Legal Issues

1. Legal Issues New Faculty Orientation September 7, 2012 Heidi Zimmerman University Counsel

2. Office of the University Counsel • Our client is MTSU - we represent the legal interests of the institution. • We assist the administration and you, in your professional capacity. • If you have questions for the OUC, please first contact your chair or dean.

3. General Advice • Be consistent • Be fair • Follow policy http://www.mtsu.edu/policies/ A to Z Link under “P” • Ask questions (as far in advance as possible)

4. FERPA • Regulates access to and disclosure of “student education records.” • Very broad definition – any record, in any form, directly related to a student and maintained by MTSU. • Records are confidential and may not be released to a third party without a student’s written consent.

5. Don’t discuss or share with parents. Partners in Education program • Don’t discuss records with anyone who does not have a legitimate educational interest or need to know. • Violations could result in loss or limitation of Title IV funding.

6. Info/Best Practices on Registrar’s website. http://www.mtsu.edu/records/ferpa/ferpa.php http://www.mtsu.edu/records/docs/FERPA-FAQ.pdf http://www.mtsu.edu/records/docs/Best_Practices.pdf

7. Tennessee Open Records Act • In contrast to FERPA, state records are open to Tennessee citizens for inspection or copying. • Concerns records made and maintained in the course and scope of business. • Includes employment records. • FERPA (federal) trumps Open Records law (state).

8. Contracts and Signatory Authority You don’t have authority to bind MTSU. May result in personal liability. Purchases: contract routing process. Visit Contract Office website for further information.

9. Conflicts of Interest • MTSU Policy I:01:25 Ethics and Code of Conduct • TBR Policy 1:02:03:10 Conflict of Interest MTSU policy sets out - Professional Values - Employment Responsibilities - Conflict of Interest - Professional Development - Integrity of Information - Reporting Fraud, Waste or Abuse of University Resources

10. University resources are state property to be used only within the scope of employment, for personal gain. Avoid conflicts of interest or even the appearance of impropriety.

11. Outside Employment Any outside professional employment or business activity: • Must not interfere with assigned duties • Must not be a conflict of interest or compete with MTSU’s programs • Must not be represented as connected to MTSU Notify dept. head of activities; will determine if there is conflict or interference with duties.

12. TITLE IX SEXUAL HARASSMENT SEXUAL VIOLENCE

13. Title IX Title IX of the Educational Amendments of 1972 (20 USC Sec 1681, et. seq.) and its implementing regulations (34 CFR Part 106) prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. No person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.

14. Policies • TBR Policy 2:02:10:01 Sex Discrimination and Sexual Harassment • TBR Guideline P-080 Discrimination & Harassment – Complaint & Investigation Process • MTSU Policy I:01:10 Equal Opportunity, Affirmative Action and Nondiscrimination • MTSU Policy I:01:22 Discrimination and Harassment

15. Discrimination & Harassment There are other forms of discrimination and harassment which are prohibited and which apply to employees as well as students: race, color, religion, creed, ethnic or national origin, sex, sexual orientation/ gender identity, disability, age, status as a covered veteran, genetic information Incidents of these must also be reported.

16. Sexual Harassment Sexual harassment is a form of sex discrimination prohibited by Title IX. Sexual harassment is unwelcome conduct of a sexual nature including • sexual advances, • requests for sexual favors, and • other verbal, nonverbal or physical conduct of a sexual nature.

17. Examples of Sexual Harassment: • Quid pro quo – work or educational benefits in return for sexual favors; • Suggestive or inappropriate communications, emails, notes, letters, or other written materials displaying objects or pictures which are sexual in nature; • Sexual innuendoes, comments, and remarks about a person’s clothing, body, or activities; • Humor and jokes about sex that denigrate men or women; • Sexual propositions, invitations, or pressure for sexual activity; • Use in the classroom of sexual jokes, stories, remarks, or images that are in no way or only marginally relevant to the subject matter of the class; • Implied or overt sexual threats; • Suggestive or obscene gestures; • Patting, pinching, and other inappropriate touching.

18. Not every act that might be offensive is harassing. Could be found to be unprofessional. Harassment does not include verbal expressions or written material that is relevant and appropriately related to course subject matter or curriculum.

19. Hostile Environment Sexual harassment of a student creates a hostile environment if the conduct is sufficiently serious that it denies or limits a student’s ability to participate in or benefit from the institution’s programs. This is usually a number of events, but a single incident of sexual harassment, such as rape, can create a hostile environment.

20. Sexual Violence Physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. Sexual violence includes rape, sexual assault, sexual battery and sexual coercion.

21. Prohibited Acts Examples: • Date rape • Engaging in sexual contact after the victim has said “No.” • Sexual intercourse or sexual contact when the person is drunk or under the influence of drugs Can be committed against a girlfriend or spouse

22. Tennessee Law • “Sexual battery” – unlawful sexual contact with a victim - by force or coercion; or - accomplished without consent and the accused knows or has reason to know the victim did not consent; or - the accused knows or has reason to know the victim is physically helpless; or - the sexual contact is accomplished by fraud • “Sexual contact” includes the intentional touching of the victim’s, the accused’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of…intimate parts for sexual arousal or gratification

23. Incidents and Effects of Sexual Assault • Nearly 20% of female students in college will be victims of attempted or actual sexual assault, as will 6% of undergraduate men. • In 2009, there were nearly 3,300 forcible sex offenses. • Victims of sexual assault are more likely to suffer academically and from depression, post-traumatic stress disorder, to abuse alcohol and drugs, and to contemplate suicide.

24. MTSU Must: • Educate • Train • Prevent • Provide Services • Provide Remedies

25. Scope Touches all aspects of an institution’s education program and activities: • Academic • Extracurricular • Athletic • Programs or activities on or off campus.

26. Institutional Duties If an institution knows or reasonably should have known about sexual harassment that creates a hostile environment, Title IX requires it to: • Take immediate action to eliminate the harassment; • Prevent its recurrence; • Address its effects.

27. Consequences of Noncompliance • Adversely affects the health, safety, welfare and educational opportunities of students • Regulatory consequences: • Office of Civil Rights investigations • Department of Justice lawsuits • Loss of Title IV Federal funding • Individual Liability

28. Complaint Process and Investigation

29. Notice of Complaint MUST IMMEDIATELY REPORT Doesn’t matter if the student hasn’t complained. Doesn’t matter if complaint is verbal or written, “formal” or “informal.”

30. Notice of Complaint Doesn’t matter if information comes to you secondhand. Doesn’t matter if the student asks you not to take action. Doesn’t matter if the student doesn’t identify the conduct as “harassment.”

31. Reporting Title IX Coordinator Carol Clark CA.clark@mtsu.edu; 898-5133 Monitors and oversees Title IX implementation.

32. Reporting Title IX Deputy Coordinators Athletics – students and employees Diane Turnham, 898-2938 dturnham@mtsu.edu Faculty, staff and visitors Barbara Patton, 898-2185 blpatton@mtsu.edu Students Laura Sosh-Lightsy, 898-2750 laura.lightsy@mtsu.edu

33. Investigation Investigations must be promptly undertaken, equitable, impartial and thorough. Must be completed within stated timeframe. Meet with both Complainant and Respondent. Allow both to offer names of witnesses and evidence.

34. Investigation andCriminal Law Enforcement Proceedings Institutions have an independent obligation to investigate and take action regardless of the existence of a concurrent criminal investigation or prosecution. May minimally delay investigation, but Complainant must be notified and any needed interim steps must be taken. Complainants must be told of the right to file a criminal complaint.

35. Interim Steps Retaliation – at any stage – is strictly prohibited. Burden to Complainant must be minimized. Complainant must be told of options to avoid contact with the respondent. Implementation of “No Contact” orders

36. Determination and Appeal Rights The President will make a determination concerning whether the policy has been violated and what response is appropriate. Both parties have the right to appeal the President’s decision and will be notified in writing of the outcome and their appeal rights.

37. Remedies • Providing security escorts • Ensuring parties don’t have the same class • Assigning to different residence halls • Providing counseling services • Providing medical services

38. Remedies • Providing academic support services such as tutoring. • Arranging for the Complainant to retake or withdraw from a course without penalty. • Arranging for the Complainant to do independent study or online study to complete a course.

39. Steps to Prevent Recurrence and Correct Discriminatory Effects Preventive education programs Training Campus climate that encourages reporting Development and distribution of sexual violence materials

40. MTSU Will: Educate campus community on: • What constitutes sexual harassment • How and where to report • What to expect after making a report Investigate reports promptly Take appropriate action against those who violate the policy against sexual harassment and/or retaliation

41. MTSU Will: • Take interim and permanent steps to stop harassing conduct and remedy its effects • Prevent the recurrence of harassment • Minimize the burden to the Complainant’s educational program • Provide resources and services to Complainants

42. Consensual Relationships • Not prohibited but strongly discouraged. • Inherent inequality of power. • Undue favoritism or perception of such, abuse of power, compromised judgment or impaired objectivity. • Conflict of interest if supervises or evaluates.

43. Americans with Disabilities Act Purpose – to ensure that all individuals have equal access to the benefits of educational programs and activity. Individuals with disabilities may require reasonable accommodation in order to provide this.

44. Disabled Student Services (DSS) Office http://www.mtsu.edu/dssemail/Faculty_Resources.php DSS determines if a student is disabled, if he/she needs accommodation, and if so, what the reasonable accommodation will be.

46. Reasonable accommodations will be required unless it can be shown that making such modifications would fundamentally alter the nature of the course or exercise. Don’t have to waive courses or other academic requirements if it can be demonstrated that these are essential to the program of study.

47. State Employee ImmunityPersonal Liability • Immune from suit for negligent acts within the course and scope of employment. • If sued, would be represented by Attorney General’s Office, and would not be personally liable for any damages or costs. • Claims Commission, Division of Claims

48. NO coverage if act was: • Unlawful • Grossly negligent • Outside scope and course of employment • Willful, intentional, malicious • Performed for personal gain

49. Disruptive Students The instructor has the primary responsibility for maintenance of academic integrity and controlling classroom behavior, and can order the temporary removal or exclusion from the classroom of any student engaged in disruptive conduct or conduct that violates the general MTSU rules and regulations for each class session during which the conduct occurs.

50. Extended or permanent exclusion from the classroom, beyond the session in which the conduct occurred, or further disciplinary action can be effected only through appropriate procedures of the institution. If an instructor wishes to remove a student from the classroom for a longer period of time or permanently, he/she must refer the student to the Office of Judicial Affairs and Mediation Services.