Practical Tips to Avoid Legal Pitfalls

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Practical Tips to Avoid Legal Pitfalls

• Krista L. Newkirk (ext. 78617)
• Senior Associate General Counsel

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Overview of Higher Education Law

• FERPA (Family Educational Rights and Privacy Act)
• Students of concern
• ADA (Americans with Disabilities Act)
• Civil Rights
• Sexual Harassment
• Public Records Laws
• Constitutional Law
• Establishment Clause and Religious Freedom
• Freedom of Speech
• Due Process (Academic Integrity and Code of
  Student Responsibility)

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Family Educational Rights and Privacy Act (FERPA)
a/k/a The Buckley Amendment enacted in 1974

• FERPA protects the confidentiality of student
  records.
• It provides 5 rights to students
• The right to inspect their own education records
• The right to prevent disclosure of their own
  education records
• The right to seek amendment to their own records
  if they are inaccurate or misleading, and in
  certain cases append a statement to their
  records
• The right to be notified of their privacy rights
  under FERPA and
• The right to file a complaint with the U.S.
  Department of Education to report an alleged
  failure by the University to comply with FERPA.

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FERPA cont.
What is a student education record?
Information
Format

• Personal information (other than Directory
  Information, defined later)
• Grades
• Schedules
• Disability status
• Academic standing
• Social Security Number

• A paper document in the Registrar's Office
• A computer printout in your office
• A class list on your desktop
• A computer display screen
• An email message
• A photograph
• Written notes you have taken during an advising
  session

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Basic FERPA Rules

• Written consent required for release.
• Possession of records responsibility for
  protecting them.
• Some student information, referred to as
  Directory Information, is exempt from FERPA
  confidentiality requirements.
• Access only for legitimate use on a need to
  know basis.
• In doubt? Contact the Registrars Office.

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Basic FERPA Rules
Directory Information at UNC Charlotte means the
student's name, local and permanent address,
email address, telephone number, date and place
of birth, class, major field of study, dates of
attendance, enrollment status, degrees and awards
(including scholarships) received, participation
in officially recognized activities and sports,
weight and height of members of athletic teams,
and the most recent previous educational agency
or institution attended.

• Written consent required for release
• Possession of records responsibility for
  protecting them
• Some student information, referred to as
  Directory Information, is exempt from FERPA
  confidentiality requirements.
• Access only for legitimate use on a need to
  know basis.
• In doubt? Contact the Registrars Office

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FERPA Commandments - Thou Shalt Not

• Use any portion of a student name, Social
  Security Number or Student ID Number in a public
  posting of grades (in fact there is really no
  good way to publicly post grades)
• Link the name of a student with that student's
  Social Security Number or Student ID Number (or
  any portion thereof) in any public manner
• Leave graded tests or papers in a place where
  students will retrieve them by sorting through
  the papers of other students
• Circulate as an attendance roster a printed class
  list with student name and Social Security
  Number, Student ID Number or grades
• Discuss the progress of any student with anyone
  other than the student (including parents)
  without the written consent of the student
• Provide anyone with lists of students enrolled in
  your classes for any purpose
• Provide anyone with student schedules or assist
  anyone other than University employees in finding
  a student on campus

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Scary Students

• How to report student behavior that concerns you
• Code of Student Responsibility (PS 104)
  Christine Reed Davis or Todd Delp (ext. 72617)
• Campus Police
• Dean of Students Michele Howard (ext. 72617)
• Involuntary Withdrawal Policy
• Campus Behavioral Intervention Team

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Americans with Disabilities Act (ADA)

• Pop Quiz
• Are the following classroom polices enforceable?
• This class begins promptly at 9 a.m. Students
  arriving after 9 a.m. will not be admitted and
  will be counted absent.
• All written essays must be submitted in hard
  copy. No electronic copies will be accepted.
• Every student must attend a conference at the
  professors office. Missing the conference is an
  absence.

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ADA Pop Quiz Cont.

• 4. Class participation means that students must
  give an oral report to the class. Those who do
  not speak will have the class participation grade
  reduced.
• 5. Students who need special assistance or
  accommodations must raise their hand and identify
  themselves on the first day of class. If a
  student does not do so, then no accommodation
  will be provided.
• 6. Students who need an accommodation must
  provide medical documentation to the Office of
  Disability Services and coordinate all
  accommodations through that office.
• 7. Students may be asked to move to another part
  of the classroom or to take notes in order to
  provide accommodations to another student.

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Public Records Law

• North Carolina Public Records Law
• All documents of any type produced in the course
  of business of any public agency are subject to
  the public records law with the exceptions of
• Student education records
• Personnel records (the disclosure of which is a
  criminal offense)
• A few other narrow exceptions
• Rule to live by
• If you dont want to read it in the front
  page of the newspaper, dont write it or email it

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Civil Rights Laws

• You may not discriminate (includes harassment) on
  the basis of
• Gender
• Race
• Color
• National Origin
• Religion
• Age
• Disability physical or mental
• Military Service
• Sexual Orientation (by University Policy)

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Sexual Harassment

• Quid Pro Quo
• Hostile Environment
• Two Part Test
• 1. Does it offend the person?
• 2. Would it offend the average reasonable
  person?

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Sexual Harassment

• Rules to live by
• 1. You are in a position of power dont abuse
  it
• 2. You are the teacher, not the friend, buddy,
  etc.
• 3. Do not do anything that would even appear
  questionable
• Closed-door meetings
• consensual relationships
• Risqué jokes

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Sexual Harassment

• Report harassing behavior to
• Dean of Students Michele Howard (72617)
• Employee Relations in Human Resources Jeanne
  Madorin (72804)
• Chair of Program
• Dean of College
• Confidential discussion Counseling Center
• Sexual Harassment Brochure
• Rule Report it and keep reporting it until you
  get help

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The First Amendment

• Free Speech
• Disruptive speech
• Offensive speech
• Fighting words
• Other ways of speaking
• Clothes
• Art
• Actions

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The First Amendment

• Freedom of Religion
• Establishment Clause
• Right to practice religion
• Reasonable accommodations
• True tenets and beliefs
• Most common areas of accommodation
• Absence policies
• Materials that may be contrary to a students
  religion
• Clothing

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Due Process 14th Amendment

• Substantive Due Process
• Must use processes established in
• Code of Academic Integrity
• Code of Student Responsibility
• Other Policy Statements
• Process does not have to be extravagant, but must
  provide notice, an opportunity to respond, and to
  have decision made by fair and impartial body
• The more serious the consequence, the more
  stringent the due process requirements

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Additional Information

• Office of General Counsel - http//www.legal.uncc.
  edu/legal.html
• FERPA Tutorial - https//49erconnect.uncc.edu/ferp
  a/
• Sexual Harassment - http//www.hr.uncc.edu/employe
  erelations/1unlawfulworkplaceharassment/sld001.htm
  
• Policy Statements http//www.legal.uncc.edu/polici
  es/alphaindex.html
• Code of Academic Integrity - http//www.legal.uncc
  .edu/policies/ps-105.html
• Code of Student Responsibility -
  http//www.legal.uncc.edu/policies/ps-104.html
• Syllabus Guidelines and Recommendations
• http//www.legal.uncc.edu/syllabus.html
• Office of Disability Services -
  http//www.ds.uncc.edu/

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Questions?