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Stephanie Lott How to Stay Out of Court:
Orientation and Housing & Residence Life Orientation:
How to Stay Out of Court Housing & Residence Life Robin Hume
Cady Denton ADA (Americans with Disabilities Act of 1990)
What is the ADA?
-Passed by Congress in 1990, the Americans with Disabilities Act (ADA) is the nation's first comprehensive civil rights law addressing the needs of people with disabilities, prohibiting discrimination in employment, public services, public accommodations, and telecommunications. (EEOC, n.d.) Orientation - ADA Compliance How to Stay Out of Court
Ensure that all buildings used for the orientation activities meet the ADA guidelines for accessibility for individuals with disabilities.
If possible, speak with individuals with disabilities who have been a part of an orientation day at your institution to learn how to better accommodate future students with disabilities.
Provide accommodations, also known as auxiliary aids and services, (e.g., qualified sign language interpreters, note takers, readers, captionists, braille and large print materials, adaptive equipment , and additional time for tests) for students with disabilities if necessary (NETAC, 1999).
Do not charge students with disabilities money for reasonable accommodations. Orientation - ADA Compliance ...Cont'd Some orientation programs, especially programs like WKU’s M.A.S.T.E.R. Plan, require participation from students in activities that may be considered risky from a liability aspect.
According to the European College for Higher Education’s guide entitled Health and Safety during Field Trips, Visits and other Outside Activities, the ratio of staff to students should be no less than “1:15 for the high risk activities, for learners above the age of 18”.
This same document discussed the importance of group leaders completing a risk assessment form before they will be allowed to work with the students.
A “no-alcohol policy”, similar to the one from Stanford University, can be adopted by a college or university for their new student orientation programs. Here is the link to Stanford’s policy: http://www.stanford.edu/group/aab/ruleslaw.html#nso
It is important for all orientation leaders to be aware of emergency procedures. I believe a medical emergency would be the most likely situation that one might encounter in an orientation setting.
Other emergency procedures that orientation leaders, or any leader for that matter, need to be aware of are related to building fires, weather-related dangers, bomb threats, violence, etc. Orientation - Risk Management Sam Earls
Stephanie Lott Orientation - Risk Management... Cont'd How To Stay Out of Court
Ratio of staff to students should be relatively low.
Complete some type of risk assessment of proposed activities before students arrive.
Consider enacting some type of policy to reduce the chances of an underage student being served alcohol. (Reference case at University of Texas at Austin- http://www.courthousenews.com/2012/07/18/48479.htm)
Familiarize yourself with all emergency procedures, particularly a medical emergency. Orientation- Covering Your Bases Student handbooks should be available either online or through a printed copy for all students.
If appropriate, an abbreviated version of the student handbook could be discussed during the orientation program. Common legal issues like sexual harassment, safety on campus, etc., should be mentioned at some point so that the students won’t be able to say “no one ever told me that."
Clery Act (originally known as the Campus Security Act)- Higher education institutions in the U.S. must disclose crimes that occur in or around their campuses. Orientation may be a good time to share this information or at least share a hand-out about or link to this information. Orientation - Covering Your Bases... Cont'd How to Stay Out of Court
Ensure all students have access to student handbook
Briefly discuss common legal issues (sexual harassment, campus safety) during orientation. Orientation - Final Tip Quote from NODA (National Orientation Directors Association) listserv-
“If you have your own campus policies, follow them and then you can be supported by your legal counsel. Make an exception to your policy and expect to receive a letter from a lawyer” (Sullins, 2012). What is FERPA? The Family Educational Rights and Privacy Act
"...is a federal law that protects the privacy of student education records. FERPA, signed into law in 1974, applies to all schools that receive funds under an applicable program of the U.S. Department of Education, including institutions of higher education.”
“FERPA grants three primary rights to parents and eligible students:
I. Right to Inspect and Review/Right to Access Education Records
II. Right to Challenge the Content of Education Records
II. Right to Consent to the Disclosure of Education Records"
"Rights under FERPA rest with parents until the student reaches age 18. Once a student (of any age) enrolls at an institute of higher education, these rights transfer to the student (§ 99.3 and 99.5). Students who hold these rights are called ‘eligible students’” (Higher Education Center, n.d.). FERPA & Orientation Orientation: A time to educate!
As new students and their parents attend orientation events (summer welcome sessions, ATP), student affairs professionals should take advantage of these opportunities to educate students about their rights as noted in FERPA.
Students should know when/to which “parties” or under what conditions their information may be released without permission (Higher Education Center, n.d.).
Students should also be aware that they can sign a “release” of their rights to their parent(s) – or take those rights away – whenever they choose.
Most “FERPA Waivers” are submitted through the office of the registrar. FERPA & Orientation... Cont'd SA professionals (orientation leaders) should also know the implications of FERPA:
Orientation leaders may handle student information protected under FERPA.
Orientation leaders often field parent visits, e-mails, and phone calls.
There are several things orientation leaders and other SA professionals should remember so that a student’s rights will not be violated. How to Avoid FERPA Violations Do not release “directory” information (as defined by your institution).
Do not release a student’s information to anyone but the student unless they meet the criteria in FERPA’s guidelines.
Do not release information that could be easily traced back to a particular student.
Do not allow access to your computer or places where confidential documents are stored.
This includes sharing passwords, leaving your monitor in plain view, or leaving a computer unlocked or unattended.
Be mindful of phone and e-mail conversations.
Destroy confidential documents when no longer needed.
Do not provide anyone with student schedules or assist anyone other than university employees
in finding a student on campus.
(Northwestern Indian College, 2010) Training Orientation efforts are carried out by:
Fellow staff members
Many orientation departments employ student leaders to assist in orientation efforts.
Potential legal considerations can be combatted by thorough training.
As part of the NODA Statement of Ethical Standards (2009), it is good practice to make sure student leaders assisting with orientation are properly trained. Training Student Staff Risk Management
Adherence to policy
Student leaders assisting with orientation – especially in the registration process – may know a student's academic standing, schedule, test scores, etc., and should be familiar with the student’s rights under FERPA.
Providing correct information
Student leaders are acting as agents of the department and the university.
Should be generally knowledgeable about the institution.
Should refer students/parents if one does not possess correct information.
Supervisors should maintain a clear channel of communication with student leaders.
Resolve conflict before it escalates
Things that may “slip through the cracks” of poor communication can potentially cause future litigation! HIPAA & FERPA While assisting incoming students, orientation leaders may also indirectly or directly handle vaccination records or other medical information.
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
Provides more effective standards of privacy and security regarding a patient’s identifiable health information.
Vaccination records, medical information, etc. – even those maintained by a functional health clinic on campus – are referred to under FERPA’s broad “educational record” category or as a “treatment record.”
HIPAA, contrary to assumption, is often overridden by FERPA and is subject to the same exceptions.
Any non-student who is treated would, however, be protected by HIPAA.
(U.S. DOHSS & U.S. DOE, 2008) Orientation: Freedom of Speech Orientation: Freedom of Speech... Cont'd Permit/Reserve Space
Common to resource/involvement fairs
Must limit only due to space/safety/similar concerns
Policies should make clear when/under what circumstances permits will be denied
Specify that permits will not be denied based on the content of proposed speech.
Good practice: Provide an explanation/review if a group is denied permission to participate.
Length of advance notice should be reasonable
(OFFICE OF GENERAL COUNSEL THE CALIFORNIA STATE UNIVERSITY, 2009) Orientation: Freedom of Speech... Cont'd Who can participate?
Recognized student organizations
How do student affairs professionals handle allowing unrecognized student groups that wish to participate in orientation activities?
Do not be guilty of discrimination
Be firm in your policies Orientation: Freedom of Speech... Cont'd What can be featured?
A recognized student organization puts information on display that is offensive to some parents and students. Are they in violation?
Captive audience doctrine
Tinker v. Des Moines (censoring armbands)
The “Miller test” – Miller v. California (the first amendment does not necessarily protect obscene speech) Orientation: Freedom of Speech... Cont'd What can be featured? (continued)
Reminder of unprotected speech:
Causes clear and present danger
Incites riot or violence
Is false/misleading and damaging
Is obscene (“Miller test”)
Conflicts with governmental/societal interests (e.g. national security)
Interferes in time/place/method of communication (regardless of content)
(“Limits of Freedom of Speech,” n.d.)
Students should not shed their rights at the involvement fair; SA professionals should be sure to not use their authority to censor free speech. Involvement fairs are a great channel to broadcast what campus has to offer during orientation.
When involving the campus community, can we limit what they do, what they say, or who can show up?
“Recognized” student organizations
What is displayed during public involvement fairs Sources - Orientation Higher Education Center for Alcohol, Drug Abuse, and Violence Prevention. (n.d.). The Family Educational Rights and Privacy Act (FERPA). Retrieved from http://www.higheredcenter.org/mandates/ferpa.
Limits of Freedom of Speech. (n.d.). Retrieved from http://www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/L04-LimitsFreedomSpeech.htm.
Northwestern Indian College. (2010). How to avoid FERPA violations [PDF]. Retrieved from http://blogs.nwic.edu/faculty/files/2010/04/FERPA-Violations-rev-How-To-Avoid.pdf.
United States Department of Health and Human Services & United States Department of Education. (2008). Joint guidance on the application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to student health records [PDF]. Retrieved from http://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hippa-guidance.pdf.
Miller v. California, 413 U.S. 15 (1973)
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
Image Credit: (Georgia Perimeter College, 2011)
http://www.gpc.edImage Credit: (Silvers, Langsam & Weitzman, P.C., 2011)
Image Credit: (OSHA, 2011)
Image Credit: (Silvers, Langsam & Weitzman, P.C., 2011)
http://blog.myphillylawyer.com/2010/03/10/need-a-lawyer-here-are-some-helpful-hints-about-how-to-select-the-right-one/ Minors On Campus - Liability Typical factors to be considered when discussing liability for minors:
Inherent dangerousness of the activity at hand
Age and skill level of those participating
Maturity and number of children involved
Dangerousness of the surroundings and whether adequate measures have been taken to ensure the safety of the premises and equipment used
Whether the children have special needs
Whether the activity is supervised by staff appropriate to the number, age, and skill of participants Minors On Campus - Residence Halls Conduct a premises safety risk assessment keeping in mind safety issues for the age group that will be staying in the residence hall if not a typical college cohort.
Review window openings, accessibility of locks on windows and doors, safety of room fixtures/furniture for minors, stairs and stairwells, automatic closing doors.
Consider limiting access in the residence hall to a specific wing and ground floor only.
If children are in a range of ages, group them by age; keep the groups separate. HRL: Training Your Staff Standard of Care (minors) The standard of care that the defendant must exercise towards the plaintiff is that of the reasonable, ordinary and prudent person in the same or similar circumstances.
A minor requires a different standard of care than that of an adult under the same circumstances.
The Level of Risk: Events or activities that have higher levels of risk.
Innkeeper & Guest Relationship What is Risk Management? A well-documented process that includes analyzing risk, planning for management of risk, creation of a detailed risk management plan, a successful and thorough implementation of the plan, and an after-action review. Risk Categories Physical
Facilities The Contact Dimension (Torts) A tort is a civil wrong other than the breach of contract for which the courts provide a remedy.
There are four common law duties that exist under the overall duty of care:
To maintain equipment and property
To warn of impending danger Housing & Residence Life Risk Management What is a minor?
Any person under the age of 18 (except NY, NH, NC, TX --17)
Is the minor accompanied by the legal guardian?
Yes - minor and adult may use their valid IDs to check in
No - minor may not check in at all
How long will the minor be in the building?
Most hall directors only allow minors to visit for a few hours
Visitation roster should note that a minor entered the building
Minors as Overnight Guests
No minors may stay overnight in any residence hall HRL - Disciplinary Process HRL - Disciplinary Process
How to Act According to the General Order:
explain the judicial system of the university (judicial vs criminal system)
explain why the university has a judicial system
high school principal vs. hall director
make sure the sanction fits the action(s) of the student(s)
inform the student of his/her rights to appeal and on what grounds:
1. To determine whether the original conference was conducted fairly and in accordance with the Office of Judicial Affairs sanction determination and procedures.
2. To determine whether the decision reached regarding the accused student was based on substantial information to determine the preponderance of evidence and/or the level of responsibility.
3. To determine whether any sanctions imposed were appropriate and not unduly harsh for the violation(s) set forth in the Student Code of Conduct. HRL - Due Process 14th Amendment: ..."nor shall any state deprive any person of life, liberty, or property, without due process of law
Due Process is a fundamental principle of justice that involves providing protections to minimize the erroneous deprivation of life, liberty, or property interests
the amount of process that is due is contingent upon the level of deprivation that may occur
two types or categories of due process protections: 1.) procedural, 2.) substantive
notice and hearing
reasonable, factual basis for finding any sanction differential
notice of rules and rule changes (M.A.S.T.E.R. Plan/Hilltopics/15-minute check-in rule)
no overly broad and vague rule construction
rules can't be applied in an arbitrary or capricious manner HRL - Due Process Dixon v. Alabama State Board of Education, 294 F. 2d 150 (5th Cir. 1961).
--Established that students shall, prior to suspension or expulsion, be afforded due process rights to include: notice of specific charges, an opportunity to be heard, names of witnesses, oral or written report of the facts to which each witness testifies, and an opportunity to present a defense.
Goss v. Lopez, 419 U.S. 565 (1975).
--Due process requires ... that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version
Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (CA8 1969) cert. denied, 398 U.S. 965 (1970).
--"We . . . hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power to properly discipline; that it has power appropriately to protect itself and its property; that it may expect that its students adhere to generally accepted standards of conduct." Minors On Campus - Admissions Visits Minors are regularly on campus for recruitment, visit weekends for accepted students, and orientation before matriculation
Ensure that minors receive a copy of the applicable conduct code
Appropriate behavior with visiting students (Drinking, Hazing)
If visiting minors are staying on campus, ensure that minors are given adequate information about rules and precautions to increase personal safety (Locking/propping doors, fire safety, campus security)
Provide adequate supervision based on the age and experience of the visitors
Knowing how to report inappropriate behavior "The discipline of students in the educational community is, in all but the case of irrevocable expulsion for misconduct, a part of the teaching process. In the case of irrevocable expulsion for misconduct, the process is not punitive or deterrent in the criminal law sense, but the process is rather the determination that the student is unqualified to continue as a member of the educational community." "In the field of discipline, scholastic, and behavioral, an institution may establish any standards reasonably relevant to the lawful missions, processes, and functions of the institution. Standards so established may apply to student behavior on and off campus when relevant to any lawful mission, process, or function of the institution." The General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline, 45 F.R.D. 133 Minors On Campus - Athletic Camps Consider abilities of the minors involved
Review with your risk management office whether adequate insurance is in place for the scope of planned camps or activities. HRL - Freedom of Speech "Healy v. James (1972) makes it cleart that the mere dissemination of ideas - no matter how offensive to good taste - on a state university campus may not be shut off in the name alone of conventions of decency."
From the Supreme Court Case Papish v. Board of Curators of University of Missouri, 1973"
"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and -as it did here- inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
-Chief Justice Roberts, Supreme Court Case: Snyder vs. Phelps, 131 S. Ct. 1207, 1220 (2011). HRL - Freedom of Speech... Cont'd Do Not:
erase a student's white board on his/her room door
ask a student to change clothing based on hurtful/harmful words/images
take anything off a student's door because it seems in poor taste (porn, vulgar language, disturbing photos, etc.)
have an educational conversation about the implications of his/her words/actions
encourage a civil, safe living/learning environment (community standards)
educate your staff to have appropriate conversations with residents about their choices
educate other residents who might be offended with conversational tools to address behavior they might disagree with and prepare them for various responses HRL - Public Space Widmar v. Vincent (1981)
Equal access policy: all groups have the opportunity to use buildings or grounds
Non-traditional public forum space
We don't reserve our public space in the residence halls (Crazy preacher guy)
Open the door for one, open the door for all HRL - Qualified Immunity Qualified immunity balances two important interests:
the need to hold public officials accountable when they exercise power irresponsibly
the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.
Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.
Definition take from website: http://www.law.cornell.edu/wex/qualified_immunity HRL - Immunity Three Ways to Lose Immunity: HRL - Negligence & Foreseeability Negligence is the failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.
Negligence occurs when a court determines that four conditions have been met. There must be a duty, a breach of that duty, an injury, and linkage between the breach and the injury.
Colleges and Universities are expected to provide reasonable care to prevent foreseeable harm. HRL - Foreseeability The facility to perceive, know in advance, or reasonably anticipate that damage or injury will probably ensue from acts or omissions.
In the law of negligence, the foreseeability is established by proof that the actor, as a person of ordinary intelligence and circumspection, should reasonably have foreseen that his or her negligent act would imperil others, whether by the event that transpired or some similar occurrence, and regardless of what the actor surmised, would happen in regard to the actual event or the manner of causation of injuries. HRL - Due Diligence (FWR) Due Diligence is a term used to describe the action or inaction of administrators in meeting their duty to provide reasonable care.
Due Diligence is the care that a reasonable person exercises to avoid harm to the other person or their property.
Weekly Facility Reports
Mullins v. Pine Manor College (1983)
Information on Renters Insurance HRL - Minger Act What is the Michael H. Minger Act? violating clearly established law
operating outside the role of employment
operating outside of scope of employment What Does the Minger Act Require? Crime Logs
Reporting of Fire incidents
Submission of Campus Safety and Security Polices
Duty to request outside agency's crime reports and stats
Duty to notify students of an automatic fire suppression system
Students who are disabled and priority for first-floor housing
– notification to safety and emergency personnel Minger Act - What Does the Language Mean? Minger Act - What Does the Language Mean?... “(3) "Crime" means murder, manslaughter, reckless homicide, assault, menacing, wanton endangerment, terroristic threatening, stalking, forcible or nonforcible sex offenses, burglary, criminal damage to property, arson, theft, motor vehicle theft, robbery, weapons possession, and criminal attempt for any of the aforementioned crimes, and arrests for drug-related violations and liquor law violations.
(4) "Immediately" means before the last fire unit has left the scene in order for the fire marshal's office to have the opportunity to speak with fire unit personnel before they leave the scene, but no later than two (2) hours following the time the fire or threat of fire is discovered. In the event of a minor fire to which the local fire officials are not called or do not respond, "immediately" means no later than one (1) hour following the discovery of the fire.
(5) "Postsecondary education institution" means any Kentucky public four (4) year institution or two (2) year community college or technical college that grants a postsecondary education credential, and any private college or university that is licensed by the Council on Postsecondary Education under KRS 164.945 to 164.947.” Minger Act: What if You Violate the Law? Fines
Civil Penalties How to Report... Minger Act - Video HRL - How to Cover Your Bases Understand the "legal waters" in which higher education and particularly student conduct offices navigate
Understand risk management strategies
Understand best practices for risk management (organizational & individual) On September 18, 1998 Michael Minger was burned and killed in an arson fire in his residence hall room at Murray State University.
The Minger Act was passed on July 14, 2000, and revisions were made in July 12, 2004, that dealt with fire safety in housing and residence life.
The Minger Act is a Kentucky State law that requires public universities and private institutions that are licensed by the Kentucky Council on Postsecondary Education (CPE) to report various crimes and fires to the university/institution population. “As used in KRS 164.9481, 164.9483, and 164.9485, unless the context requires otherwise:
(1) "Campus" means all property owned, managed, or controlled by an institution of postsecondary education including but not limited to academic buildings; student housing and recreational facilities; residential facilities operated by any officially recognized student organization; all sections of public property such as streets, sidewalks, and parking facilities immediately contiguous to campus buildings; and remote facilities leased for use as classroom space or student living.
(2) "Campus security authority" means campus police, security officers, and any official at a postsecondary education institution who has significant responsibility for student and campus activities, including student discipline, student housing, student judicial affairs, and student life administration. Professional mental health, pastoral, and other licensed counselors when functioning in that capacity are not considered campus security authorities.” HRL:
Cover Your Bases HRL - Risk Matrix Extreme - May Result in Death
Major - May cause severe injury, major property damage, significant financial loss, and/or result in negative publicity for the organization and/or institution
Moderate/Minor - May cause minor injury, illness, property damage, financial loss and/or could result in negative publicity for the organization and/or institution
Trivial - Hazard presents a minimal threat to safety, health, and well-being of participants Probability That Something Will Go Wrong... A -- Very Likely to occur immediately or in a short period of time, expected to occur frequently
B -- Likely/Moderately Likely to occur in time (multiple times at that)
C -- Unlikely to occur in time (but could be a one time episode)
D -- Rare (almost certain this would not occur) HRL - Assessing Risk A planning matrix helps you visualize and prioritize so you can develop plans for mitigating risks. Severity of Consequences Final Tips for Staying Out of Court - HRL Documentation & Tips Sources - HRL Parrott, David. Risk Management And Legal Issues In Higher Education [PowerPoint Slides]. Hard Copy retrieved from Western Kentucky University Housing and Residence Life Professional Staff Training Fall 2012.
Kaplin, William & Lee, A. The Law Of Higher Education. 4th Edition. 2007.
Dixon v. Alabama State Board of Education, 294 F. 2d 150 (5th Cir. 1961).
Goss v. Lopez, 419 U.S. 565 (1975).
Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (CA8 1969) cert. denied, 398 U.S. 965 (1970).
The General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline, 45 F.R.D. 133
YouTube Video: Michael H. Minger Act
All images were obtained from Google
http://en.wikipedia.org/wiki/Minor_%28law%29 Open Door Policy
Minutes of Meetings
Copy of Training Materials
Phone call logs Minors - Consent for Medical Treatment When minors are participating in events on campus, a valid consent for medical treatment/emergency care should be required.
Essential elements include:
Child’s full name, date of birth and address
Full names of parents/guardians
Dates of event for which the medical release is granted
Permission to obtain professional emergency medical treatment for child
Health insurance information. Minors - How to Cover Your Bases Evidence that a plaintiff assumed a risk in an activity may be found in the releases, waivers, authorizations and consent forms that an institution requires adult participants or the parents/guardians of minors to sign.
Carefully drafting these documents and having systems in place to ensure all forms are collected and checked for appropriate signature and the date before a person – adult or minor – may participate in activities HRL - 4th Amendment & Student Rights WKU’s policy - Searching a Student's Room:
First Tuesday of every month (Smoke detector/safety checks)
10 a.m.- 10 p.m. (Plain sight)
4 Entry times per year (Advertised)
Need Permission from a Leadership Team member
(Director and Assistant Directors of HRL-6) Minors - Capacity to Contract “As a general rule, minors do not have legal capacity to enter into contracts, to give consent, or to sign waivers and liability releases. All legal documents must be signed by the minor’s parent or legal guardian.” Fine Tune Your Documents...