Current Legal Topics in Higher Education, including Title IX and Campus SaVE

1. Current Legal Topics in Higher Education, including Title IX and Campus SaVE August 5, 2016 Sarah O. Edwards Associate General Counsel

2. Current Legal Issues for New Administrators Introduction Classroom Control/Disruptive Behaviors Promotion and Tenure Collegiality ADA (Americans with Disabilities Act) Questions

3. Office of Legal Affairs Our client is UNC Charlotte - we represent the legal interests of the institution. We are your attorneys in your professional capacity. http://legal.uncc.edu We like to answer questions (preferably as far in advance as possible)

4. Classroom Control Legal Standard of Review for Classroom Policies – Rational Basis Test Enforceable? “Yes, if…” or “No, unless” the policy: allows different treatment for a particular student as a reasonable accommodation of a disability or religious belief is "rationally related" to an educational purpose is not "arbitrary and capricious" (in other words, it is imposed consistently by the instructor) is not imposed maliciously is not created, or applied, on the basis of a protected class

5. Classroom Control Examples of enforceable classroom policy subject matter: Technology-based restrictions Cell phones Text messaging Use of laptop computers/tablets Use of recording devices Food and drink Noise/conversations Late arrivals/early departures

6. Disruptive Behaviors Faculty members have the primary responsibility for controlling disruptive classroom behavior. Disruptive behaviors can include: Harassment of students or faculty Repeated outbursts that disrupt the flow of instruction or prevent concentration on the subject taught Failure to cooperate in maintaining classroom decorum Repeated or severe violations of classroom or university policy

7. Disruptive Behaviors Disruptive behaviors should be addressed as they occur: Consider first cautioning the entire class rather than warning a particular student. If the behavior is irritating, but not disruptive, try speaking with the student after class. In rare circumstances when necessary to speak to a student during class, do so in a firm, friendly manner, and say that further discussion can occur after class. If necessary, remind the student that continued disruption may result in removal from the class.

8. Student Academic Freedom AAUP Statement on Student Academic Freedom Students can “take reasoned exception” to views of faculty Students are protected from arbitrary or discriminatory evaluation Students are protected from disclosure of confidential information (e.g. FERPA) Students should be free to receive information Students do NOT have the right to refuse to comply with reasonable direction or course assignments

9. Classroom Control Examples Student refuses to engage in a course assignment on religious grounds (e.g. dissection, reading curse words from a script). Students come to class unprepared. Teacher dismisses the whole class and counts each student absent. Student wears a t-shirt with the words "f--- racism" on the front. Instructor tells the student that she must wear the t- shirt inside out or leave the classroom. Students leave the class after waiting 15 minutes for the professor. Instructor arrives five minutes after the students leave and counts all students absent for the day. A student says aloud in class: "This test was bulls---.” Instructor demands an apology and student refuses. Instructor directs student to officially drop the class.

10. Faculty Academic Freedom Academic freedom comes with responsibilities Freedom of inquiry and research Must conform to standards of the field and federal/state regulations Freedom of teaching Must be relevant to the subject at hand and adhere to the AAUP Statement on Professional Ethics Freedom of extramural utterance and action Must be respectful of the opinions of others and made in an individual capacity

11. Faculty Academic Freedom Protects: Unpopular subjects or points of view Does NOT protect: Research misconduct Harassing, disrespectful, or uncollegial speech or conduct Classroom speech not related to the subject matter of the course Refusal or failure to follow curriculum or policies established by the department, college, or institution

12. Academic Freedom True/False Quiz Academic freedom prohibits institutions from placing restrictions on a faculty member’s off-campus consulting activities. Academic freedom prohibits an institution from changing a student’s grade without the permission of the faculty member who assigned the grade. Academic freedom prohibits an institution from firing a faculty member who refuses to sign a memorandum changing a student’s grade. Academic freedom permits faculty members to determine which courses they will teach. Academic freedom protects a faculty member’s vulgar or offensive speech in the classroom unrelated to the course material. Academic freedom protects a faculty member’s vulgar or offensive speech related to the course material.

13. Promotion and Tenure Liability/challenges are usually related to: Discrimination/Personal Malice Deviation from written procedures Utilizing unwritten/undocumented criteria Reduce liability by: Professional development and mentoring programs for junior faculty Create a culture of collaboration Consistency in application of performance criteria Performance plans/help Minimize challenges/lawsuits with: Honest (and documented) feedback Clear RPT criteria Engaging multiple/external evaluators

14. Promotion and Tenure Examples Faculty handbook states that tenure track faculty will be assigned a mentor. Faculty member’s mentor has been on leave for the two years prior to his reappointment review, and faculty member is denied reappointment. Faculty member is denied tenure on the basis of her lack of collegiality, but collegiality is not a stated criterion for tenure decisions. Faculty member is denied promotion on the basis of lack of publication, but has been consistently told by the department chair that his publication level was “fine” and that promotion was a “done deal.”

15. A Note on Collegiality Poor collegiality is… Poor service (AAUP Statement On Collegiality as a Criterion for Faculty Evaluation) Cumulative Variable Disciplinable Poor collegiality is NOT… Protected speech (unless a matter of public concern or protected by policy) Sudden Just a performance issue Minimize liability/challenges/lawsuits by: Responding promptly and communicating clearly Documenting uncollegial behavior and attempts to address it Being consistent

16. Americans with Disabilities Act (ADA) Federal and state laws require institutions to provide “reasonable accommodations” for faculty and students with disabilities, unless the accommodation would be an “undue hardship.” Association also protected (but accommodations not required) Must be able to perform “essential functions of the job” with accommodation Direct threat - can consider health or safety of employee and others, or health and safety of others (student) Alcohol Illegal Drugs Mental Illness/Psychiatric Disorders Do not make an assumption or diagnosis Address behavior, not the disease Ask for help

17. Title IX and Gender Identity Recent federal guidance is clear that universities must treat students consistently with their gender identities. Using “Mr.” or “he” when addressing a transgender female could be considered harassment under Title IX. Faculty should use a student’s preferred name even if it does not conform to the class roster and regardless of whether the name has been legally changed. University is working on a preferred name policy.

18. Checklist of Major Do’s and Don’ts DON’T Attempt to cover up mistakes or misdeeds Fail to ask your lawyer for help and advice Neglect the importance of frequent and clear communication with your colleagues, those you supervise, and those to whom you report. Fail to trust your instincts or inner moral compass. DO Suspend belief and disbelief (even crazy people tell the truth sometimes). Remember to listen—there’s almost always more than one side to the situation, and sometimes many. Err on the conservative side whenever the transaction involves the use of public funds or allegations of misconduct. Take allegations of harassment seriously Ask for help with grievances, “problem students” and “problem employees.” Follow your own procedures. Ask for help with anonymous reports. Ask for help with reports of improper relationships.

19. Questions?

20. Helping UNC Charlotte Respond to Sexual Misconduct, Relationship Violence, and Stalking

21. Title IX & Campus SaVE • Federal laws require the university to: • Investigate allegations of sex discrimination, including sexual harassment/sexual violence, relationship violence, and stalking • Take prompt and effective steps to . . . • end the harassment/violence, • eliminate the hostile environment, • prevent its recurrence, and • remedy its effects

22. What That Means for You • Responsible Employees: • All faculty members are responsible employees and must share information about the incident with the Title IX Coordinator or a Deputy Coordinator • Students need to know that you cannot keep this information confidential • Contact Jennifer Newell, Title IX Coordinator • 7-6130, jnewel12@uncc.edu

23. Incidents to report • Sexual harassment = unwelcome conduct of a sexual nature that creates a hostile environment (severe, persistent, or pervasive) • Gender-based harassment = unwelcome conduct based on an individual’s actual or perceived gender that creates a hostile environment (severe, persistent, or pervasive) • Sexual assault = sexual act (intercourse or oral sex) or sexual contact (touching of intimate parts) without consent • Sexual exhibitionism = engaging in sex or exposing one’s intimate parts (buttocks, genitalia, groin, breast (unless breastfeeding)) in the presence of others • Sexual exploitation= taking abusive sexual advantage of someone (e.g. impairing another’s ability to give consent, non-consensual explicit photographs, prostituting someone, voyeurism, etc.)

24. Incidents to report • Stalking = two or more acts directed at a specific person that would cause a reasonable person to (a) fear for his or her safety or (b) suffer substantial emotional distress • Relationship violence= * physical or sexual violence (or threat of such violence) * against current or former dating partner (dating violence) or * against current or former spouse, cohabitating intimate partner, child, parent, or other parent of child (domestic violence) • Retaliation= threats/intimidation/harassment against someone who engaged in protected activity (e.g. filed a complaint, is participating as a witness, etc.) * All of these violations (except stalking and retaliation) include attempts to commit the acts and assisting someone else in committing the acts.

25. Confidentiality • Only these places on campus can provide confidentiality: • Counseling Center • Student Health Center • Center for Wellness Promotion • psychologists in Athletics Dept • Graduate School ombuds (not faculty ombuds) • Title IX Coordinator will keep information as private as possible, only involving individuals who need to know • Victims are very much in control of the process even once their incident has been reported

26. Incident Report • incidentreport.uncc.edu

27. Interpersonal Violence Resource Guide Available at titleix.uncc.edu/student

28. Student Support Process • Resources: • counseling • health or mental health • victim advocacy • Accommodations: • academic • University housing • transportation • University employment

29. Student Conduct Process • Complaint (2) Meetings to discuss resources, accommodations, process (3) Complainant decides next steps (4) Title IX investigation (5) Mutual resolution (if offered and accepted by both Respondent and Complainant) (6) Hearing by single trained hearing officer (7) Decision communicated to both parties (8) Both parties can appeal (9) Both parties are kept informed of changes

30. Office of Legal Affairs • 3rd floor Cato, 7‑5732 • Title IX Coordinator • 119 King, 7-6130 • Dean of Students Office • 217 King, 7-0345 • Counseling Center • 158 Atkins, 7-0311 • Center for Wellness Promotion • 290 Student Health Center, 7‑7407