Chapter 19
Understanding The Legal
Implications of Student Affairs
Practice
EDHE 6730
Dr. Baier
Fall 2008
Dayanna Carson
Chapter Goals:
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To provide information regarding factors to support that
the law is in a constant state of change
To create a familiarization with current laws and
regulations
To provide information regarding the judicial system and
the institutional relationship with students
To provide a discussion related to the following legal
concepts: torts, contracts, statutes, and constitutional
issues
To educate administrators on best practices regarding
the law
Student/Institutional
Relationship
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Administrative leaders of educational
institutions must acquire knowledge
regarding the most current laws, rules,
regulations, and judicial interpretations as
a method to understand parameters in
regard to students and legal rights.
Key Points Relating To
Students & The Law
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Students have rights guaranteed by the federal
constitution.
Students have rights due to their status as
residents of specific states protected by state
constitutions.
These rights may apply to student affairs policies
however; constitutional protections differ from
public to private institutions.
Analyzation of Student Legal
Relationships
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Specific state and federal laws are often
general in nature.
Rules and regulations are written to
enforce the law.
Students and The Law
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Students may have
both explicit and
implicit contracts
defining their
relationship with a
college or university.
Students have a right
to be free from
intrusion upon their
person, property, and
their reputation.
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Student rights are
defined by judicial
precedent.
Torts:Definition & Classification
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A.
B.
C.
D.
Tort- A violation of minimum standards.
Derived from the Latin word meaning twist. A
civil wrong other than a breach of contract for
which the courts will provide a remedy.
The 4 classifications of primary relationships
between students and their institutions are as
follows:
Torts
Contracts
Statutes
Constitutions
The Judicial System
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The Function: To settle controversies, decide the
constitutionality of the law, and interpret the law
Federal Courts
State Courts
 Decide questions
Decide on the
pertaining to federal laws
constitutionality of state
 Settle disputes between
laws
citizens of different states
Decide disputes between
 Have jurisdiction over a
state residents
particular geographic
Interpret laws
area
Have limited jurisdiction
 The decision of the court
to the laws of that
is only binding in certain
geographic locations
specific state and the
geographic area
Only cases decided by
the U.S. Supreme Court
are binding overall
Implications to Administrators
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Administrators must understand that
various state laws and implications may
differ.
The 2 Types of Tort Remedies
(Remedy- monetary damages)
Compensatory
 Designed to put the
injured person back
to where they were
previously before the
injury
Punitive
Assessed where the
injury is caused by
willful acts without
regard for another
person’s property or
reputation and serve
as punishment
Negligence
Defined: A breach of duty owed
Four elements must exist to be found liable
for negligence:
1. A duty must be present
2. An injury must occur
3. A duty must have been breached
4. The breach of duty must be the
proximate cause of injury
Institutions of Higher
Education’s 3 General Duties:
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1. To provide proper supervision
2. To furnish proper instruction
3. To maintain equipment in a reasonable
state of repair
Related Cases and Implications
Cases
Implications
(Bradshaw w. Rawlings, 1979;
University of Denver v. Whitlock, 1987;
Smith v. Day, 1987
Unless a “special relationship” exists,
there is no custodial duty to control the
conduct of students.
(Furek v. University of Delaware, 1991)
In Delaware, The Supreme Court
recognized that the university does
exercise some control over the lives of
students and may be held liable for
failing to exercise supervision over
fraternity hazing activities.
(Potter v. North Carolina School of Arts, Student affairs practitioners must
1978)
provide careful information on the
operation of equipment.
(Shetina v. Ohio University,
1983)/(Drew v. State, 1989; Henig v.
Hofstra University, 1990).
Institutions are required to inspect its
premises for defects and make
necessary repairs.
Inspection of sports playing surfaces is
required.
Violence
Colleges & Universities are generally under no duty to
protect students from the violent acts of a third person
Cases
Implications
(Kline v. Massachusetts Avenute
Corp.,1970 at 481)
The landlord is no insurer of his
tenant’s safety.
(Houck v. University of Washington,
1991)
A university is a common carrier when
it operates elevators therefore, the
institution is required to protect them
from unreasonable risk of harm.
(Bearman v. University of Notre Dame, A university has a duty to protect
1983;Schultz v. Gould Academy,
invitees from unreasonable risks.
1975)
(Duarte v. State,1978)
Universities have a duty to protect
resident students.
The Law& Implications To
Universities
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The courts generally agree that colleges and universities do
not exercise control over adult students.
One jurisdiction held that when students elect to live in
campus housing, they yield control of their own protection.
Students cannot protect themselves with weapons or dogs
and are not allowed to modify door hardware.
Due to surrendered control of the institution, the university
has a duty to protect the students from foreseeable
violence.
Colleges are responsible for providing their student with
protection from criminal acts of third parties. Adequate
security is an indispensable part of services.
Alcoholic Beverages
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Administrators should know the laws of their
states pertaining to violent acts related to
alcoholic beverage statutes.
The 2 alcohol-related liabilities are dramshop
and social host liability.
Both are similar however, dramshop liability
applies to licensed vendors.
Social host liability applies to those who are not
licensed but provide alcohol to others.
According to these theories, the injured person
may sue the provider of the alcoholic beverages
for negligence.
Defamation
Definition: False statements about others that may
hold them to ridicule or disgrace.
There are 2 types: libel(written) & slander(spoken)
Conditions of defamation:
 The statement must be a false statement that is
made by one person to another about a third
person that ridicules or disgraces a third person.
 The false statement must injure the third
person’s reputation.
Implications for School
Administrators:
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Student editors are
accountable for what
they publish.
Institutions should
provide students and
faculty with training in
the law of defamation
before issuing accounts
to use the university
server for
computer/technological
purposes.
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As long as the university
is a conduit and not a
publisher of a defamatory
statement, liability is not
an issue if the university
is not aware of the
circulation of the
statements/material.
Tort Liability Defenses
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The best defense is to fulfill all duties. The
courts will not generally attach liability when
students engage in activities that places them at
risk(Gehling v. St. George University School of
Medicine, 1989,).
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Students who contribute to their own negligence
may be barred from recovering damages.
Damages may be assessed based upon the
degree of fault(Zavala v. Reagents of University
of California, 1981).
Two Types of Immunity
Sovereign & Governmental Immunity
 Insulates public officials from suit when carrying
out their duties
 This should generally not be relied upon as a
defense
 This type of immunity only applies to public
institutions
 Many states have abrogated the concept
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The best defense against tort liability is
knowledge about the legal duties and fulfillment
of them
Contract Law
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Definition of a contract- a promise or set of
promises for the breach of which the law gives a
remedy or the performance of which the law in
some way recognizes a duty.
A contract must consist of the following: a
promise/set of promises, an offer and an
acceptance, an agreement of what is to be
gained and what is to be given up to gain it, and
an agreement between the parties to create a
common understanding.
Contract law is a civil matter that may result in
damages.
Contracts
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The types of contracts are as follows: explicit,
implicit, written, and oral.
Example of an implicit contract applied to higher
education: If a student pays tuition and meets
the established academic and social
requirements, they will receive a degree.
Explicit contracts are created with housing and
other services for admission into the institution.
Explicit contract implications: The terms and
conditions of contracts found in brochures,
handbooks, and other documents published by
the institution is binding.
Court Cases /Implications Related to Contracts
(Behrend v. State, 1977)
The implied contract contemplates that the
degree awarded will be an accredited one if
that is required for licensure examination.
(Lidecker v. Kendall College, 1990)
Failure to inform students regarding non accredited degrees does not constitute a
breach of contract.
(Warren v. Drake University, 1989;Delta
School of Business, Etc. v. Shropshire, 1981)
The terms and conditions of contracts found in
brochures, handbooks, and other documents
published by the institution is usually
interpreted by the courts by applying the
normal meaning of the words.
(Krawez v. Stans, 1969 at 1235)
Oral statements can constitute promises
offered.
(Jones v. Vassar,1969)
The terms and conditions of a contract may be
changed by the institution without breaching
the contract.
Contracts
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The courts have recognized disclaimers
published in institutional catalogs. These
disclaimers allow the institution more
flexibility.
Implication to School
Administrators
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The best practice is to
provide everything
that is promised and
not to promise
anything that cannot
be provided.
Catalogs, brochures,
and handbooks
should be review with
input from legal
counsel.
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Administrators should
always sign both their
names and their
official titles to
protect themselves
against individual
liability.
Administrators should
be careful not to use
legal terminology in
their code of conduct.
Statutes
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State and federal laws provide students with specific rights in their
relationships with institutions. These laws affect student affairs
programs, policies, and practices.
Violation of these rights may lead to criminal action as well as civil
liability.
Campus libraries can serve as a source of state statutes.
Statutes are authorized by the power of the Congress to regulate
interstate commerce and to provide for the general welfare.
The law must be implemented by the appropriate agency of the
executive branch.
Statutes are sometimes interpreted by the judicial branch.
Student affairs practitioners must have a knowledge regarding
judicial interpretations and regulations.
History of The Law and Higher
Education
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The federal government has been making laws affecting
higher education since before the 1862 Morrill Act.
The most direct impact was The Civil Rights act of 1964
Title VI of The Civil Rights Act states the following: “ No
person in the United States shall, on the grounds of
race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving federal financial assistance.”
History of The Law and Higher
Education
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Title IX of the Education Amendment of
1972 prohibits sex discrimination.
Section 504 of The Rehabilitation Act of
1973 prohibits discrimination on the basis
of handicap.
Implications of Statutes to
Higher Education
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The Civil Rights Restoration Act of 1987 defined
a program or activity under all 3 statutes(Title
VI, Title IX, and Section 504).
Implications: Whether a specific program
receives federal funding is irrelevant. If a
student attending the institution receives federal
funding, the institution must conform to the
statutes including noncredit and non degree
courses.
Cases and Implications
(Reagents v. Bakke, 1978)
The Supreme Court held that an
admissions quota violated Title VI.
Institutions cannot consider race as
one of several factors in their
admissions decisions.
(Uzzell v. Friday, 1979)
When race is the sole factor in
making an admissions decision, it
probably violates Title VI.
(Podberesky v. Kirwan, 1994) and
(Hopwood v. University of Texas,1996)
Both cases rejected using race as a
factor in the distribution of financial
aid and admissions .
Implications for Higher
Education Administrators
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Regulations implementing Title VI(34
C.F.R.100), Title IX(34 C.F.R.106), and Section
504 (34 C.F.R. 104) each provide a mechanism
for administrative procedures against those who
violate the law.
The Department of Education must seek the
approval of Congress to revoke the institution’s
federal funding as a penalty for violation if the
institution’s attempts are unsuccessful.
Students may initiate their own legal action
without waiting on the government.
Title IX
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Originally enacted to provide an equal opportunity for women in
programs and activities.
It has been held to also prevent sexual harassment by faculty
and staff.
This includes quid pro quo(something for something) and hostile
environment sexual harassment.
A student may recover damages for sexual harassment.
In order for an institution to be liable for the sexually harassing
actions of employees, someone with power over the offending
employee must be notified. This person in power must act with
“deliberate indifference”in failing to take action.
Issues regarding student-to-student sexual harassment is
unclear.
Regulations implementing Title IX(C.F.R.106) also have specific
sections dealing with campus rules, athletics, student
organizations, and the provision of housing, counseling, and
placement services.
Section 504
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Prohibits the discrimination against “ otherwise qualified
handicapped” persons.
Institutions are required to make reasonable accommodations for
disabled students but are not required to eliminate courses essential
to the nature of the degree.
Several judicial decisions have indicated that auxiliary aids are to be
paid for by the state rehabilitation agencies and not colleges and
universities.
In disease related cases, administrators should seek medical advice
regarding the potential risk to third parties.
According to The Civil Rights Restoration Act of 1987, a
handicapped person does not include an individual with a
contagious disease.
FERPA
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The Family Educational Rights and Privacy Act
provides that no funds should be made available
to any institutions of higher education which has
a policy of denying, or which effectively prevents
the parents of students attending the right to
inspect and review any and all official records.
The rights of the parent revert to the student
when the student attains eighteen years of age
or enters a postsecondary institution unless the
child remains financially dependent on the
parent for tax purposes.
Implications to Higher Education
Administrators
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The Higher Education Amendments of 1998 amended FERPA to
allow institutions to notify parents or legal guardians of any
student who is under twenty-one years of age and has committed
a disciplinary violation governing the use of alcohol or a controlled
substance(Higher Education Amendment of 1998, Sec. 952).
This law is permissive and allows institutions to withhold
information under institutional policy. Any policies should be
written and available to everyone.
Students may not sue to enforce their FERPA rights and must rely
on the government for implications regarding compliance.
Police reports are not protected under FERPA.
Campus disciplinary records have been interpreted differently by
different courts.
Administrators should read the law and acquire counsel regarding
the disclosure of certain information regarding violence acts or
sexual offenses.
Other Statutes Influencing
Student Affairs Programs,
Policies, and Practices
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The Drug Free Schools and Communities Act of 1989(20 USC
1145)- mandate that institutions annually distribute to each
student and employee information regarding federal standards of
conduct surrounding the unlawful possession, use, and
distribution of drugs and alcohol and health risks associated with
the illicit use of drugs and alcohol. A description of rehabilitation
programs and institutional sanctions and violations must be
provided in writing.
The Student Right-To- Know and Campus and Security Act(20 USC
1092)- requires institutions to report graduation rates for athletes
and others , revenues and expenses for men’s and women’s teams,
and crime statistics. A security report must be issued to each
student, employee, and prospective students may request a copy.
This act also mandates that a victim of sexual offenses must
receive information regarding the outcome of any disciplinary
hearings against the perpetrator(s). Institutions may change the
living and academic conditions of alleged victims of sexual
offenses.
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The Civil Rights Act of 1871- creates civil
liability for public officials who violates the
constitutional or statutory rights of others
Constitutional Issues
The United States Constitution:
 Considered to be the highest law in the land
 Describes the 3 branches of government
 No state may grant fewer rights than the federal
constitution
 Many states choose to grant more rights than the federal
constitution
 Only if private colleges are shown to be engaged in
“state action” are they required to conform to the
guarantees found in the Constitution
 The courts determine state action by “ sifting facts and
weighing circumstances”
 The courts are generally reluctant to find state actions
The First Amendment
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Provides that “ Congress shall make no laws respecting the
establishment of religion or prohibiting the free exercise thereof:
or abridging the freedom of speech or of the press; or of the press;
or the right of the people peacefully to assemble;and to petition
the Government for a redress of grievances.”
The First Amendment permeates every aspect of student affairs
administration.
The Establishment and Free Exercise of Religion – This prohibition
is involved primarily in situations in which federal or state
assistance of some type is provided to religiously affiliated
institutions. The determination of violation rests upon a three
pronged test established by The Supreme Court.
(Lemon v. Kurtzman, 1971)- The test asks whether the aid reflects
a clearly secular purpose, has a primary effect which neither
advances nor inhibits religion, and avoids excessive entanglement
between the church and government.
The First Amendment
Freedom of Speech and Press:
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The freedom of speech and press guaranteed is not absolute.
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The Supreme Court held that institutions may regulate speech and
expression that would “ materially and substantially disrupt the
work and the discipline of the school.”
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Institutions must bear the burden of proof to show that the
speech would be disruptive(Molpus v. Fortune, 1970).
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Colleges and universities may impose reasonable time, place, and
manner restrictions on the exercise of freedom of
expression(Bayless v. Martine, 1970).
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Several cases regarding publications, restriction of speeches, and
internet communications are in the history of higher education
institutions.
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Any rule designed to regulate speech will bear a heavy burden of
showing that it is narrowly tailored to serve a compelling
governmental interest.
The First Amendment
The Right to Peacefully Assemble
 Institutions are not required to provide any sort of official
recognition or endorsement of student organizations; however, after
they open the door to recognition they must treat all who request it
equally and may not determine recognition on the basis of the goals
or philosophy as long as they are lawful.
 The right to assemble cannot be denied on the basis of content.
 Court cases have refined how activity fees may be used.
The Fourth Amendment
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Provides that “ the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, no warrants shall issue, but upon
probable cause, supported by an oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized.”
When there are “reasonable grounds” for suspecting that a search
will turn up evidence that the student has violated law or rules a
warrantless search may be allowed.
“Reasonableness” would be determined by age.
The Supreme Court has yet to address a case pertaining to college
students.
College officials may not delegate the lower standard of “reasonable
cause” to police who seek criminal evidence.
Contraband observed in “plain view” may be seized and used for
disciplinary purposes(State v. Kappes, 1976).
The Fourteenth Amendment
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The Amendment provides in part: “ …nor shall any State deprive
any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction equal protection of the
laws.”
Due process rights must be afforded to students facing disciplinary
charges.
Standards for Due Process
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The following should be provided when students face serious
consequences:
Students should receive a specific notice of charges and grounds
that, if proven would lead to expulsion.
The notice should include the nature of the incident.
The circumstances of a specific case would influence the type of
hearing to be held.
Students should be given the names of witnesses and an oral or
written report of their testimony.
Students should be provided an opportunity to present a defense,
including written or oral testimony of a witness.
The hearing must be held before an impartial individual or board.
Implications for Administrators
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Administrators should read the following
book for information regarding standards:
The General Order on Judicial Standards
of Procedure and Substance in Review of
Student Discipline in Tax Supported
Institutions of Higher Education(1968).
Procedural Requirements
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Students should be given a written notice of the charges
in enough detail to allow them to prepare a defense.
Students may not hinder the process by moving or
failing to provide the university with a current address.
There is no requirement that witnesses may be cross
examined.
Special circumstances regarding legal counsel applies
and should be reviewed by administrators.
Administrators should always consider the safety of
individuals first when individuals pose a threat.
The Fourteenth Amendment
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Implies that individuals must be treated
equally.
Cases regarding situations concerning age
restrictions, gender restrictions, and
classification of students for admissions
are all regulated by The Fourteenth
Amendment.
Legal Implications Of
Administrators
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Legal guidelines should be followed.
Administrators must stay current
regarding developments of the law.
Competent legal advice is necessary and
should be sought.
References
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Barr, M. , Desler, M., &
Associates,(2000).The Handbook of
Student Affairs Administration (Second
Edition).California: Jossey-Bass.