the letters of apology the students wrote as evidence of their guilt. They appealed the
decision to Craig, who had, prior to their appeal, publicly acknowledged their guilt in front of other students.
They were further instructed that any additional appeals were a foregone conclusion. Additionally, it appears
that there is no violation for taking photographs in the code of conduct. Finally, the question as to whether or not
they had permission (express or otherwise) was decided in favor of the students. She contends that JCCC violated
her due process rights by failing to provide her with the proper disciplinary appeals process (which, according to
their policy would've provided her an impartial arbiter). She sued the college, and subsequently filed this
motion to allow her to be reenrolled pending the outcome of the suit. The Ct. ruled in her favor, instructing the
college to reinstate her and to allow her to take the finals for the classes she was enrolled in.

Significance of the Case: This case is an example of how not to do a student conduct process, but one can
read into the case the desired outcome of the nursing school. The fact that there was no actual policy that was
violated, the public admonition of the students by the appellate officer (which, incidentally, would also constitute
a FERPA violation), and the actual instruction to the students not to take advantage of their appeal, are all
examples of administrators who are clearly not trained in proper student conduct process or simply have the
outcome already predetermined. Is difficult to ascertain within the decision, but it appears that the individuals
named are all nursing administrators as opposed to student affairs or student conduct administrators. The issue of
property interest in continued enrollment was also reconfirmed in this case.

Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, U.S. Ct. of App., 3
rd
Cir. en
banc (June 13, 2011) 650 F.3d 205; 2011 U.S. App. LEXIS 11994 - Denied Cert by the US Sup. Ct..
Facts & Holding:
Layshock: the facts of this case in its initial appeal were reported in detail in previous handouts. In short,
Layshock, using his off-campus computer and account, created a mock MySpace page about his high school
principal. It is notable that: a) his was the least offensive (he made fun of the principals weight and made
allusions to drug use and promiscuity) of 3 MySpace profiles created, and b) Layshock was the only one
suspended for the offense. (He was also given an additional number of sanctions that were eventually undone in
an earlier injunction.)

J.S.: the only differentiating facts between this case and the prior was that the site created about the principal
was arguably more offensive in that it made allusions to the principles being engaged in sexual activity with
students. There was no overt disruption of campus short of: a) a 5 to 6 min. exchange where one professor had
Page 28


told students to stop talking in class 3 times when they were talking about the website, and b) a counselor had to
find a substitute for a half an hour to deal with the situation.

In the initial Ct. of App. hearing Layshock prevailed on First Amendment grounds. Because an additional case
(J.S.) was released from the same Circ. the same day with a contra finding, the cases were reconsidered in an en
banc hearing. All findings were made in favor of the students.

Significance of the Case: These cases remind us that the Tinker standard is alive and well, and while student
conduct may reach outside the schoolhouse gate we may not do so when the sufficient nexus between speech
and substantial disruption of the school environment does not exist. This is a reminder for institutions to be wary
of punishing speech for merely the anticipation of a disruption. That being said, the Ct. is also clear that had the
students utilized the school's computing resources to engage in these activities, it may have had a stronger case for
restricting the speech. Finally, the Ct. is quick to note that had the speech been of the threatening natureand the
threat deemed to be crediblethe institution's actions would've been viewed in a much different light. This is
consistent with the Tatro finding (supra).

Yoder v. U. of Louisville, U.S. Ct. of App., 5
th
Circ., 2011 U.S. Dist. LEXIS 129711 (May, 2011; Nov., 2011)
Facts & Holding: Yoder was a nursing student at the University of Louisville. After being permitted to view
a live birth, she posted a less than flattering account of it on her blog. When the administration learned of the
blog, they expelled Yoder from the nursing program for violating the honor code and the student confidentiality
agreement. It is notable that at this hearing, they bought 2 uniformed police officers and frisked her for weapons
because of another blog they read that she had written supporting the 2
nd
Amendment. She sued the institution and
prevailed, which allowed her to be reinstated (she graduated while the claims were being litigated). The Ct. of
App. reversed the lower Ct. although not on constitutional grounds, but contractual ones. In essence, the Ct.
vacates the lower Ct.'s decision (in which Yoder prevailed) because the grounds argued were not the ones pleaded
technical, but important. Note: UL also tried to claim that the 1983 damage hearing is moot because she
graduated but their motion was denied.

Significance of the Case: This case stands out because the student prevails and then loses on appeal, but has
graduated. It will be interesting to see at the University of Louisville attempts to re-litigate and/or retroactively
revoke Yoder's degree. Given the prior cases, and the lack of disruption caused by Yoder's blog, it would seem
that Yoder would prevail under a free-speech analysis. It is still instructive in that the institution seems to have
taken a very heavy-handed approach to a blog that did not personally identify any patient. One could certainly
argue the wiser approach would've been to have the Dean like conversation with the student about
professionalism, confidentiality, and good judgment.

D.J.M. v. Hannibal Public Schools, et al., U.S. Ct. of App., 8
th
Cir.; 647 F.3d 754; 2011 U.S. App. LEXIS 15799
(August 1, 2011)
Facts & Holding: DJM returned from 2 years of homeschooling to join his classmates in the 9th grade. He
had no history of threatening or violent behavior, until October 24. After being spurned by a romantic interest
he sent texts to a friend at school asking what kind of gun the friends friend had, and then engaging in a
conversation where he named specific students who he would have to get rid of and told his friend that some
Page 29


of them would go or would be going. The ongoing conversation went back and forth between DJMs
willingness to kill his classmates versus his feeling better. His friend forwarded these via e-mail to a teacher
(Allen) along with information that DJM was previously hospitalized and on all kinds of meds. This
information was then forwarded to the principal. The principal notified the police, who went to the students
house, interviewed him and took him into custody. He was placed in juvenile detention, hospitalized for
depression/suicidal ideation, released, and returned to juvenile detention. He was also subsequently suspended for
10 days from school. This was later extended to the remainder of the school year. He appealed the suspension, but
it was upheld.

The Ct. of App. determined that the Dist. Ct. did not err in concluding that the student's statements were true
threats not subject to First Amendment protection because (1) the student intentionally communicated his threats
to a third party, (2) his speech could be reasonably understood as a true threat, (especially combined with his
admitted depression, his expressed access to weapons, and his statement that he wanted Hannibal "to be known
for something,") and (3) his statements were sufficiently serious.

Significance of the Case: This case provides a good overview of the true threat standard utilized by the
courts attempting to balance free speech and threats to campus. The courts seem clear that when an institution,
utilizing a reasonable (and preferably relatively objective) standard, responds appropriately and proportionally to
a threat to campus, they will be protected. However, the use of arbitrary, facially discriminatory, or overly
subjective criteria will always be challenged and scrutinized at the highest level. This is why having a BIT or a
Threat Assessment Team that utilizes a standard, objective rubric is important.

ON THE RADAR:

UCLA Chancellor responds to student rant on YouTube: When a student posted a rant on YouTube
complaining about Asian students in the library even mimicking a student talking in a foreign language, other
students responded with outrage. The Chancellor of the University issued a response on behalf of the institution
by posting his own YouTube statement saying he was appalled by the thoughtless and hurtful comments

York College teaching assistant criticizes students on Facebook: Bianca Baggiarini posted comments on her
Facebook page that slammed her students, saying things like: My students papers are making me dumber, so
very stupid by the minute. Please make them stop. The T.A. apologized to her students, but the college has not
decided the fate of her employment yet.

Des Moines Area Community College student arrested for Twitter posts: A DMACC student was arrested his
second day of college after posting, Who wants to shoot up the DMACC Akeny campus the same time I shoot up
the Urban campus? The students parents turned over all weapons in the home when police came. The student
apologized and said he was kidding around and being stupid. No word on his future at the college.
St. Augustine College student denied right to participate in graduation due to his Facebook post he sues:
Roman Caple was denied the right to participate in his graduation ceremonies after he posted a Facebook
comment about the way the college handled closing then re-opening after a tornado ripped through the campus.
When the school re-opened the students were angry and Caple posted a note encouraging students to attend a
Page 30


town hall meeting. With the legal support of FIRE Caple has filed a lawsuit, seeking more than $10,000.00 in
damages, alleging breach of contract, negligence and intentional infliction of emotional distress.

University of Central Arkansas student suspended after threatening to shoot other students on Facebook: The
University expelled Ching-Han Hu after she posted her desire to shoot other students. Her posting said, My
current wish is to take gun and shoot all my classmates, enjoying their blood and scary. Initially the student was
removed from on-campus housing and kept out of class, but after further investigation, the university decided to
send her home to Taiwan.

MISCELLANEOUS CASES
SECOND AMENDMENT
Oregon Firearms Education Foundation v. Board of Higher Education., 245 Ore. App. 713; 264 P.3d 160;
2011 Ore. App. LEXIS 1340, (September 28, 2011)
Facts & Holding: The OFEF brought a claim against the Oregon Board of Higher Education and the Oregon
University system, challenging their ability to impose sanctions on persons who possess or use firearms on
University property. There challenges were brought under a state law and the Second Amendment of the
Constitution. The first claim is that the Board lacks the authority to make rules regarding the conduct of visitors
on institutional property. This argument fails. The second argument is that the Boards rule is inconsistent with
the state concealed handgun license law. This argument centers around the question as to whether state law
expressly authorizes the possession of firearms on public university campuses. The Ct. in this case determined
that the Board is not a legislative body and thus the regulation was struck down. The Ct. then did not have to
consider the 2
nd
Amendment argument.

Significance of the Case: These claims will continue to surface around the country as legislatures, Boards,
and colleges seek to find clarity and balance between the 2
nd
Amendment and schools rights to regulate their
campuses in regards to safety and guns. Campuses and student conduct officers should know, however, that they
still have the right to policies and procedures regarding the brandishing of weapons and, in most states, to regulate
the possession of handguns inside of buildings and classrooms.
Lewen v. Edinboro University of Pennsylvania, W. Dist. of Penn., 2011 U.S. Dist. LEXIS 110590 (2011)
Facts & Holding: Lewen was a long time (15+ years) student who graduated from Edinburgh in 2007. She
enrolled in graduate program at Edinburgh and moved on campus. During her first class she asked a fellow
student where she might safely store a gun knowing that she could not keep it in the residence hall. That same
day, she was informed that her estranged husband had been harassing a faculty member, accusing him of having
an affair with her. She told officials that he was also harassing her. The next day Officer Burns arrived at her
room and asked her if she needed assistance during her gun. She provided him her .22 caliber weapon, 17 bullets,
and went within the store them at the University Police Department. She was told she could retrieve them at the
end of the year. After hearing from family members about rumors regarding her conduct, she was escorted to the
police station and told by student affairs officials that if she voluntarily withdrew she would not be big trouble
for having a weapon on campus. Part of her voluntary withdrawal included a permanent ban from campus. She
Page 31


files a variety of complaints against Edinburgh including claims under the Clery act, VAWA, FERPA, Title IX,
1983, and the U.S. Constitution. All of the claims are dismissed for a variety of reasons.

Significance of the Case: Perhaps the only significance of this case lies in the proposition that institutions
still have the right to regulate firearms within the residence halls. However, it is a reminder that representing
oneself (pro se) is never a good idea, (especially if you're not a lawyer, but even if you are) lest you file a claim
like her claim under FERPA, for which there is no private cause of action.

DiGiacinto v. Rector and Visitors of George Mason, Va. Sup. Ct., 281 Va. 127; 704 S.E.2d 365; 2011 Va.
LEXIS 29 (2011)
Facts & Holding: DiGiacinto is not a student or employee of GMU, but he visits and utilizes the university's
resources and attends its events. It is noteworthy that this case is not brought as a result of the disciplinary action
but merely from the desire to carry a firearm onto the GMU campus and into its buildings and at its events. He
argued that the state statute violates his constitutional right to carry a firearm, that GMU lacks statutory authority
to regulate firearms, and that the regulation conflicts with state law. The Virginia Sup. Ct. disagreed and affirmed
the finding of the Ct. of App., which determined that, the open grounds of the GMU campus were not subject to
the ban, but that the areas where people congregate qualify for restriction as sensitive places.

Significance of the Case: This seems to be the direction that the courts continue to proceed, allowing that
restrictions inside public university (and some private university) campus buildings and residence halls are
permissible, but that open areas on public University grounds may (depending on your state) not be subject to
restriction when the individual has the appropriate permit. Of course, states are still trying to sort this out.

AFFIRMATIVE ACTION

Fisher, Michalewicz et al v. University of Texas, U.S. Ct. of App., 5
th
Cir., 631 F.3d 213; 2011 U.S. App.
LEXIS 897 (January 18, 2011)
Facts & Holding: Fisher and Michalewicz, both Texas residents, were denied undergraduate admission to
the UT-Austin in Fall 2008. They filed suit alleging that UT's admissions policies discriminated against them on
the basis of race. The Dist. Ct. found no liability and granted summary judgment for the University; The Ct. of
App. confirmed and the request for an en banc hearing was denied on June 17, 2011.

Significance of the Case: The significance is best articulated in the Ct.s own words:
While the University has confined its explicit use of race to the elements of a program approved by the
Sup. Ct. in Grutter v. Bollinger, UT's program acts upon a university applicant pool shaped by a
legislatively-mandated parallel diversity initiative that guarantees admission to Texas students in the top
ten percent of their high school class. The ever-increasing number of minorities gaining admission under
this Top Ten Percent Law casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like
admissions program
In other words, the Ct. affirms Grutter, but certainly points to an impending day when race-based undergraduate
admissions will have to be re-examined. It is of particular note that there is an en banc hearing pending in
Page 32


Michigan on the Gratz standard (Coalition to Defend Affirmative Action v. The University of Michigan). These
challenges will continue over time we will continue to watch them.

DEFAMATION

Woodward v. Trinity Health-Michigan, Mich. Ct. of App. 2011 Mich. App. LEXIS 48, (2011)
Facts & Holding: Woodward was a 5th semester medical student at the American University at Antigua
Medical School (AUA) doing a clinical experience rotation at SJMO (Oakland), where his supervisor
forwarded a memorandum to the AUAs representative at SJMO outlining a series of behaviors that would
indicate a lack of qualification both professionally and academically for Woodward to pursue the medical
profession. Woodward was eventually be dismissed from the institution for nonacademic reasons (he also only
maintained a 1.5 grade point average). He sued the institution on a number of grounds (all of which will fail) but
will point to this memorandum as being defamatory. This claim failed as the memorandum was deemed
appropriate and was only used internally.

Significance of the Case: The lesson of this case for administrators is to keep all of the memorandums that
are forwarded about students professional and on point. It is somewhat clear in the subtext of this case that
Woodward is not the ideal student in any context, at least at AUA and SMJO. He is quoted as accusing
administrators of sabotaging exams and openly acknowledging that he believes the program to be a waste of
time. While these behaviors would certainly not endear him the administration, the fact that they maintain their
professionalism and stuck to their procedures served them well. It is the deviation from this that inevitably
causes student conduct professionals and academic administrators to lose these types of cases.

Mehta v. Ohio University, 194 Ohio App. 3d 844; 2011 Ohio 3484; 958 N.E.2d 598 (July 20, 2011)
Facts & Holding: Prof. Mehta filed a defamation action after University disseminated a report implicating
him in failing to monitor the writing of his advisees and basically supporting academic fraud. The report was
disseminated as a result of a very public plagiarism scandal at Ohio University. Mehta was one of two faculty
members alluded to in the report. The Dean further made a statement to the media, the faculty members
referenced in the report were relieved of their advising responsibilities because they had contributed to a culture
of academic dishonesty. This was one of two media releases that came after reporters interviewed OU officials
that both specifically named Mehta.
The lower Ct. dismissed the claims against OU, but the Ct. of App. reversed in part, indicating the statements
made our actual assertions of fact based on the totality of the circumstances. In other words, while Mehta may
have been a faculty member who oversaw some of the students who plagiarized, a reasonable person could
ascertain from the statements made that he contributed to the academic fraud. The Ct. of App. believes to be a
question for a jury and remanded it for consideration.

Significance of the Case: When a scandal of any magnitude hits college campuses, reporters as well as
internal inquiries about whats going on beleaguer administrators. The pressure to speak publicly and let all
parties know that the institution is taking proper action can, at times, cause administrators to deliver statements
that may be misconstrued or be overbroad. This speaks to the importance of utilizing professional media relations
Page 33


personnel to vet interviews, memorandums, or other statements, lest we find ourselves both personally and
professionally the subject of a jury's interpretation in a defamation claim and/or wrongful termination action.

RACE DISCRIMINATION

Rashdan v. Geissberger, No. Dist. California; 2011 U.S. Dist. LEXIS 126211, (January 12, 2011)
Facts & Holding: Rashdan was a dental student at the University of the Pacific. She was apparently
struggling academically, and was moved to an extended program were she continued to struggle. She eventually
submitted a request for a leave of absence from school that was accepted. She contends based on comments made
by Dr. Geissberger and the SAC that they conspired to ensure her academic failure. She sued under a variety of
claims, including Title VI of the Civil Rights Act, claiming they discriminated against her on the basis of her race
(she is Egyptian). The Ct. dismissed the claims.

Significance of the Case: While it appears that Rashdan was struggling academically and perhaps would not
have completed the program successfully, it did not help that Geissberger made comments such as, you're
practicing Third World dentistry. These are the type of comments that can draw the interest and the ire the
OCR. While free speech remains free and academic evaluation is certainly the purview of the faculty,
professionalism is critical in keeping the institution from having to defend claims such as this.

FACULTY HEARINGS

Mills v. Western Washington University, Sup. Ct. of Wash.; 170 Wn.2d 903; 246 P.3d 1254; 2011 Wash.
LEXIS 113, (February 3, 2011)
Facts & Holding: Mills was a tenured faculty member in the theater arts department at Western Washington
University for more than 20 years. His promotion to full professor was denied in large part due to a
recommendation against him from the chair of the department citing an extremely high student complaint rate.
Two years later, he was remanded for demeaning students and is told his behavior must change. Two more
years later several members of his faculty will address a letter the Dean of the College expressing their real and
tangible fear of him due to his carrying a firearm and large knife on campus and in the classroom and his rants
about killing people who offend (him). He is instructed to change his behavior but he does not, continuing to
berate both students and faculty (calling them bitch, bimbo, slut, retarded and making other
insulting/sexist/racist remarks and rants). It culminates in his telling a student who is undergoing chemotherapy
and is reticent to present her material to fellow students for peer review that not offering her work for review
would be just the same as dying from cancer.

He was suspended with pay in October 2004 pending an investigation. A hearing panel was convened per
University procedures and the presiding officer indicates that the hearing will be private. Mills, (and his lawyer)
argued that the hearing should be public. This request is denied and the newspaper reporter in attendance is
instructed to leave the hearing. The panel recommended that Mills be suspended without pay for two academic
quarters; he appealed, but the sanctions are affirmed. He sued the institution, claiming the closure of the hearing is
in violation of Washington state law requiring open hearings. The Ct. of App. agrees, but the Sup. Ct. of
Page 34


Washington reverses on the grounds that a faculty disciplinary hearing is a quasi-judicial proceeding of an
administrative agency, and thus not subject to the judicial hearing provision of Washington law.

Significance of the Case: It appears that, unlike Georgia and Ohio, Washington will continue to allow
colleges and universities the discretion to close their disciplinary hearing processes. It is also a reminder to
student conduct administrators to remember that, as important as our procedures and policies are, they are still an
administrative proceeding and not a criminal or civil court.

LAW ENFORCEMENT

Williams v. West Virginia University Board of Governors, No. Dist. W.Va.; 782 F. Supp. 2d 219; 2011 U.S.
Dist. LEXIS 20774 (March 2, 2011)

Facts & Holding: In October 2007, WVUPD was called to the student union because a man had stuffed a
bag under the table and that his mannerisms caused fear in some of the employees and the individual had
previously worked for WVU. Upon responding, it was determined that Williams was the man. He was
searched, but no contraband or weapons were found. He was issued a No Trespass Form by University police
that not only prohibited him from returning to the (student union), but also barred him from "all buildings in or
adjacent to West Va. University. He filed a claim, contending that the Trespass Form violates the Constitutions
the United States and West Virginia.

Specifically, that:
(1) WVU has no written policies that articulate guidelines or standards as to when to issue a Trespassing Form, as to the
type of conduct or behavior that justifies the issuance of a Trespassing Form, as to the scope of the area covered by the
Trespassing Form, or as to the duration of time that the Trespassing Form will be in effect;
(2) WVU provides no training to its officers on how or when to issue the Trespassing Forms, the area to be covered by the
Form, or the duration that the Trespassing Form is to remain in effect;
(3) At the time that Mr. Williams was issued a Trespassing Form, WVU issued the Trespassing Form to individuals without
any articulated procedure for the individual to contest the form or to appeal its issuance; and
(4) If there were notice of an appeal, that appeal procedure would not offer due process because there are no guidelines or
standards to guide the appellate officer in his decision.

WVU filed a motion for summary judgment, which was denied. The Trespassing Form was deemed
unconstitutional, primarily because the standards for issuance were not only arbitrary, but nonexistent.

Significance of the Case: It is not uncommon for colleges and universities to issue these types of forms via their
law-enforcement and/or their security force. Additionally, public institution student conduct officers sometimes
issue persona non grata letters to nonstudents, prohibiting them from campus property or events. This case
serves as notice to all public institutions (and some private) to institute measures, policies, and training on when
these forms and letters will be issued and delivered, and what the appellate process might look like. (WVU has
since modified its policies, procedures, and training in the issuance of these forms.)
Page 35


Franks v. Temple University, Eastern Div. of Penn.; 2011 U.S. Dist. LEXIS 44712, (April 26, 2011)
Facts & Holding: After a shooting near Temple University, Temple police officers were told by witnesses to
be on the lookout for a man in a green sweat suit. An officer spotted Franks, who was wearing a green sweat suit,
and detained him. Franks explained that he just left a sporting goods store (a time stamped receipt and video will
confirm this later), but Temple police will turn Franks over to Philadelphia PD and he will be arrested. Franks, a
high school student, will miss both his senior prom and graduation as a result of this arrest. He subsequently will
sue under the 1st and 14th amendments and 1983. Temple filed a motion to dismiss, which was granted.

Significance of the Case: The significance of this case lies in the pleading by Franks that Temple PD failed
to investigate his alibi thoroughly and knowingly provided false information prior to arresting him and/or while
handing him over to Philadelphia PD. Franks claimed that these actions were done by the Temple PD officers at
the direction of a Temple supervisor, thus exposing Temple to a 1983 claim. The Ct. agreed that Temple PD is a
municipality, and subject to 1983, but there does not appear to be a Temple policy or custom that supported
his claims.

Armbruster v. Cavanaugh, U.S. Ct. of App., 3
rd
Cir.; 410 Fed. Appx. 564; 2011 U.S. App. LEXIS 2356,
(February 4, 2011)
Facts & Holding: Armbruster is an officer with the Kutztown University Police Department. During a
demonstration by a group known as Repent America a significant counterdemonstration ensued. Students
contacted University personnel and the KUPD Chief and the KU President came to the scene. Armbruster was
instructed to push the Repent America demonstrators away. He believed the demonstrators not to be disorderly,
and voiced his objection to the order. He indicated that he feared that obeying the order would subject him to
personal liability for violating their civil rights. He was relieved of his duties, placed on paid administrative leave,
subjected to disciplinary hearing, and ultimately suspended without pay for 5 days. He was instructed that failure
to follow a similar order in the future might result in his termination. He alleged that since the hearing he has been
retaliated against through poor reviews, etc.

He brought suit against KU and the administrators under the 1
st
Amendment, 1983, and his right to disobey an
unconstitutional order. The lower Ct. dismissed the claims against KU and the administrators, and the Ct. of App.
affirmed. Of note was that a purported right to refuse to violate others' constitutional rights had not been
recognized. Also, the Ct. noted that he had other remedies through employment grievance procedures.

Significance of the Case: Given the rise of the Occupy movements in the increasingly heated tenor that
always accompanies an election year, one can imagine these types of situations are going to arise more and more.
Institutions would be wise to cover with law enforcement, security, and upper-level administrators the importance
of following institutional policy and procedure in maintaining a safe and orderly campus. Working through
examples like this case would likely be a good idea to allow the voicing of any issues that law enforcement or
other employees may have, as well as to establish appropriate expectations.

State v. Yencer, N.Carolina Sup. Ct.; 2011 N.C. LEXIS 902 (November 10, 2011)
Facts & Holding: Yencer was arrested for DWI and reckless driving by the Davidson College (a private,
religiously affiliated institution) Police Department. She sued, claiming that a private religiously affiliated
Page 36


colleges Police Department, created under the Campus Police Act grant an unconstitutional delegation of power
to a religious institution. The Ct. of App. agreed, but the North Carolina Sup. Ct. reversed, finding the primary
purpose of Davidson College to be a secular education not religious in nature using the Lemon test, noting
Because the campus police agency benefited the college's secular rather than religious activities, the statute did
not give rise to excessive entanglement or have the primary effect of advancing or inhibiting religion.

Significance of the Case: This case is more of a challenge to the Campus Police Act of North Carolina then to
any application of the Lemon test. Religiously affiliated institutions that choose to have sworn police officers and
have state laws that allow them to do so will still be permitted to continue.

UNRULY GATHERING CHALLENGE

URI Student Senate v. Town of Narragansett, U.S. Ct. of App., 1
st
Cir.; 631 F.3d 1; 2011 U.S. App. LEXIS
141 (January 5, 2011)
Facts & Holding: Narragansett, a sleepy seaside community in southern Rhode Island, boasts some of the
most beautiful beaches on the eastern seaboard enjoys the benefit of proximity to URI that allows its rental
properties to remain full even after the summer season. However, the town gown relationship appears to be
challenged by the sheer mass of exuberant young people and their predilections. As such, the Town passed an
ordinance authorizing officers to post a bright orange sticker 10" x 14" at the front entrance of any house where
they have added to respond to an unruly gathering. Additionally the ordinance allows them to contact the owner,
and to hold both the owners and the residents jointly and severally liable for any future violations. The Student
Senate at URI brought a statutory challenge to the ordinance, under the theory that it did not allow the tenants the
right to resolve any alleged breach of the lease prior to eviction. The lower Ct. and the Ct. of App. both rejected
this challenge.

Significance of the Case:
This appears to be an interesting solution to an altogether too common problem. One has to assume that the
communication between the town and the university is lacking, and that perhaps some exercise of off-campus
jurisdiction for excessive disruptive or disruptive behavior might have provided an alternative to this ordinance.
The Ct.s noting of the color of the sticker and drawing a footnote comparison to the Scarlet letter is, if nothing
else, entertaining. The record does not explain why the color orange was selected. Thus, like Nathaniel
Hawthorne reflecting on a similar conundrum, one wonders if there is "some deep meaning in it, most worthy of
interpretation, and which, as it were, streamed forth from the mystic symbol, subtly communicating itself to
[one's] sensibilities, but evading the analysis of [one's] mind." Nathaniel Hawthorne, The Scarlet Letter, intro.
(1850). in the end, however, the choice of hue, though perplexing, is not relevant to the issues on appeal.

FERPA

Chicago Tribune Co. v University of Illinois Board of Trustees, U.S. Ct. of App., 7
th
Cir.; 781 F. Supp. 2d 672;
2011 U.S. Dist. LEXIS 33440; (July 14, 2011)
Facts & Holding: The Chicago Tribune, seeking information on admissions practices as they relate to
influential people, submitted a request for release of records relating to admission practices at the University of
Illinois under the Illinois Freedom of Information Act (FOIA), but the University denied the request, citing
Page 37


FERPA. The Ct. concluded that FERPA did not specifically prohibit Illinois from doing anything, so the
University could not use the federal law as authority to withhold the records.

Significance of the Case: The Ct. in this case, citing a Miami University case from the 6th Circ., noted that
only those institutions that want to accept federal funds have to abide by FERPA. The implication, of course,
being that an institution could choose to cease accepting federal funds, and therefore be free of the binds of
FERPA. It is noteworthy that the Ct. did point the University of Illinois to other provisions of the Freedom of
Information Act for potential reasons to withhold information.

Phoenix Newspapers v. Pima Community College, Ariz. Sup. Ct., Case No. C20111954, (May 23 2011)
Facts & Holding: After the tragic shootings in Tucson, Phoenix Newspapers filed a FOIA request for all e-
mails related to the shooter. PCC refuse to comply, claiming that all the records maintained on any PCC server are
maintained by the institution and thus subject to FERPA. The Ct. disagreed, indicating documents are not
maintained by an educational institution under FERPA unless the institution has control over the access and
retention of the record. Additionally, the Ct. noted, Simply because e-mails exist on a central server and in
inboxes at some point does not classify those documents as education records. These findings are consistent with
the Sup. Ct. decision in Owasso v. Falvo.

Significance of the Case: The implications of this case should not be surprising to student conduct or BIT
professionals. Only the records, e-mails, and notes kept in the students actual file will be considered education
records and subject to FERPA. Thus, educating faculty and staff about the discretion they should utilize when
discussing students in relation to student conduct matters and BIT matters is important, especially after any high-
profile incident or tragedy occurs. The e-mails released to the media by PCC, though timid when viewed through
the lens of the student conduct professional, were nonetheless sensationalized by the media as some sort of
notice. This is an important lesson.

ON THE RADAR:
U.S. Dept. of Ed. found several universities in violation of the Clery Act and imposed fines (punishment for
some still pending): Institutions included: the University of Vermont for inaccurate reporting of crime stats,
particularly anonymous reports of sex offenses; deficient crime logs; insufficient sexual assault policies;
insufficient information regarding timely warning; failure to distribute campus security reports. Washington
State University was fined $82,500 for alleged violation of the Clery Act. In the letter to the University, the
Department of Education claims that the university failed to properly compile and report two forcible sex crimes
and that the universitys campus security reports omitted required policy statements. The Department of
Education also found Virginia Tech failed to comply with Clery timely warning requirements in the 2007
shooting on the campus. The university was fined $55,000.00. The University is currently appealing this
decision. Finally, the Department found the University of Northern Iowa provided inaccurate reporting of
campus crime statistics, insufficient information regarding timely warning in safety crises, insufficient
sexual assault policies, and failure to distribute campus safety reports, including crime statistics, in
accordance with federal regulations.

Page 38


Yale law and ACLU assessing website blocking of BLBT sites: Yale and ACLU have teamed us to launch a new
initiative called Dont Filter Me! to assess whether schools illegally block GLBT websites. The ACLA states
that blocking sites can deny bullied GLBT individuals access to safety resources.

Rutgers University student involved in Tyler Clementi web stream video indicted for bias crimes: Dharun Davi,
the roommate of Tyler Clementi, who secretly videotaped Clementi in a romantic encounter, then streamed the
video on line, has been indicted on 15 charges of bias intimidation and invasion of privacy. He faces 5-10 years
in jail if convicted.

Ohio University approves test of coed dorm rooms: Beginning in the fall of 2012 Ohio University will allow
men and women to live together in select dorm rooms. The school will offer this option as a test for a year then
will evaluate about continuing this practice.

St. Johns University drops student for a 10 year old LSD charge: David Powers, who ranked third in his law
school class, was removed from school after they learned that he was convicted for selling LSD a decade ago.
Powers, who had taken a 2-year, leave of absence to manage an investment fund for a major accounting firm in
Hong Kong. The student stated that he noted on his application that he had a drug conviction and the school did
not ask additional information about the details of the conviction, and, in fact, gave him a $20,000.00 scholarship.

Many colleges and universities are subject to federal financial aid scams: Hundreds of schools across the
country have fallen victim to on-line federal financial aid scams (referred to as Pell Runners). There are several
variations of this scam, but generally large rings of individuals solicit people to sign up for on-line courses,
submit financial aid requests, then drop the course and keep the money. In other cases, the scam rings steal
peoples identity and use that information to scam the federal financial aid.

University of Southern Illinois student found guilty by jury for threatening a murderous rampage: Olutosin
Oduwole was convicted of communicating a terroristic threat and illegal gun possession. Oduwoles defense was
that he was an aspiring song writer and had written gangster rap music lyrics. The content of his writing consisted
of his desire, based on a murderous rage, to engage in a shooting at a large university, similar to Virginia Tech,
unless $50,000.00 was paid to his Paypal account. He also had a loaded firearm in his apartment, and had ordered
four more guns.

University of North Carolina at Chapel Hill ordered to release athletic department materials: A North Carolina
state court judge ruled that phone records of university athletic department officials and parking tickets given to
student athletes are not protected from disclosure by FERPA. The judge ordered those records to be released as
requested by the student newspaper.

Florida State loses open records suit: The Associated Press sought records related to the NCAA fining the
university for school officials violation of NCAA rules and giving preferential treatment to athletes. When the
university would not turn over the related records, citing FERPA privacy, the AP sued and prevailed. The
university appealed the case to the state Sup. Ct.. The Ct. decided not to hear the case, thus letting the lower Ct.
decision stand.

Page 39


Illinois Judge requires University of Illinois to release records protected by FERPA: A federal judge has ruled
that FERPA does not prohibit the University from turning over the names and education records of applicants to
the Chicago Tribune. The Trib sought information about hundreds of applicants, including personally identifying
information, as a part of their series of stories examining political influence on the admissions process. The
school refused to provide the information, citing FERPA protections. Although the judge acknowledged the
language of the law, he said that the university could choose not to accept federal financial aid and thus relinquish
their obligations under FERPA.

University of Florida Student Senate meetings not protected by FERPA: A state court judge ordered the release
of video recordings of U.F. Student Senate meetings, determining they were not protected by FERPA. The judge
stated that although the proceedings relate generally to topics of importance to students and may identify specific
students that are not the focus of the record. The judge also found it inconsistent that the meetings themselves
were open to the public, yet the recordings of the meetings were confidential.

University of Iowa refuses to release records related to sexual assault: The Iowa Sup. Ct. will decide whether
FERPA prevents the release of records that the university has related to a 2007 sexual assault. The Iowa City
Press-Citizen requested records related to sexual assaults on campus beginning in October 2007. The request did
not specify a particular incident. The university withheld over 3,000 pages of documents stating they were
protected by FERPA. A lower court judge ordered the release of some of the documents, with some redactions.
The judge also ordered the university to pay the newspaper $30,500.00 in attorney fees.

North Carolina community colleges establish rule for refusing admission: The North Carolina community
college board created a rule that allows the schools to refuse admission to students that campus officials consider
poses an imminent and significant threat. Although there are concerns expressed about this impacting people with
mental and physical disabilities, the board stated that this cha an attempt to balance campus safety with the open
door policy of the two-year schools in the state.

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Year in Review: Legal Issues Update 2011 CASES

William M. Fischer, J.D.

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