Legal Update

1
Legal Update

• Division of Student Development and Enrollment
  Services
• University of Central Florida
• September 28, 2009

2
Access ADA

• Covington v. McNeese State University., 996 So.
  2d 667 (La. Ct. App. 2008)
• A wheelchair-bound student who was injured
  departing a restroom in the public universitys
  student union filed suit under the Americans with
  Disabilities Act (ADA). After discovery, the
  university confirmed that none of the restrooms
  in the union were ADA compliant and that the
  institution did not have a transition plan in
  place, as required by the ADA. The court of
  appeals admonished the university for its callous
  disregard.

3
Computer Use, File Sharing

• Arista Records v. Does, 2008 U.S. Dist. LEXIS
  102974 (W.D. Va. Dec. 22, 2008).
• The plaintiff sued several unnamed students and
  asked Virginia Tech to identify the persons. The
  university cooperated by matching IP addresses to
  specific dorm rooms. However, the university
  claimed it could not identify the individual
  users assigned to each IP and resisted further
  discovery. The court quashed the discovery motion
  agreeing that the university could not be
  required to provide information it did not
  possess.

4
Computer Use, Intranet

• Crosby v. S. Orange County Community College, 91
  Cal. Rptr. 3d 161 (Cal. Ct. App. 2009).
• A student claimed the policy, restricting
  internet use to proper academic purposes, was
  unconstitutional and the college should not be
  able to discipline students for on-campus
  behavior that was constitutionally protected
  off-campus. The Court of Appeals of California
  concluded that the community colleges library
  was not a traditional public forum or a
  designated public forum, and the college could
  therefore reasonably restrict Internet use to
  appropriate academic pursuits.

5
Due Process

• Sarver v. Jackson, 2008 U.S. Dist. LEXIS 92330
  (N.D. Ga. Nov. 13, 2008).
• Sarver appealed her disciplinary suspension.
  The court found that the student was adequately
  notified of the charges against her and given an
  opportunity to be heard and present a defense.
  Administrators made several accommodations to
  ensure the student could attend the hearings and
  voice her concerns. The students failure to
  attend the hearings or cooperate with the
  administrators in setting mutually convenient
  hearing dates did not negate the fact that the
  student was given an opportunity to be heard.

6
Due Process

• Heiken v. University of Central Florida., 995 So.
  2d 1145 (Fla. Dist. Ct. App. 2008).
• A public university student appealed a
  disciplinary decision, arguing that the
  university violated his due process rights by
  abrogating its own disciplinary policy through
  reliance on an unsworn police report and allowing
  hearsay evidence in proceedings. The court
  concluded that the language of the universitys
  policy was clear with regard to the
  cross-examination of witnesses present, and the
  use of the police report did not violate the
  policy.

7
Due Process

• Warner v. Elmira College, 873 N.Y.S. 2d 381 (N.Y.
  App. Div. 2009).
• An anonymous tip led residence life officials to
  the room of a student at a private college in New
  York. They searched the room and discovered a
  white powdery substance under the students desk.
  Campus security conducted a field test,
  apparently obtaining a positive result for
  cocaine. While the private college
  administrators followed their own procedures, the
  field test was not properly conducted. Without
  this evidence, the dismissal was ruled as
  arbitrary.

8
Employment, At-Will

• Hayes v. Trustees. of Indiana. University., 902
  N.E. 2d 303 (Ind. Ct. App. 2009).
• An at-will employee of Indiana University was
  informed that her position was being eliminated
  as a result of a reduction in force. Because she
  fit age and work parameters, she was offered an
  early-retirement program, which she begrudgingly
  accepted. She later sued for breach of contract.
  The appellate court reasoned that, as an at-will
  employee, she served at the pleasure of the
  institution, and the universitys actions were
  not subject to judicial review.

9
Employment, Probationary

• Fransk v. Curators of the University. of
  Missouri, 268 S.W. 3d 476 (Mo. Ct. App. 2008).
• Fransk was hired by the university as the
  assistant director of sports and competition
  subject to a six-month probationary period, which
  was later extended by three months. The employee
  handbook stated that an employee may not remain
  on probation longer than nine months. Prior to
  the end of the probationary period, the defendant
  was discharged from his employment but paid for
  one additional day. Fransk claimed he had a
  right to employment and due process. The court
  disagreed.

10
Employment, RIF

• Ptomey v. Texas Tech University., 277 S.W. 3d 487
  (Tex. Ct. App. 2009).
• The former associate director of housing at
  Texas Tech filed suit when her employment was
  terminated. Over time, she had lost favor with
  her employees, was demoted through a
  reorganization, was placed on administrative
  leave, and ultimately terminated because of a
  severe budget shortfall. She sued arguing
  retaliation, age discrimination, and sex
  discrimination. The court found no
  discrimination and ruled the budget driven RIF
  was a legitimate, nondiscriminatory rationale.

11
Employment, Salary, Benefits

• Tate v. Dir., Dept of Workforce Services., 269
  S.W. 3d 402 (Ark. Ct. App. 2007).
• A public university employee appealed a decision
  finding her ineligible to receive unemployment
  benefits because her employment was terminated
  due to insubordination. The court ruled that
  questioning the leave policy and asking for a
  written response was NOT insubordination but
  subsequent refusal to adhere to the directive
  once confirmed by the university was
  insubordination.

12
Free Association, Religion

• Every Nation Campus Ministries v. Reed, 2008 U.S.
  Dist. LEXIS 10854 (S.D. Cal., Feb. 12, 2008).
• University officials denied formal recognition
  of four different student organizations because
  of their refusal to comply with the university's
  nondiscrimination policy. The court held that
  defendants could constitutionally condition
  official recognition as a student organization
  (declared a limited public forum) on the
  requirement that plaintiffs not discriminate on
  several bases (religion and sexual orientation).
  Thus, plaintiffs' free association, free speech,
  and free exercise rights were not impermissibly
  infringed by the policy.

13
Free Expression, Email

• State of Nebraska v. Darren J. Drahota (17 Neb.
  App. 678, 2009)
• Repeated email messages from a student to a
  faculty member were considered sufficient to find
  the student guilty of disturbing the peace
  (criminal law). The faculty member clearly
  indicated to the student that he did not want to
  continue the exchange. The judge referred to the
  fighting words doctrine in his decision but its
  use in this case was not clearly articulated.

14
Free Expression, Religion

• Jews for Jesus v. City College of San Francisco,
  2009 U.S. Dist. LEXIS 1613 (N.D. Cal. Jan. 12,
  2009).
• A student who was distributing flyers on the
  campus was arrested by the campus police because
  he did not have a permit and refused to stop his
  activity. The studentand the group sought an
  injunction. Before the suit came to court, the
  college modified its regulations. The court
  ruled the student and others may not be denied
  their right to distribute literature or engage in
  other expressive activities based on the content
  of their expression or any purported failure to
  obtain a permit.

15
Free Expression, Threats

• Hagel v. Portland State University, 203 P.3d 226
  (Or. Ct. App. 2009).
• A Portland State University student who lived in
  an on-campus residence hall threatened to do
  bodily harm of the assistant director of
  residence life as a result of a number of
  altercations. He shared these feelings with
  several other students who reported him to campus
  safety. The expelled student claimed his speech
  was constitutionally protected and could not form
  the basis for discipline. The court disagreed
  and concluded that the university acted
  reasonably and that the students speech was
  disruptive to university operations.

16
Privacy, Student Records

• Slovinec v. American University, 565 F. Supp. 2d
  114 (2008).
• Even if a notice issued by a private university
  barring a plaintiff from campus or the shuttle
  service contained a false or defamatory
  statement, the university's dissemination of the
  notice was privileged under the common interest
  privilege. The university personnel issued the
  notice in good faith and shared it only with
  personnel charged with protecting staff and
  students.

17
Scope of Authority

• Depree v. Saunders, 2008 U.S. Dist. LEXIS 76586
  (S.D. Miss. Sep. 30, 2008).
• Depree filed a complaint against the university
  and 14 university employees alleging violations
  of his federal constitutional rights. Courts have
  consistently held that sovereign immunity is a
  bar to actions against public officials and
  public employees acting within the scope of their
  duties. Poor judgment in the exercise of
  discretionary authority is insufficient to pierce
  sovereign immunity. Saunders was acting within
  the course and scope of her employment by
  exercising discretionary employment decisions
  regarding the professor.

18
Torts, Deliberate Indifference

• Patterson v. Hudson Area School, 551 F. 3d 438
  (6th Cir. 2009).
• Parents of a student sued claiming
  administrators were indifferent to sons abuse
  which included verbal, physical, and sexual
  harassment by numerous students. The school
  claimed it responded in a number of ways
  including disciplining those responsible. The
  appellate court found that a school district may
  be liable for making an unreasonable response to
  persistent student harassment regardless of the
  school districts attempts to address the
  situation.

19
Torts, Negligent Admission

• Butler v. Maharishi University of Management, 589
  F. Supp. 2d 1150 (S.D. Iowa 2008).
• Sem attacked a fellow student and killed
  another. Sem had been arrested for violent acts
  and had been institutionalized, facts that he had
  freely disclosed when applying to the university.
  The deceased students estate sued the university
  for negligence and fraudulent misrepresentation.
  The court allowed the claims to continue, noting
  that the university and its officials had not
  only over-represented the safety of the campus
  but had failed to follow their own policies
  regarding dealing with Sems initial outburst of
  violence.

20
Torts, Safe Premises

• Bellassai v. Roberts Wesleyan College, 872 N.Y.S.
  2d 842 (N.Y. App. Div. 2009).
• Bellassai filed suit to recover damages for
  injuries sustained when an employee of a
  third-party vendor slipped and fell on a wet
  floor in the dining hall. The appellate court
  held that the defendants had met the burden of
  establishing that the college did not create the
  dangerous condition that caused the plaintiff to
  slip, and it did not have actual or constructive
  notice of the danger.

21
Question Answers

• This material has been produced for the Division
  of Student Development and Enrollment Services at
  the University of Central Florida and may be
  reproduced, in part or in whole, for training
  purposes only with appropriate attribution to the
  author. For additional information, please
  contact Dr. Steve Janosik, SMJ Consulting. LLC,
  at smjanosik_at_comcast.net
• Nothing in this presentation should be construed
  as legal advice. Those who have concerns about
  specific legal issues should seek guidance from
  competent legal counsel.