Classroom Policies and Practices: The Legal Context

Office of Legal Affairs website,
under Legal Topics:
1. Basic Legal Guidelines
2. Civility in the Classroom
3. Suggested Syllabus Policies
4. Academic Freedom and Related Case Law
5. Questions (or Scenarios)
‘[T]he four essential freedoms’ of a university—
to determine for itself on academic grounds
who may teach,
what may be taught,
how it shall be taught, and
who may be admitted to study.
Justice Frankfurter, 1957.
The Rational Basis Test
A classroom policy established by faculty members
will likely be upheld in court if it is
not arbitrary and capricious,
not based on malice, and
not based on illegal discrimination.
To be enforceable, a classroom policy should be
supported by a rational justification.
For example, if certain classroom behavior
would be disruptive to the teaching or
educational process, a ban on such behavior will
likely pass the rational basis test.
Courts generally leave grading policies to the
discretion of faculty, within the academic
standards established by the institution.
A grading policy will be enforceable if it is based
on the students’ performance and other
standards relevant to the educational process.
A grading policy that is arbitrary, discriminatory,
or malicious will be unenforceable.
Illegal Discrimination in General
Faculty members should make sure that their
classroom policies do not have the effect—
intentional or unintentional—of illegally
discriminating on the basis of a protected status
(e.g., based on race, gender, religion, disability,
or national origin).
Special Consideration – Disability
The ADA requires the University provide
reasonable accommodations to those students
who identify themselves as disabled and
request such accommodation.
Students are not required to disclose a disability
and faculty should not ask a student about their
When a student self-identifies a disability and
requests an accommodation, faculty should
refer the student to the Office of Disability
Services (ODS).
ODS will register the student and provide
assistance, including information on reasonable
accommodations specific to the student’s
Classroom policies should be flexible enough to
accommodate disabilities. Examples of policies
and practices that might involve ADA
protections are:
Attendance, absences, or tardiness policies
Classroom participation expectations
Tests/exams, papers and projects
Special Considerations – Religious Accommodation
University Policy 409 requires a student be
provided reasonable accommodation for a
sincerely held religious belief.
Faculty must make a good faith effort to
accommodate a student’s religious practice or
belief, unless it would create an undue
Faculty required to authorize a minimum of two
excused absences each academic year for
religious observances required by a student’s
sincerely held religious belief.
Students must be provided the opportunity to
make up tests or missed coursework due to an
excused absence for a religious observance.
Classroom policies should be flexible enough to
accommodate student absences for religious
observances or other religious accommodations
Policies impacted by religious accommodations
might include:
Attendance policies
Tests/exams, papers and other assignments
Appropriate dress
Classroom participation (e.g., requirement to engage in
classroom conduct might be forbidden by a religious
Special Consideration – Pregnancy
Title IX of the Education Amendments of 1972
prohibits sex discrimination in postsecondary
education, including discrimination on the basis of
pregnancy, childbirth and parental status.
In June of 2013, the U.S. Department of Education
(DOE) issued guidance on supporting the academic
success of pregnant and parenting students under
Title IX.
DOE’s new guidance states that it is illegal under
Title IX to exclude pregnant students from
participating in any part of an educational
program, including extracurricular activities.
University officials must treat a student’s
pregnancy as it treats other medical leave
A student returning after a pregnancy leave
must be reinstated to the status she held when
her leave began.
University must excuse a student’s absences
because of pregnancy or childbirth for as long
as the student’s doctor deems the absences
medically necessary.
University should offer the student reasonable
alternatives to simply making up missed work.
For example, student might be allowed to:
retake a semester course
take part in an on-line course recovery program, or
have additional time in a program to continue at
the same pace and finish at a later date (especially
after a prolonged period of leave)
Bottom line: A pregnant student should be
allowed to choose how to make up missed work
or to otherwise proceed with her course of
study without excessive penalty following her
medically required leave.
Faculty are responsible for management of the
classroom environment
Faculty should exercise authority with a sense of
focus on relevant issues
set reasonable time limits
assess the quality of ideas and expression
make sure students are heard in an orderly manner
Policies on classroom disruption cannot be used
to punish lawful classroom dissent:
The lawful expression of a disagreement with the teacher or
other students is not in itself "disruptive" behavior.
Rudeness, incivility, and disruption are often
distinguishable, even though they may intersect.
In most instances, it’s better to respond to rudeness by
example (e.g. advising a student in private that he or she
appears to have a habit of interrupting others).
Rudeness can become disruption when it is repetitive,
especially after a warning has been given.
Strategies to prevent and respond to disruptive
Clarify standards for the conduct of your class.
Serve as a role model for the conduct you expect from your
First consider a general word of caution, 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.
A student who persists in disrupting a class may be
asked to leave the classroom for the remainder of the
class period.
Tell the student the reason(s) for such action;
Give the student an opportunity to discuss the matter ASAP;
Prompt consultation with the Department Chair;
Suspension for more than one class period requires
appropriate disciplinary action through the DOS office.
If disruption is serious, and other reasonable measures
have failed, call Police & Public Safety, and dismiss
See University Policy 601.13, Interference with University
Operations (
Suggested syllabus policies to help faculty:
highlight potential classroom issues and
develop the classroom environment they wish to
By including clear policies in the syllabus:
Faculty can clearly set forth expectations for
classroom behavior, and
students will be duly notified of those expectations
at the outset of the course.
Syllabus should be in writing, either on paper
and/or on class/faculty website
Syllabus Policy Examples:
Clearly notify students of classroom expectations
(academic and behavioral)
Encourage orderly and productive classroom
Enable revision of the syllabus during the semester
Clearly set forth a policy on instructor’s absence or
Clearly set forth a policy on student absenteeism or
More Syllabus Policy Examples:
Notify students of rights and responsibilities to
obtain accommodations: disability, religious,
Prohibit academic integrity violations, including
plagiarism (see University Policy 407, Code of
Student Academic Integrity)
Clearly set forth the policy on credit hours and
student work for a course
Clearly set forth the policy on credit hours and
student work for a lab
More Syllabus Policy Examples:
Prohibit or regulate use of cell phones, smart
phones, tablets, or other mobile communication
devices in the classroom
Prohibit or regulate computer use in the classroom
Prohibit sexual harassment in web-based or webassisted courses
Notification if you plan to use (or
another plagiarism detection program)
Various components of academic freedom
(1) the University’s insulation from state
interference in making academic decisions
(2) individual professors’ protection from
administrative or political interference
(3) students’ right to receive and express ideas in
academic environment
No clear “academic freedom” in constitution
or in case law; instead, courts use First
Amendment freedom of speech analysis
Two elements:
Is the topic a matter of public concern?
If yes, weigh the professor’s interest in his/her
speech against the university’s interest in
efficiently delivering education
Hardy v. Jefferson Community College
Sixth Circuit, 2001
First Amendment protected professor who used Nword and other derogatory terms in class discussion
regarding how language is used to marginalize
minorities and other oppressed groups in society
Martin v. Parrish
Fifth Circuit, 1986
First Amendment did not protect economics
professor’s “inveterate use of profane language” in
class even after multiple verbal and written
warnings from administrators
Insults/degrading behavior
Keen v. Penson
Seventh Circuit, 1992
First Amendment did not protect professor’s
numerous letters to a student, which demanded
apologies for her calling his classroom policies
“unfair” and demeaned her comprehension abilities
and occupational goal. The professor eventually
failed her in his class because she did not respond to
26 questions in his final letter, including “Is it fair or
unfair for a student to make unsupported
accusations/assertions?” and “Is it a fair or unfair
assumption that a university sophomore can read
and understand handouts such as those at the
beginning of 226 last spring?”
Sexual harassment
Hayut v. State University of New York
Second Circuit, 2003
First Amendment did not protect professor who
referred to student as “Monica” (during Monica
Lewinsky scandal) during every class and asked her
suggestive questions (“How was your weekend with
Bill?” and “Be quiet, Monica. I will give you a cigar
later.”) even though student never complained
directly to him
Amy S. Kelso
Senior Associate General Counsel
[email protected]
Jeffrey N. Jensen
Senior Associate General Counsel
[email protected]
Sarah O. Edwards
Assistant General Counsel
[email protected]
Policy – “There is no such thing as
an excused absence, including
involvement in an official sports
event or a religious holiday.”
A teacher has been asked to find a
student in class to assist a disabled
student with note-taking. After
identifying the disabled student, the
teacher appoints the student sitting
next to her as note-taker.
Students come to class
unprepared. Teacher dismisses the
whole class and counts each
student absent.
A student wears a t-shirt with the
words "f--- racism" on the front.
The 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. The
professor 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---." The instructor
demands an apology and that the
student leave the class. The student
refuses. The teacher tells the student to
officially drop the class.